text:
    480 A.2d 1214
    COMMONWEALTH of Pennsylvania v. Thomas J. FLEMING, Appellant.
    Superior Court of Pennsylvania.
    Argued April 12, 1984.
    Filed Aug. 3, 1984.
    Petition for Allowance of Appeal Denied Jan. 9, 1985.

      Gary K. Schonthaler, Erie, for appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Erie County sentencing the appellant, Thomas J. Fleming, to a term of 10 to 20 years for robbery. We affirm.

Because of the unusual nature of the case at bar, a detailed accounting is necessary to appreciate the ruling entered herein. Following the issuance of a warrant for the appellant and his subsequent arrest as a result thereof, a preliminary hearing was conducted before District Justice Sophie Hogan on May 13, 1980. On the face of the sheet (captioned “Docket Transcript”) filed with the Court of Common Pleas of Erie County by the District Justice appear the typed names of the Commonwealth’s witnesses who “testified” at the proceeding (i.e., Raymond Fitzgerald, Marie Phillips, Dora Magee and Marbara [sic] Ann Debberry [sic]), and the fact that “defense persons [were so] notified” of the witnesses. Also, in the space next to the block with the caption “Attorney For Defendant” appears the typed name of “D. Watson”. Counsel, a public defender, was requested by the appellant on May 7, 1980 after he was advised by the District Justice of his right to apply for assignment of counsel.

On June 4, 1980, defense attorney T. Dana Watson filed an Omnibus Pretrial Motion alleging that “[a]t the preliminary hearing on both charges[] various Commonwealth witnesses made an identification of the Defendant in the Courtroom[,]” which he claimed was tainted by an “inaccurate, unreasonable, and unjust” photographic array. The motion was never ruled upon since the appellant failed to appear for the September 1980 Term of Court. A bench warrant was issued on October 7, 1980, appellant was extradicted to this Commonwealth from California and his case was added to the July 1981 Term of Criminal Court.

On July 10, 1981, the appellant, through Attorney Watson, filed an application for a continuance “to retain outside private counsel ... [and] further time ... to prepare his defense[.]” (N.T. 7/10/81 at 3) Appellant sought to have his case postponed until November. The court refused to do so, being that it was the District Attorney’s office that set the scheduling of cases, and the matter was continued until the next term, i.e., September of 1981, in an effort to accommodate both of appellant’s requests.

By September 15, 1981, the appellant had failed to secure counsel, giving as a reason at a second continuance hearing that “they want so much money, so much money.” (N.T. 9/10/81 at 3) However, he “guaranteed” the court that if he were granted another continuance until November he would be ready to go to trial. As a compromise, the court informed the appellant that the case would be extended until the October Term of Court. If the appellant was serious about securing counsel he surely could hire one by that time, and if the appellant failed to obtain counsel by the date stated, the court advised him that, nevertheless, the case would be tried during the October Term. The appellant acknowledged the court’s requirement that he make a “sincere effort to get an attorney.” (N.T. 9/10/81 at 4)

Shortly thereafter, on September 14, 1981, appellant admitted his difficulty in raising money and asked the court to appoint counsel for him. During the course of the hearing on the matter, counsel for the Commonwealth remarked that there “was some ambiguity about whether Mr. Watson still represented] Mr. Fleming or not because, frankly, Mr. Watson as little as two weeks ago was attempting to plea bargain the case on Mr. Fleming’s behalf.” (N.T. 9/15/81 at 5) Appellant retorted that he had not asked for Watson, but, supposedly, Watson was listed to represent the appellant and out of concern for the accused did not want him to go to court without representation. Thus, according to the appellant, Watson “brought these suggestions to [him] as far as pleading guilty.” (N.T. 9/15/81 at 6) Nevertheless, the appellant still wanted the opportunity to hire a private attorney and agreed that, if he could not do so, he would “request the public defender[.]” (N.T. 9/15/81 at 9) Before the court consented to a continuance until the November Term of Court, it impressed upon the appellant the seriousness of the charges and his obligation to act with alacrity in locating counsel because the Commonwealth, which was prepared to try the accused since he “absconded the jurisdiction,” had “a right to proceed with this case at some point” and not have to summon witnesses only to send them home because the appellant was not ready to proceed.

Again, the appellant stated that “come November, [he] w[ould] be ready” even if it meant that counsel from the public defender’s office would have to handle the case.

The court cautioned the appellant that the continuance was being granted, “but with the understanding ... that [he was] going to trial in November.” Appellant agreed.

In point of fact, the record reveals a form document with the legend “Defendant’s Statement of Understanding of Rights Prior to Guilty Plea.” It was signed by the appellant, dated November 16, 1981 and indicated the entry of a plea to the robbery only — the firearms offense lodged against the accused was nol prossed. Private counsel (Jay Nedell) represented the appellant. However, after a hearing on January 29, 1982 the plea was withdrawn.

It appears from the record that on February 10, 1982 the appellant requested his private counsel to cease representing him and asked for a public defender. Counsel from the public defender’s office (Kenneth A. Zak) did appear with the appellant at a motion to dismiss per Pa.R.Crim.P. 1100. Thereafter, this same attorney filed a motion seeking leave to withdraw on the ground that, inter alia:

7. It is the policy of the Public Defender’s Office to refuse representation to an individual who has requested the termination of Public Defender representation in the past in the same case____ This position has been the policy of the Public Defender even in cases where defendant has “fired” his public defender and has retained private counsel in the interrim [sic] prior to requesting a public defender later.
8. It is also the policy of the Public Defender to request a formal application of a defendant prior to the assigning of a public defender. That did not take place in this case.
9. ... Defendant terminated his representation by Attorney Watson. In discharging Attorney Watson defendant discharged the Public Defender’s Office as a firm and should not be permitted to obtain the representation of a different member of the Public Defender’s staff.
10. While counsel has indeed entered an appearance in this matter, it is submitted that the withdrawal should be permitted in the interests of not only the Public Defender’s Office but the administration of justice by this Court.

The motion to withdraw was denied February 11, 1982.

The scenario continues with a proceeding before the Hon. Richard L. Nygaard on February 16, 1982. At that time, the appellant, with Attorney Watson present, desired a 2-week continuance to obtain counsel other than Watson. The court noted that Attorney Zak was appointed, but because of the Public Defender’s policy against “judge-shopping,” the first attorney, i.e., Watson, assigned out of that office was present to handle the litigation. Appellant objected, claiming that Watson’s removal in April of 1981 because of a conflict should foreclose the court from “forc[ing]” him upon the accused. On the other hand, the Commonwealth was “ready to proceed” and felt that any continuance would merely prolong an already protracted case without any assurances that the matter would not be postponed at the March Term.

Appellant related that he did not continue the case with prior, private counsel because counsel “asked to be dismissed from the case” and “kept going out in the hallway, three times, and consulted with the [assistant] district attorney....” (N.T. 12/16/82 at 6)

The court conceded that the appellant had the right to “effective” counsel, but not to the right to choose personally counsel from the public defender’s office. After the Commonwealth acknowledged that it was ready to proceed and all of its witnesses were present, the court remarked:

Well, this puts the Court in a bind, but it’s not a bind of our making and it’s not a bind of the Commonwealth’s making, it’s a bind of your [appellant’s] own making. You’ve come with attorneys before and you’ve come now after having withdrawn your guilty plea, you’ve worked with an attorney for a period of time then dismissed him just prior to trial term. I’m not going to continue it. We are going to go to trial. You had best work with your attorney here who has extensive criminal court experience, and whose stewardship in the course of a trial is diligent. I would suggest that you work with him. If you do not, the best he can do for you is to offer you advice if you ask it. But we will go to trial. (N.T. 2/16/82 at 6-7)

Despite the appellant’s protestation to the contrary, the court reaffirmed its decision to have the trial commence. Counsel from the public defender’s office responded in the following fashion:

MR. WATSON: Your Honor, I guess I’m at a loss to know exactly where we are in this case. I realize the Court has brought in a new panel of jurors. I have not yet entered an appearance on behalf of Mr. Fleming. I don’t believe I can enter an appearance since he does not wish me to represent him. I’m not sure what is best here. I feel in fairness to Mr. Fleming and on my behalf, I feel there are certain remarks I would have to make. One, because of Mr. Fleming I withdrew at his request. Since that time I have spoken with him on one occasion from jail and it appeared I would be filling in temporarily or taking over for Mr. Zak. I feel myself, I’m completely unprepared and incapable of representing him at this trial. He asked me not to do that and, of course, I can not. I will be present with him to answer any questions he may have, but Mr. Fleming himself has indicated he is not ready for trial, partly because Mr. Zak was representing him which apparently was satisfactory to him and then there was a misunderstanding, I’m not sure what, occurred. I think the only fair thing if I’m to actually represent him, I would clearly need a continuance of the case in order to prepare for the case, having no real preparation today. I’m not sure I realize the Court has already heard the motion to postpone the matter to the March term, even though the Commonwealth witnesses are here, I would think we would be more likely to avoid difficulties here or on an appeal if we had a continuance, or otherwise tried to provide Mr. Fleming with the counsel that could adequately represent him. It’s a circumstance I haven’t been in before and I think in fairness to him something should be done to avoid lawyer shopping, maybe this is a case for an exception. I can’t speak for the public defender.

(N.T. 2/16/82 at 7-8) (Emphases added)

Furthermore, Attorney Watson pleaded that he believed the appellant was not “deliberately delaying” the case because “as of the end of last week Mr. Fleming did think Mr. Zak would be representing him.” (N.T. 2/16/82 at 9) The court discounted this argument and recalled how it informed the appellant that the only way it would permit private counsel to withdraw “was if there was another one who was ready to take his place and would go to trial this term.” Ibid.

The court went on to explain that it was not only the appellant that had a right to a speedy trial, but the victim, the Commonwealth and the police department.

