author:
CAVANAUGH, Judge:
      BROSKY, Judge,

text:
    484 A.2d 777
    COMMONWEALTH of Pennsylvania v. Jeffrey KURTZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1983.
    Filed Oct. 26, 1984.
    Reargument Denied Dec. 28, 1984.
    Petition for Allowance of Appeal Denied May 14, 1985.

      W. Hamlin Neely, Allentown, for appellant.
    James B. Martin, Assistant District Attorney, Allentown, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and POPOVICH, JJ.
   CAVANAUGH, Judge:

This appeal comes to us from a judgment of sentence imposed upon appellant, Jeffrey Kurtz, after his conviction in a non-jury trial in connection with violations of the Controlled Substance Act, 35 P.S. §§ 780-101, et seq., and criminal conspiracy. Appellant’s sole contention on appeal is that the Commonwealth violated his constitutional right to a speedy trial under Pa.R.Crim.P. 1100, thereby requiring that his convictions be dismissed. Specifically, Kurtz alleges that the Commonwealth failed to timely file its petition to extend under Rule 1100, because the Commonwealth’s Rule 1100 Petition and Rule to Show Cause Why the Time for Commencement of Trial Should Not be Extended was filed with the clerk of courts but was not presented to the court before the run date. We disagree and therefore affirm.

The pertinent and undisputed facts are as follows: Two of the charges which are relevant to this appeal had a Rule 1100 expiration date of January 31, 1978. On that date the Commonwealth filed with the Clerk of the Court of Common Pleas in Lehigh County, a Petition for an Extension of Time to Commence Trial pursuant to Pa.R.Crim.P. 1100. The clerk docketed the petition upon receipt. On the same day appellant and his counsel were mailed copies of the Commonwealth’s petition. On February 14, 1978, the Commonwealth’s petition was presented to the lower court, who in turn issued a rule to show cause, returnable on March 6, 1978. On February 15, 1978, appellant’s counsel filed a Motion to Dismiss pursuant to Rule 1100(f), alleging that the Commonwealth failed to comply with Rule 1100(c). On March 9th and 10th, 1978, the Commonwealth’s and appellant’s respective petitions were heard similutaneously with those of several co-defendant’s. The court below ruled that the Commonwealth was not required to apply directly to the court for an extension of time under Rule 1100. The court further concluded that the Commonwealth need only file its Rule 1100 petition with the clerk of the court within the 180 day period in order to satisfy the requirements of Rule 1100(c) and since the Commonwealth had complied with this Rule, appellant’s Motion to Dismiss was denied and the Commonwealth’s request for an extension of time was granted. Subsequently, appellant was found guilty. Post-verdict motions were timely filed and denied and sentencing followed. This appeal followed.

The precise issue we must consider is whether the filing of a Rule 1100 motion with the clerk of courts constitutes a timely application to the court within the meaning of Rule 1100.

In Commonwealth v. Shelton, 469 Pa. 8, at 15, 364 A.2d 694, at 697 (1976) our Supreme Court stated:

The Commonwealth may not seek an extension pursuant to Section (c) of the Rule [1100] nunc pro tunc, that is, the application for an extension must be filed prior to the expiration of the mandatory period set forth in the Rule or set forth in a previous order granting an extension. Commonwealth v. O’Shea, supra [465 Pa.] at 498 n. 9, 350 A.2d [872] at 875 n. 9 [1976]; Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975). Whether an application for extension is timely filed is determined by computing the amount of time which has lapsed from the filing of the complaint to the date on which the Commonwealth files its application, less any periods which are properly excludable pursuant to Section (d) of the Rule. If the time so computed exceeds the mandatory period of the Rule or, in cases where an extension or extensions have been properly granted, exceeds the mandatory period set forth in the order granting the last extension, then the application is untimely. (Emphasis added).

We agree with the court below in its reliance upon Shelton and its progeny in its conclusion that the language of Rule 1100(c) “apply to the court,” means to file an application with the clerk of the court. Furthermore, although the exact issue in the instant appeal was not before the court in Shelton, supra, the Supreme Court did state that the Commonwealth’s obligation was to file its request for an extension within the mandatory time period, not that the Commonwealth must actually have its application before the court. See also, Official Comment to Rule 1100.

The appellant contends that Commonwealth v. Wharton, 250 Pa.Super. 25, 378 A.2d 434 (1977) is dispositive of the issue in the case at bar. We disagree.

In Wharton, the Commonwealth submitted a Rule 1100 petition on the last day of the mandatory period. The application was not docketed in the lower court prior to the expiration of this period, however, the court did act on the application by setting a hearing date. Our Court en banc held that “Even though the application was not docketed, and the order granting the extension was not made until the following day, we find that the Commonwealth properly complied with the rule and that the Commonwealth applied for an extension prior to the running of the Rule.” Commonwealth v. Wharton, supra, 250 Pa.Super. at 29, 378 A.2d at 436.

The Court went on to elaborate regarding its interpretation of the phrase in Rule 1100(c), “apply to the court.”

“While it is that the language of Rule 1100(c), ‘apply to the Court’ prior to the expiration of the period, was paraphrased in Shelton, as ‘must be filed’ prior to the expiration of the period, the question of timely filing should be decided on whether or not said petition is properly before the lower court prior to the expiration of the mandatory period, not whether or not the petition is docketed in the clerk of court’s office prior to the expiration of the period. It is the Court, not the clerk of courts, which must act on the petition.”

Commonwealth v. Wharton, supra, 250 Pa.Super. at 30, 378 A.2d at 407. We read this language in Wharton to mean that in order to be considered timely filed a Rule 1100 petition must be presented to the Court and this may be accomplished by the Commonwealth actually bringing its petition to the attention of the Court. However, we agree with the lower court’s analysis of Wharton, stating, “the holding of this case [Wharton] cannot be extended to mean that filing is inadequate to place an application for an extension of time before the trial court.” (Lower court opinion page 4.) To hold otherwise would entail imposing an unnecessary and perhaps impossible administrative burden upon the prosecution, which would require it to locate a judge who would receive its petition before the expiration of the mechanical run date. Furthermore, a potentially harsh result may evolve from the Commonwealth’s failure to locate a judge, ie, the non-meritorious dismissal of charges against a defendant. This is particularly true in a situation as in the case at bar where the Rule 1100 motion was completed at the last minute before the expiration date.

Pa.R.Crim.P. 309(a), which was in effect at the time the of the instant case, provides further support for our conclusion, “Except as otherwise provided in these rules, any notice, paper or document for which filing is required shall be filed in the office of the clerk of courts.” Pa.R.Crim.P. 309(a).

One other point must be addressed at this time. The court below determined that appellant’s motion to dismiss under Rule 1100(f) as well as the Commonwealth’s motion for an extension was properly submitted. Since Rule 1100(f) also contains the phraseology present in Rule 1100(c) and in view of our above conclusion we agree with the lower court that appellant’s Rule 1100(f) motion was also timely filed.

Accordingly, judgment of sentence affirmed.

BROSKY, J., filed dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent.

Rule 1100(c)(1) provides that:

At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for the commencement of trial.

The issue before this Court is the interpretation of the words “may apply to the court.” The significance of whether appellee did apply to the court in a timely fashion lies in the fact that: “Failure to file a timely extension petition precludes the granting of an extension because the Commonwealth is not permitted to file a petition nunc pro tunc.” Commonwealth v. Bytheway, 290 Pa.Super. 148 at 152, 434 A.2d 173 at 175 (1981).

In Commonwealth v. Shelton, 469 Pa. 8 at 15, 364 A.2d 694 at 697 (1976) the Supreme Court of this Commonwealth used language which appeared to equate the language of Rule 1100(c) — “apply to the court” — with filing.

The Commonwealth may not seek an extension pursuant to section (c) of the Rule nunc pro tunc, that is, the application for an extension must be filed prior to the expiration of the mandatory period set forth in the Rule or set forth in a previous order granting extension ... The trial court relied upon Shelton in holding that the

instant petition — filed, but not presented to the court — was timely.

However, as this Court noted in Commonwealth v. Wharton, 250 Pa.Super. 25 at 30, 378 A.2d 434 at 437 (1979) (Cercone, J.), the filing/apply to the court distinction was not present in Shelton and, consequently, its language should not be interpreted to supply an answer to a question which was not before that court in that case.

While the case sub judice does not replicate the factual situation present in Wharton, I conclude that Wharton’s rationale dictates the outcome here. In Wharton the operative facts were the reverse of those before us: the petition was timely presented to the court but not timely filed.

The unanimous, seven-judge court held:

... the question of timely filing should be decided on whether or not said petition is properly before the lower court prior to the expiration of the mandatory period, not whether or not the petition is docketed in the clerk of court’s office prior to the expiration of the period. It is the court, not the clerk of court, which must act on the petition.

Id.

The trial court opinion, endorsed by the en banc court below, found that Wharton was not relevant here. “The holding of this case [ Wharton] cannot be extended to mean that filing is inadequate to place an application for extension of time before the trial court.”

While I agree with the trial court that “this precise question has not been decided by the appellate courts,” I disagree about the applicability of Wharton to the situation before us.

If all that Wharton had said was that having a petition presented to the court met the requirements of Rule 1100, notwithstanding its tardy filing; then, indeed, it would be possible to consistently hold here that a timely filing, notwithstanding a tardy presentation to the court, also met Rule 1100. In other words, it would be possible then to state that as long as one or the other was timely the Rule 1100 requirements were met.

