author: WIEAND, Judge:

text:
    473 A.2d 128
    COMMONWEALTH of Pennsylvania v. James HAMM, Appellant. COMMONWEALTH of Pennsylvania v. Raymond HAMM, Appellant.
    Superior Court of Pennsylvania.
    Argued April 5, 1983.
    Filed Feb. 17, 1984.
    Petition for Allowance of Appeal Denied June 22, 1984.

      Jeremiah F. Kane, Assistant Public Defender, West Chester, for James Hamm, appellant (at No. 1058).
    Joseph S. Nescio, West Chester, for Raymond Hamm, appellant (at No. 1059).
    Lee Ruslander, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

James Hamm and Raymond Hamm, brothers, were tried together by jury, and each was convicted of two counts of burglary, theft by unlawful taking, receiving stolen property, and criminal conspiracy. In this consolidated direct appeal following the denial of post verdict motions and the imposition of sentence, James and Raymond challenge (1) the sufficiency of the evidence to sustain their convictions; (2) the trial court’s refusal to sever their cases and try them separately; and (3) the trial court’s refusal to grant a mistrial after the assistant district attorney had elicited a purported reference to prior criminal activity on their part. In addition, each brother raises a number of independent issues concerning rulings by the trial court and the conduct of the trial which we will consider seriatim.

“To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the .weight to be accorded the evidence produced. The fact finder is free to believe all, part or none of the evidence.”

Commonwealth v. Nunez, 312 Pa.Super. 584, 586, 459 A.2d 376, 376-377 (1983), quoting Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).

Thus viewed, the evidence discloses that on the late night of February 23 or the early morning of February 24, 1978, James Hamm, Budd Beane, and James Griffin broke into the Chester County home of Onah Ryan while Raymond Hamm waited in a parked car. They stole a chair, silver, porcelain, china and jewelry, some of which was later sold for $100. The proceeds were divided among the four conspirators. A few weeks later, on March 17, 1978, James Hamm, James Griffin, and James Dotson burglarized the Chester County home of John Gehron while Raymond Hamm again waited in the car. Stolen from the Gehron home were a coin collection, a watch, and several savings bonds. Proceeds from the sale of some of the stolen items were divided among the four men.

The Hamms do not dispute the occurrence of the Ryan and Gehron burglaries. They argue, rather, that the evidence was insufficient to establish their connection with the crimes because the only evidence thereof was the testimony of a co-conspirator, James Griffin, whose testimony contained several inconsistencies. We disagree. It is well settled in Pennsylvania that the guilt or innocence of an accused may rest solely upon the uncorroborated testimony of an accomplice. Commonwealth v. Goldblum, 498 Pa. 455, 466, 447 A.2d 234, 240 (1982); Commonwealth v. Hudson, 489 Pa. 620, 628, 414 A.2d 1381, 1385 (1980); Commonwealth v. Tervalon, 463 Pa. 581, 593 n. 10, 345 A.2d 671, 677 n. 10 (1975); Commonwealth v. Gonce, 320 Pa.Super. 19, 26, 466 A.2d 1039, 1043 (1983); Commonwealth v. Todt, 318 Pa.Super. 55, 62-3, 464 A.2d 1226, 1230 (1983). Griffin did not waver in any way whatsoever in his implication of the Hamm brothers. Therefore, any inconsistencies in his trial testimony regarding details of the several burglaries were for the jury to resolve. See: Commonwealth v. Donald Smith, 502 Pa. 600, 606-07, 467 A.2d 1120, 1122 (1983); Commonwealth v. Sample, 321 Pa.Super. 457, 466, 468 A.2d 799, 803 (1983); Commonwealth v. Curry, 318 Pa.Super. 490, 495, 465 A.2d 660, 662 (1983); Commonwealth v. Ruffin, 317 Pa.Super. 126, 132, 463 A.2d 1117, 1120 (1983); Commonwealth v. Newman, 310 Pa.Super. 493, 496, 456 A.2d 1044, 1045 (1983).

Pursuant to a pre-trial request by the Commonwealth, the trial court consolidated for trial the charges arising against the Hamm brothers as a result of the Ryan and Gehron burglaries. Counsel had no objection to the consolidation of the two sets of burglary and related charges but opposed a joint trial for the two defendants. On appeal, both Hamms argue that they were denied a fair trial because their respective counsel were unable to provide adequate assistance because of differences of opinion regarding trial strategy. In addition, James Hamm argues that he was prejudiced when the cross-examination of Griffin by counsel for Raymond elicited an arguable reference to prior criminal activity on his part. Raymond Hamm contends that because James took the stand and testified in his own defense, while Raymond chose not to testify, he, Raymond, was prejudiced because the jury was able to infer his guilt from silence. These contentions are without merit.

“[Questions of consolidation or severance of defendants for trial rest in the discretion of the trial judge and his rulings on such matters will not be disturbed on appeal except for manifest abuse of discretion.” Commonwealth v. Tolassi, 258 Pa.Super. 194, 199, 392 A.2d 750, 753 (1978), aff'd, 489 Pa. 41, 413 A.2d 1003 (1980). See: Commonwealth v. Middleton, 320 Pa.Super. 533, 551, 467 A.2d 841, 850 (1983); Commonwealth v. Johnson, 291 Pa.Super. 566, 581, 436 A.2d 645, 653 (1981). When the crimes charged arise from the same acts or series of acts and much of the same evidence is necessary or applicable to all defendants, a joint trial is “permissible, if not advisable.” Commonwealth v. Jackson, 451 Pa. 462, 464, 303 A.2d 924, 925 (1973). See: Commonwealth v. Kloiber, 378 Pa. 412, 415, 106 A.2d 820, 823, cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954); Commonwealth v. Fields, 317 Pa.Super. 387, 398, 464 A.2d 375, 381 (1983); Commonwealth v. Norman, 272 Pa.Super. 300, 306, 415 A.2d 898, 901 (1979); Commonwealth v. Weitkamp, 255 Pa.Super. 305, 321, 386 A.2d 1014, 1022 (1978). Especially where a conspiracy to commit crime is alleged, the defendants should be tried together, “unless it can be shown that one or more of the defendants will be actually prejudiced by doing so.” Commonwealth v. Johnson, supra 291 Pa.Super. at 582, 436 A.2d at 653. See: Commonwealth v. Katsafanas, 318 Pa.Super. 143, 157-58, 464 A.2d 1270, 1277-1278 (1983); Commonwealth v. Tolassi, supra 258 Pa.Super. at 200, 392 A.2d at 753.

The Commonwealth’s case against the Hamms consisted in large measure of the testimony of James Griffin, who participated in the planning and commission of both burglaries and in the division of the spoils therefrom. Separate trials would have required the duplication of Griffin’s testimony, as well as that of the investigating officers, the burglary victims, and James Boulanger, who bought some of the stolen property. Contrary to the Hamms’ assertions, we find no evidence of actual prejudice in the record. The trial court was acutely aware of the separate rights and interests of the two defendants, and sought to protect them against prejudice because of the joint trial. Appellants’ bald assertion that they were denied a fair trial because their attorneys were unable to agree upon trial strategy finds no support in the record.

The record also belies James’ argument that he was exposed to prejudicial testimony not otherwise admissible because of the consolidation. In response to questions posed on cross-examination of Griffin by Raymond’s counsel concerning the witness’ role in unrelated murder plots, Griffin stated that James Sampson, whom Griffin wanted killed and who, in fact, had been murdered, was a potential witness against James Hamm. We agree with the trial court that Griffin’s statement was not prejudicial. At most, the statement informed the jury that a potential witness against James Hamm had been murdered and implied that the witness may have had something to do with it. James Hamm was neither implicated in the murder nor prejudiced by this cross-examination.

Raymond Hamm was also not prejudiced by James’ decision to testify while Raymond elected to remain silent. Although it may be said generally that joint trials should not be ordered where defendants assert antagonistic defenses, see: Commonwealth v. Tolassi, supra, 258 Pa.Superior Ct. at 200, 392 A.2d at 753, in this case there was no inconsistency whatsoever in the defenses presented by the co-defendants. James explicitly denied participation in the burglaries. Raymond also denied participation. See and compare: Commonwealth v. Hartzell, 320 Pa.Super. 249, 467 A.2d 22 (1983). Counsel for both defendants attacked the credibility of Griffin and sought to impeach him on the basis that he had sought leniency in return for his testimony. No comments were made concerning Raymond’s silence, and no inference of guilt on that basis was permitted.