We just can’t go to trial only when the defendant wants to go to trial. So, I will deny your motion. This is an unusual case, I realize that, and that’s why I went into that in so much detail when Mr. Fleming wanted to discharge Mr. Nedell because I’ve been there before and I’m not going to let that happen unless there’s somebody to take his place, and this case shortly thereafter was called to trial. So, that’s the situation, but we have to run with it. (N.T. 2/16/82 at 10)

Before the bar of the court, Attorney Watson elicited from the appellant responses which indicated that neither the accused nor he, at the appellant’s insistence, would actively participate in the trial. Voir dire examination by the attorney for the Commonwealth followed. Attorney Watson’s involvement in this process was minimal, in that he did no more than request that the next prospective juror be called and questioned to determine his/her qualifications after an individual had been selected to serve. At the completion of the jury selection, Attorney Watson informed the court that:

Your Honor, Mr. Fleming has asked me to request an opportunity to confer with me and ask his trial be postponed until this afternoon. It now being 11:00 and I’m asking he be given the opportunity to confer with me and I assume it’s in regard to his defense or some other development in the case, I don’t know.
THE COURT: I think it’s a reasonable request. Why don’t we start in at 1:30.

(N.T. 2/16/82 at 20)

After the noon recess, the prosecution informed the court that the appellant had agreed, in exchange for the Commonwealth’s withdrawal of the firearm offense, to stipulate to the introduction of an FBI report of fingerprints in lieu of the agent’s testimony. Also, the appellant, through Mr. Watson, informed the prosecution and the court that he wished to be tried non-jury for the robbery charge. Consequently, a colloquy was conducted by the assistant district attorney, and supplemented by the court’s inquiry, which elicited from the appellant that his waiver was being implemented after having had an opportunity to consult with Attorney Watson. Further, before signing the “waiver of rights” sheet, the appellant read it over with Attorney Watson and acknowledged to the court that he had time to “discuss[ ] it with him.” (N.T. 2/16/82 at 25)

Prior to the commencement of trial, Attorney Watson renewed appellant’s motions for a continuance (to have “appointed ... counsel of his choice”), a dismissal (pursuant to Pa.R.Crim.P. 1100) and the suppression of evidence. These were denied by the court. Lastly, Attorney Watson placed on the record appellant’s continued wish that counsel refrain from participating or acting on his behalf at trial. Nonetheless, the court made it clear that Attorney Watson would sit at defense table and participate in the proceedings to the fullest extent permitted by his client. Counsel agreed to do so.

The first witness to testify for the Commonwealth was Marie Phillips, a cashier at Fitzgerald’s Golden Dawn supermarket in Erie, Pennsylvania. The witness recalled that at approximately 8:30 p.m. on April 17, 1980, she was working at the checkout area of the store. She confirmed this through a photograph, to which Attorney Watson stated he had no objection to its admission.

Ms. Phillips went on to recount how an individual, later identified as the appellant, approached the counter and spoke to her, at a distance of approximately 3 feet, concerning his purchase of a “beef jerky” with a dollar food stamp. After the item was placed on the counter, the cashier opened the drawer to make change for the sale and found that the appellant had placed his hand inside of the 50-cent compartment. When the witness tried to close the drawer, the appellant reached into his jacket, pulled out a revolver, placed it on the same spot on the register and said, “See here, you bitch, if you open' your mouth I’ll shoot you.” (N.T. 2/16/82 at 32)

The appellant was no farther away than the width of the counter as Ms. Phillips looked at his unmasked face. She observed the appellant remove $230 from the register and she hollered, “What do you think you’re doing.” By this time, the manager/owner, Ray Fitzgerald, heard Ms. Phillips and exited his office to see the appellant, who was about 20 feet away, with a pistol in hand removing currency from the drawer. Mr. Fitzgerald armed himself and fired at the appellant as he was making his way out the front door. The shot shattered the glass in the door and caused the appellant to drop to the floor, leading Mr. Fitzgerald to think that the accused had been wounded. However, the appellant got up and pushed the stockboy, who was walking into the store, out of his way in making his escape. During this point in the incident, Mr. Fitzgerald continued firing his weapon as the appellant ran down the street.

The police were duly notified and were given a detailed description of the robber by Ms. Phillips. In fact, at trial both Ms. Phillips and Mr. Fitzgerald identified the appellant as the guilty party. (N.T. 2/16/82 at 33, 38-39)

The Commonwealth also introduced the testimony of Barb DeBarry, the secretary on duty at Doctor’s Osteopathic Hospital on the night of the robbery, who admitted the appellant into the emergency room with a gunshot wound. When the police arrived on the scene, Detective Dennis Tobin was told by the appellant that he had been in a “crap game” and was robbed by a black male of a necklace and money. He further stated that the alleged assailant shot him as he ran.

The detective was able to secure from the appellant his social security number and date of birth. This information coincided with the data provided on an FBI fingerprint card obtained by the Erie police after an analysis of the “beef jerky” wrapper left on the counter by the perpetrator. The prints were those of the appellant.

Lastly, the Commonwealth read into the record the testimony given by the appellant at a separate, unrelated trial in which he admitted, during questioning by his then counsel (Attorney Nedell), to the robbery of Fitzgerald’s supermarket and sustaining a gunshot wound to his left shoulder during the incident. Neither Attorney Watson nor the appellant objected to the introduction of the aforementioned evidence.

However, after the close of the Commonwealth’s case-in-chief, Attorney Watson did enter a demurrer on behalf of his client, as was requested by the appellant. Accordingly, at the completion of the case, the court found the appellant guilty as charged and advised him of his rights. Thereafter, (private) counsel unassociated with trial counsel was appointed. Post-trial motions were filed, sentence was imposed and a modification thereof was sought and denied. This appeal followed.

Counsel for the appellant challenges the trial court’s denial of a continuance, which, he alleges, impaired appellant’s right to the effective assistance of counsel. Also, the validity of the sentence is questioned.

In regard to the issue of the trial court’s denial of appellant’s request for a continuance sought on the day set for the commencement of the proceedings, and echoed by then assigned counsel from the public defender’s office, we have stated:

The allowance of continuances is largely a matter within the discretion of the lower court, and the denial of a continuance does not constitute reversible error unless there is an abuse of discretion. Commonwealth v. Kittrell, 285 Pa.Super. 464, 427 A.2d 1380 (1981). The Supreme Court of the United States has said:
[I]t is not every denial of a request for more time that violates due process even if the party ... is compelled to defend without counsel ____ Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality____ There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.
Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849-850, 11 L.Ed.2d 921, 931 (1963). (Emphasis in original)

Commonwealth v. Wolfe, 301 Pa.Super. 187, 192, 447 A.2d 305, 308 (1982); see also Moore v. Jamieson, 451 Pa. 299, 306 A.2d 283 (1973).

In light of the aforesaid, a case-by-case approach is the method by which a claimed court’s abuse of discretion in denying a defendant’s request for a continuance is to be reviewed. In particular, we are to give attention to the “reasons presented to the trial judge at the time the request is denied.” Commonwealth v. Wolfe, supra.

Instantly, appellant claims that because Attorney Watson “was totally unprepared for the trial,” the denial of a continuance impaired his right to the “effective assistance of counsel.” (Appellant’s Brief at 18) A close scrutiny of the facts and applicable law will reveal the fallacy in appellant’s contention.

Factually, we observe that the same attorney (Watson) who represented the appellant at trial was counsel of record at the preliminary hearing, and, obviously, heard the testimony of those same witnesses who appeared at both proceedings so as to render nugatory any contention that counsel was “unfamiliar” with the case. This aspect is reinforced by the fact that Attorney Watson filed a pre-trial motion to suppress the identification procedure utilized by the authorities.

After the appellant “jumped bail” and was returned to this jurisdiction by means of extradition, he sought, and was granted, a continuance in July of 1981 until September of 1981 to secure private counsel and time to prepare his case. Attorney Watson was present at this hearing.

A second continuance was obtained by the appellant, without the aid of counsel, extending his trial date from September to October of 1981. Again, the appellant was in the throes of hiring an attorney and “guaranteed” the court that he would make a concerted effort to find one. However, by the 15th of September, 1981, the appellant had conceded to the court his inability to raise sufficient funds to hire counsel, yet he persisted in his desire to seek counsel of his choice and importuned the court to give him another chance. If he failed, he agreed to be represented by a public defender. The Commonwealth objected to any additional continuance, and noted that as far as it understood the situation Attorney Watson, “as little as two weeks” prior to the hearing, was still representing the appellant as evidenced by his efforts to strike a plea bargain for the accused. The appellant did not deny the occurrence of such an incident between himself and Attorney Watson. On the contrary, he admitted to being approached by counsel concerning the feasibility of pursuing such an avenue to bring the matter to a close. At this point, it requires mentioning that one would be hard-pressed to equate the presentation of a plea proposal by counsel who was “unfamiliar” with a case he sought to plea bargain.

In granting the third continuance until the November Term of 1981, the court did so with the admonition to the appellant that the Commonwealth could not be required to hold its case in abeyance, on a recurring basis, until he was “ready to proceed.” Witnesses could not be summoned to court, indefinitely, and then told to go home. The system could not withstand a steady diet of procrastination and still retain the image of impartiality in the administration of justice.

Between the date of the third continuance and appellant’s trial a number of events occurred, i.e., 1) appellant hired and fired private counsel during a time when he withdrew a plea of guilty entered in November of 1981; and 2) appellant asked for and received a public defender (Attorney Zak) for a Rule 1100 hearing.