But that is not where Wharton stops. It goes further and states that the dispositive factor is whether the petition is properly before the court — and distinguishes that from filing with the clerk. Wharton binds us, as I see it, to accept that it is crucial that the court receive the petition; because “it is the court, not the clerk of court, which must act on the petition.” Following the rationale of Wharton, we are obliged, in all intellectual integrity, to find that the tardy presentation to the court itself will not suffice.

* * *

Other considerations lead me to the conclusion that the result dictated by Wharton is correct.

First we have the plain language of the rule. It does not require that the Commonwealth file a petition, but rather it states “the attorney for the Commonwealth may apply to the court for an order extending the time.”

Second, such a practice would be consonant with general pre-trial practice. The comment to the rule in effect at the time of the proceedings under review stated:

All applications should be submitted to a judge of the court first keeping in theory the practice of rules to show cause subject to modification by local court rule where desirable.

Pa.R.Crim.P. 304.

A misapprehension of the consequences of this case was presented in the trial court opinion.

In the absence of a contrary holding by an appellate court, particularly in view of the language which the courts have used in construing Rule 1100(c), we are unwilling to hold that a petition for extension of time filed on the 180th day is untimely merely because the court did not on the same day issue a rule or set a date for hearing.

That is not what I am stating here. Nor is it what Wharton held. The timeliness of petition to extend is determined by the prosecution’s actions — not by the timing of the court’s response to the petition. It is determinative that the petition is directly before the court in time; while it is not relevant whether or not the court itself acts upon the petition that day.

One other statement in the trial court opinion, repeated in appellee’s brief, also merits treatment here. The trial court noted that appellant’s motion to dismiss under Rule 1100(f) was also filed and not presented directly to the court. Rule 1100(f) also has the critical language present in Rule 1100(c): “... may apply to the court...” The trial court held that appellant’s motion to dismiss, as well as appellee’s petition to extend, were properly submitted. I disagree.

Appellant’s motion to dismiss, filed but not presented to the court, was not properly submitted. This follows from my conclusion that appellee’s petition was improperly submitted. It would be obviously unjust to have different requirements for submission of Rule 1100 motions depending on whether the moving party was the Commonwealth or the defendant. This is particularly true when the pertinent language of the rule, “may apply to the court,” is the same in subdivisions (c), for the Commonwealth, and (f), for the defendant.

The impropriety, or not, of a motion to dismiss is significant because a criminal defendant can waive his Rule 1100 claim by failing to contest the Commonwealth’s petition to extend. Commonwealth v. Garnett, 258 Pa.Super. 115 at 118 n. 6, 392 A.2d 711 at 712 n. 6 (1978).

While appellant did not properly submit his motion to dismiss, he did not waive his claim here. This is because filing a motion to dismiss is not the only method a defendant has to challenge the grant of an extension.

Thus he must either file a motion under Rule 1100(f) or contest the Commonwealth’s petition to extend, so that by one method or the other the facts and issues come before the court. Otherwise, his Rule 1100 claim will be waived.

Commonwealth v. Davis, 261 Pa.Super. 204 at 208, 395 A.2d 1388 at 1390 (1978) (emphasis supplied). See also, Commonwealth v. McFadden, 300 Pa.Super. 299 at 303, 446 A.2d 624 at 626 (1982). At the hearing, appellant did contest the petition to extend.

I would vacate judgment of sentence and discharge appellant.

      . This appeal rose from a illegal drug transaction involving appellant, Joseph Sarnitsky, Thomas Grimm and Richard Kline. A series of Rule 1100 motions were filed by the Commonwealth regarding all of these defendants and all of these motions were heard by the court below. The hearing court’s opinion was adopted by the Lehigh County Court of Common Pleas en banc.

      . Rule 1100(c)(1) provides:
      at anytime prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
      Rule 1100(f) provides:
      at any time before trial, the defendant or his attorney, may apply to the court for an order dismissing the charges with prejudice on the grounds that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth who shall also have the right to be heard thereon. Any order granting such motion shall dismiss the charges with prejudice and discharge the defendant.

      . The Commonwealth's Rule 1100 request for and extension of time was not filed until January 31, 1978, which was the expiration date in this case. Furthermore, as the lower court indicates in its opinion the Commonwealth filed this Rule 1100 motion at 5:49 p.m. on that date.

      . Although Rule 309 did not explicitly apply to a Rule 1100 motion we conclude that such wording in the Rule "notice, paper, or document" includes a written motion, as is necessary in Pa.R.Crim.P. 1100.
      Rule 309. Reserved

        Note: New rule, combining former Rules 306 and 307, adopted June 29, 1977, effective January 1, 1978; rescinded Oct. 21, 1983, effective January 1, 1984.

        Comment: Rule 309 was rescinded in 1983 as unnecessary in view of the adoption of Rule 9022 (Filing), Rule 9023 (Service), and Rule 9024 (Notice and Docketing of Orders). These rules were derived from former Rule 309 but expanded the provisions of the former rule. (Emphasis added).

        Recently enacted Pa.R.Crim.P. 9022 and its official comment provide in pertinent part:
      (a) Except as otherwise provided in these rules, all written motions, and any notice or document of which filing is required, shall be filed with the clerk of court.

      (b) When a written motion, notice or document is received by the clerk of court, the clerk shall docket it and record the time of filing in the docket. A copy of these papers shall be promptly transmitted to such person as may be designated by the court.

        Note: Adopted October 21, 1983, effective January 1, 1984.

        Comment: This rule requires the filing of all written motions, but it applies to notices and other documents only if filing is required by some other rule or provision of law. As used here, "written motions” includes all motions, challenges, and applications or requests for an order or relief that must be made by written motion under Rule 9020(a). Filing was covered by Rule 309(a) before adoption of this rule in 1983.

        Those rules that provide for filing with the trial court (see e.g., Pa.R.Crim.P. 321) or the sentencing court (see, e.g., Pa.R.Crim.P. 1410) are not exceptions to the general requirement of this rule that filing be with the clerk of court. As used in this rule, "clerk of court” is intended to mean that official in each judicial district who has the responsibility and function under state or local law to maintain the official court file and docket, without regard to that person’s official title. (Emphasis added).
      Although Rule 9022 was inapplicable at the time of the instant appeal, it provides sound logic which we conclude is compatible and consistent with our conclusion in the case at bar.

      . Commonwealth v. Vecchione, 327 Pa.Super. 548, 476 A.2d 403 (1984), can be distinguished from the instant appeal. In Vecchione, a panel of this Court ruled that a defendant’s motion to dismiss under Rule 1100(f) must be filed prior to the commencement of trial, otherwise, the claim is waived. The Court relied upon Commonwealth v. Wharton, 250 Pa.Super. 25, 378 A.2d 434 (1977), in support of the proposition that timely filing should be determined as to whether the motion is brought before the court. In light of our determination in the instant appeal we see no inconsistency between Vecchione and this case. Furthermore, Vecchione can be distinguished in that the record there did not contain the filing of any motion for dismissal under Rule 1100(f), where in the case at bar the appropriate written motions were properly filed.

      . Two elements of this provision are of interest here: first, that the application must be made within a certain time frame — prior to the expiration of the Rule 1100 period—Commonwealth v. Morgan, 484 Pa. 117 at 126, 398 A.2d 972 at 976 (1979); second, that the application must be made to the court.

      . Here, the petition was timely filed but not timely presented to the court.

      . See Commonwealth v. Ryan, 306 Pa.Super. 159 at 166, 452 A.2d 264 at 267 (1982) (Popovich, J.).

      . A reluctance to activate the extreme sanction of a Rule 1100 violation — a reversal of judgment of sentence and discharge — has led, on occasion, to strained interpretations of its requirements. Rather than engage in such an exercise, I would choose here to follow the reasoning of Wharton as applied to this situation.
      We note that dissatisfaction has been expressed with this rigid rule and the technical points which its proper enforcement obliges us to rely upon. Alternatives to the rule were proposed by Judge Popovich in Commonwealth v. Harris, 323 Pa.Super. 102, at 113 n. 4, 470 A.2d 150, at 156 n. 4 (1983).

      . With only punctuation changes, this comment is now part of Pa.R.Crim.P. 306.

      . The expressly non-comprehensive list of such applications does not specify Rule 1100 motions. The point here is that the common custom is to present pre-trial motions to the court and Wharton merely enforces the traditional practice.
      The local court rules, referred to in the comment, do not modify this procedure. Lehigh County R. 206(a).

      . I note, however, that this same misapprehension of the thrust of Wharton was given in the dissenting opinion in Commonwealth v. Groarke, 269 Pa.Super. 243 at 247, 409 A.2d 870 at 872 (1979).

      . “At any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated.” Pa.R.Crim.P. 1100(f).


source: Caselaw Access Project

author: BROSKY, Judge: SPAETH, President Judge,

license: Public Domain

text:
    484 A.2d 783
    COMMONWEALTH of Pennsylvania v. John CHANNELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 2, 1984.
    Filed Nov. 16, 1984.

      Jonathan Blum, Assistant Public Defender, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and BECK, JJ.
   BROSKY, Judge:

This appeal is from judgment of sentence imposed subsequent to conviction in a trial by jury of Aggravated Assault and Recklessly Endangering Another Person. Appellant raises three issues. First, he contends that the trial court erred in refusing to instruct the jury on the lesser included offense of simple assault. Second, he argues that a mistrial should have been granted. Third, he raises the alleged excessiveness of his sentence. Judgment of sentence is vacated on the aggravated assault and reckless endangerment convictions and remanded for a new trial. Appellant does not prevail on the second issue and the third issue is not reviewable at this time.

Appellant first argues that the trial court erred in not charging the jury on the crime of simple assault. He contends that there was testimony of record which, if believed, would have justified a verdict of not guilty of aggravated assault or of reckless endangerment but guilty of simple assault. The point in dispute is whether appellant used a knife in the altercation in question.