During direct examination, Griffin stated that he and the other conspirators took gloves with them to the Gehron home. When the prosecutor asked why, Griffin responded that “We usually wore gloves to never leave fingerprints.” Both appellants contend that the trial court erred in denying motions for mistrial made following this remark. We disagree. The declaration of a mistrial is a matter committed to the discretion of the trial court, and the court’s decision will not be disturbed on appeal absent a “flagrant abuse of discretion.” Commonwealth v. Potts, 314 Pa.Super. 256, 274, 460 A.2d 1127, 1136 (1983). See: Commonwealth v. Dumas, 299 Pa.Super. 335, 344, 445 A.2d 782, 787 (1982); Commonwealth v. Stokes, 279 Pa.Super. 361, 371, 421 A.2d 240, 245 (1980); Commonwealth v. Walley, 262 Pa.Super. 496, 505, 396 A.2d 1280, 1285 (1978). Purported references to a defendant’s prior criminal activity will not be deemed prejudicial unless the remarks convey to the jury, either expressly or by implication, the fact that the defendant committed a prior criminal offense. Commonwealth v. Starks, 484 Pa. 399, 408, 399 A.2d 353, 357 (1979) (plurality opinion); Commonwealth v. Irwin, 475 Pa. 616, 622, 381 A.2d 444, 447 (1977); Commonwealth v. Potts, supra, 314 Pa.Super. at 274-75, 460 A.2d at 1136; Commonwealth v. Carney, 310 Pa.Super. 549, 552, 456 A.2d 1072, 1074 (1983); Commonwealth v. Bowermaster, 297 Pa.Super. 444, 450-451, 444 A.2d 115, 118 (1982).

The Hamms were being tried for two separate burglaries, both of which had been committed jointly with Griffin. Not only was the prosecutor’s question about the use of the gloves directed only to the night of the Gehron burglary, but Griffin’s answer using the pronoun “we” was a solitary and vague reference to an undefined group. Inclusion of either James or Raymond in that group could not reasonably be inferred, particularly in view of the fact that Griffin had admitted to being involved personally in several hundred burglaries.

Appeal of James Hamm

James Hamm raises two issues not raised by his brother: (1) whether he was tried in violation of Pa.R.Crim.P. 1100, and (2) whether the trial court erred in refusing to allow counsel to conduct voir dire personally or, in the alternative, by refusing to ask prospective jurors a number of questions proposed by his counsel.

The criminal complaints against the Hamm brothers were signed on March SO, 1979. The Rule 1100 run date, therefore, was September 26, 1979. On July 30, 1979, the Commonwealth requested that the cases against James Hamm, Raymond Hamm and James Dotson be tried together and announced that it was ready to proceed. James Hamm’s attorney, a public defender, was out of town and for personal reasons was not available on that day. Raymond Hamm and James Dotson were also represented by public defenders, who requested a continuance of the trial. When Raymond’s attorney moved for a continuance, he told the court:

“Sir, I would be making the same application on behalf of Mr. Kalmbach for James. Although I am not his counsel specifically at this time, because of the fact that we are working together and it is the Public Defender’s Office representing both, I am prepared to ask for a continuance on both matters.”

The District Attorney, to avoid Rule 1100 problems, requested written waivers of the rule’s requirements. Counsel for Raymond Hamm and James Dotson obtained waivers from their clients and delivered them to the District Attorney. Upon the filing thereof, the trial was continued and relisted by agreement of counsel for October 9, 1979.

The day after Mr. Novak, Raymond Hamm’s attorney, and Mr. Reed, James Dotson’s attorney, had requested continuances for the three defendants, Novak informed Kalmbach that the Commonwealth intended to try the defendants together and that a continuance of all cases had been requested by the defense. He also told Kalmbach that the Commonwealth expected a waiver from his client, James Hamm, in connection with the request for continuance. Several requests for a waiver were subsequently made upon Kalmbach by the District Attorney, but Kalmbach ignored them. When the Commonwealth did not receive the anticipated waiver from James Hamm, it filed a timely petition to extend the time for commencing trial. James Hamm filed an answer and moved to dismiss the charges. The trial court, after hearing, granted an extension until October 19. Trial commenced on October 10.

In Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), the Supreme Court held:

“[T]he trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the ‘due diligence’ of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.”

Id., 469 Pa. at 222, 364 A.2d at 1349-1350. See: Commonwealth v. Kite, 321 Pa.Super. 411, 415, 468 A.2d 775, 777 (1983); Commonwealth v. Jones, 314 Pa.Super. 515, 521, 461 A.2d 276, 279 (1983). The sole issue before this Court in the instant case is whether the trial court properly held that the Commonwealth had met its burden of proving due diligence in bringing Hamm to trial within the mandatory period. We agree that-the Commonwealth presented evidence sufficient to support the granting of an extension.

In its petition to extend, the Commonwealth alleged that it had been unable to bring James Hamm to trial within the mandatory period because of continuances requested by Hamm’s co-defendants. Periods of delay caused by co-defendants and/or their counsel may not normally be excluded from the computation of the prescribed period under Rule 1100(d). Commonwealth v. Hagans, 482 Pa. 572, 577, 394 A.2d 470, 472 (1978); Commonwealth v. Thomas, 266 Pa.Super. 381, 384, 404 A.2d 1340, 1342 (1979); Commonwealth v. Clarence Robinson, 263 Pa.Super. 330, 332, 397 A.2d 1233, 1234 (1979); Commonwealth v. Edward Brown, 251 Pa.Super. 179, 183, 380 A.2d 436, 438 (1977). However, such delays may constitute sufficient grounds for an extension of time for trial under Rule 1100(c). See: Commonwealth v. Hagans, supra, 482 Pa. at 577, 394 A.2d at 472; Commonwealth v. Kite, supra, 321 Pa.Super. at 415, 468 A.2d at 777; Commonwealth v. Brett, 262 Pa.Super. 326, 330, 396 A.2d 777, 780 (1978); Commonwealth v. Edward Brown, supra 251 Pa.Super. at 183, 380 A.2d at 438; Commonwealth v. Walter Brown, 242 Pa.Super. 397, 401-402, 364 A.2d 330, 332-333 (1976).

In the instant case, there was no basis for determining that the Commonwealth had failed to exercise due diligence. It was prepared to proceed. The case was not tried prior to the original run date solely because of continuances requested by counsel for co-defendants. They represented to the Court and to the District Attorney that counsel for James Hamm was joining their request for postponement and had no objection to an October trial date. Whether counsel for the co-defendants had express authority to make such representations is not the issue. The fact is that the representations were made, and because they were made the trial was continued and agreement was reached to reschedule the trial for October. Under such circumstances, the delay cannot be attributed to a lack of due diligence by the Commonwealth.

It is true, as appellant argues, that a criminal defendant has no duty to bring himself to trial or remind the Commonwealth that time is running out. See: Commonwealth v. Manley, 282 Pa.Super. 376, 383 n. 6, 422 A.2d 1340, 1343 n. 6 (1980); Commonwealth v. Garrison, 277 Pa.Super. 18, 25, 419 A.2d 638, 642 (1980); Commonwealth v. Walter Brown, supra 242 Pa.Super. at 401, 364 A.2d at 332; Commonwealth v. Hagans, 242 Pa.Super. 393, 396-397, 364 A.2d 328, 330 (1976), aff'd, 482 Pa. 572, 574, 394 A.2d 470 (1978). This does not mean, however, that the Commonwealth should not be granted an extension where a joint trial has been continued upon request of a co-defendant and trial cannot be achieved within the mandatory period because of the delay caused thereby.

In Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981), the Supreme Court said:.

“Rule 1100 ‘serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society, Commonwealth v. Brocklehurst, 491 Pa. 151, 153-154, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197 n. 4, 409 A.2d 308 n. 4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.”

Id., 493 Pa. at 69-70, 425 A.2d at 369-370. See also: Commonwealth v. Dunbar, 503 Pa. 590, 599, 470 A.2d 74, 78 (1983). “The public ... has an important ‘interest in having the guilt or innocence of the accused determined. Indeed, the criminal justice system owes society the duty not to abort trials, but rather to conduct proceedings expeditiously.’ ” Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009, 1012 (1983) (citation omitted). This requires that Rule 1100 be construed reasonably so as to achieve an expeditious determination of criminal charges and not hypertechnically to abort trials thereof.

There is no merit in appellant’s argument that the trial court’s refusal to allow counsel to conduct individual voir dire violated appellant’s right to the effective assistance of counsel. The trial judge could himself conduct the voir dire examination. This is expressly authorized by Pa.R.Crim.P. 1106(d), which provides in pertinent part that the trial judge may permit either counsel to conduct voir dire or may “itself conduct the examination.” In noncapital cases, the method of examining prospective jurors — whether individually or collectively — is discretionary with the court. See: Pa.R.Crim.P. 1106(e); Commonwealth v. Mayo, 272 Pa.Super. 115, 119, 414 A.2d 696, 698-699 (1979); Commonwealth v. Gore, 262 Pa.Super. 540, 557, 396 A.2d 1302, 1310 (1978); Commonwealth v. Howard, 248 Pa.Super. 246, 251, 375 A.2d 79, 82 (1977). The sole purpose of voir dire is to provide the accused with a competent, fair, impartial and unprejudiced jury. Commonwealth v. Christian, 480 Pa. 131, 139, 389 A.2d 545, 549 (1978) (plurality opinion); Commonwealth v. England, 474 Pa. 1, 6, 375 A.2d 1292, 1295 (1977); Commonwealth v. Futch, 469 Pa. 422, 426, 366 A.2d 246, 248 (1976); Commonwealth v. Richmond, 316 Pa.Super. 304, 307, 462 A.2d 1362, 1363 (1983); Commonwealth v. Short, 278 Pa.Super. 581, 590, 420 A.2d 694, 698 (1980); Commonwealth v. Fulton, 271 Pa.Super. 430, 432, 413 A.2d 742, 743 (1979). James Hamm does not suggest that the court’s handling of voir dire impaired his or his counsel’s ability to select a fair and impartial jury, and the record discloses no prejudice whatsoever. We reject Hamm’s invitation to find the denial of his request prima facie prejudicial.