Although what transpired at the February 16, 1982 trial is reconstructed supra, nonetheless, we wish to highlight those facts which we believe reflect on the issue of trial counsel’s competency. For example, it must be remembered that Attorney Watson’s refrain that he was ill-prepared to defend the appellant preceded the court’s allowance of a recess, asked for by the appellant through counsel, from 11:00 a.m. to 1:30 p.m. to afford the two the opportunity, as phrased by counsel, “to confer ... in regard to [appellant’s] defense or some other development____” (N.T. 2/16/82 at 20)

When the trial was reconvened, the Commonwealth informed the court that the parties had agreed that the appellant would not be charged with the firearm’s offense in exchange for his stipulation to the entry into evidence of a report (i.e., a damaging FBI fingerprint profile of the appellant “lifted” from the “beef jerky” wrapper left in the supermarket by the robber) in lieu of testimony on the matter. Also, the appellant, through counsel, informed those present that he wished to be tried nonjury. A colloquy ensued in which the appellant acknowledged that his actions were being taken after having “had an opportunity to talk this over with Mr. Watsonf.]” (N.T. 2/16/82 at 23) In fact, the waiver form was signed only after the appellant had read it over with Attorney Watson. Thereafter, Attorney Watson placed on the record, at appellant’s request, a renewed motion for a continuance to have public defender Zak re-appointed as “counsel of his [appellant’s] choice,” along with a revived motion to suppress and a dismissal under Rule 1100. However, interestingly enough, neither counsel nor appellant voiced their objection to a continuation of the trial on the ground that counsel was “unprepared” to defend against the charge. All motions were denied and the trial proceeded with Attorney Watson being directed by the court to sit with the appellant and aid him to the extent that the appellant wanted his counsel to participate in the litigation.

Despite Attorney Watson’s remarks that appellant had directed him not to partake in the trial in any fashion, he did participate in the admission of various exhibits into evidence and did enter a demurrer.

Viewing the facts in toto, we find that Attorney Watson was far from “unfamiliar” with the case so as to label him “unprepared” to represent the appellant in a competent manner. Rather, we conclude that appellant’s insistence on counsel not acting in his behalf at trial and/ or having Attorney Zak reassigned to handle the case, which would have delayed the commencement of the trial even longer (21 months and 3 continuances from May of 1980 until February of 1982), appears to be the crux of the matter. Accordingly, appellant will not be allowed to transform his own recalcitrance into an abuse of discretion argument when the facts indicate otherwise. Cf. Commonwealth v. Andrews, 282 Pa.Super. 115, 130, 422 A.2d 855, 862 (1980) (“Appellant further argues that he was denied effective assistance of counsel [when the court refused to appoint counsel of his choice and denied him a continuance to accomplish same.] This argument, however, is not available to one who insists on self-representation.”).

We do not in any way wish to minimize that “time allowed for preparation is an important factor in determining whether Sixth Amendment rights have been protected.” Commonwealth v. Minifield, 225 Pa.Super. 149, 158 n. 8, 310 A.2d 366, 371 n. 8 (1973). However, mere shortness of time spent conferring with a client does not constitute a basis for a finding of ineffectiveness. Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973). Rather, it is what is able to be accomplished in the time available that is the benchmark against which the “effectiveness/preparedness” of counsel is measured. See generally Commonwealth v. Biancone, 260 Pa.Super. 197, 202, 393 A.2d 1221, 1224 (1978). This translates into a determination that the unique facts here, e.g., the absence of complex issues, Attorney Watson’s involvement with appellant since the pre-trial stage of the case and the court’s allowance of a recess to avail attorney and client time ostensibly to review appellant’s “defense,” militate against our holding that counsel was unprepared. Compare Commonwealth v. Ross, 465 Pa. 421, 350 A.2d 836 (1976); Commonwealth v. Egan, 322 Pa.Super. 71, 469 A.2d 186 (1983) (guilty plea context); see also Princess Hotels International v. Hamilton, 326 Pa. Super. 226, 473 A.2d 1064 (1984); Commonwealth v. Simpson, 222 Pa.Super. 296, 294 A.2d 805 (1972). Thus, our ruling is not a condonation of “a myopic insistence upon expeditiousness in the face of a justiciable request for delay.” Ungar v. Sarafite, supra. Accordingly, appellant’s contention that trial counsel was unprepared, upon close examination, is not an accurate reflection of what transpired at the proceedings below and, therefore, does not warrant the relief requested.

The second, and last, of the appellant’s averments concerns the claim that the court’s modification of his sentence so as to run consecutively to a sentence issued by another judge for a separate offense “enhance[d] the punishment” in violation of the Double Jeopardy clause of the United States Constitution. We disagree.

Counsel for the appellant directs our attention to the following excerpt to exemplify the purportedly illegal sentence entered by the court upon his client; to-wit:

JUDGE NYGAARD: This is the only thing I have to go on and the guilty slip does refer to count one, robbery.
Accordingly, I sentence the defendant as follows:
That he pay the costs of prosecution, undergo imprisonment in confinement for the period of not less than ten, not more than 20 years.
MR. CAULEY [Commonwealth’s attorney]: Your Honor, will that sentence be effective today or would it be concurrent with or consecutive to the sentence given to Mr. Fleming by Judge Dwyer? I believe he was sentenced by Judge Dwyer for a 10 to 20 year term on number 813 of 1980, that sentence was imposed on February 26, 1982.
JUDGE NYGAARD: That was for the other—
MR. CAULEY: The other robbery, yes, sir.
JUDGE NYGAARD: Yes, that would be concurrent, we have two separate offenses — excuse me, consecutive. Did I say concurrent? Consecutive, we have two separate offenses, and he’d be getting a free ride, and no way.
MR. CAULEY: So, this sentence would be consecutive to the sentence of 813 of 1980, your Honor?
JUDGE NYGAARD: I don’t know the numbers, but it’s consecutive to the other robbery, that’s committed with firearm, I know that. (Emphasis added) (N.T. 5/17/82 at 9-10)

Appellant’s counsel admits that his client was still in the courtroom when the change in the sentence (from concurrent to consecutive) was made, and, thus, does not dispute the fact that the appellant had not yet started serving his sentence under the logic espoused by the court in Green v. United States, 363 A.2d 979 (D.C.App.1976). Nonetheless, counsel urges us “to re-examine the double jeopardy standards applicable to this situation.” (Appellant’s Brief at 26) We decline the invitation and do so on the basis that the matter can be disposed of on non-constitutional grounds.

To start with, in sentencing the controlling record is the endorsement of the sentence upon the back of the Indictment or Information. Commonwealth v. Thomas, 219 Pa.Super. 22, 280 A.2d 651 (1971). Where there is a discrepancy between, the sentence as written and as orally pronounced, “[t]he pronounced sentence as recorded on the indictments always controls.” (Citations omitted) Commonwealth ex rel. Middleton v. Banmiller, 195 Pa.Super. 45, 47, 169 A.2d 343, 345 (1961); see also Commonwealth ex rel. Marelia v. Hill, 177 Pa.Super. 520, 522, 110 A.2d 832, 833 (1955) (“ 'Oral statements made by the judge in passing sentence, but not incorporated in the written judgment signed by him, are not part of the judgment of sentence.’ ” (Citations omitted)). Also, a sentence, as any other judgment, is construed in its entirety according to the canons of construction, and so as to give effect to the intent of the sentencing court. Commonwealth ex rel. Scoleri v. Burke, 171 Pa.Super. 285, 90 A.2d 847 (1952). Lastly, we note that a sentence can be modified or corrected “within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.” 42 Pa.C.S.A. § 5505; see also Commonwealth ex rel. Billman v. Burke, 362 Pa. 319, 66 A.2d 251 (1949); Commonwealth ex rel. Michelotti v. Ashe, 359 Pa. 542, 59 A.2d 891 (1948); Commonwealth ex rel. Senkovich v. Banmiller, 184 Pa.Super. 592, 135 A.2d 788 (1957).

Applying the aforementioned to the case at bar, we see that on the face of the Information at No. 757 of 1980 appears the following pertinent verbiage:

And now, May 17th 1982, the Court sentences the defendant Thomas Jefferson Fleming ... to [a] ... minimum of ... ten (10) Years, and the maximum [of] twenty (20) years to run consecutively to the sentence imposed by Judge Dwyer, February 26th, 1982 on Case No. 813 of 1980 ....
/s/R.L. Nygaard
Richard L. Nygaard, Judge

Thus, giving effect to the intent of the sentencing court as we are required to do under the law, we do not find fault with Judge Nygaard’s revision of the sentence to run consecutively, and not currently, to another of appellant’s term of imprisonment. This is especially so since the correetion/clarification came about almost in the same breath as the original sentence uttered and, most importantly, is documented on the front of the Information. Commonwealth ex rel. Middleton v. Banmiller, supra.

Appellant having raised no other issues for our consideration, we affirm the actions of the court below.

JOHNSON, J., concurs in the result.

      . We note that all parties erroneously label the instant appeal as one taken from the Order of May 17, 1982, instead of from the Judgment of Sentence which, in actuality, was imposed on the date just stated. See Commonwealth v. Smith, 322 Pa.Super. 389, 469 A.2d 676 (1983). Nonetheless, despite the improper caption, we see no need to remand for a rectification of this procedural misstep that, given the facts, is of no real consequence.

      . Although appellant had the right to the assistance of counsel, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), he was not entitled to free counsel of his choice. Commonwealth v. Johnson, 428 Pa. 210, 236 A.2d 805 (1968).


source: Caselaw Access Project

author: WICKERSHAM, Judge: OLSZEWSKI, Judge, dissenting:

license: Public Domain

text:
    480 A.2d 1224
    COMMONWEALTH of Pennsylvania v. John Stephen ZAENGLE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 3, 1984.
    Filed Aug. 10, 1984.

      Olszewski, J., dissented with opinion.