The testimony for the prosecution is accurately summarized in the trial court opinion.

The first witness for the Commonwealth, Samuel Wither-spoon, testified that he was an inmate at the State Correctional Institution at Dallas; and that on November 23, 1981, he was stabbed by Defendant. According to Witherspoon, Defendant accused Witherspoon of “looking wrong” at Defendant, and, despite Witherspoon’s efforts to avoid conflict, “sucker punched” Witherspoon. With-erspoon, expecting a fist fight, turned toward Defendant and was surprised when Defendant pulled a knife from his sleeve and stabbed Witherspoon in the left hand, Defendant swinging the knife downward and Wither-spoon throwing his hand upward to block the knife. Witherspoon then ran for safety and Defendant was grabbed by prison guards. Lastly Witherspoon identified the weapon used by Defendant to stab Witherspoon. The second witness, Basil Demian, is employed as a correction officer at the State Correctional Institution at Dallas. Officer Demian testified that on the day of the stabbing he saw Witherspoon running from Defendant and Defendant running after Witherspoon. Officer De-mian grabbed Defendant and another correction officer, David Carpin, took the weapon which was taken from Defendant and identified it. The knife identified by Officer Demian was the same as that identified by Wither-spoon.
The third witness was Correction Officer David Carpin. Officer Carpin verified the testimony given by Officer Demian and also identified the knife taken from Defendant.
The fourth witness, Robert Carriglitto, the Health Care Administrator at Dallas Correctional Institution, verified that Witherspoon was treated on November 23, 1981, for a puncture wound of his left hand and explained the nature of treatment given according to the records of the dispensary.
Finally, Pennsylvania State Trooper George Nowakowski testified that he investigated the stabbing incident and in the process interviewed Defendant. Trooper Nowakow-ski stated that Defendant admitted not only stabbing Witherspoon but also wanting to kill Witherspoon.
Certainly the above-summarized testimony is sufficient to prove Defendant’s guilt of the crime of aggravated assault and battery beyond a reasonable doubt.

There is an abundance of testimony that appellant had and used a knife on the victim. But this testimony is not uncontradicted. At four separate points appellant testified that he did not have a knife in the fracas. Another inmate, a friend of appellant’s, corroborated this by testifying that he had not seen a knife in appellant’s possession on the occasion in question.

The question before us on appeal is whether, given the above testimony, the trial court was required to give a charge on the crime of Simple Assault.

A useful summary of the applicable law in this area was presented in Commonwealth v. Wilds, 240 Pa.Super. 278 at 287-8, 362 A.2d 273 at 278 (1976) (Hoffman, J.) (citations omitted).

“It is well settled that upon an indictment for a particular crime, the defendant may be convicted of a lesser offense included within it..It is also clear that an offense is a lesser included offense if each and every element of the lesser offense is necessarily an element of the greater. ... It is not error, however, for a judge to refuse to instruct the jury on the lesser-included offense unless the evidence could support a conviction on the lesser offense. “There is no duty on a trial judge to charge upon law which has no applicability to presented facts. ... ”. If under the evidence at trial, the jury must either convict the accused of the greater offense or acquit him it is not error to refuse an instruction on a lesser-included offense. ... Conversely, if it is rational for the jury to render a verdict of not guilty of the greater offense but guilty of the lesser, it is incumbent upon the judge to instruct the jury on the law related to the constituent offense if so requested by counsel. ... “It should be emphasized, however, that before a charge on ... [a lesser-included offense] is required, there thus must be some evidence, from whatever source, which would permit the jury to return such a verdict.”

At the outset it must be noted that Simple Assault is a lesser included offense of Aggravated Assault and of Reckless Endangerment. Commonwealth v. Cavanaugh, 278 Pa.Super. 542 at 546, 420 A.2d 674 at 676 (1980). Thus the first element necessary for the requested charge is present here.

The simultaneous functioning of two of the basic precepts quoted above is the focus of our enquiry here, since it was a misapprehension of that interplay which spawned the error below. How is it consistent to state that “some evidence, from whatever source” will suffice to mandate a lesser included offense charge and, on the other hand, to make reference to the court’s appraisal of the rationality of a jury’s potential interpretation of those facts? The trial court here apparently concluded that, despite testimony to the contrary, it would not be rational for the jury to find, as a matter of fact, that a knife was not used by appellant. An affirmance here would require our holding that in a criminal jury trial the court can find certain evidence incredible, unbelievable, so that the jury does not have the opportunity to convict on a lesser charge — as it would if that evidence were believed by them.

We do not so hold. The “rationality” principle does have a role in determining whether the charge on the lesser included offense should be given; but that principle, as properly applied, does not have primacy over the “some evidence” principle. A review of these two concepts will make this apparent.

These two principles are presented in a Circuit Court of Appeals Case.

Two prerequisites [to denying a request for a lesser included offense instruction] seem vital: that there be no factual dispute and that a finding contrary to the only evidence on the issue would be irrational.

Driscoll v. U.S., 356 F.2d 324 at 327 (1st Cir., 1966) as quoted, with brackets added, in U.S. v. Comer, 421 F.2d 1149 at 1154 (D.C.Cir., 1970).

Some Evidence

Our examination of the first of the two rules under consideration will start with a United States Supreme Court case. “A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.” Sansone v. U.S., 380 U.S. 343 at 350, 85 S.Ct. 1004 at 1009, 13 L.Ed.2d 882 at 888 (1965). It is on this disputed factual element of the greater offense that there must be some evidence. As has been noted above, there was testimony given in the instant trial that a knife was used by appellant and also testimony to the contrary. The finding of fact on this matter would be determinative as to whether appellant could be found guilty of aggravated assault or merely simple assault.

It is the presence of any quantum of evidence countering the prosecution’s which will activate the need for the charge on the lesser included offense; “no matter how improbable” that evidence may be. Commonwealth v. Frank, 263 Pa.Super. 452 at 467, 398 A.2d 663 at 670 (1979) (Spaeth, J.).

Other jurisdictions have come to the same conclusion. It has been repeatedly written that if, upon any view of the facts, a defendant could properly be found guilty of a lesser degree or an included crime, the trial judge must submit such lower offense. And it does not matter how strongly the evidence points to guilt of the crime charged in the indictment, or how unreasonable it would be, as a court may appraise the weight of the evidence, to acquit of that crime and convict of the less serious.

People v. Mussenden, 308 N.Y. 558, 127 N.E.2d 551 at 553 (1955). It can be seen that, whatever rationality the trial court is to determine, it is not the jury’s rationality in believing the evidence.

The Supreme Court of another sister state, Kansas, echoes New York’s high court. “Whether the evidence [which] tended to support the lower degrees of the offense appears to the court to be weak and unsatisfactory; the accused is nevertheless entitled upon request to have the issue and the effect of the evidence submitted to the jury...” State v. Cunningham, 120 Kan. 430, 243 P. 1006 at 1006 (1926). “The evidence pointing to a lesser offense ... need not be strong or extensive to require instructions to the jury with regard thereto.” State v. Clark, 214 Kan. 293, 521 P.2d 298 at 303 (1974). This remains true even if “it might be difficult for any trier of the fact to make the ... finding” of not guilty of the greater offense. People v. Munoz, 9 N.Y.2d 638, 210 N.Y.S.2d 533 at 533, 172 N.E.2d 291 at 292 (App.Div., 1961).

The “some evidence” rule appears, from the foregoing, to be rather absolute. It remains to be seen whether the other principle — rationality—permits what the first principle prohibits.

Rationality

The trial court interpreted this second prerequisite for giving the lesser included offense charge as allowing it to evaluate whether the disputed evidence on the greater offense was credible. If this interpretation is correct it would be inconsistent with the “some evidence” rule. As could be expected, the trial court’s definition of this principle was inaccurate. The correct role of this requirement is given in U.S. v. Comer, supra at 1154.

Even if the trial court finds that the facts bearing upon the element required for the greater offense but not for the lesser are not in dispute and that no evidence introduced explicitly tends to negative a finding of the element in question, the inquiry is not at an end. Rather the court must appraise all the testimony and evidence to determine whether it is capable of more than one reasonable inference.

As the above quotation indicates, the “rationality” prerequisite does not conflict with the “some evidence” prerequisite. This is because the rationality test is not applied if there is any disputed evidence on the greater offense. Only when there is no disputed evidence should the court apply the rationality test. Further, that test does not look to the credibility of the undisputed evidence; rather, it examines the rationality of inferences which could be drawn from the evidence.

Since in the instant case there was disputed testimony on the greater offense, the trial court was obliged to give the charge on the lesser included offense. In that situation, the rationality test does not come into play. It was, thus, error for the trial court to have utilized that test in the situation before it. The consequent decision not to charge on simple assault was reversible error. Accordingly, judgment of sentence on the aggravated assault and reckless endangerment charges is vacated and the case remanded for a new trial. If, as before, the evidence justifies it, a charge on simple assault is to be given.