We also find no merit in the related contention that James Hamm is entitled to a new trial because the Court refused to submit the following proposed questions to the prospective jurors:

“The judge will tell you that the Commonwealth has the burden of proof and must prove its case beyond a reasonable doubt. If, during your ultimate deliberation, you had such a doubt, would you have any hesitation in acquitting the defendant?
“Even though you will hear the Commonwealth’s evidence first, will you keep an open mind until all the evidence has been presented and the judge has instructed you on the law?”

The trial judge has broad discretion regarding the scope of voir dire examination; absent a showing that the court abused its discretion, its rulings will not be reversed. Commonwealth v. Futch, supra 469 Pa. at 427, 366 A.2d at 248; Commonwealth v. Layman, 290 Pa.Super. 244, 253, 434 A.2d 735, 739 (1981); Commonwealth v. Boone, 286 Pa.Super. 384, 388, 428 A.2d 1382, 1384 (1981). Moreover, voir dire questions encompassing legal principles and the jury’s understanding thereof are improper. See: Commonwealth v. Kingsley, 480 Pa. 560, 573, 391 A.2d 1027, 1033 (1978); Commonwealth v. Richmond, supra, 316 Pa.Super. at 310, 462 A.2d at 1365; Commonwealth v. Bright, 279 Pa.Super. 1, 8, 420 A.2d 714, 717 (1980); Commonwealth v. Everett, 262 Pa.Super. 61, 64-65, 396 A.2d 645, 646 (1978); Commonwealth v. Perea, 252 Pa.Super. 272, 277, 381 A.2d 494, 497 (1977).

Appeal of Raymond Hamm

Raymond Hamm argues that the trial court erred (1) in denying his motion for a change of venue; (2) in refusing his motion for a mistrial when the prosecutor referred to the members of the jury as “Mr. and Mrs. law and order”; and (3) in limiting all defendants to a single set of peremptory challenges. Raymond Hamm also argues a violation of his constitutional right to a speedy trial because of delay in sentencing. There is no merit in these issues.

Raymond Hamm’s request for a change of venue was based on the fact that five years before his trial, a brother had been arrested, tried and convicted for the murder of two Chester County policemen. Whether to grant a change of venue is a matter committed to the sound discretion of the trial court, and its decision will not be disturbed absent an abuse of that discretion. Common wealth v. Roberts, 496 Pa. 428, 432, 437 A.2d 948, 950 (1981); Commonwealth v. Daugherty, 493 Pa. 273, 276, 426 A.2d 104, 105 (1981); Commonwealth v. Keeler, 302 Pa.Super. 324, 328, 448 A.2d 1064, 1065-1066 (1982); Commonwealth v. Ralph Smith, 289 Pa.Super. 356, 364, 433 A.2d 489, 493 (1981). There was no abuse of discretion in refusing to change venue because of notoriety attaching to charges against a relative five years before. See: Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982), cert. denied, 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983); Commonwealth v. Melvin Robinson, 494 Pa. 372, 431 A.2d 901 (1981); Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980), cert. denied, 451 U.S. 1016, 101 S.Ct. 3004, 69 L.Ed.2d 387 (1981); Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978); Commonwealth v. Weakland, 273 Pa.Super. 361, 417 A.2d 690 (1979).

Counsel for Raymond Hamm made a pre-trial request that each defendant be given the statutorily mandated, seven peremptory challenges. The court denied this request and, instead, allowed an aggregate of seven challenges between the two defendants. Raymond Hamm contends that the court’s ruling denied him equal protection of the law.

It had been provided by statute at the time of the instant trial that in noncapital felony cases the Commonwealth and the accused were each entitled to seven peremptory challenges. Act of October 7, 1976, P.L. 1089, No. 217, 19 P.S. § 811(a) (repealed). However, in trials involving more than one defendant, the defendants were entitled only to the maximum number any one of them would have received if tried separately. Act of March 31, 1860, P.L. 427, No. 375, § 40, 19 P.S. § 785.

There is no constitutional requirement that an accused be permitted to exercise peremptory challenges. See: Commonwealth v. Davis, 267 Pa.Super. 370, 376, 406 A.2d 1087, 1089-1090 (1979); Commonwealth v. Kubacki, 208 Pa.Super. 523, 528, 224 A.2d 80, 83 (1966); Commonwealth v. Cohen, 203 Pa.Super. 34, 69, 199 A.2d 139, 156, cert. denied, 379 U.S. 902, 85 S.Ct. 191, 13 L.Ed.2d 176 (1964). Consequently, the statutory limitation imposed upon the number of peremptory challenges available to a defendant did not violate due process. Similarly, it was not a violation of due process to require that peremptory challenges allowed to the defense be shared by and between joint defendants.

Appellant’s contention that a different, more liberal right to exercise peremptory challenges available to joint defendants in civil trials rendered the greater restriction on peremptory challenges in criminal cases a violation of equal protection is lacking in merit.

The hallmark of an equal protection violation is a classification by government which results in unequal treatment of persons similarly situated. See generally: Kaelin v. Warden, 334 F.Supp. 602, 608 (E.D.Pa.1971); Commonwealth v. Kramer, 474 Pa. 341, 346, 378 A.2d 824, 826 (1977); Commonwealth v. Webster, 462 Pa. 125, 130, 337 A.2d 914, 917, cert. denied, 423 U.S. 898, 96 S.Ct. 201, 46 L.Ed.2d 131 (1975). Joint defendants in criminal cases are not situated similarly to joint defendants in civil cases. In criminal cases, the other party and principal adversary is usually the Commonwealth. In civil cases, however, the interests of a defendant may as readily be in conflict with the interests of other defendants as they are in conflict with the interests of the plaintiff. To recognize this difference and to allow a court in the exercise of its discretion in civil cases to remove potential prejudice in the sharing of a lesser number of peremptory challenges is entirely proper. Principles of equal protection do not command that peremptory challenges in criminal cases be precisely the same in number as those in civil trials or that they be divided in precisely the same manner between joint defendants.

The Pennsylvania statutory requirement pertaining to the number of peremptory challenges to prospective jurors in joint criminal trials has withstood repeated attacks of varying types and degrees. See: Commonwealth v. Weeden, 457 Pa. 436, 322 A.2d 343 (1974), cert. denied, 420 U.S. 937, 95 S.Ct. 1147, 43 L.Ed.2d 414 (1975); Commonwealth v. Norman, supra; Commonwealth v. Phillips, 267 Pa.Super. 526, 407 A.2d 35 (1979); Commonwealth v. Kubacki, supra; Commonwealth v. Vecchiolli, 208 Pa.Super. 483, 224 A.2d 96 (1966); Commonwealth v. Cohen, supra; Commonwealth v. Giambrone, 183 Pa.Super. 283, 130 A.2d 254 (1957); Commonwealth v. Antico, 146 Pa.Super. 293, 22 A.2d 204 (1941). See also: Anno., Jury: Number of Peremptory Challenges Allowed in Criminal Case Where There Are Two or More Defendants Tried Together, 21 A.L.R.3d 725 (1968). There is no good reason for holding the requirement invalid in these proceedings.

During summation, the prosecuting attorney told the jurors that each of them was “truly Mr. and Mrs. law and order.” A motion for a mistrial by counsel for Raymond Hamm was denied by the trial court. He now contends that this was error. “[C]omments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Tabron, 502 Pa. 154, 160, 465 A.2d 637, 639-640 (1983) (citations omitted). See: Commonwealth v. Anderson, 501 Pa. 275, 282, 461 A.2d 208, 211 (1983). The remark in question was not improper. A prosecutor, it has been held, is permitted within proper limits to state to a jury its role in the achievement of law and order. See: Commonwealth v. Tabron, supra, 502 Pa. at 160-61, 465 A.2d at 640; Commonwealth v. Gwaltney, 497 Pa. 505, 511, 442 A.2d 236, 239 (1982); Commonwealth v. Nesbitt, 276 Pa.Super. 1, 12, 419 A.2d 64, 70 (1980); Commonwealth v. Boone, 287 Pa.Super. 1, 8, 429 A.2d 689, 692 (1981); Commonwealth v. Youngkin, 285 Pa.Super. 417, 434, 427 A.2d 1356, 1365 (1981); Commonwealth v. Lee, 261 Pa.Super. 48, 52, 395 A.2d 935, 938 (1978).

Raymond Hamm also contends that he should be discharged because a twenty-nine month delay in imposing sentence following conviction constituted a violation of his constitutional right to a speedy trial. This issue was not raised at the time of sentencing, even though the sentencing court gave appellant the right to speak. It was raised for the first time in a P.C.H.A. petition which Raymond Hamm filed after the instant direct appeal had been taken. That P.C.H.A. petition remains presently undecided. This issue, therefore, is not properly before us. Similarly, the averment that trial counsel was ineffective for failing to permit Raymond Hamm to call this delay to the attention of the sentencing court can best be determined in the P.C.H.A. proceedings still pending in the court in Chester County.