      Taylor P. Andrews, Public Defender, Carlisle, for appellant.
    Kevin A. Hess, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   WICKERSHAM, Judge:

On September 4, 1982, appellant, John Stephen Zaengle, was involved in a one-car accident which resulted in the deaths of the three passengers in his vehicle. On January 26, 1983, appellant entered guilty pleas to one count of driving under the influence and three counts of homicide by vehicle. On April 15, 1983, appellant was sentenced as follows:

No. 886 — 1982(B), Count I, Homicide by Motor Vehicle, pay a fine of $1,000 and undergo imprisonment in a State Correctional Institution for a period of not less than one (1) year nor more than four (4) years and eleven (11) months; the sentence was suspended for a period of four (4) years eleven (11) months on the condition that [appellant] was placed on probation under the supervision of the Cumberland County Probation Department with intense supervision, and on the further conditions he would serve twelve (12) months in the Cumberland County Prison, pay $1,000 to the use of the County of Cumberland, not have an operator’s license for four (4) years and eleven (11) months or operate a motor vehicle during that period, and upon release from incarceration seek and secure and retain full employment.
Criminal Action No. 886 — 1982 (B), Count 2, Homicide by Motor Vehicle sentence was suspended for a period of five (5) years on the condition that [appellant] would pay the sum of $500 to the County of Cumberland and the sentence would run concurrent with that imposed to No. 886 — 1982 (B) Count 1.
Criminal Action No. 886 — 1982 (B), Count 3, Homicide by Motor Vehicle, sentence was suspended for a period of five (5) years on the condition that [appellant] would pay the sum of $500 to the County of Cumberland and the sentence was to be served consecutive to the sentences imposed in No. 886 of 1982, (B), Counts 1 and 2.
Criminal Action No. 886 of 1982 (A), Driving under the Influence, sentence was suspended for a period of one (1) year on the condition that [appellant] pay the sum of $500 to the use of the County of Cumberland and the sentence to run concurrent to the sentence imposed in Criminal Action No. 886 of 1982 (B), Count 3.

Supp. lower ct. op. at 5-6 (emphasis added).

On May 6, 1983, the Cumberland County Public Defend-: er’s Office filed a motion to modify sentence pursuant to' Pa.R.Crim.P. No. 1410, challenging the legality of the sentence. The sentencing judge summarily dismissed the motion as having been untimely filed. This appeal timely followed.

In this appeal, appellant presents us with three issues, all of which deal with the sentence imposed upon appellant:

1. Is it lawful for the sentencing court to impose separate sentences for multiple counts of homicide by vehicle where each count pertains to a separate death resulting from one accident?
2. Has this appellant waived his right to challenge the legality of the sentence imposed by his failure to raise said issue in the trial court within ten days after sentencing?
3. May this court vacate that portion of the sentence which is illegal and leave the remaining sentence intact rather than remand this case for resentencing?

Brief for Appellant at 2. We will address these issues seriatim.

First, appellant contends that in cases involving a single automobile accident in which more than one person is killed, only one sentence may be imposed. Therefore, appellant argues, the sentencing court’s imposition of separate sentences for multiple counts of homicide by vehicle is illegal.

II] It has long been the law in Pennsylvania that in cases of involuntary manslaughter in which more than one person is killed in a single accident, only one sentence may be imposed. Commonwealth v. Guiliano, 274 Pa.Super. 419, 418 A.2d 476 (1980); Commonwealth v. Reynolds, 256 Pa.Super. 259, 389 A.2d 1113 (1978); Commonwealth v. Speelman, 235 Pa.Super. 109, 341 A.2d 138 (1975).

In Commonwealth v. Guiliano, supra, the defendant lost control of his car and smashed into a pole. His two passengers were killed instantaneously. Chemical analysis established that the defendant had a blood alcohol level of .11%. The defendant was found guilty of two counts of involuntary manslaughter and was sentenced to nine (9) to eighteen (18) months imprisonment on each count. This court held that appellant’s sentence was illegal because only one sentence should have been imposed.

In Commonwealth v. Reynolds, supra, the defendant was the operator of a car which crashed into the steps of a residence, killing two people and seriously injuring another. He was convicted of and sentenced on one count of involuntary manslaughter and one count of recklessly endangering another person. The defendant appealed, contending that only one sentence could be imposed because the injury and deaths resulted from a single unlawful act. This court said:

Pennsylvania case law is well-settled that in cases of involuntary manslaughter in which more than one person is killed or injured by one unlawful act of the defendant, only one sentence may be imposed. The courts have reasoned that if there is a single criminal act there is a single injury to the Commonwealth. Consequently, the courts of Pennsylvania have no power to impose more than one sentence on a single unlawful act____ The Commonwealth argues that the enactment of the Crimes Code dictates a different result. However, Pennsylvania law has been quite clear on this issue since 1928. If the legislature desired to change the law, it should have specifically done so ____ Because there has been no explicit change in this well-settled doctrine, we will continue to apply it.

Id., 256 Pa.Superior Ct. at 279-80, 389 A.2d at 1123 (citations omitted).

Appellant contends that the Reynolds decision is applicable to the case at bar in that appellant committed but one unlawful act — the accident which killed his three companions. Consequently, appellant argues, there was only one injury to the Commonwealth and, therefore, the court could legally impose only one sentence.

The Commonwealth contends, and the lower court held, that Reynolds and Guiliano are inapplicable because they involved the crime of involuntary manslaughter, whereas appellant pleaded guilty to homicide by vehicle. The lower court found “nothing [in the section dealing with homicide by vehicle] nor in the Vehicle Code which suggests that the Legislature intended the operator of a motor vehicle who commits multiple homicides by vehicle ... [to be] immune from punishment for all but one of those wrongful deaths.” Supp. lower ct. op. at 17. Thus, the lower court refused to apply the traditional rule in involuntary manslaughter cases to multiple counts of homicide by vehicle.

We disagree with the lower court’s analysis. As noted in Reynolds, supra, the law as to involuntary manslaughter cases has been quite clear since 1928. We believe that if the Legislature had intended a different result in homicide by vehicle cases, it would have so stated in clear and unambiguous language. It is apparent, however, that the homicide by vehicle statute does not dictate a change in the sentencing law as it now exists.

We also note that the degree of culpability required to prove the crime of homicide by vehicle is less than that necessary to establish involuntary manslaughter. Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981). In Houtz, our supreme court said:

Recently, in Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), this Court had occasion to comment on the relationship between the crimes of homicide by vehicle and involuntary manslaughter. In comparing the two crimes we stated:
In our view it was the legislative judgment in enacting section 3732 [(homicide by vehicle)] to expand the scope of criminal liability for violations of the Vehicle Code causing death.
490 Pa. at 525 n. 4, 417 A.2d at 163 n. 4. This legislative “expansion” was accomplished not by the elimination of any of the elements of the crime of involuntary manslaughter, but by a relaxation of the degree of proof of two existing elements: culpable conduct and causation. The crime of involuntary manslaughter, as charged here, requires proof that the actor engaged in the Vehicle Code violation in a “reckless or grossly negligent manner,” and that the death was caused “as a direct result.” 18 Pa.C.S. § 2504. See Commonwealth v. Clowser, 212 Pa.Super. 208, 289 A.2d 870 (1968). By contrast, under the crime of homicide by vehicle, it must be shown only that the actor “knew, or should have known,” that he engaged in the conduct claimed to be in violation of the Vehicle Code, and that, at the very least, death was a “probable consequence” of the conduct. Commonwealth v. Field, 490 Pa. at 525, 417 A.2d at 163. These relaxed degrees of culpable conduct and causation set forth in the crime of homicide by vehicle are necessarily established by proof of the more stringent counterparts contained in the crime of involuntary manslaughter. Thus, under the constitutional prohibitions against double jeopardy, punishment for homicide by vehicle cannot coexist with punishment for involuntary manslaughter.

Id., 496 Pa. at 348-49, 437 A.2d at 387.

Thus, permitting multiple sentences in cases involving homicide by vehicle but not in involuntary manslaughter cases could result in the imposition of more severe penalties for less culpable acts. While such a result may be within the authority of the legislature, we will not determine that the legislature intended such a result in the absence of clear and explicit language. See Reynolds, supra.

Instantly, we find that appellant committed only one unlawful act. The sentencing court had no power to impose more than one sentence. Thus, the sentences imposed upon appellant are illegal. Commonwealth v. Houtz, supra (impermissible multiple punishment can take the form of consecutive or concurrent sentences).

Appellant’s next issue questions whether his failure to file a timely motion to modify sentence results in a waiver of his right to challenge the legality of his sentence on appeal. It is clear that the illegality of a sentence cannot be waived by a failure to properly raise the issue in the trial court. Commonwealth v. Bossche, 324 Pa.Super. 1, 471 A.2d 93 (1984); Commonwealth v. Mitchell, 170 Pa.Super. 319, 465, A.2d 1284 (1983). Thus, appellant did not waive his right to challenge the legality of his sentence.

Appellant’s final issue addresses the appropriate disposition of this appeal. Once we have determined that a sentence is illegal, this court may either remand for resentencing or vacate and amend the sentence directly. Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983). Instantly, we think it advisable to vacate judgment of sentence and remand for resentencing. The sentence imposed on appellant was unique and rather complicated. It is not clear what the sentencing court would have done had it known that part of the sentence would be found to be illegal. Since we are not certain of the sentencing court’s intentions, we remand for resentencing.

Judgment of sentence is vacated and case remanded for resentencing. Jurisdiction is relinquished.

OLSZEWSKI, J. filed a dissenting opinion.

Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.

OLSZEWSKI, Judge, dissenting:

The majority today has concluded that no more than a single sentence may be imposed for multiple counts of homicide arising from a single accident — regardless of the fact that each count represents a separate and unique life lost as a result of that accident. I respectfully dissent.