Appellant also contends that a mistrial should have been granted due to the incurable prejudicial effect of testimony regarding prior criminal activity of appellant. A motion for mistrial was timely made and denied and a cautionary instruction given. The transcript recorded the following exchanges:

MR. CARMODY: Do you know what that is?
MR. WITHERSPOON: Homemade ice pick.
MR. CARMODY: Did you ever see it before?
MR. WITHERSPOON: Yeah.
MR. CARMODY: Where?
MR. WITHERSPOON: On Channell when he was stabbing me.
MR. CARMODY: Did you do anything to provoke Mr. Channell to do this?
MR. WITHERSPOON: No. Unless — it was said that I interferred from him killing another guy. The guy that he was standing there talking to.
MR. BLUM: Objection.
THE COURT: Sustained.
MR. BLUM: Your Honor, I think that we should move for a mistrial at this point.
THE COURT: Step up, please.
(Whereupon, the following discussion took place at side bar:)
MR. BLUM: I’m moving for a mistrial on the grounds that the Commonwealth asked the question if there was any reason that Mr. Channell had for going after Mr. Witherspoon. And Mr. Witherspoon indicated that it was — the only reason he could think of was whether or not because he had interferred [sic] with Mr. Channell and prevented him from killing another man.
MR. CARMODY: I would answer for the record, Judge, although, it’s not necessary, it’s proper to make inquiry into the motive of a crime and that’s buttress [sic] by the fact that the Defendant and the Commonwealth intend to use it in its case in chief. That he was attempting to kill Inmate Renninger and that Inmate Witherspoon inter-ferred [sic] and that’s why he went after him.
THE COURT: Well, motion for mistrial is denied. I’m willing — I think that reasons for this coming about are that he did, in fact, interfere and I see nothing wrong with his saying that. If that’s the reason that he feels, that’s why there was the reason for this.
MR. BLUM: It’s conjecture.
THE COURT: I would let you cross-examine. If Wither-spoon says he was stabbed by this Defendant and the question was, did he do anything to provoke him, I think that there is nothing wrong with that question if this is what happened.
If there is any cautionary instruction you want to give, I’ll be happy to give it, but you have to tell me what cautionary instruction you want.
MR. BLUM: I don’t see where a cautionary instruction is going to be helpful at this point.
THE COURT: I don’t know what to tell the jury. I’ll tell the jury whatever you ask me to providing it’s legally correct. On the other hand, the only cautionary instruction I think is to disregard the statement insofar as whether he was interferring, preventing another — this Defendant from killing somebody else. But, if this is all that’s been transpiring between them, this is the subject matter of this assault.
MR. BLUM: The only cautionary instruction that I would ask the Court to give the jury is to instruct the jury that Channell is on trial for aggravated assault and recklessly endangering another and not on trial for—
THE COURT: I’ll be happy to do that.
MR. BLUM: —murder or something like that.
(Whereupon, the discussion at side bar was concluded the following took place in open court:)
MR. CARMODY: No further questions.
THE COURT: Ladies and gentlemen of the jury, I’m going to direct that you disregard the last statement concerning interference with an attempted killing or something of that kind. The fact of the matter is that the Defendant, in this case, Mr. Channell, is charged with aggravated assault and battery and that’s the charge that’s before you. The incident that Mr. Witherspoon referred to has nothing to do with this particular case and disregard it. Okay.
MR. CARMODY: Thank you, Your Honor.
THE COURT: Cross-examine, please.
MR. BLUM: Thank you, Your Honor.

In its opinion the trial court suggested that the mistrial issue was waived.

... This response by Witherspoon was so prejudicial, Defendant claims, that a mistrial was mandated.
This argument lacks merit. To begin with, the Trial Judge promptly asked Defense Counsel if he wished a cautionary instruction (N.T. 16). Defense Counsel requested such an instruction and suggested the contents of same (N.T. 16-17). The Court then complied with Defense Counsel’s request, and told the jury to disregard Witherspoon’s statement about interfering with Defendant’s “attempted killing” (N.T. 17). The Court also instructed the jury that the charge of aggravated assault and battery was the only charge before the jury, that the incident referred to by Witherspoon had nothing to do with the case before the jury, and that the jury was to disregard it (N.T. 17). Certainly this instruction was sufficient to correct any prejudice that might have arisen. Indeed Defense Counsel did not object to or request any elaboration on the cautionary instruction. Such silence can be well interpreted as satisfaction with the efficacy of the instruction, as can the failure of Defense Counsel to renew his motion for a mistrial. That being so, the matter might well have been waived by Defendant.

We find, to the contrary, that appellant did not waive the mistrial issue. First, his motion for a mistrial was timely made and denied. That, along with its inclusion in post-verdict motions, preserved the issue for our review. Counsel’s participation in the formulation of a cautionary instruction does not invalidate his motion. This would be so whether his cooperation in the design of the instruction was enthusiastically offered or, as here, only grudgingly obtained after the statement, “I don’t see where a cautionary instruction is going to be helpful at this point.” Counsel should not be, and, we hold, is not, put in the position of saying to the court below, “If you do not grant my motion for a mistrial, I will not make a suggestion for a curative instruction.” Such a stance is tantamount to gambling with his client’s interests. For, if on appeal it is held that the error did not justify a mistrial, he will have foregone at trial the beneficial effect of the curative instruction.

The critical point is that counsel made his motion for a mistrial and neither expressly withdrew it nor did he mislead the court by impliedly withdrawing it. Nor was counsel under any obligation to renew his motion after the instruction. It is counsel’s duty to be a vigilant advocate not a contumacious pest.

Having determined that this issue is properly before us, it remains to be seen if appellant prevails on it. He does not.

First, in appellant’s favor, the testimony in question appears to refer to prior criminal activity. Second, this evidence is relevant to show motive, an exception to the general rule against admissibility. Commonwealth v. Ter rell, 234 Pa.Super. 325, 339 A.2d 112 (1975). However, simply because the evidence comes within the list of exceptions, does not result in its de facto admissibility.

[E]ven if the evidence is arguably admissible under the motive exception, the court must balance the need for the evidence against its potential prejudice in order to determine its admissibility. Commonwealth v. Wright, 259 Pa.Super. 293, 393 A.2d 833 (1978). The court must balance on the one side the actual need for the evidence of other crimes in light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed by the accused, the strength or weakness of the other crimes evidence in supporting the issue, and on the other side, the degree to which the jury will probably be prejudiced by the evidence. Id., 259 Pa.Superior Ct. at 299, 393 A.2d at 836.

Commonwealth v. Mitchell, 314 Pa.Super. 364 at 367, 460 A.2d 1182 at 1184 (1983).

Assuming, arguendo, that the balancing test here results in the conclusion that the evidence is inadmissible, as the trial court itself held, one more question must be answered. Can, in this instance, the curative instruction overcome the prejudicial effect of the inadmissible testimony?

The question remains because curative instructions do not, without exception, cure.

In a criminal case, the possible prejudicial effect of a witness’s reference to prior criminal conduct of the defendant may, under certain circumstances, be removed by an immediate cautionary instruction to the jury. Commonwealth v. Povish, 479 Pa. 179, 387 A.2d 1282 (1978). In Commonwealth v. Williams, supra [470 Pa. 172] at 178, 368 A.2d [249] at 252 [(1977)], this Court stated:
[W]e have never ascribed to the view that all improper references to prior criminal activities necessarily require the award of a new trial as the only effective remedy. Our decisions have indicated that there are situations where the taint, resulting from an improper reference to an unrelated criminal act, may be expunged without resort to the extreme remedy of aborting an otherwise fair trial____
The nature of the reference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required. Id. at n. 4.

Commonwealth v. Richardson, 496 Pa. 521 at 526-7, 437 A.2d 1162 at 1165 (1981).

On the one hand, the prosecutor admitted that he had intentionally elicited this testimony. On the other hand, the “nature of the reference” was not so severe that the curative instruction would have been ineffective.

We acknowledge that the sort of determination to be made here is not subject to verification. How can this Court truly ascertain what sort of prejudicial impact certain testimony has on a jury, much less the ability of curative instructions to undo that harm? At best we are left with uncertain conclusions, based on our experience, conscience and the collective wisdom of our fellow judges independently reviewing the same material.

One consideration has been critical in our thought process here — the context in which the disputed remark was made. At the time the testimony came in the jury was already aware that appellant was incarcerated in a state prison and was on trial for allegedly having engaged in a stabbing of another inmate. Given that background we do not conclude that the brief reference to an attempted homicide would so inflame the jury that they could not, given a curative instruction, focus on the admissible testimony before them.

This is to be distinguished, for example, from the situation present in Commonwealth v. Walentoski, 300 Pa.Super. 559, 446 A.2d 1300 (1982), where, in a trial for theft, reference was made to defendant’s potential for killing adverse witnesses.

Therefore, we conclude that appellant is not entitled on the basis of this issue to a new trial on the reckless endangerment charge.

Appellant finally contends that his sentence is excessive. We do not reach this argument since appellant’s sentence on both aggravated assault and reckless endangerment charges has been vacated and remanded for a new trial.

Judgment of sentence vacated on the aggravated assault and reckless endangerment charges and remanded for a new trial consistent with this opinion. Jurisdiction relinquished.

SPAETH, President Judge, files a concurring statement.

SPAETH, President Judge,

concurring:

I agree with the majority that appellant was entitled to have the jury charged on simple assault because it is a lesser included offense of both aggravated assault and reckless endangerment. I also agree that the sentences for aggravated assault and reckless endangerment must therefore be vacated and the case remanded for a new trial on all charges. I write separately because I believe that we should address appellant’s argument regarding the victim’s testimony as to why appellant attacked him. The victim testified, after being asked whether he had done anything to provoke the attack, “[I]t was said that I interferred [sic ] from him killing another guy. The guy that he was standing there talking to.” (Emphasis added.) Appellant argues that the trial court erred in admitting this testimony into evidence with a cautionary instruction. This issue will almost surely arise again at the new trial that we have ordered, and in my opinion we should offer the trial court some guidance regarding it.