Because we find no merit in the issues properly raised by appellants in their direct appeal, the judgments of sentence will be affirmed.

Affirmed.

SPAETH, J., concurs in the result.

      . 18 Pa.C.S. § 3502.

      . 18 Pa.C.S. § 3921.

      . 18 Pa.C.S. § 3925.

      . 18 Pa.C.S. § 903.

      . The burglaries remained unsolved for over a year until James Griffin led state police and Chester County detectives to the two homes and to a location in a wooded area where the chair stolen from the Ryan home had been left. Griffin was in custody on unrelated charges when he divulged his role in the Ryan and Gehron burglaries and implicated the Hamms.

      . It was suggested at trial that Griffin had been involved in a number of murder plots and became a Commonwealth witness in unrelated cases in return for immunity and protection.

      . James Dotson, a co-conspirator in the Gehron burglary and a co-defendant of James Hamm in other unrelated cases, was originally part of the same proceedings, but he was tried separately.

      . The transcript of the July 30, 1979 proceeding is not part of the record sent to this Court. However, counsel for all parties as well as the trial court read from a copy of it at a pre-trial hearing, and the court quoted from it in its opinion without correction by either counsel. We rely upon these reproduced excerpts of that hearing.

      . Because the outcome of this case turns upon the propriety of the extension granted under Rule 1100(c), we find it unnecessary to determine whether the Commonwealth was entitled to exclude part or all of the period following the July 30 listing under Rule 1100(d).

      . The trial took place in Dauphin County after a change of venue had been ordered. The facts of the case are reported in Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977).

      . Although this statute had been repealed by JARA when trial took place, it remained part of the common law of this Commonwealth pending promulgation of Pa.R.Crim.P. 1126. See: 42 Pa.C.S. § 20003(b).

      . In civil cases, the trial court may, in the exercise of a sound judicial discretion, grant defendants additional challenges where their interests are diverse and antagonistic. See: Pa.R.C.P. 221.

      . Present practice is governed by Pa.R.Crim.P. 1126 which provides in subsection (a)(2) that in the case of a noncapital felony, a single defendant and the Commonwealth are each entitled to seven peremptory challenges. In subsection (b), Rule 1126 provides, in part, that joint defendants must divide among themselves the highest number of peremptory challenges any one of them would have received if tried separately, provided that each defendant must have at least two challenges. Rule 1126(b)(2) expressly gives the trial court discretion to increase the number of challenges to which each defendant shall be entitled. See generally: Commonwealth v. Smith, 321 Pa.Super. 170, 467 A.2d 1307 (1983).


source: Caselaw Access Project

author: CERCONE, President Judge:

license: Public Domain

text:
    473 A.2d 139
    Bruce STERN v. VIC SNYDER, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued March 16, 1983.
    Filed Feb. 17, 1984.
    Reargument Denied April 30, 1984.

      James D. Crawford, Philadelphia, for appellant.
    Edwin P. Smith, Philadelphia, for appellee.
    Before CERCONE, President Judge, and ROWLEY and CIRILLO, JJ.
   CERCONE, President Judge:

This is an appeal from an order entering judgment in favor of appellee in an action in assumpsit alleging a breach of a contract for employment.

The parties became acquainted during the summer of 1976 when appellee-Bruce Stern (Stern) worked for Vic Snyder, Inc. (Corporation) as a plumber’s helper. Vic Snyder (Snyder) and Salvatore Contino (Contino), as principals of the Corporation, discussed with Stern the possibility of Stern becoming the Corporation’s general office manager. It was understood that Stern had no prior experience in such a position. Stern tried a two week trial period in the position and then agreed to accept a permanent position. Stern insisted on a written agreement.

A written agreement was executed on August 31, 1976, it provided for a term of employment of two years, with an option, exercisable by Stern, for a third year. The agreement provided for termination of Stern’s employment should the Corporation, through Contino, become dissatisfied with Stern’s performance. Sixty (60) days written notice was to be given in case of a breach by either party. On February 22, 1977, the Corporation discharged Stern. The Corporation claimed the discharge was because of dissatisfaction with Stern, to whom it attributed its decreased profit margin. Such was claimed to be attributable to Stern’s approval of contracts that did not accurately reflect the increase in labor and material costs and his improper assignment of mechanics.

Stern claims that Snyder and Contino never expressed any dissatisfaction with his work. Instead, he claimed the reason he was given for his firing was that Snyder had decided to resume active participation in the running of the business. Stern brought suit, on the contract, for the alleged improper termination. The jury’s verdict in favor of Stern awarded him $65,000.00, plus six percent interest and twenty-five percent attorney’s fees. The Corporation’s post-verdict motions were denied and judgment was entered. Hence this appeal.

The Corporation raises seven assignments of error. We will address the issues seriatim.

I. Did the trial court err in instructing the jury regarding the “satisfaction” clause contained in the contract?

Paragraph four of the contract read:

4. Stern shall at all times discharge his duties in consultation with and under the supervision of the Board of Directors of the CORPORATION through Salvatore Contino and Stern shall be solely responsible for the quality of his services to the said Board of Directors and the said Salvatore Contino. The employment of STERN shall continue only so long as the services rendered by him are satisfactory to the Board of Directors and Salvatore Contino, regardless of any other provisions contained, in this Agreement. The Board of Directors and Salvatore Contino shall be the sole judges as to whether the services of STERN are satisfactory.

(Emphasis supplied.) In its charge to the jury the court stated: .

Now, you determine from the evidence whether in fact they were dissatisfied. You’ve heard the testimony of the parties, you’ve heard the depositions read, you’ve listened very carefully. You determine from the evidence whether in fact they were dissatisfied.
And if you find that they were dissatisfied, consider under the terms of this contract whether their dissatisfaction gave them the right to terminate him, because in considering the evidence, as well as the plaintiff’s claim, your verdict must be guided by the terms of the August 31, 1976 agreement, as the parties once they entered into this contract defined their rights and obligations.

The Corporation argues that the second paragraph of the above charge added a requirement that the dissatisfaction be reasonable. It contends that so long as the dissatisfaction was genuine and in good faith, it could terminate appellee. See, Jenkins Towel Service v. Tidewater Oil Co., 422 Pa. 601, 223 A.2d 84, 86 (1966); Kramer v. Phila. Feather Goods Corp., 364 Pa. 531, 73 A.2d 385 (1950).

We believe that appellant misconstrues the court’s charge. As we read the particular charge in question, the court first directed the jury to determine if the board of directors was dissatisfied, and if it was, did it give the board the right to terminate him under the contract. A written contract should be construed as a whole. Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736 (1978). Shehadi v. Northeastern Nat. Bank of Pennsylvania, 474 Pa. 232, 378 A.2d 304 (1977). In the current case, the complained of charge did nothing more than direct the jury to consider appellant’s alleged dissatisfaction in light of the whole contract. In this particular respect, the charge was proper. However, the charge taken as a whole did not accurately state the law regarding dissatisfaction.

The Corporation complains that the court refused its points for charge, numbers 4, 5, 6, 7 and 8. These points contend that an employer’s dissatisfaction need only be sincere, not reasonable, and that an employer need not inform an employee of its reasons. Appellee contends that the issue was not preserved by specific exceptions after the charge was given, and even if it was raised, the charge given was sufficient. We must disagree with appellee on both counts.

The trial court after denying such points for charge indicated that while the points were accurate statements of the law they were more appropriate for closing arguments. (N.T. p. 269). Prior to the charge, defense counsel attempted to persuade the court that the suggested points were proper for charging the jury. (Id., 474 Pa. at 272-73, 378 A.2d 304). Following the charge, defense counsel, on the record, questioned the court’s charge contending that the issue was not whether there was sufficient performance but rather whether the dissatisfaction with the performance was genuine. {Id., 474 Pa. at 296, 378 A.2d 304). Thus, the issue was preserved.

Turning our attention to the merits of the rejected points for charge, we find a long line of cases supporting the Corporation’s view.

[Satisfaction] contracts are not strangers to the law of Pennsylvania and have been considered by us on numerous previous occasions. We have consistently held that where a contract provides for performance by one party to the satisfaction of the other, “the test of adequate performance is not whether the person for whom the service was rendered ought to be satisfied, but whether he is satisfied, there being, however, this limitation, that any dissatisfaction on his part must be genuine and not prompted by caprice or bad faith.” (Emphasis in original.) Kramer v. Phila. Leather Goods Corp., 364 Pa. 531, 73 A.2d 385 (1950); Burke v. Daus. of Holy Redeemer, 344 Pa. 579, 26 A.2d 460 (1942); Singerly v. Thayer, 108 Pa. 291, 2 A. 230 (1885).

Jenkins Towel Serv. v. Tidewater Oil Co., 422 Pa. at 606, 223 A.2d at 86. Such a holding has been echoed in numerous cases. See, Aster v. B.P. Oil Corp., 412 F.Supp. 179 (M.D.Pa.1976); Feinberg v. Automobile Banking Corporation, 353 F.Supp. 508 (E.D.Pa.1973); Marine Transport Lines, Inc. v. Publicker International, Inc., 303 F.Supp. 423 (E.D.Pa.1969); Commonwealth Department of Prop. & Sup. v. Berger, 11 Pa.Cmwlth. 332, 312 A.2d 100 (1973). Since the trial court acknowledged that the requested points accurately reflected the law, it should have so charged.