To reach that conclusion, the majority relies on a long line of Pennsylvania cases which hold that, in cases of involuntary manslaughter where more than one person is killed in a single accident, only one sentence may be imposed. E.g., Commonwealth v. Guiliano, 274 Pa.Super. 419, 418 A.2d 476 (1980); Commonwealth v. Reynolds, 256 Pa.Super. 259, 389 A.2d 1113 (1978). The rationale which underlies the rule is that a single criminal act results in a single injury to the Commonwealth. Commonwealth v. Ernesto, 93 Pa.Super. 339 (1928). The court notes that homicide by vehicle requires a lesser degree of culpability than that necessary to establish involuntary manslaughter, See Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981). Applying the logic that the greater includes the lesser, it finds impermissible multiple sentences on multiple counts of homicide by vehicle.

The majority’s analysis fails because it starts with a faulty premise. It assumes that homicide by vehicle and involuntary manslaughter are but varied degrees of the same offense. To the contrary, the Supreme Court has distinguished the two on the basis of the “vehicle statute’s distinct purpose of reducing highway fatalities.” Commonwealth v. Hicks, 502 Pa. 344, 348 n. 5, 466 A.2d 613, 615 n. 5 (1983); see 75 Pa.C.S. Sec. 1532 (conviction for homicide by vehicle results in revocation of a driver’s license for one year, while conviction for involuntary manslaughter results in no conviction).

We agree with the lower court that nothing in the Vehicle Code suggests a legislative intent to expose the defendant who commits multiple homicides by vehicle to prosecution for each death — but to shield him from punishment for all but one of those deaths. Supp. op. at 17. In this case, appellant’s involuntary intoxication resulted in the untimely deaths of three people. As the lower court explained in its excellent opinion,

each life is of infinite value not only to the individual and his or her family but also to the Commonwealth, and consequently the taking of that lie necessarily constitutes a separate and distinct injury to all those affected by that death, including the Commonwealth of Pennsylvania. Id. For these reasons, we would affirm the judgment below.

      . Act of June 17, 1976, P.L. 162, No. 81, § 1, 75 Pa.C.S. § 3731.

      . Act of June 17, 1976, P.L. 162, No. 81, § 1, 75 Pa.C.S. § 3732.

      . Appellant alleges that the following set of circumstances resulted in the untimely filing of his petition to modify sentence: Appellant was not contacted by his retained attorney regarding post-sentencing motions until April 26, 1983, eleven days after sentencing. Appellant told his attorney of his desire to challenge his sentence on or about April 27, 1983, but no motion was filed because of appellant’s inability to pay his attorney’s fees. Appellant informed the Cumberland County Public Defender’s Office of his desire to challenge his sentence on April 29, 1983. The Public Defender’s Office was appointed to represent appellant on May 3, 1983. The motion finally was filed on May 6, 1983, three days after the Public Defender’s Office was appointed to represent appellant and twenty-one days after sentencing.

      . It is of interest to note that the writer of this opinion was the trial judge in Houtz, a case involving one motor vehicle accident with two resulting deaths. Houtz was originally sentenced consecutively for the maximum time permitted for each death. A proceeding for reconsideration of sentence convinced the trial judge that such was not legally permissible.

      . The Vehicle Code was amended by the Act of December 15, 1982, P.L. 1268, to create a new offense, homicide by vehicle while driving under the influence, 75 Pa.C.S.Sec. 3735. The statute prescribes a mandatory prison term of not less than three years. The amendment took effect on January 14, 1983, after the occurence of the offense alleged in this case.


author: WIEAND, Judge:

text:
    480 A.2d 1229
    COMMONWEALTH of Pennsylvania v. Alonzo ROBINSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 30, 1984.
    Filed Aug. 10, 1984.

      Stanley P. Stern, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

In a trial for perjury, may the Commonwealth rely solely on documentary evidence to show the falsity of testimony given by the defendant in prior judicial proceedings? This is the first and more difficult issue raised by the appellant in this appeal from a judgment of sentence imposed for perjury. The second issue is whether appellant was deprived of a fair trial because the jury was able to discern from the Commonwealth’s evidence that appellant’s false testimony had been given during a bail hearing in a prior criminal proceeding. For reasons which follow, we affirm the judgment of sentence.

On May 29, 1981, appellant appeared before the Honorable Alex Bonavitacola for a bail revocation hearing after appellant had been arrested on a bench warrant. Appellant testified that he had not been present for a hearing on October 14, 1980 because he was then incarcerated in prison in Onondaga County, New York. He testified also that he had been unable to appear for a hearing on March 31, 1978 because he was then a patient at the Medical College of Pennsylvania. Finally, he testified that at the time of his arrest on the bench warrant he was an employee of Budd Company, having worked at its plant at Red Lion and Verree Roads for a period of four years. The Commonwealth charged that appellant’s testimony was false and perjurious. At trial before a jury, the statements made by appellant under oath were proved by Judge Bonavitacola and by the court stenographer who had recorded appellant’s testimony. In order to show the falsity of appellant’s testimony, the Commonwealth relied upon the records of the prison, the hospital and the Budd Company. After they had been duly proved by the custodians thereof, the prison and hospital records were received in evidence. They showed that appellant had not been a prisoner in the Onondaga County Prison or a patient in the Medical College of Pennsylvania on the dates when he was required to be in court. The Budd Company’s employment records were also produced and showed that appellant had not been one of its employees.

Perjury, being a false statement under bath or affirmation in an official proceeding, is defined and made a felony of the third degree by the provisions of 18 Pa.C.S. § 4902. Subsection (f) thereof provides:

In any prosecution under this section, except under subsection (e) of this section, falsity of a statement may not be established by the uncorroborated testimony of a single witness.

(footnote added). This subsection, it will be observed, does not purport to establish affirmatively the type or quality of the evidence necessary to convict. It seeks merely to prevent a conviction in a situation where oath has been pitted against oath. Thus, it establishes that a conviction for perjury cannot rest upon the “uncorroborated testimony of a single witness.” The rule has value in safeguarding witnesses in official proceedings from harassment by disappointed litigants. It also protects them from their own or another’s good-faith mistakes. Commonwealth v. Katsafanas, 318 Pa.Super. 143, 166, 464 A.2d 1270, 1283 (1983).

The provisions of 18 Pa.C.S. § 4902(e), it has been held, do not prevent a conviction based on circumstantial evidence. Commonwealth v. Broughton, 257 Pa.Super. 369, 390 A.2d 1282 (1978) (rehearing denied). Similarly, the language of the subsection does not preclude a conviction where the only proof of falsity is documentary evidence. Thus, an uncorroborated record of a criminal conviction is sufficient to demonstrate the falsity of a sworn statement that the speaker has never been convicted of a crime. S. Toll, Pennsylvania Crimes Code Annotated § 4902(f) (1974). See also: United States v. Flores — Rodriguez, 237 F.2d 405, 408 (2d Cir.1956); Holy v. United States, 278 F. 521 (7th Cir.1921). The documentary evidence, however, must be clear and positive. 70 C.J.S. Perjury § 60 (1951).

A careful review of the documentary evidence in this case reveals clear and positive proof that appellant testified falsely in the proceedings before Judge Bonavitacola. When appellant appeared at his bail revocation hearing, he testified that he had been incarcerated in the Onondaga County Prison by virtue of an 89 day sentence following a motor vehicle offense. He was asked, “How many days were you in jail from the time of your arrest until the time of your release?” Appellant answered: “I was arrested on the 12th of October and I was released on the 3rd of November.” Sgt. Frederick Carlton, the supervisor of record keeping at the prison, testified that he had searched the various records of the prison and that no one by the name of Alonzo Robinson had been a prisoner during the year 1980. The evidence showed, however, that Robinson had also used aliases and was known in October, 1980, as Allen Johns. This name did appear on the records of the prison. It appeared separately on the prison intake records, the prison status sheets, the prison clothing records, and the prison discharge records. These records demonstrated uniformly and unequivocally that a person using the name Allen Johns had been incarcerated on September 28, 1980 and had been released the same day upon payment of a fine. Appellant’s girlfriend, called as a defense witness, testified that she had seen appellant in Philadelphia on September 29, 1980, the following day.

Appellant also testified at the bail hearing that on March 31, 1978, the date of a scheduled hearing, he had been a patient in the Medical College of Pennsylvania. He said that as a patient he had used the name Alonzo Robinson and not the alias, “James Dunbar,” which he was also known to use. At trial, Mrs. Myra Sarubin, the director of the medical records department of the hospital, produced admission and emergency room logs, which were authenticated and received in evidence. Mrs. Sarubin testified that she had also examined the computerized master patient file. All disclosed that no one by the name of Alonzo Robinson had been treated at the hospital on March 31, 1978. In response to cross-examination by appellant’s counsel regarding medical records for James Dunbar, the witness produced records and read from them. They showed that a man using the name “James Dunbar” had been admitted to the hospital on September 15, 1979 for treatment of a cervical fracture. He had been discharged on September 28, 1979.

With respect to his employment, appellant testified at the bail hearing that he was employed as Alonzo Robinson, badge number 51784, social security number [ XXX-XX-XXXX ]. Appellant’s evidence at trial showed that the only aliases which he had used were “Allen Johns,” “James Dunbar,” “James Taylor” and “Mustafa Mohammed.” The employment records of the Budd Company were produced by the company’s personnel manager. They disclosed that the badge number 51784 had not been issued to any employee and that no person using the social security number previously testified to by appellant had ever been employed by the Budd Company. The company’s records also disclosed that no one using the names “Alonzo Robinson,” “Allen Johns,” or “James Dunbar” had been employed by the company within a ten year period. The same employment records contained references to five persons who had used the name “James Taylor.” Only two, however, had been of the same race as appellant. One had been terminated in 1971, and the other had failed to appear for work after he had been hired. Photographs of these two men were produced and shown to the members of the jury so that they could see for themselves that appellant was not one of them. Finally, counsel stipulated, so that the personnel manager would not have to be called back in rebuttal, that according to the company’s records the only person with the surname “Mohammed” employed by Budd Company was Wali Q. Mohammed, who lived in Camden, New Jersey, and who had a different badge number than that stated by appellant to have been issued to him.