I cannot agree with the majority that the challenged testimony should be analyzed as a reference to prior criminal activity. Majority op. at —, It was a reference to appellant’s activity at the time of the attack and was relevant to establish appellant’s intent. As such, its admissibility at the new trial will depend upon who, if anyone, said that the witness interfered with appellant killing a third person. If it is established that a bystander made the statement to the victim, then the trial court will have to consider whether the testimony is inadmissible hearsay. In this regard, if appellant made it to the witness, it would be hearsay but admissible under the admissions exception to the hearsay rule. It may prove that no one may actually have said anything to the witness, and that the witness’s rather abstract phrasing may be only his opinion regarding why appellant attacked him. If this proves to be the case, the statement will have to be analyzed as an opinion by a lay witness, based upon first-hand observation, but with great potential for prejudicial effect.

      . We note that this issue was preserved by a timely objection. See Commonwealth v. Rineer, 310 Pa.Super. 241, 456 A.2d 591 (1983).

      . If a knife were used appellant could be found guilty of aggravated assault under, inter alia, 18 Pa.C.S. § 2702(a)(4), "... attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon ..." If the jury did not believe that a knife was used they might have found appellant guilty of simple assault, 18 Pa.C.S. § 2701.
      Similarly, if the jury did find that a knife was used, they could return a verdict of guilty of reckless endangerment, which involves conduct that places or may place a person in danger of “serious bodily injury,” 18 Pa.C.S. § 2705. Their disbelief in the use of the knife would, conversely, justify their verdict of guilty of simple assault, causing "bodily injury." See Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 420 A.2d 674 (1980).

      . Certainly if this were a permissible role for the trial court, this case would present a situation for its proper application. It is quite understandable that the trial court would find the absence of a knife wielded by appellant to be, simply, beyond rational belief.

      . This, and other non-Pennsylvania cases cited herein, are not binding on us in this Pennsylvania law matter. However, as statements of the common law, we welcome the guidance they provide.

      . A more complete and accurate heading would be “Some evidence rebutting the evidence of an element of the greater offense, which element is not an element of the lesser offense." Due to the cumbersome quality of such a heading, it is placed here in a note.
      Of course, in order for “some evidence" of this type to be necessary for an additional charge on the lesser offense, there must be evidence of the elements of the greater offense. The burden of proof on that account falls on the prosecution.

      . As will be seen, infra, this is only one of the two alternative circumstances necessitating a charge on the lesser included offense. Even in the absence of any direct evidence countering the prosecution’s, if a rational inference to that effect could be drawn from the evidence, then the charge will also be required.

      . It is worth nothing that this evidence supporting an acquittal on the greater charge and a conviction on the lesser degree can be supplied "from any part of the total proof.” The defense evidence need not "be either accepted or rejected in its entirety.” People v. Asan, 22 N.Y.2d 526, 293 N.Y.S.2d 326 at 330, 239 N.E.2d 913 at 916 (1968). "And there may be ‘some evidence’ of a lesser offense even though this depends on ... believing defendant as to part of his testimony and prosecution witnesses on other points in dispute." Belton v. U.S., 382 F.2d 150 at 155 (D.C.Cir., 1967).

      . Mr. Carmody was the Assistant District Attorney prosecuting the case, Mr. Witherspoon was the alleged victim of the crimes in question and Mr. Blum was the Assistant Public Defender on the case.

      . The concurring opinion concludes that this reference is not to a prior crime but to a concurrent event. While this interpretation is a plausible one, it is not clear that the reference was not to a prior event. The issue will, therefore, be treated on its merits.
      The concurring opinion goes on to advise the future trial court on the correct disposition of the testimony on hearsay grounds. This argument is not contained in the brief and should not be treated by us on appeal. Commonwealth v. Harper, 292 Pa.Super. 192, 436 A.2d 1217 (1981).
      Further, it was not raised as such in the court below nor is it contained in the statement of questions on appeal and is not properly before us. Commonwealth v. Vivian, 208 Pa.Super. 330, 222 A.2d 739 (1966) affirmed in part, reversed in part, modified in part, 426 Pa. 192, 231 A.2d 301 (1967).

      . A new trial has, however, been granted on the reckless endangerment charge on the basis of the faulty charge.

      . Nor do I believe appellant so contends. He argues that the testimony was “either irrelevant or so highly prejudicial that a mistrial should have been granted.” Appellant’s Brief at 4. He elaborates on this by arguing that the testimony was inadmissible as a statement referring to an “independent” and unrelated crime, and also, that the statement should be analyzed by applying to it "a similar balancing test [to that] involving the introduction of prior crimes.” Appellant’s brief at 8-9.


author: CERCONE, Judge:

text:
    484 A.2d 793
    COMMONWEALTH of Pennsylvania v. John SWARTZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1984.
    Filed Nov. 16, 1984.
    Petition for Allowance of Appeal Denied May 7, 1985.

      H. Stanley Rebert, York, for appellant.
    Floyd P. Jones, Assistant District Attorney, York, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CIRILLO and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgment of sentence imposed upon appellant’s non-jury conviction for robbery and theft. Appellant raises three contentions on appeal: 1) was the verdict contrary to the evidence, weight of the evidence and to the law; 2) did the court err in refusing to hear his proffered evidence as to diminished capacity; and 3) was the sentence excessive? We affirm.

We must first dispose of appellant’s sufficiency claim, since if the evidence was insufficient as a matter of law then he would be entitled to be discharged. See Commonwealth v. Poindexter, 484 Pa. 472, 399 A.2d 390 (1979). The uncontested and unimpeached evidence established the following facts. Appellant walked into a branch office of York Bank and Trust. He was wearing reflective sun glasses. Appellant went up to a teller, handed her a paper bag, and said “Fill the bag.” He further said “Quick” and when the teller did so slowly, he told her “Faster.” After an amount of money had been placed in the bag, appellant grabbed the bag and then departed. The teller stated she was “very scared” and frightened. Appellant never claimed to be armed, never expressly threatened the teller, and was not observed with a weapon or even his hand in his pocket.

At trial appellant agreed with the above recitation but indicated he had not intended to frighten the teller. Furthermore, had she refused to give him the money, he claimed he would have left the bank without incident. Appellant’s defense consisted of admitting the theft, but denying that he had threatened or intentionally placed the teller in fear of immediate bodily injury.

Appellant was convicted under 18 Pa.C.S.A. § 3701(a)(l)(iv), which reads:

(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of committing a theft, he:
sjs * jjc sjt >je $
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; ____

In the current case we must determine whether, appellant’s intent was adequately demonstrated when there was no actual threat or display of force but only a demand for money. While this precise issue has not been addressed before, similar situations have arisen under § 3701(a)(l)(ii).

In Commonwealth v. Hurd, 268 Pa.Superior Ct. 24, 407 A.2d 418 (1979) this court held that an actor’s request to open a drawer, which was repeated in the following manner: “Bitch, open the drawer,” while the actor appeared to have his hand, on an object in his pocket was sufficient to show that the actor intended to place the victim in fear of “immediate serious bodily injury.” Hurd may appear to be a stronger case than the one currently before us, as there the defendant’s action suggested he had a gun. However, more similar to the current controversy is Commonwealth v. Davis, 313 Pa.Superior Ct. 355, 459 A.2d 1267 (1983). The defendant in Davis was convicted under § 3701(a)(1)(ii) of robbing a pipe store which was open all night. He was observed entering the shop through a small window through which business was transacted. The defendant told an employee of the shop to: “Get back, Get back.” This court held that Davis’ “mode of entry and his warnings ... certainly were aggressive actions which implicitly carried with them a threat of imminent bodily harm ____” When applied to the facts at hand, Davis requires that we find that the current evidence showed beyond a reasonable doubt that appellant, contrary to his claim, intended to put the teller in fear. A sun-glassed individual, who approaches a bank teller with a paper bag and commands that the bag be filled with currency and exhibits extreme impatience with a teller creating an atmosphere of extreme tension, can be reasonably presumed to intend to inflict fear into the mind of the teller within the meaning of § 3701(a)(l)(iv).

In his second contention, appellant argues that the trial court erred in prohibiting him from presenting a diminished capacity defense to negate the specific intent required for his conviction of robbery. The trial court held that such defense was only available in first degree murder prosecutions. The trial court, acknowledging the novelty of the problem relied upon the Subcommittee Note to Pennsylvania’s Suggested Standard Jury Instruction 5.01B to support its position.

All of the Supreme Court’s past pronouncements on the doctrine of diminished capacity have been made in the context of premeditated murder cases. However, general language in Commonwealth v. Walzack, 468 Pa. 210, 221, 360 A.2d 914, 919 (1976), where the court said: “The thrust of the doctrine is to challenge the capacity of the actor to possess a particular state of mind required by the legislative for the commission of a certain degree of the crime charged”, seems to imply the defense is available to other crimes. Similarly, in Commonwealth v. Brantner, 486 Pa. 518, 523, 406 A.2d 1011, 1014 (1979), the court stated: “Appellant is correct in noting that this jurisdiction recognizes diminished mental capacity as a defense to a charge requiring a specific intent.” As the court in both of the above cases did not limit it’s language to homicide situations, it would appear to be a reasonable inference that diminished capacity may be applicable to other crimes.

Additional support for the above conclusion can be gathered from the historical development of the defense of intoxication. In Commonwealth v. Santiago, 489 Pa. 527, 414 A.2d 1016 (1980); and Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975), our Supreme Court held that evidence of intoxication could be used to negate the specific intent required to commit other specific intent crimes and in particular the crime of robbery. But for the intervention of the legislature in enacting a statutory prohibition as to the use of voluntary intoxication as a defense to crimes other than murder of the first degree, such a defense would be available in robbery prosecutions. See 18 Pa.C.S.A. § 308, at least until the recent Supreme Court’s decision in Commonwealth v. Garcia, 505 Pa. 304, 479 A.2d 473 (1984). As the legislature has not expressed its disapproval of the use of the diminished capacity in contrast to involuntary intoxication defense in situations other than premeditated murder, it could be argued that such defense is not so limited.