In Brourman v. Bova, 198 Pa.Superior Ct. 279, 182 A.2d 245 (1962), this court relying on Burke v. Daus. of Holy Redeemer, supra, found that the trial court had not erred in charging the jury that performance was to be to the defendant’s satisfaction so long as dissatisfaction was bona fide and not capricious. If we look back to the case of Kramer v. Philadelphia Leather Goods Corporation, supra, we find that the determination of whether the discharge was based on genuine dissatisfaction is a question for the jury. However, in the current appeal, was the jury provided with adequate guidance from the court to determine that question?

We think not.

Viewing the above charge, the jury was directed to determine, whether the Corporation was dissatisfied with Stern’s performance, and whether dissatisfaction gave it the right to terminate him. The jurors were not instructed to determine whether the dissatisfaction was sincere or genuine.

Since the jury did not have the benefit of “proper instructions” we are unable to hold that the jury had a proper basis upon which to return its verdict. Therefore, we are constrained to award a new trial. The trial court did not fully apprise the jury of the pertinent law and hence we are unable to determine whether the verdict had a proper basis or not. See, Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Fama v. Smith, 303 Pa.Superior Ct. 414, 449 A.2d 755 (1982); Weinstein v. Philadelphia Trans. Co., 222 Pa.Superior Ct. 448, 295 A.2d 111 (1972).

Having found that a new trial is required, we nonetheless find it necessary and desirable, so as to avoid any possibility of the repetition of the errors, to address the remaining issues.

Included in appellant’s first contention is a claim that the court should not have permitted the jury to rely on paragraph eleven of the agreement to influence its verdict. That paragraph reads:

Regardless of any other provision in the Agreement, this Agreement may be terminated for breach of the Agreement by either party giving sixty (60) days written notice of termination to the other party. Such termination notice as given by the CORPORATION, shall only be transmitted to STERN after the CORPORATION indicates its intention to so terminate the employee’s contract; said intention may be relayed to STERN by Salvatore Contino on behalf of the Board of Directors. Termination of the Agreement by either party may be made prior to completion of the term of employment specified herein in accordance with the aforementioned notice provision. Such termination shall not prejudice any other remedy to which the terminating party may be entitled either at law, or in equity, or under this Agreement.

The Corporation argues that such paragraph should be read separate and apart from paragraph four, supra, at p. 428, as paragraph four is not affected by the provisions of paragraph eleven. In other words according to the Corporation a termination pursuant to paragraph four did not require sixty days notice and the jury should not have been permitted to find a breach of the agreement for failing to give such written notice.

As we held above no error occurred in permitting the jury to consider an issue in light of the whole contract. We can not accept appellant’s argument. Paragraph four provides a basis for termination but it does not set forth what procedure was to be followed. Paragraph eleven spells out the procedure that controls when a breach occurs, but it does not, in and of itself, provide a definition for “breach.” We find that it was within the purview of the jury to determine whether paragraph eleven pertained to the satisfaction provision contained in paragraph 4.

II. Did the trial court err in charging the jury on substantial performance?

Appellant complains vigorously that the court’s instruction on the doctrine of substantial performance was improper, unnecessary and could have only confused or misled the jurors. We must agree. At issue was whether Stern was dismissed because of the Corporation’s genuine dissatisfaction. While the charge on substantial performance may have been legally correct, it was unnecessary. A court should only instruct on that law that is pertinent to the controversy before it. Hronis v. Wissinger, 412 Pa. 434, 194 A.2d 885 (1963); Perigo v. Deegan, 288 Pa.Superior Ct. 93, 431 A.2d 303 (1981).

III. Did the trial court err in admitting evidence of oral promises preceding the written agreement?

The Corporation points out that Stern testified that Contino guaranteed him, prior to the signing of the agreement, that he would be employed for three years. The Corporation contends such contradicted the written intention of the parties that the employment would be for two, maybe three years, subject to the satisfaction clause. It argues that the testimony violated the integration clause of paragraph fifteen and the parol evidence rule. Stern argues that the first time Contino’s promise “that the contract would be upheld” came up at trial no objection was raised. (N.T. 35) Later, when he stated he “believed” Mr. Contino’s assurance that he, Stern, would be with the company for three years, the Corporation objected. (N.T. 56-57). Stern further contends that while the Corporation raised this matter in a motion in limine, it did not preserve it in post trial motions. Contrary to appellee’s claim, this contention was raised in post-trial motions. When, as in the instant case, an agreement or provision thereof is clear on its face and is not reasonably capable of differing interpretation, the intent of the parties must be ascertained from the writing itself. Berger v. Ackerman, 293 Pa.Superior Ct. 457, 439 A.2d 200 (1981); Potts Mfg. v. Loffredo, 235 Pa.Superior Ct. 294, 340 A.2d 468 (1975). However, while the proffered testimony may have been a violation of the parol evidence rule, not every violation of the rules of evidence requires a new trial. Where the error has worked no harm to the appellant, a new trial will not be in order. Whistler Sportswear, Inc. v. Rullo, 289 Pa.Superior Ct. 230, 433 A.2d 40 (1981). The harmless error rule has been applied to the improper admission of parole evidence. See Tate v. Moran, 264 Pa.Superior Ct. 540, 400 A.2d 217 (1979). Here, reading the challenged testimony as a whole, and not select excerpts, it merely reflected the clear intent of the parties as provided in the agreement. Any error was harmless. Compare, Capan v. Divine Providence Hospital, 270 Pa.Superior Ct. 127, 410 A.2d 1282 (1979) (counsel was able to elicit similar testimony by other questioning).

IV. Did the court err in allowing the jury to award attorney’s fees?

Paragraph seventeen of the agreement provided for the award of “reasonable attorney’s fees” should one of the parties find it necessary to enforce its rights under the agreement. Stern testified that he had entered into a 25% contingency fee arrangement with his attorney. The Corporation contends that the evidence was inadequate to support a finding that the fee was reasonable. As this matter deals more with the parties presentation of their cases than with the court’s conduct at trial we see no need to review this issue at this point in time as the parties will have another opportunity to address this point.

V. Did the trial court abuse its discretion by permitting testimony relating to Stern’s prior employment?

The Corporation filed a motion in limine seeking to prevent the admission of testimony regarding Stern’s prior employment. The motion was denied. Prior to taking testimony the court reviewed the pleadings to determine what facts were admitted. The judge resolved that the jury could hear that the Corporation was aware that Stern had foregone other employment to work for the Corporation, though the specifics of such employment should not be brought to the jury’s attention as an admission. The Corporation contended that such was irrelevant. Stern testified that he gave up a tenured position as a school teacher in order to work for the Corporation. The Corporation here argues that such testimony was irrelevant and prejudicial.

Relevant evidence is defined as evidence which tends to establish a fact in issue or which in some degree advances the inquiry, and thus has probative value. Whistler Sportswear, supra. Stern’s prior employment as a tenured school teacher had no bearing on the resolution of the issues in this case and therefore it was improper to advise the jury of such prior job. Nor should the Corporation be barred from raising this issue by its failure to renew its objection at every opportunity and by its own cross-examination of Stern regarding his prior occupation. In Yankunos v. Hinds Catering Co., 130 Pa.Superior Ct. 187, 196 A. 520 (1938), this court ruled that where it clearly appears from the ruling made as to a particular objection that such ruling will be applicable to all questions asked on the same matter counsel need not repeat his objection in order to preserve the issue. Furthermore, counsel who suffers an adverse ruling would be foolish if, after preserving his objection, he or she failed to attempt to discredit the testimony by cross-examination in the hope that he or she would be vindicated on appeal. See McCormick on Evidence § 55 (2nd Ed. 1972).

VI. Did the trial court abuse its discretion by not permitting testimony concerning the amount of decrease in the Corporation’s profit margin?

When Stern attempted pre-trial to discover what he deemed to be relevant financial statements, the Corporation sought and obtained a protective order against the disclosure of its financial statements. It contended then that the requested information was irrelevant and had no bearing on the case. Stern was able to depose the firm’s controller, but at that time he was no longer employed as the Corporation’s controller and therefore had to rely upon his recollection, instead of the requested documents. At trial the Corporation attempted to use the requested documents and the specific information therein to explain its dissatisfaction with Stern. Upon appellee’s objection the court refused to allow the Corporation to use such information holding that it was estopped by its pretrial opposition to its discovery. The Corporation was permitted to offer general testimony as to its declined profit margin. We find no error in this ruling. A trial court must oversee discovery between the parties and therefore it is within that court’s discretion to determine the appropriate measure necessary to insure adequate and prompt discovering of matters allowed by the Rules of Civil Procedure. Gonzales v. Procaccio Bros. Trucking Co., 268 Pa.Superior Ct. 245, 251, 407 A.2d 1338, 1341 (1979). The Court should not impose sanctions unless a party has disregarded or disobeyed a court order or an obligation under the rules of procedure. Jerry Pitell Co. v. Penn State Const., 277 Pa.Superior Ct. 575, 419 A.2d 1299 (1980). Even though Rule 4019(a)(2), Pa.R.C.P., explicitly excused the Corporation from producing the requested information, we find that the trial court did not abuse its discretion in excluding the evidence.