This evidence was far more substantial than the uncorroborated testimony of a single witness. It was positive and convincing. It was sufficient to sustain appellant’s conviction on three counts of perjury. Additional testimony from other witnesses would do little, if anything, to enhance the veracity of the documentary evidence relied upon by the Commonwealth to prove that appellant had testified falsely.

Evidence imputing prior criminal conduct “is admissible where ‘such prior conviction or criminal act formed a part of a chain, or was one of a sequence of acts, or became part of the history of the event on trial, or was part of the natural development of the facts.’ ” Commonwealth v. Brown, 462 Pa. 578, 591, 342 A.2d 84, 90 (1975), quoting Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932); Commonwealth v. Stufflet, 276 Pa.Super. 120, 125, 419 A.2d 124, 127 (1980). In order to prove the charge of perjury against the appellant, the Commonwealth had to prove, inter alia, that the appellant made a false statement under oath or affirmation, in an official proceeding. 18 Pa.C.S. § 4902(a). In establishing the elements of this offense, the Commonwealth could properly demonstrate that the appellant had appeared before the Honorable Alex Bonavitacola for a bail revocation hearing. The only cases mentioned at trial were those involved in the prior bail hearing. This reference to prior criminal charges was necessary to complete the picture of the bail hearing at which the perjury had occurred. It was not offered to prove a general criminal disposition. Moreover, the Commonwealth did not attempt to establish the details of the other cases, and the trial judge, in his jury instructions, told the jury not to consider evidence of other criminal charges for purposes of showing general criminal tendencies.

The admission and exclusion of evidence is a matter within the sound discretion of the trial judge, and reversal is inappropriate absent an abuse of that discretion. Commonwealth v. Miller, 303 Pa.Super. 504, 510, 450 A.2d 40, 43 (1982). In view of the legitimate purpose for which this evidence was admitted and the court’s cautionary instruction, we find no abuse of discretion by the trial judge. See: Commonwealth v. Miller, supra (in a trial for resisting arrest, evidence of other crimes was admissible to demonstrate the circumstances surrounding the arrest and to place the offense charged in context); Commonwealth v. Markle, 245 Pa.Super. 108, 369 A.2d 317 (1976) (in trial on charge of escape, the jury has a right to know the reason for the defendant’s incarceration). Compare: Commonwealth v. Lee, 297 Pa.Super. 216, 443 A.2d 804 (1982) (reference to appellant’s arrest on an unrelated charge was not necessary to complete the picture of a robbery which had occurred 20 days earlier).

The judgment of sentence is affirmed.

SPAETH, President Judge, concurred in the result.

      . Although these records were produced by the Commonwealth and were referred to during trial, they were not offered into evidence.

      . Subsection (e) pertains to inconsistent statements made under oath.


author: JOHNSON, Judge: SPAETH, President Judge,

text:
    480 A.2d 1233
    ESTATE OF Bertram W. KORN, Deceased. Appeal of Rita P. KORN. ESTATE OF Bertram W. KORN, Deceased. Appeal of Samuel S. FELDGOISE, Charles C. Pollack and I. Jerome Stern, Executors of the Will of Bertram W. Korn, Deceased.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1983.
    Filed Aug. 10, 1984.

      G. David Rosenblum, Philadelphia, for appellant (at No. 852) and for participating party (at No. 990).
    Robert J. Stern, Philadelphia and M. Paul Smith, Norris-town, for appellants (at No. 990) and for participating parties (at No. 852).
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

This action involves an appeal and cross-appeal from a Final Decree entered by the Orphans’ Court Division of the Court of Common Pleas of Montgomery County on February 28, 1983. That order dismissed exceptions to the adjudication nisi of August 30, 1982. Korn Estate, 3 Fiduc. Rep.2d 138 (1983). Rita P. Korn (Appellant at 852 Philadelphia, 1983 and Appellee at 990 Philadelphia, 1983) is the widow of the late Rabbi Bertram W. Korn who died on December 11, 1979. Mrs. Korn, who married Rabbi Korn on February 9, 1971, elected to take against the will as the surviving spouse under 20 Pa.C.S. § 2203. Mrs. Korn complains that she was not awarded her proper one-third elective share by the trial court. The Executors of Rabbi Korn’s will (Appellees at 852 Philadelphia, 1983 and Appellants at 990 Philadelphia, 1983) also challenge a portion of the trial court’s determination.

Mrs. Korn’s claim is premised on 20 Pa.C.S. § 2203 which sets forth in relevant part:

(a) Property subject to election. — When a married person domiciled in this Commonwealth dies, his surviving spouse has a right to an elective share of one-third of the following property:
(1) Property passing from the decedent by will or intestacy ____
(3) Property conveyed by the decedent during his lifetime to the extent that the decedent at the time of his death had a power to revoke the conveyance or to consume, invade or dispose of the principal for his own benefit____
(5) Survivorship rights conveyed to a beneficiary of an annuity contract to the extent it was purchased by the decedent during the marriage and the decedent was receiving annuity payments therefrom at the time of his death.
(6) Property conveyed by the decedent during the marriage and within one year of his death to the extent that the aggregate amount so conveyed to each donee exceeds $3,000, valued at the time of conveyance____ (b) Property not subject to election. — The provisions of
subsection (a) shall not be construed to include any of the following except to the extent that they pass as part of the decedent’s estate to his personal representative, heirs, legatees or devisees: ____
(2) The proceeds of insurance, including accidental death benefits, on the life of the decedent.
(3) Interests under any broad-based nondiscriminatory pension, profit sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer for the benefit of its employees and their beneficiaries ....
(5) Survivorship rights conveyed to a beneficiary of an annuity contract to the extent it was purchased by the decedent during the marriage and the decedent was receiving payments therefrom at the time of his death.

At the time of his death Rabbi Korn’s assets included, inter alia, an extensive library of approximately 1,500 books relating to American Jewry. Mrs. Korn alleges that the lower court erred in establishing the value of the library at $36,946.25. At the evidentiary hearings held on Mrs. Korn’s Objections to the First Account and Petition for Adjudication, expert testimony was presented on behalf of both Mrs. Korn and the Executors. Mrs. Korn’s expert, Clarence Wolf, testified that in his opinion the library was worth $36,946.25 on an individual book basis, but the entire library taken as a whole was worth $45,000 (R. at 112a).

The expert for the Executors, Dr. David Szewczyk, appraised the library at $31,917.50. He opined that it would be very difficult to sell the library as a unit because of the library’s mix of scholarly and rare materials (R. at 139a-140a). In other words, Dr. Szewczyk did not believe the library as a whole was worth more than the aggregate value of its individual volumes. The trial court accepted the $36,946.25 value proffered by Mr. Wolf, but agreed with Dr. Szewczyk’s position the library taken as a whole did not warrant a premium value.

This court’s limited scope of review on appeals from Orphans’ Court decisions was recently discussed in Estate of Dembiec, 321 Pa.Super. 515, 468 A.2d 1107 (1983).

“On appeal, the findings of an Orphans’ Court judge who hears testimony without a jury are entitled to the weight of a jury verdict. In re: Masciantanio’s Estate, 396 Pa. 16, 151 A.2d 99 (1959). This rule is particularly applicable ‘to findings of fact which are predicated upon the credibility of the witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony.’ Herwood v. Herwood, 461 Pa. 322, 336 A.2d 306 (1975). In reviewing the Orphans’ Court’s findings, our task is to ensure that the record is free from legal error and to determine if the Orphans’ Court findings are supported by competent and adequate evidence and are not predicated upon capricious disbelief of competent and credible evidence. In re Estate of Damario, 488 Pa. 434, 412 A.2d 842 (1980). However, we are not limited when we review the legal conclusions that Orphans’ Court has derived from those facts. In re: Ischy Trust, 490 Pa. 71, 415 A.2d 37 (1980).”

321 Pa.Super. at 519-520, 468 A.2d at 1110.

Since the findings of the trial court regarding the valuation of the library are supported by competent and adequate evidence, these findings must be affirmed.

In addition to property which passed from the decedent by will, the trial court reviewed claims by Mrs. Korn that she was entitled to a one-third share of other types of property.

Prior to Dr. Korn’s death he served as Rabbi for Reform Congregation Keneseth Israel. Dr. Korn was covered under a multi-employer pension plan established with the Rabinnical Pension Fund which called for the Board of Trustees of the Congregation to contribute an amount equal to 15% of Dr. Korn’s salary. The pension benefits payable to Dr. Korn’s beneficiary under this plan equalled $170,-489.22 plus $71,962.05 in life insurance benefits.

The trial court found that none of the pension benefits were subject to election. Mrs. Korn argues that the pension benefits should not be excluded from her one-third share because they are not covered by 20 Pa.C.S. § 2203(b)(3). Since the Rabbinical Pension Board did not employ Rabbi Korn, Mrs. Korn takes the position that the pension plan was not “established by an employer.”

As the trial court properly indicated:

A plan is no less established by an employer when the employer, for convenience or economy, makes contributions to an existing multi-employer fund rather than creates a separate fund under its own management. Furthermore, no purpose under the Code would be served by requiring each employer to create its own plan rather than permitting them the option of contributing to a multi-employer fund, thereby obtaining the benefit of shared administrative costs.