Our Supreme Court was faced in Commonwealth v. Garcia, with the specific issue of whether diminished capacity may be applied to crimes other than murder of the first degree. There the defendant raised diminished capacity as a defense to both felony murder and robbery. He argued that he was incapable of forming the intent to steal from the victim and hence he could not be held liable for robbery and similarly, could not be culpable of felony murder. Mr. Justice Hutchinson, writing for the majority, noted that the doctrine of diminished capacity has “to date” only been applied to first degree murder. See Commonwealth v. Terry, 501 Pa. 626, 462 A.2d 676 (1983); Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). He then went on to hold that:

Proper psychiatric testimony is admissible only to negate the specific intent required to establish first degree murder. See Commonwealth v. Weinstein, supra. Therefore, the determination of whether Garcia ever formed an intent to rob, and if so, when he formed such intent, was required to be made on the basis of the factual circumstances surrounding the criminal episode as developed by demonstrative evidence and testimony other than psychiatric expert testimony.
505 Pa. at 311, 479 A.2d at 477 (footnote omitted but discussed infra.)

Had the court concluded its discussion with the above holding, there would have been little reason here for us to discuss the issue further. However, in footnote three, (on 505 Pa. page 311, 479 A.2d page 477) the court acknowledges that the issue of whether “diminished capacity” is applicable to robbery was not open to Garcia since he admitted the theft, thereby admitting “precisely the same ‘specific’ intent” required for robbery. Therefore, it would appear that the court’s holding, as it pertains to the current controversy, is advisory.

Unlike the Supreme Court in Garcia, we must address appellant’s claim. In light of Garcia any of the inferences which are suggested above by Walzack, Brantner, Santiago and Graves, appear to be contrary to the reasoning of the Garcia majority. Accordingly, even though the discussion of diminished capacity may have been unnecessary to the resolution of Garcia, it clearly expresses the majority’s view and therefore should be followed. Hence, in the current appeal we can not find error in the trial court’s refusal to hear and consider appellant’s proffered psychiatric evidence.

Judgment of sentence affirmed.

SPAETH, President Judge, concurs in the result.

      . Should a court find that a verdict is against the weight of the evidence then a new trial may be awarded. Commonwealth v, Laing, 310 Pa.Superior Ct. 105, 456 A.2d 204 (1983).

      . That section reads:
      (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury; ____

      . We see little need to address the challenge to the weight of the evidence. The only area of contention was appellant’s intent. Clearly, the trial court discounted appellant’s testimony. We can not find that such finding was so contrary to the evidence as to shock one’s sense of justice. See Laing, supra.

      . That comment reads:
      The instruction recommended above implements Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). Walzack held that psychiatric evidence is admissible to negate the clement of specific intent required for first degree murder. The court expressly overruled the contrary holdings of a line of prior cases including Commonwealth v. Weinstein, 442 Pa. 70, 274 A.2d 182 (1971) and Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966). The court labelled the doctrine which it recognized in Walzack “diminished capacity" since it relates to the accused’s ability to perform a specific cognitive process, see Walzack, supra at n.6.
      The court left open the question of whether the doctrine of diminished capacity should apply to other specific mens rea crimes. In the opinion of the subcommittee it should not. First degree murder is unique both in terms of the severity of the penalty and the quality and intensity of the intent required by the legislative definition. Compare, for example, the "intent to deprive” required for theft under Crimes Code § 3921 with the willful, deliberate and premeditated intent to kill required for first degree murder. A person who could not form an “intent to deprive” would probably qualify for the complete insanity defense and would have no need for the diminished capacity doctrine. Applying the type of analysis used in Walzack it would appear that when the crime charged is not first degree murder, the probative value of psychiatric evidence of diminished capacity would be outweighed by dangers of unduly complicating the issues, confusing the jury and prolonging the trial.

      . Affirmed after remand at 484 Pa. 29, 398 A.2d 644 (1979).

      . Santiago was tried prior to the effective date.

      . The Garcia majority would interpret the same historical analysis concerning the intoxication defense as indicating the legislature would disprove extending diminished capacity beyond first degree murder. See 505 Pa. at 311 n. 3, 479 A.2d at 477 n. 3.

      . Appellant was sentenced to a term of incarceration of 6 to 23 months and his petition for reconsideration was denied. On appeal appellant argues in light of his mental state the sentence was excessive. After reviewing the record we find no relief to be warranted in this respect.


text:
    484 A.2d 797
    EAST TEXAS MOTOR FREIGHT, DIAMOND DIVISION v. David H. LLOYD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1984.
    Filed Nov. 16, 1984.

      William T. Hast, Assistant District Attorney, York, for appellant.
    Daniel W. Shoemaker, York, for appellee.
    Before SPAETH, President Judge, and CIRILLO and CERCONE, JJ.
   CERCONE, Judge:

Appellant, David H. Lloyd, an independent trucker, entered into an agreement with appellee, East Texas Motor Freight (East Texas). Lloyd, using his own tractor-trailer combination, agreed to haul a load of insulation owned by Monsanto Corporation from California to Ohio. The trip lease agreement between the parties provided in pertinent part:

In the event of any loss or damage or destruction to cargo or property damage or bodily injury to any third person, the Lessor does hereby agree to assume and be fully responsible for any such damage and in the event payment shall be made by the Lessee herein, Lessor does hereby agree to indemnify and hold the Lessee harmless for any and all claims. In the event the Lessee’s insur-anee company is required to make payment therefore, then, and in that event, the insurance company shall be subrogated to the rights of the Lessee against the Lessor herein.

In route to his destination, Lloyd encountered a severe rainstorm which damaged his load. East Texas paid Monsanto’s claim for the damage incurred and then sought indemnification from Lloyd. Lloyd refused.

East Texas filed a complaint in assumpsit against Lloyd and Lloyd filed an answer, new matter, and a counterclaim. The case went to trial before a jury. At the conclusion of Lloyd’s case, the court directed a verdict in favor of East Texas. Post-trial motions were filed and argued before the court en banc and subsequently denied. Judgment was entered and appellant perfected this appeal.

On appeal, Lloyd claims that the entry of a directed verdict improperly removed five issues from the jury's consideration. In reviewing such allegations we must keep in mind that:

In an appeal from a directed verdict, the Appellate Court must consider the evidence and all reasonable inferences in the light most favorable to the appellant. Lit-winko v. Gray, 267 Pa.Super. 541, 407 A.2d 42 (1979). If a jury could have reasonably concluded on the basis of that evidence and those inferences that liability should rest with the appellee, then the decision to direct a verdict was in error. See Cox v. Equitable Gas Co., 227 Pa.Super. 153, 324 A.2d 516 (1974). If there is any room for doubt, the trial court should not direct a verdict. Stephens v. Carrara, 265 Pa.Super. 102, 401 A.2d 821 (1979).

Lattanze v. Silverstrini, 302 Pa.Superior Ct. 217, 220, 448 A.2d 605, 606 (1982). The trial court concluded that the questions involved dealt with the application of law to the facts, and therefore, a directed verdict was proper. See Corson v. Corson’s Inc., 290 Pa.Superior Ct. 528, 434 A.2d 1269 (1981). As we find that two of the issues should have been permitted to go to the jury, we are constrained to reverse.

Before addressing the various contentions, a brief summary of the parties’ respective conduct is necessary. An agent of East Texas approached Lloyd, owner and operator of the type of trailer desired by East Texas. East Texas could load more insulation on Lloyd’s trailer than on other types of trailers. Lloyd indicated that while he was willing to make the run, he had insufficient tarpaulin to protect the whole load. East Texas, therefore, sold additional tarp to Lloyd, deducting the cost from the advance money paid to Lloyd for the trip. Lloyd observed that such tarp was of a lesser quality then his own, but since the trip did not pay that much, he did not complain.

Appellant’s first claim, concerning liability, is that East Texas' negligence, in selecting an open-bed truck and providing him with poor quality tarpaulin, rendered the indemnification clause void. Both parties agree that Urban Redevelop. Auth. v. Noralco Corp., 281 Pa.Superior Ct. 466, 422 A.2d 563 (1980) is the leading case on point. There we held that a building owner was entitled to be indemnified by a demolition contractor pursuant to an indemnity clause. One of the contractor’s employees, who was injured during the performance of the demolition, sued the owner for his injuries. We found that the owner was “merely passively negligent” and therefore it was entitled to indemnification.

As to appellant’s first point, we find it unnecessary to address his interesting argument that East Texas was negligent in hiring his truck. The trial court observed that he “never seriously argued [the] proposition, [sic] and never aduced the slightest evidence in that regard____” We agree. Appellant proceeded on a theory that the damage resulted from the tarp provided by East Texas.

On appeal a party may not rely on a theory which was not presented at trial. See Weyandt v. Restaneo, 461 Pa. 245, 336 A.2d 268 (1975); Bucci v. R.J. Reynolds Tobacco Co., 439 Pa. 302, 268 A.2d 88 (1970); Pegg v. General Motors Corp., 258 Pa.Superior Ct. 59, 391 A.2d 1074 (1978). Neither appellant’s answer and new matter, nor his case in chief, raised East Texas’ negligence in selecting a truck. While it is true that such theory was pursued in opposition to the motion for a directed verdict and in post-verdict motions, the court had no evidence before it of negligence in this respect. In fact, a different theory had been pursued at trial, therefore it could properly direct a verdict in East Texas’ favor on this point.