If the financial statements were relevant to the question of dissatisfaction then Stern was entitled, under Rules 4003.1 and 4009 Pa.R.C.P., to their production and the Corporation would have been obligated to produce them. Appellant sought to avoid its obligation by obtaining a protective order and yet it wishes to be permitted to use the same materials on its own behalf. Just as in a situation where the failure to provide requested information may justify the disallowance at trial of the undisclosed evidence, see Gonzales, supra, the present situation required exclusion of the information.

VII. Was the Corporation entitled to binding instructions?

Binding instructions after the presentation of the defense’s case are sustainable only where the evidence is insufficient to support the plaintiff’s cause of action. Highland Tank & Mfg. Co. v. Duerr, 423 Pa. 487, 490, 225 A.2d 83 (1966). In reviewing the sufficiency of the evidence, a court must determine whether in viewing all the evidence and all reasonable inferences arising from it in a light favorable to the plaintiff, a jury could reasonably conclude that the elements of the cause of action have been established. Mazza v. Mattiace, 284 Pa.Superior Ct. 273, 425 A.2d 809 (1981). Here the evidence, viewed in such light could reasonably supported the jury’s verdict and hence binding instruction were properly refused.

Judgment is vacated and the case is remanded for further proceedings not inconsistent with this opinion. We do not retain jurisdiction.

ROWLEY, J. concurred in the result.

      . In Berger, the Commonwealth Court also required that a sufficient opportunity to perform be allowed before it could be judge whether performance was satisfactory.

      . We must note that the court indicated that the bona fide dissatisfaction must be "reasonable”. As noted previously the reasonableness of the dissatisfaction is not pertinent so long as the dissatisfaction is genuine.

      . Paragraph 15 reads:
      This agreement supersedes any and all other agreements, either oral, or in writing between the parties hereto with respect to the employment of STERN by the CORPORATION and contains all of the covenants and agreements between the parties with respect to such employment in any manner whatsoever.

      . Stern contends that the denial of the motion was not appealed and appellant did not seek to have the issue certified for appeal, therefore he believes the pre-trial ruling became the law of the case. As a new trial is warranted on other grounds we will not attempt to resolve the procedural quagmire appellee attempts to create. To accept appellee’s position would be to punish the diligent practioner who attempts to resolve such matters pretrial, while awarding the practioner who chooses to await to the time of trial to raise the matter.

      . That rule reads:
      (2) A failure to act described in subdivision (a)(1) may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order.


author: WICKERSHAM, Judge:

text:
    473 A.2d 147
    COMMONWEALTH of Pennsylvania v. Gary Lee ROBERSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 11, 1983.
    Filed Feb. 24, 1984.

      Margaret M. Boyce, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   WICKERSHAM, Judge:

Gary Lee Roberson is presently serving a term of imprisonment of not less than ten nor more than twenty years based upon convictions obtained in a jury trial conducted in March of 1976 before the Honorable Lawrence Prattis. Roberson’s convictions included robbery and rape. A direct appeal to our court resulted in an affirmance of the judgment of sentence. Commonwealth v. Roberson, 258 Pa.Super. 471, 393 A.2d 455 (1978) (allocatur denied).

A fair distillation of the underlying facts was presented in appellee’s brief as follows:

Defendant, a prisoner, seeks collateral relief from his sentences for a notorious and atrocious crime. Defendant and his co-defendants were convicted for breaking into, ransacking and attempting to burn the Porreca home, for assaulting and robbing the Porreca family, and for raping and sodomizing the women.
On the evening of January 12, 1975, Roland Porreca answered the doorbell at his home in Philadelphia (N.T. 32), and defendant burst into the house with severál other men. When one of the intruders smashed a flower pot over Mr. Porreca’s head (N.T. 34), his wife, Diane, attempted to assist him, but was thrown to the floor (N.T. 154). The men then ransacked the house (N.T. 35, 154).
Leslie, the Porreca’s seventeen year old daughter, was upstairs in her bedroom doing her homework when she heard the commotion (N.T. 90-91). She attempted to call police on an upstairs phone, but found the line disconnected (N.T. 91). One of the intruders accosted Leslie, demanded money and slapped her (N.T. 95). At knifepoint, he forced her to go downstairs where her parents had been forced to lie on the living room floor (N.T. 36, 95). Leslie identified defendant from her good view of him at this time (N.T. 103-107).
One of the robbers took Leslie to the foyer and forced her to lie down and undress (N.T. 95-96). The man tried to rape Leslie (N.T. 96), then demanded more money and forced her to look throughout the house for it (N.T. 96). He took her to a utility room, forced her to lie down again, told her to ‘grind,’ and then lay on top of her (N.T. 98).
While Leslie was being assaulted, her parents were brutalized by defendant and his companions. Both were forced to lie on the floor. When Mrs. Porreca attempted to escape, she was thrown back on the floor, beaten and kicked in the head (N.T. 166). Her hands were tied behind her back (N.T. 156). Roland Porreca was kicked and beaten about the head (N.T. 155). One of the vandals put a gun to his groin and told him, ‘... your wife’ (N.T. 37,156). When Mr. Porreca refused, the man said, ‘I’ll do it’ (N.T. 37). One of the men began tearing Mrs. Porreca’s clothes off (N.T. 157). As Mr. Porreca rose to protect her he was knocked unconscious (N.T. 38). He lay helpless on the floor as defendant’s accomplices raped his wife who lay beside him.
One of the men held Diane Porreca’s legs apart as another raped her while a gun was held to her head (N.T. 157-158). She was forced to turn over on her stomach and was stabbed in the upper thigh (N.T. 158). She was raped and buggered repeatedly (N.T. 158, 332), while defendant sat on her unconscious husband (N.T. 159). Defendant stuck his fingers into her vagina and anus and said, ‘She stinks’ (N.T. 159).
The beatings inflicted by defendant and his companions seriously injured both Diane and Roland Porreca. Roland Porecca was beaten so badly about the head and face that he was unable to wear glasses for a week. He sustained lacerations and bruises of the head, face and arm (N.T. 49). In addition to the stab wound, Diane Porreca incurred a broken wrist (N.T. 327), lacerations of the head (N.T. 326), and extensive injuries of her genitals and anus (N.T. 329).
Defendant and his accomplices also robbed the Porreca family, taking jewelry, money, a radio, a camera and other items (N.T. 45, 101, 167). In addition, Leslie’s high school ring was pulled from her finger just as her mother’s wedding band was [wjrenched from her finger (N.T. 101, 166).
When her tormentors finally left, Mrs. Porreca ran out of the house wearing the only clothing the attackers had left on her body — her torn blouse (N.T. 106-161). Leslie, not aware her mother had left, looked for her in the living room. Not finding her there she looked up the stairway, and saw the reflection of flames where her bedroom had been (N.T. 99). Defendant and his accomplices had set five separate fires in the house (N.T. 232).
Defendant, then 17 years, 5 months old, was arrested on January 23, 1975, and, following police consultation with his mother, was taken to the Police Administration Building for questioning. He confessed his part in these atrocious crimes.
After a certification hearing, defendant was transferred to stand trial as an adult. Following litigation of numerous pre-trial motions, defendant was tried before the Honorable Lawrence Prattis and a jury from March 10 to March 16, 1976. Defendant was convicted of arson, rape, attempted rape, robbery, burglary, aggravated assault, weapons offenses, and conspiracy (Indictment Nos. 1028-1033, 1035-1039, July Sessions, 1975). Post-verdict motions were denied and Judge Prattis sentenced defendant to concurrent terms of ten to twenty years imprisonment for the robbery of Roland Porreca (No. 1029), the robbery of Diane Porreca (No. 1030), and the rape of Diane Porreca (No. 1032).
Defendant, by the Defender Association of Philadelphia, appealed to this Court which affirmed the judgment of sentence. Commonwealth v. Roberson, 258 Pa. [Super.] 471, [393 A.2d 455] (1978) (allocatur denied).

Brief for Appellee at 1-4 (footnotes omitted).

Defendant subsequently filed pro se a petition for relief under the Post Conviction Hearing Act. Present counsel, Margaret M. Boyce, Esquire, was appointed and filed an amended petition. Defendant’s petition was denied following an evidentiary hearing by the Honorable Charles L. Durham. This appeal followed.

In this appeal, appellant claims that trial counsel was ineffective in failing to preserve an issue for appeal.

The test for evaluating a claim of ineffective assistance of counsel is whether the record supports a conclusion that the particular course chosen by counsel had some reasonable basis designed to effectuate his clients’ interest. In making this assessment, we are not to employ a hindsight evaluation to determine whether there was a reasonable basis for the course of action actually selected. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979); Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979); Commonwealth v. Weathers El, 485 Pa. 28[,] 400 A.2d 1295 (1979); Commonwealth v. Treftz, 485 Pa. 297, 401 A.2d 1325 (1979); Commonwealth v. Williams, 485 Pa. 137, 401 A.2d 331 (1979). Commonwealth ex rel. Washington v. Maroney[,] 427 Pa. 599, 235 A.2d 349 (1967). Counsel will not be deemed ineffective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest. Commonwealth v. Musi, supra; Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth ex rel. Washington v. Maroney, supra.