Korn Estate, 3 Fiduc.Rep.2d at 143. The legislature could not have intended to draw a distinction between large employers, that create and administer their own pension plans, and smaller employers that elect the option of contributing to a multi-employer pension plan such as the plan administered by the Rabbinical Pension Fund. We agree with the trial court that Rabbi Korn’s pension benefits are excluded from election under Section 2203(b)(3). Therefore, we need not address the question of whether these benefits come under Section 2203(a).

Mrs. Korn also complains that proceeds from two insurance policies should have been included in the calculation of her elective share, because the decedent was receiving annuity payments from these policies prior to his death.

In the 1930’s, before his marriage to Rita Korn, Rabbi Korn purchased two life insurance policies from Travelers Insurance Company. These policies gave the insured the option of selecting an optional retirement income prior to the maturity date when the policies would become paid-up. In 1973 after paying premiums on these policies for over thirty-four years, Rabbi Korn elected to receive the optional retirement income. Mrs. Korn argues that because of the decedent’s optional retirement income election, the beneficiaries under these policies received an annuity subject to her elective share rather than proceeds of insurance.

20 Pa.C.S. § 2203(a)(5) only gives the surviving spouse the right to an elective share of the proceeds from an annuity contract if the contract was purchased “during the marriage.” In the instant case the insurance policies in question were purchased well before Rita Korn married the decedent. Mrs. Korn concedes that the insurance contracts were originally purchased prior to the marriage, but argues that the policies were partially purchased during the marriage because some annual premium payments were made during that period. We believe the trial court properly concluded that the policies were purchased prior to the marriage. As this court stated in Harris v. St. Christopher’s Hosp. for Children, 291 Pa.Super. 451, 436 A.2d 203 (1981):

“The insured purchases the individual policy, and thereafter pays the applicable premium amounts”.

Id. 291 Pa.Super. at 456, 436 A.2d at 205 (emphasis in original). We express no opinion on whether the optional retirement income received by the decedent represents annuity payments.

Finally, with regard to the property conveyed by Rabbi Korn to Valerie Khaner in the year preceding Rabbi Korn’s death, Mrs. Korn asserts that she has a right to an elective share of such property, by virtue of 20 Pa.C.S. § 2203(a)(6).

During this period six personal checks totalling $5,700 were written by Rabbi Korn and cashed by “V. Khaner”. In addition Mrs. Khaner received airline tickets from Rabbi Korn valued at $1,594.34. According to the testimony of the decedent’s son, Bertram Korn, Jr., Rabbi Korn planned to marry Valerie Khaner. There is no indication on the record, however, that any of the six personal checks or airline tickets conveyed to Ms. Khaner were given with donative intent.

A valid inter vivos gift requires both donative intent and delivery. Wagner v. Wagner, 466 Pa. 532, 353 A.2d 819 (1976). Donative intent can be inferred from the relationship between the donor and donee, however. Our supreme court in Brightbill v. Boeshore, 385 Pa. 69, 76, 122 A.2d 38, 42 (1956) stated “[a]s between parties so related [i.e. father to daughter], if it appears that there was a voluntary delivery without explanatory words and a retention by the transferee, it can be assumed that there was an intention to give.”

In its Adjudication filed August 30, 1982, the Orphans’ Court expressly ruled:

We find the record to be totally devoid of any evidence of the existence of a gift. The critical element of donative intent has not been established. Korn Estate, 3 Fiduc. Rep.2d at 145

Findings of an auditing judge ordinarily are entitled to great weight and should be rejected only in a clear case and only for good and sufficient reason. In re Estate of Vajentic, 453 Pa 1, 306 A.2d 300 (1973). The instant case presents no basis for disturbing the findings and conclusions of the trial court.

In the instant case delivery of the personal checks and airline tickets to Ms. Khaner has been established. Since there is no express indication of donative intent, we must look to the relationship between Rabbi Korn and Ms. Khaner to see if the element of donative intent can be inferred. It appears that Rabbi Korn and Ms. Khaner were close personal friends who eventually intended to marry. At the time of Rabbi Korn’s death, however, there was no familial relationship between the two. In fact, Rabbi Korn was still married to Mrs. Rita Korn.

Mrs. Korn, in this case, has the burden of proving a gift by clear, precise, direct and convincing evidence. In re Estate of Clark, 467, Pa. 628, 359 A.2d 777 (1976). That burden has not been met, and we will not infer donative intent, based on a non-familial, close personal friendship. A closer relationship must exist for donative intent to be inferred. See Brightbill v. Boeshore, supra; In re Yeager’s Estate, 273 Pa. 359, 117 A. 67 (1922) (father to daughter); Northern Trust Co. v. Huber, 274 Pa. 329, 118 A. 717 (1922) (father to son and daughter-in-law); In re Chappie’s Estate, 332 Pa. 168, 2 A.2d 719 (1938) (father to son).

We disagree with the suggestion in President Judge Spaeth’s concurring and dissenting opinion that the decedent’s personal relationship with Ms. Khaner established a gift of the personal checks and airline tickets. If, as President Judge Spaeth indicates, some evidence may be necessary to establish donative intent for gifts between family members, then, a fortiori, even more evidence will be necessary where the donor and donee are not related. The trial court properly rejected Mrs. Korn’s claim that the personal checks and airline tickets were gifts since there was absolutely no evidence of the existence of a gift and the critical element of donative intent had not been established.

On the cross-appeal, the Executors of the estate of Rabbi Korn challenge the trial court’s finding that proceeds of the decedent’s deferred compensation plan were subject to Mrs. Korn’s election. The Board of Trustees of Reform Congregation Keneseth Israel had established a deferred compensation plan for Dr. Korn which gave him a right to change beneficiaries at any time prior to death. When Dr. Korn died the balance of the plan payable to his beneficiaries was $48,382.45 (R. at 38a).

The Executors argue persuasively that the proceeds of the plan are not subject to Mrs. Korn’s election under 20 Pa.C.S. § 2203(a)(3) because the designation of beneficiaries by Rabbi Korn was not a “conveyance” as that term is defined in Section 2201. That Section states:

As used in this chapter, unless the context clearly indicates otherwise, “conveyance” means an act by which it is intended to create an interest in real or personal property whether the act is intended to have inter vivos or testamentary operation.

There must be either an inter vivos or testamentary operation in the creation of the property interest for there to be a conveyance. Since the designation of the beneficiaries by Rabbi Korn was revocable at any time prior to death, his designation did not create an inter vivos or testamentary interest. Equitable Life Assurance Soc. v. Stitzel, 299 Pa.Super. 199, 445 A.2d 523 (1982).

The February 28, 1983 Order of the trial court is affirmed in part and reversed in part. This matter is remanded to the trial court for proceedings consistent with this opinion. Jurisdiction is relinquished.

SPAETH, President Judge, filed a concurring and dissenting opinion.

SPAETH, President Judge,

concurring and dissenting:

I believe that the face amount of the checks and the value of the airline tickets that decedent gave Ms. Valerie Khaner should be included in appellant’s elective share under 20 Pa.C.S. § 2203. Otherwise I join in the majority’s disposition, although on the issue of decedent’s deferred compensation plan, my reasoning is a bit different.

-1-

The majority states that “[tjhere is no indication on the record ... that any of the six personal cheeks or airline tickets conveyed to Ms. Khaner were given with donative intent.” At 162. One must ask, “Why else did he give them to her?” Decedent’s son testified, without contradiction, that his father intended to marry Ms. Khaner, N.T. 101, and that Ms. Khaner provided no professional services to his father, N.T. 102. (The only other witness on the point was I. Jerome Stern, a co-executor of decedent’s estate, who said he had no opinion whether the checks and airline tickets were gifts. N.T. 141).

The majority says that it “will not \i.e., may not] infer donative intent, based on a non-familial, close personal friendship,” at 163, but the cases the majority cites do not so hold. Instead the cases all involve gifts between family members and hold only that when “a claimant is a close relative, ... less evidence to prove the gift is required than to prove a gift to a stranger.” Balfour v. Seitz, 392 Pa. 300, 304 n. 4, 140 A.2d 441, 443 n. 4 (1958). See also Estate of Chiara, 467 Pa. 586, 592 n. 5, 359 A.2d 756, 759-60 n. 5 (1976); Brighthill v. Boeshore, 385 Pa. 69, 76, 122 A.2d 38, 42 (1956); Chapple’s Estate, 332 Pa. 168, 170, 2 A.2d 719, 720 (1938); Yeager’s Estate, 273 Pa. 359, 362, 117 A. 67, 68 (1922). Since here the (asserted) gifts were not “between family members”, these cases are not helpful. In other words: Knowing that less evidence is required to prove a gift when the transfer is between family members does not help decide whether here there was enough evidence to prove a gift.

One who claims a gift has the burden of proving intent and delivery by evidence that is clear, precise, and convincing. Pappas Estate, 428 Pa. 540, 542, 239 A.2d 298, 300 (1968). When a prima facie case that a gift was made is established, the burden shifts to the opponent of the gift, and to sustain that burden the opponent must likewise produce clear, precise, and convincing evidence. Fenstermaker Estate, 413 Pa. 645, 648, 198 A.2d 857, 859 (1964); Rogan Estate, 404 Pa. 205, 211, 171 A.2d 177, 179 (1961). For nay part, I ana satisfied that the evidence of decedent’s relationship with Ms. Khaner established a prima facie case, which was unrebutted by any evidence, much less by clear, precise, and convincing evidence.

-2-

Appellant argues that the amounts paid on decedent’s behalf into a deferred compensation plan should also be included in her elective share under 20 Pa.C.S. § 2203(a)(3). That section provides:

(3) Property conveyed by the decedent during his lifetime to the extent that the decedent at the time of his death had a power to revoke the conveyance or to consume, invade or dispose of the principal for his own benefit. 20 Pa.C.S. § 2203(a)(3).