The remaining question as to negligence is whether East Texas’ choice of tarp to sell to Lloyd could invalidate the indemnification provision. Pennsylvania law dictates that an indemnity clause will not be construed as protecting the indemnitee from its own negligence unless the agreement explicitly so provides. Brotherton Const. Co. v. Patterson-Emerson-Comstock, Inc., 406 Pa. 400, 178 A.2d 696 (1962); Potts v. Dow Chemical Co., 272 Pa.Superior Ct. 323, 415 A.2d 1220 (1979). As previously noted in citing the Noralco case, an indemnitor may avoid the consequences of a general indemnification clause by showing the indemnitee’s negligence was “active” and not “passive”. In the case at hand, the trial court removed such determination from the jury, inferentially finding that East Texas’ sale of the tarp did not amount to active negligence.

The existence of negligence is usually a question to be submitted to the jury upon proper instruction and a court should not remove such issue from the jury unless the facts leave no room for doubt. Spraggins v. Shields, 310 Pa.Superior Ct. 408, 456 A.2d 1000 (1983); Hargrove v. From- meyer & Co., 229 Pa.Superior Ct. 298, 323 A.2d 300 (1974). See also Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Skalos v. Higgins, 303 Pa.Superior Ct. 107, 449 A.2d 601 (1982). Here, the court held, as a matter of law, that providing allegedly defective or inadequate tarp did not equate “active” negligence on East Texas’ part. We reluctantly find that the court erred in this respect.

While our research has failed to unveil any cases factually similar to the one at hand, Safeco Ins. Co. of America v. Great American Ins. Co., 523 F.Supp. 983 (E.D.Pa.1981), lends support to our conclusion. In that case, a franchisor attempted to rely on an indemnity provision with its franchisee to protect it from liability for harm incurred by a customer who consumed the franchisor’s product sold by the franchisee. Indemnification was denied since the franchisor’s own conduct in manufacturing and providing the tainted product caused the harm. While Lloyd’s case may not be as clear as that presented in Safeco, it nonetheless was sufficient to raise a question as to East Texas’ fault and therefore, the jury should have been permitted to determine the issue of negligence. Hence, we are constrained to vacate the judgment imposed upon the directed verdict and we remand for a new trial.

Having found a new trial is necessary, we nonetheless address the remaining contentions in the interest of judicial economy and so as to give guidance to the trial court.

Appellant next argues that East Texas, by selling the tarp to him, modified the indemnification clause. He contends that by such conduct, East Texas waived the application of the parol evidence rule to the parties’ agreement. The burden of proving modification is upon the party asserting such modification. In Re Indus. Car Mfg. Co., 1 B.R. 339 (Bkrtcy.E.D.Pennsylvania 1979). Nicolella v. Palmer, 432 Pa. 502, 248 A.2d 20 (1968). Where there is conflicting evidence regarding a parol modification, it is within the province of the jury to define its terms; unless the proponent’s own version does not support the modification the court should not declare that a modification did not exist. Curtin v. Marson, 185 Pa.Superior Ct. 194, 138 A.2d 149 (1958). Here, we agree with the trial court that Lloyd’s evidence fell short of demonstrating a modification of the indemnification clause.

Lloyd’s next contention is that there was a factual issue as to whether an “act of God" was responsible for the damage.

An act of God, as defined in the law, is an unusual, extraordinary, sudden, and unexpected manifestation of the forces of nature which cannot be prevented by human care, skill or foresight: 38 Am. Jur. 649, § 7; Martin v. Philadelphia, 54 Pa.Superior Ct. 563, 567. Was this storm so unusually severe or otherwise extraordinary as to warrant its characterization as an act of God?

Carlson v. A. & P. Corrugated Box Corp., 364 Pa. 216, 219, 72 A.2d 290, 291 (1950). Appellant, himself testified that the rain storm he encountered “was a little worst” then he had previously encountered. He nonetheless continued driving. We must agree with the trial court, that as a matter of law, this “storm” did not rise to the level excusing Lloyd’s delivery of damaged goods.

Appellant’s further claim that his failure to read the contract did not, as a matter of law, raise a question of fact as to whether he intelligently, knowingly and voluntarily entered into the lease agreement, was correctly decided against him. Lloyd’s testimony may be summed up as follows: he could read; he could have read the agreement if he had desired to; if he had read the front of the agreement, it would have referred him to the indemnification provision on the reverse side; appellant did not bother to read the document. In the absence of fraud, the failure to read a contract does not excuse noncompliance with the agreement. Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879 (3rd Cir.1981); Estate of Brant, 463 Pa. 230, 344 A.2d 806 (1975); Sands v. Granite Mutual Ins. Co., 232 Pa.Superior Ct. 70, 331 A.2d 711 (1974). Accordingly, the jury was properly deprived of the responsibility of reviewing Lloyd’s claim of ignorance.

Appellant’s final complaint pertains to the issue of damages. East Texas offered into evidence its cancelled check in the amount of $6,662.73 made payable to Monsanto. Defendant’s exhibit No. 1 was a copy of a letter from Monsanto to East Texas indicating that Monsanto’s claim was for $6,662.73. While appellant admitted that he had no basis to refute these figures, he did disagree with East Texas’ claim that the whole shipment was damaged. He contended that only six of thirteen pallets were damaged. Furthermore, appellant takes note of Monsanto’s letter in which it was stated “that the material sat for a long period of time.” The court below held that the fact that the insulation may have sat unmoved for a period after it was unloaded did not indicate it incurred added damage. The trial judge observed that Lloyd could not dispute that the damage calculations were accurate and also discounted appellant’s observation that, upon final destination, the pallets were segregated into two groups. The court emphasized that appellant had not inspected both groups to determine their condition.

Contrary to the trial court’s findings, we believe the above testimony raised a factual dispute as to the extent of damage. The burden of proof in a contract action is upon the party alleging breach or default. See Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001 (3rd Cir.1980); Unverzagt v. Prestera, 339 Pa. 141, 13 A.2d 46 (1940). However, even if a plaintiff makes out his claim for the full amount “by uncontradicted and unimpeached testimony, the credibility of his witnesses and the weight of their testimony still would have been for the jury....” Betzig v. Cook, 175 Pa.Superior Ct. 188, 103 A.2d 283 (1954). Here Lloyd challenged East Texas’ proof as to damages, and offered his recollection of the damages, though without a dollar figure placed thereon. Hence, the amount of damages was in dispute, and for the jury to resolve. Compare, Id. (where defendant denied performance and contended he was entitled to credit for cost of completion, court erred in charging that defendant had offered no evidence as to value).

Judgment is vacated and the case is remanded for proceedings not inconsistent with this opinion.

      . The clause involved here did not explicitly provide for indemnification for East Texas’ own negligence. For such a situation see Westinghouse E. Co. v. Murphy, Inc., 425 Pa. 166, 228 A.2d 656 (1967).

      . Definitions for such terms were provided in Potter Title and Trust Co. v. Young, 367 Pa. 239, 242-43, 80 A.2d 76, 78-79 (1951):
      Generally speaking, the term "passive negligence” denotes negligence which permits defects, obstacles or pitfalls to exist upon the premises, in other words, negligence which causes dangers arising from the physical condition of the land itself. “Active negligence”, on the other hand, is negligence occurring in connection with activities conducted on the premises, as for example, negligence in the operation of machinery or of moving vehicles whereby a person lawfully upon the premises is injured.
      Quoted in Noraclo supra. 281 Pa.Super. at 473, 422 A.2d at 567.

      . Analogous to this is the situation where a party attempts to impose a surcharge for delay resulting from that party’s own action. See C.J. Langenfelder & Son, Inc. v. Penn Dot, 44 Pa.Cmwith. 585, 404 A.2d 745 (1979); Penn Dot v. W.P. Dickerson & Son, Inc., 42 Pa.Cmwith. 359, 400 A.2d 930 (1979).

      . The salvage value of $130 had been subtracted from the above figure.

      . Appellant’s brief raises a question as to how many pallets were actually loaded on the truck. We find it unnecessary to resolve this confusion at this point in time.


author: WICKERSHAM, Judge:

text:
    484 A.2d 802
    COMMONWEALTH of Pennsylvania v. Joseph Walter EGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 24, 1983.
    Filed Nov. 23, 1984.