Commonwealth v. Tabron, 502 Pa. 154, at 157-58, 465 A.2d 637 at 638 (1983). Opinion by Mr. Justice Nix.

Appellant first complains that the lower court erred in not suppressing an inculpatory custodial statement given by him relating to the circumstances surrounding the rape and assaults. Appellant further argues that since the inculpatory custodial statement should have been suppressed, his trial counsel, who also represented appellant in a prior appeal to this court, was ineffective for failing to preserve this suppression issue for appeal. We disagree for the reasons that follow:

In Commonwealth v. Jenkins, 499 Pa. 426, 453 A.2d 945 (1982) (Opinion by Justice Rolf Larsen) a similar question was before our supreme court:

Appellant’s only other assertion of trial error is that his inculpatory statement read into evidence over objection was inadmissible as it violates this Court’s so-called ‘interested-adult’ rule, sometimes referred to as the McCutcheon rule. Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975) (defendant’s confession should have been suppressed because ‘he was not given the benefit of parental or interested-adult guidance’.) We do not agree.
The record makes it abundantly clear that the behavior of the investigating officers in this case was an exemplary and successful attempt to comply with both the letter and the spirit of the interested-adult rule.
It is apparent that the investigating officers were well aware of McCutcheon and did everything they could to comply with the ‘interested-adult’ rule.
None of these specious assertions are supported by the record. Mr. Marshall [appellant’s uncle] was certainly an interested and informed adult concerned with appellant’s welfare, and the police first attempted to obtain the assistance of both appellant’s father and grandmother prior to securing Mr. Marshall’s assistance. Faced with the arraignment time constraints of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) (the ‘six-hour’ rule), the police wisely chose an eminently reasonable course of action in bringing Mr. Marshall to the station to consult with appellant. We will not require our law enforcement officers to conduct a survey of a defendant’s relatives, interview them, and make an evaluation as to which is ‘most interested’ in the minor’s welfare. From the foregoing, it is clear that appellant was given full and fair opportunity to consult with an interested and informed adult prior to waiving his Miranda rights and that, therefore, the admission of his statement into evidence was not erroneous.

Id., 499 Pa. at 430, 433-34, 453 A.2d at 947-949.

In like fashion we find that instantly the record makes it abundantly clear that the behavior of the investigating officers in this case was an honest and straight forward attempt to comply with both the letter and the spirit of the interested-adult rule, which was the standard in effect at the time of Roberson’s statement. The Supreme Court of Pennsylvania, however, has recently overruled the per se rule of McCutchen. In Commonwealth v. Christmas, 502 Pa. 218, 465 A.2d 989 (1983), Mr. Justice Flaherty expressed the opinion of the court in this manner:

The requisite measure of protection against admission of confessions derived as a result of the immaturity and inexperience of youth may be preserved through adherence to a presumption. Thus, we presume that a juvenile is incompetent to waive his rights without opportunity for consultation with an informed and interested adult; this presumption must be tested against the totality of circumstances surrounding a given waiver to determine whether the particular juvenile might in fact be competent to waive his rights without such opportunity. Thus, the McCutchen rule, requiring per se suppression of every statement obtained without there having been an opportunity for such consultation, is overruled. In its place, there shall exist a presumption that a statement derived in the absence of such an opportunity for consultation is inadmissible, but that presumption shall be regarded as rebutted where the evidence clearly demonstrates that the juvenile was in fact competent to make a knowing, intelligent and voluntary waiver of his rights. Hence, while the presumption of inadmissibility will serve to protect the juvenile defendant, who, in the usual case, is likely to be disadvantaged by his youth, consideration will no longer be foreclosed with respect to the totality of circumstances present in a particular case that may render the juvenile’s waiver of rights a knowing and voluntary one. Such circumstances include the manner in which the juvenile was treated by police authorities, as well as the juvenile’s age, experience, background, intelligence, capacities, and prior record. See Fare v. Michael C., 442 U.S. 707, 725 [99 S.Ct. 2560, 2571], 61 L.Ed.2d 197, 212-213 (1979).

Id., 502 Pa. at 223-24, 465 A.2d 992.

We need not decide whether Commonwealth v. Christmas, supra, must be retroactively applied, because the officers’ behavior surrounding appellant’s arrest met both the requirements necessary to rebut the presumption under Christmas and the more stringent per se rule of McCutchen. There is clear evidence demonstrating that the juvenile in this case was in fact competent to make a knowing, intelligent and voluntary waiver of his rights. As was accurately set forth in appellee’s brief:

When arrested, defendant was just seven months short of being eighteen years old. He had several previous encounters with the law. On at least two of those occasions, he was informed of his rights and on one occasion elected to remain silent, while on another he elected to give a statement.12
When the police came to defendant’s house and requested that he accompany them to the police station for questioning, they first requested his mother’s permission, informed the mother that they were investigating a robbery and arson, and gave the location of the incident (N.T.S.H. 71). The defendant’s mother replied that she had read about it in the newspaper, that it was all right with her for the police to take her son, and defendant also agreed to go (N.T.S.H. 72). Before defendant left, his mother asked him if he wanted her to accompany him to the interrogation and he replied ‘no.’ (N.T.S.H. 386).13
This defendant, like the defendant in Veltre,[ ] was in the lower spectrum of normal intelligence and had completed at least the eighth grade.14 He admittedly was repeatedly advised of his constitutional rights, and admittedly understood them completely.15 Moreover, as evidenced by Detective McKinley’s testimony at the suppression hearing, defendant knew about the crime for which he was to be questioned and, in the police car on the way to headquarters, he told the police he had heard about it (N.T.S.H. 123).
The record also shows that defendant was without mental disorder, and that he had no physical infirmities. Throughout the interrogation he was well treated and cooperated with the police. Defendant clearly was not an innocent, inexperienced youth. He had held several jobs in addition to being in the Job Corp. His testimony at the suppression hearing and at trial establishes that defendant was, at the time of this case, fully able to understand and respond to questions. If any juvenile is ‘street wise’ within the meaning of Veltre this defendant certainly was. Defendant’s claim of violation of. the ‘interested adult’ rule is meritless, and trial counsel may not be deemed ineffective for failing properly to preserve it for appellate review.

Brief for Appellee at 15-17.

Appellant further contends that his confession should have been suppressed due to the period of delay between his arrest and his statement and the delay between his arrest and his arraignment. We note first that appellant’s trial was held from March 10 to March 16,1976. Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) was decided on March 16, 1977. Therefore, the “six hour” rule adopted in Davenport is not applicable to the instant case. Nevertheless, we must still decide whether any delay between appellant’s arrest and arraignment was so “unnecessary” under the pre-Davenport standards that the evidence obtained during the delay should have been suppressed.

Our concern with unnecessary delay in arraigning criminal defendants after their arrest was first addressed in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and its progeny. See also, Pa.R.Crim.P. 122 and 130 (formerly Rule 116 and 118). In these decisions we developed a rule of exclusion that rendered inadmissible incriminating evidence extracted from an accused during periods of unnecessary delay ____ The evil which prompted this development was a recognition of the coercive environment that can be established by interminable custodial questioning.

Commonwealth v. Jenkins, 500 Pa. 144, 146, 454 A.2d 1004, 1005-1006 (1982). (footnote and citations omitted).

In Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974), the Pennsylvania Supreme Court established a three-part test for determining whether evidence obtained during a prearraignment delay must be suppressed. The court must find that (1) the delay is unnecessary; (2) the evidence obtained is prejudicial; and (3) the evidence is reasonably related to the delay. Id., 455 Pa. at 572, 319 A.2d at 420.

Instantly, the record indicates that appellant was stopped by the police on January 23, 1975 at approximately 7:50 p.m. (N.T. 11-3-75 at 67-70). The officers took appellant to his residence where appellant’s mother told the officers that it was alright with her if they took her son to the police station. They arrived at the police station at approximately 8:20 p.m. (N.T. 11-3-75 at 73). The initial interrogation took place from 8:25 p.m. to 8:55 p.m. (N.T. 11-3-75 at 74-85). A polygraph test was administered to appellant from 9:25 p.m. to 11:00 p.m. (N.T. 11-5-75 at 166-67). Appellant was left alone from 11:00 p.m. to 12:10 a.m. (N.T. 11-5-75 at 230-34). During an interrogation that took place between 12:10 a.m. and 1:50 a.m., appellant gave an exculpatory statement as to himself but implicated four other individuals in the alleged crime. (N.T. 11-5-75 at 234-51). Between 1:50 a.m. and 2:40 a.m. the appellant was fed, given a drink, used the lavatory facilities, and was permitted to make a phone call. (N.T. 11-5-75 at 253-305). From 2:40 a.m. until 3:30 a.m. appellant was left alone. (N.T. 11-5-75 at 351). At 3:40 a.m., appellant requested another polygraph test in order to prove his innocence. From 3:45 a.m. to 5:00 a.m., appellant was given another polygraph test. (N.T. 11-5-75 at 266). From 5:00 a.m. to 6:20 a.m., appellant gave an inculpatory statement which was typewritten and signed by the appellant. (N.T. 11-5-75 at 267-73).