      Peter T. Campana, Williamsport, for appellant.
    R. Michael Kaar, Assistant District Attorney, Milton, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   WICKERSHAM, Judge:

Appellant Joseph Walter “Mike” Egan, a former Sunbury police officer, was arrested and charged with theft by unlawful taking, theft by receiving stolen property, theft by extortion, theft by failure to make required disposition, obstructing administration of law, and aiding in the consummation of a crime. A jury trial commenced November 12, 1981 before the Honorable Samuel C. Ranck. Judge Ranck accurately sets forth the evidence adduced at trial in his opinion, as follows:

On a date in mid-December, 1980, Kenneth Merrill and Mark Bolig burglarized the Mahanoy and Mahantango Telephone Co. in Herndon, Pennsylvania and removed approximately $31,000 in currency and coins. The two split the money evenly and each gave $2,000 to a friend, Ricardo. Merrill quickly spent his share of the proceeds, primarily to support his drug habits. Bolig spent some of his share, returned another portion of it to Merrill, and eventually was left with $5,820.
The [Appellant] became aware of the burglary, although it had occurred in an area outside the jurisdiction of the Sunbury Police, and became suspicious of Merrill. After questioning, Merrill admitted his involvement to the [Appellant] and stated he no longer had any of the money. Merrill informed the [Appellant] that Bolig was also involved and that he probably still had some of the money.
On February 13,1981, the [Appellant] and a U.S. Postal Inspector accompanied Merrill to a federal magistrate’s office in Williamsport on unrelated federal charges that the [Appellant] was responsible for uncovering. At the office in Williamsport, Merrill placed a call to Bolig’s home but was unable to speak with him. The group arrived back in Sunbury at approximately 4:00 P.M. Merrill testified that the [Appellant] accompanied him to his home and a second call was make to Bolig, this one by the [Appellant]. Arrangements were made for the two to meet at the Sunbury Police Department. The meeting took place between 4:30 P.M. and 5:00 P.M. Bolig brought with him a friend, one Marvin Ulrich, but Ulrich did not go into the room where Bolig and the [Appellant] met. At that time the [Appellant] confronted Bolig with his knowledge of the phone company burglary and stated that if Bolig would turn the remaining money over to him, no charges would be filed and one need find out about it. Bolig left with Ulrich to get the money [although it was in fact in the car all the time] and returned between 5:30 P.M. and 6:00 P.M. to turn it over. Ulrich counted the money while in the car and ascertained there were 291 twenty dollar bills, or $5,820. Bolig entered the police station, asked for the [Appellant], and when finally alone with him, handed over the money.
The evidence thus far related is based nearly entirely on the testimony of Bolig and Merrill. Several other Commonwealth witnesses corraborated these events. Ul-rich’s testimony was substantially identical to Bolig’s as to their movements and actions on February 13. Cheryl Reardon, the dispatcher on duty at the relevant times involved reinforced the testimony of these two. She stated that Ulrich and Bolig appeared at the police station on February 13 and asked for the [Appellant], that they left together, that Bolig returned later, and that he asked to see the [Appellant]. Sunbury Police Officer Michael Hogan testified that he saw the [Appellant] on February 13 at about 6:00 P.M. The [Appellant] was sitting in his car at the rear of the police station counting a large wad of bills.
The [Appellant] presented an alibi defense. He stated that after returning from Williamsport on February 13 with Merrill, he went into the police station and saw neither Merrill nor Bolig or Ulrich the rest of the afternoon and evening. He presented several witnesses to relate his movements late in the afternoon and early in the evening of that day, the substance of which was that he left the police station sometime after 5:00 P.M., and went to speak with a prospective customer of his demolition business, following which he went to arrange for the use of a truck to use for the demolition work. He then returned home after 8:00 P.M. that night.

Lower ct. op. at 2-4.

The jury began deliberations, to consider the six charges, at the conclusion of the trial on November 16, 1981. At approximately 5:45 p.m., the court met with the jury and all parties in response to a communication delivered to the court by the jury requesting additional information. The court gave additional instructions and at approximately 5:50 p.m., the jury again retired for deliberations. Shortly thereafter, the court was informed by the jury that they wished further instructions, and at approximately 6:30 p.m. a sidebar conference took place between the court and counsel and it was determined that the court give the jury the American Bar Association’s Standard Instructions after they had been in deliberations four hours. The court called the jury into the courtroom and gave them the ABA Standard Instructions concerning the method by which they were to reach a verdict. After a short colloquy and before returning the jury back into deliberations, the court declared a mistrial, finding that the jury was deadlocked.

The case was tried a second time on January 12,1982 and appellant was convicted by a jury on all counts on January 14, 1982. Appellant filed a motion for a new trial alleging the verdict was against the weight of the evidence and that the district attorney made an improper remark during closing argument. Post-trial motions were denied in part and granted in part. The court arrested judgment on the sixth count charging appellant with aiding in the consummation of a crime. On May 13, 1982, appellant was sentenced on the remaining counts to a period of not less than two and one-half nor more than seven years imprisonment. This timely appeal followed.

Appellant raises the following issues on appeal:

1. Whether Appellant is entitled to be discharged because the trial court improperly declared a mistrial at the first trial on the charges pending against him before the jury reached a verdict, because the jury was supposedly unable to reach a verdict, where the record is devoid of showing that Appellant personally consented to the declaration of a mistrial and where the record is devoid of a showing of ‘manifest necessity’ to declare a mistrial?
2. Whether Appellant was denied the effective assistance of counsel during the proceedings in the court below?

Brief for Appellant at 3.

Appellant was represented at the first trial by Wallace Worth, Jr., Esquire and by Mr. Worth and Robert MaGee, Esquire at the second trial which commenced January 12, 1982. In this appeal, appellant is represented by Peter T. Campana, Esquire of Williamsport. The opinion filed by Judge Ranck on January 16, 1982, relating to post-verdict motions does not reach either of the issues raised in this appeal.

With particular regard to the allegations of ineffective assistance of counsel the following is submitted by appellant in his brief.

Appellant would submit that trial counsel was ineffective for the following reasons:
(a) in failing to file a motion to dismiss the charges prior to the second trial on double jeopardy grounds;
(b) in failing to seek sequestration of Commonwealth’s witnesses, Kenneth Merrill, Marvin Ulrich, and Mark Bolig;
(c) in failing to use the prior criminal records of Commonwealth witnesses, Marvin Ulrich and Kenneth Merrill, for impeachment purposes;
(d) in failing to object to the introduction of the transcript of the tape recordings made of the conversation of April 13, 1981; and
(e) in failing to take exception to the Court’s failure to instruct the jury on the “accomplice” or “corrupt source” instruction with regard to the testimony of Mark Bolig and Kenneth Merrill and/or failing to raise this issue on post-verdict motions.

Brief for Appellant at 22.

We understand that it is our responsibility to attempt to examine the merits of each ineffectiveness of counsel claim before ordering an evidentiary hearing. As Mr. Justice McDermott said in Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984):

As for the ineffectiveness of counsel claims, the Superi- or Court, without examining the colorableness of these allegations, vacated appellee’s judgment of sentence and ordered an evidentiary hearing on these claims. Taking exception to this ruling, the Commonwealth petitioned this Court for allowance of appeal which was granted. For reasons elucidated below we reverse the order of the Superior Court.
The Commonwealth argues that it was incumbent upon the Superior Court to attempt to examine the merits of each ineffectiveness of counsel claim before ordering an evidentiary hearing. Had the Superior Court done so, the Commonwealth argues, it would have found an evidentia-ry hearing was not necessary, since the ineffectiveness of counsel allegations were devoid of merit. We agree.

In Commonwealth v. Turner, 469 Pa. 319, 365 A.2d 847 (1977), we stated:

Where the record on appeal clearly shows that there could have been no reasonable basis for the damaging decision or omission by trial counsel, then of course the judgment must be vacated and appropriate relief, such as allowing the filing of post trial motions or the ordering of a new trial, granted. Where, on the other hand, it is impossible to tell from the record whether or not the action of trial counsel could have had a rational basis, the appellate court will vacate the judgment, at least for the time being, and remand for an evidentiary hearing at which trial counsel may state his reasons for having chosen the course of action taken. Neither of these remedies, however, is appropriate if from the record it is apparent that the actions claimed to constitute ineffectiveness were in fact within the realm or trial tactics of strategy. (Emphasis supplied.)

Id., 469 Pa. at 324, 365 at 849.

Consistent with these statements we today hold that where it is clear that allegations of counsel are baseless or meritless then an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed. Cf. Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978) (Plurality opinion in which all but one claim of ineffectiveness of counsel were dismissed because it was clear from the record that such claims were without merit.)

With these principles in mind we now turn to the standard which controls once a counsel’s ineffectiveness is placed at issue:

Our task in cases of this nature therefore encompasses both an independent review of the record ... and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives ... We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record ... [T]he balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.
Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967). (Citations and footnotes omitted.) Moreover, ineffectiveness occurs only where the alternatives not selected “offered a potential for success substantially greater than the tactics used.” Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978), quoting Commonwealth ex rel. Washington v. Maroney, supra. Finally, we presume that counsel is effective and the burden of establishing counsel’s ineffectiveness rests upon his client. Commonwealth v. Dunbar, [503] Pa. [590], 470 A.2d 74 (1983). This requires a showing by defendant that the act of omission or commission by counsel was arguably ineffective and the likelihood that he was prejudiced as a result thereby. Commonwealth v. Wade, supra. For as we have stated in Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983), “claims of ineffectiveness cannot be abstractly reviewed in a vacuum.”

At 505 Pa. at 361-362, 479 A.2d at 957-958.

We need proceed no further than the first claim of ineffectiveness of trial counsel “in failing to file a motion to dismiss the charges prior to the second trial on double jeopardy grounds.” It is impossible to tell from the record whether or not the action of trial counsel could have had a rational basis in this instance. It is not apparent from the record that the various actions claimed to constitute ineffectiveness were in fact within the realm of trial tactics or strategy. Commonwealth v. Turner, supra.

Accordingly, we will vacate the judgment, at least for the time being, and remand for an evidentiary hearing at which trial counsel may state their reasons for having chosen the-course of action taken. This remand will also afford the trial court the opportunity to supplement his opinion for the purposes of this appeal and provide us with his analysis of the necessity for dismissing the first jury as well as his analysis of the allegations of ineffectiveness of trial counsel following the hearing which will be held.

Judgment of sentence is hereby vacated and this case remanded to the trial court for an evidentiary hearing at which trial counsel will state the reasons for having chosen the courses of action taken. If the court determines that counsel was ineffective, it shall grant appellant a new trial. If the court finds that double jeopardy attached following the declaration of mistrial, then it shall discharge defendant-appellant. Commonwealth v. Owens, 299 Pa.Super. 1, 445 A.2d 117 (1982). If the court determines that the mistrial was declared with manifest necessity and further determines that trial counsel was effective then it shall reinstate the sentence. Either party may appeal from such decision and we do not retain jurisdiction.