We don’t believe that the delay in the instant case was “unnecessary.” Much of the delay (approximately 2 hours and 50 minutes) was due to the two polygraph tests administered to the appellant. In Commonwealth v. Blagman, 458 Pa. 431, 326 A.2d 296 (1974), our supreme court held that where the accused offered to take a polygraph test within an hour of his arrest in order to exculpate himself, the limited delay due to the administration of the test could not be said to have constituted an unnecessary delay. Instantly, the facts are similar; the appellant volunteered to take the polygraph tests in order to exculpate himself. Thus, these time periods do not constitute “unnecessary” delay.

We also note that much of the delay was caused by the appellant’s initial exculpatory statement that incriminated four other persons. The time period during which the police attempted to verify appellant’s statements was not unnecessary delay. Commonwealth v. Whitson, 461 Pa. 101, 106, 334 A.2d 653, 654-55 (1975) (three hour delay to check out accused’s story was not unnecessary); Commonwealth v. Edwards, 237 Pa.Super. 485, 489, 353 A.2d 462, 463-64 (1975) (false answers encourage delay and police may have a reasonable amount of time to investigate).

Furthermore, appellant at all times indicated that he wished to cooperate. Commonwealth v. Cherry, 457 Pa. 201, 205, 321 A.2d 611, 613 (1974) noted that it would be permissible to delay arraignment where the accused demonstrates a desire to cooperate. Also, some of the delays occurred in order to allow appellant to rest between interviews so as to avoid any possibility of coercion. See Commonwealth v. Young, 460 Pa. 598, 334 A.2d 252 (1975).

We find that the time period between appellant’s arrest and arraignment cannot be construed as unnecessary delay.

We admit that the second part of the Williams test is probably met, since a confession is almost always prejudicial to the accused. We do not believe, however, that the evidence obtained before appellant’s arraignment is reasonably related to the delay. The delay was not a contributing factor in obtaining the confession. See Commonwealth v. Young, supra. Judge Cain thoroughly discussed this aspect in his opinion dated April 7, 1976.

In the present case, the [appellant] was given his MIRANDA warnings repeatedly. He willingly offered information to the police concerning the crime and voluntarily agreed to questioning. He was subjected to no threats or promises and there is no showing that he was tired or otherwise physically impaired. Lastly, the [appellant] was not subjected to prolonged and constant questioning, rather to the contrary, he was allowed to rest between interviews for almost an hour. Under these facts we are convinced this case does not disclose the existence of coercive circumstances. Therefore, we conclude that no reasonable relationship exists between the delay and the confession.

Lower ct. op., 4-7-76 at 14.

Our review of the record satisfies us that no incriminating evidence was extracted from the accused during periods of unnecessary delay. We are not here confronted with a situation where incriminatory information was obtained through coercive means. We have examined the totality of the circumstances in order to determine the degree of coercion in reaching this conclusion. Our examination of the record convinces us that the delay bore no direct relationship to appellant’s statement. The confession was not a product of the delay, that is, the delay was not shown to be a contributing factor in obtaining the confession.

Thus, we find that the lower court did not err in refusing to suppress appellant’s confession.

Order affirmed.

      . Three of defendant’s co-defendants appealed to this Court. Commonwealth v. Moore, 283 Pa.Super. 609, 427 A.2d 1192 (1980) (affirming judgment of sentence totalling 20-40 years imprisonment); Commonwealth v. Weeks, 248 Pa.Super. 617, 374 A.2d 713 (1977) (affirming judgment of sentence totalling 20-50 years imprisonment and 60 years probation); Commonwealth v. Stewart, 245 Pa. 614, 372 A.2d 429 (1977) (affirming judgment of sentence totalling 15-30 years imprisonment and 60 years probation).

      . Act of Jan. 25, 1966, 1580, § 1, 19 P.S. § 1180-1 et seq. reenacted as Act of May 13, 1982, No. 122, 82, 42 Pa.C.S.A. § 9541 et seq.

      . In her brief for the appellant, Margaret M. Boyce, Esquire, presents the following issues for our consideration:
      1. Was trial counsel who also represented Appellant in a prior Superior Court Appeal, ineffective for failure to preserve an issue for Appeal?
      2. Should Appellant’s confession have been suppressed since he was a juvenile (17 years of age) at the time of his arrest and confession, because he was not given an opportunity, prior to receiving his Miranda Rights, of consulting with an interested adult, in accordance with Commonwealth v. McCutchen, 453 Pa. 90, 343 A.2d 669 (1975)?
      3. Did the PCHA Court in not ordering a new trial when it determined that Appellate counsel tried to preserve the McCutchen issue but it was due to a court error that an addendum brief was not filed by the Quarter Session clerk with the Superior Court and that if the brief had been properly filed, the McCutchen issue would have been properly preserved requiring the grant of a new trial?
      4. Should Appellant’s confession have been suppressed since there was a 9Vi hour delay between his arrest and his statement and an 18-hour delay between his arrest and the time of his arraignment?
      Brief for Appellant at 1.

       This author continues to espouse the view that the McCutcheon -‘interested-adult’ rule, which ‘irrebuttably presumes that no one under the magic age of 18 years can make a statement to the police without the assistance of the indispensible ‘‘interested adult”,’ is an improper and unnecessary impediment to legitimate public interests in effective law enforcement. See Commonwealth v. Henderson, 496 Pa. 349, 359, 437 A.2d 387, 392 (1981) (Larsen, J., dissenting, joined by Flaherty and Kauffman, JJ.). As stated in my dissent in Henderson, the totality-of-the-circumstances approach, which considers the age of the defendant as a factor of voluntariness and not a per se trigger requiring specialized procedures, is the proper approach to take in these situations. Under this approach, appellant’s waiver of his constitutional rights was clearly knowing, intelligent and voluntary.

      . The Commonwealth refers to Commonwealth v. Veltre, 492 Pa. 237, 424 A.2d 486 (1980). Veltre was a 3-3 decision of the Pennsylvania Supreme Court in which the Opinion in Support of Affirmance (opinion by Larsen, J.) held that the totality of the circumstances supported the lower court’s conclusion that the juvenile appellant’s waiver of his rights was knowingly, intelligently, and voluntarily entered despite the failure of the police to strictly comply with the "interested adult” rule. Although there was no majority opinion in Veltre, the decision established that some members of the court believed that the rigid per se McCutchen rule should be replaced with a more flexible approach. The Commonwealth’s brief indicates that the facts of the instant case were similar to the factual circumstance in Veltre and that the totality of the circumstances supports the conclusion that Roberson’s waiver of his rights was knowingly, intelligently, and voluntarily given.
      We note that the Commonwealth’s brief was filed prior to the Pennsylvania Supreme Court’s decision in Commonwealth v. Christmas, 502 Pa. 218, 465 A.2d 989 (1983). The Commonwealth did not have the benefit of Christmas at the time its brief was prepared, and thus, relied on Veltre.

      . Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) specifically stated that the "six hour” rule is to apply to "all cases in which the accused is arrested after the date of this opinion.” Id., 471 Pa. at 288, 370 A.2d at 307.

       Before the present case, defendant was arrested three times as a juvenile, twice at age seventeen. On March 25, 1972, defendant was arrested for vandalism, warned of his rights and made a statement at West Detective Division. At age seventeen, on December 2, 1974, defendant was arrested for burglary, was warned of his rights and declined to make a statement at West Detective Division. On December 15, 1974, defendant was arrested again at age seventeen for tampering with a witness. (P.C.H.A. Commonwealth Exhibit C-l).

       Defendant’s further testimony that he later changed his mind and asked her to come with him, only to be told that she could not come, was refuted by the testimony of the police officers. Moreover, defendant asked for and was given permission to call his mother from the station (N.T.S.H. 256-57). Judge Spaeth's dissenting opinion in this case on direct appeal notes that this fact does not satisfy the requirement that defendant be afforded the opportunity to consult with an ‘informed adult, i.e., one who has been informed of the suspect’s constitutional rights.’ 258 Pa. Superior Ct. 471, 476 n. 2 (original emphasis; citations omitted). However, defendant’s prior contacts with the law, as well as the frequent arrests of Mrs. Roberson's other sons (see N.T.S.H. 570) compels the conclusion that Mrs. Roberson was fully aware of her offspring’s constitutional rights. Indeed, defendant’s parents had been with defendant during his prior contacts with the legal system (Brief for Appellant at 15).

       Defendant stopped attending school in the tenth grade. While Judge Cain’s opinion states that defendant's I.Q. was 66 and Judge Prattis' opinion says his I.Q. was 77, the presentence report introduced into evidence at the P.C.H.A. hearing reveals that his I.Q. was 80.

       Defendant admitted that he was given his Miranda warnings three times on the night of his arrest and even signed a statement that had his rights written on it (N.T.S.H. 390, 427). In fact, defendant in his testimony never claimed that he did not understand his rights; his only complaint was that his confession was beaten out of him, a claim both the suppression court and the trial court found completely incredible.