Appellant claims that decedent’s designation of beneficiaries under the plan was a “conveyance.” “Conveyance” means “an act by which it is intended to create an interest in real or personal property whether the act is intended to have inter vivos or testamentary operation.” 20 Pa.C.S. § 2201. Here, decedent’s designation of beneficiaries could have no “inter vivos ... operation”; it could only give rise to an expectancy. Nor could the designation have any “testamentary operation,” for 20 Pa.C.S. § 6108(a) provides in part that:

[t]he designation of beneficiaries of life insurance, annuity or endowment contracts, or of any agreement entered into by an insurance company in connection therewith, supplemental thereto or in settlement thereof, and the designation of beneficiaries of benefits payable upon or after the death of a participant under any pension, bonus, profit-sharing, retirement annuity, or other employee-benefit plan, shall not be considered testamentary and shall not be subject to any law governing the transfer of property by will.

I should therefore reverse the order of the trial court insofar as the checks and airline tickets, as well as the deferred compensation plan, are concerned, while otherwise affirming.

      . Because we find no gift here, we express no opinion on whether the entire value of the personal checks and airline tickets ($7,294.34) would have been subject to a $3,000 reduction prior to inclusion in the property subject to election under 20 Pa.C.S. § 2203(a)(6).


author: BROSKY, Judge: MONTGOMERY, Judge,

text:
    480 A.2d 1240
    COMMONWEALTH of Pennsylvania v. Albert HAILEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 7, 1983.
    Filed Aug. 17, 1984.

      Arnold L. New, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   BROSKY, Judge:

This appeal is from judgment of sentence imposed subsequent to conviction of robbery, conspiracy and theft. Appellant raises seven issues on appeal. First, that trial counsel was ineffective in not raising in post-trial motions the testimony of the alleged victim and investigating detective regarding the prearrest photographic identification as the jury could have inferred prior criminal activity of appellant. Second, that trial counsel was ineffective for eliciting during cross-examination that appellant was incarcerated as the same inference could have been drawn. Third, that trial counsel was ineffective for not introducing at the hearing on Suppression of Identification by the alleged victim evidence that she had stated at the Preliminary Hearing that she was unable to identify appellant. Fourth, that trial counsel was ineffective for not making any opening statement to the jury. Fifth, that the categorization of appellant by the District Attorney as a “Career Criminal” thereby placing him before one of three designated judges deny appellant his right to due process and a fair trial; the classification was incorrectly applied to appellant since he did not have two prior convictions; and the classification violates appellant’s right to equal protection under the United States and Pennsylvania Constitutions as it is vaguely drafted and violates his right to due process since it allows for arbitrary and capricious application and enforcement. Sixth, that the trial court erred in charging the jury that evidence of flight could be considered as an indication of guilt. Seventh, that the sentencing court improperly considered a prior conviction overturned on constitutional grounds.

Appellant raises numerous assignments of error, several of which are framed in terms of trial counsel’s ineffectiveness. Since appellant is now represented, for the first time, by counsel other than trial counsel, these issues are properly before us. Commonwealth v. Lewis, 463 Pa. 180, 344 A.2d 483 (1975).

The instant charges arose out of the armed robbery of the Jet Bar by two men who wore stocking masks and a third man identified as appellant by the barmaid Shardell Thompson. Appellant first argues that it was error to permit the barmaid and a police officer to testify regarding a photographic identification. We disagree. In making a determination as to what constitutes error when reference is made to photographs of the accused, the controlling question is whether or not a juror could reasonably infer from such reference that the accused had engaged in prior criminal activity. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). The facts in the instant case reveal that the witness was shown approximately eight photographs during a police interview at the witness’s home. There was no reference to the photographs as “mug shots” or any other indication that the photographs came from police files. The photographs themselves were not displayed to the jury or introduced into evidence. The only connection to the police is the fact that a police officer showed the photographs to the witness. This is insufficient to raise an inference of prior criminal activity. Commonwealth v. Reiss, No. 105 E.D.1982 (Pa. Oct. 27, 1983).

Appellant next contends that trial counsel was ineffective when he elicited, during cross-examination, that appellant was incarcerated. This occurred during testimony regarding a lineup held in connection with the instant case and in which all lineup participants wore prison garb. Assuming the references to institutional clothing did imply that appellant was incarcerated, this would not be grounds for relief. The rule is that references to past criminal conduct is prohibited. The fact that an accused is incarcerated on the present charges does not imply past criminal conduct on his part. Commonwealth v. Davis, 308 Pa.Super. 398, 454 A.2d 595 (1982).

Appellant also urges us to find that counsel was ineffective for not introducing evidence during the suppression hearing that Ms. Thompson failed to identify appellant at the preliminary hearing. During trial, counsel did question the witness concerning this issue. At issue at a hearing to suppress an out-of-court identification is the reliability of the out-of-court identification, herein the photographic and lineup identifications. The relevant factors are the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention at that time, the level of certainty demonstrated at the time of the out-of-court identification, the time between the crime and the identification, and the suggestiveness of the identification process. Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979). Thus, the witness’s failure to identify appellant at the preliminary hearing is not an appropriate basis on which to base a suppression order nor does such a failure to identify preclude her in-court identification of him. Commonwealth v. Council, 491 Pa. 434, 421 A.2d 623 (1980).

Appellant’s final contention as to trial counsel’s ineffectiveness concerns counsel’s failure to give an opening statement to the jury. Appellant, however, does not argue how he was prejudiced by this decision other than to make a general allegation that the opening statement plays a critical role in the trial and that counsel’s failure to give an opening statement was unreasonable. The test for ineffectiveness is whether some reasonable basis, designed to advance a client’s interest, exists for an attorney’s actions. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Absent some factual showing that the alternatives not chosen offered a potential for success substantially greater than the particular course chosen, we cannot find ineffectiveness. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). No such facts have been alleged by appellant to show that counsel’s decision not to give an opening statement was an unreasonable trial tactic or to show how it prejudiced appellant. Commonwealth v. Nelson, 311 Pa.Super. 1, 456 A.2d 1383 (1983).

Appellant also challenges the administrative procedure employed by the Philadelphia District Attorney’s Office known as the Career Criminal Program. Appellant claims that cases in which the accused has certain prior convictions are assigned to one of three designated judges and this assignment effectively denies an accused his “right” to a non-jury trial because the trial judge knows the accused has prior convictions. Appellant’s argument must fail as it is based on an incorrect premise; an accused does not have an absolute right to a bench trial. Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982); Commonwealth v. Edney, 318 Pa.Super. 362, 464 A.2d 1386 (1983). Further, the fact that the trial judge is aware of an accused’s prior convictions does not automatically require that judge’s recusal. Commonwealth v. Edney, supra; Commonwealth v. Darush, 279 Pa.Super. 140, 420 A.2d 1071 (1980); see also, Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980) (admission of evidence of prior convictions harmless error in bench trial since trial judge presumed to disregard inadmissible evidence). Appellant’s other arguments with regard to the “Career Criminal” program are similarly unpersuasive.

Appellant next argues, that the trial judge erred in giving a flight charge to the jury. We disagree. There was sufficient circumstantial evidence to show that appellant knew he was or would be accused of committing a crime and that he fled from the police. See, Commonwealth v. Osborne, 433 Pa. 297, 249 A.2d 330 (1969).

Finally, appellant argues that the sentencing court improperly considered a prior, reversed conviction. We agree.

Appellant here was previously convicted of murder as a juvenile. The Supreme Court of this Commonwealth reversed his conviction on constitutional grounds. On retrial he was found not guilty.

The law on this issue appears in Commonwealth v. Calvert, 463 Pa. 211, 344 A.2d 797 (1975): a sentencing judge may not consider a conviction overturned on appeal on constitutional grounds. Even the possibility of it having been impermissibly considered was sufficient in Calvert to require resentencing.

Appellant’s case is even stronger. Here there is no doubt that the sentencing judge considered the constitutionally infirm conviction.

“Court: I am making it very clear to you so that if I am wrong you will be able to get it reversed. I am giving great weight to the fact he has already been sentenced to life imprisonment, that he was already convicted of shooting someone.” (N.T. Sentencing, P. 6).

As we read Calvert to require it, judgment of sentence is vacated and the case remanded for resentencing without consideration of appellant’s constitutionally infirm prior conviction.

MONTGOMERY, J. filed a concurring and dissenting opinion.

MONTGOMERY, Judge,

concurring and dissenting:

I must respectfully dissent.

I agree with the majority that appellant should not be granted a new trial. I disagree, however, with the conclusion that appellant should be resentenced because the sentencing court considered a prior conviction that had been reversed on appeal.

In considering the prior conviction in the instant case, the sentencing judge stated:

... I read the decision myself. I think it was a 1975 decision. The defendant was found guilty of murdering another young boy by the use of a rifle, and I understand from reading the report that at the same time, or at the same incident, he paralyzed another boy by shooting him in the neck. Anyhow, it is my understanding from both the report Mr. Phipps sent and the case itself, he was seventeen at the time and he was arrested, interviewed, given Miranda warnings, and within a short time he made a statement implicating himself. He was tried before Judge Savitt, I think, and was found guilty of murder in the first degree and was given a life sentence. The Supreme Court reversed that decision, and the reason for the reversal was that the statement had not been made in the presence of an interested adult. Apparently the father arrived at or about the time that he was giving a written statement, and the Supreme Court suppressed the use of the statement and granted a new trial. At the second trial, he was found not guilty. I know that at the second trial the implicating statement would not have been used as evidence against him. TR. 3-4.

This court has consistently held that a sentencing court may properly consider prior arrests and concurrent charges (of which the defendant has been acquitted) as long as the court realizes that the defendant has not been convicted on those prior charges. Commonwealth v. Bryant, 312 Pa.Super. 379, 458 A.2d 1010 (1983); Commonwealth v. Craft, 304 Pa.Super. 494, 450 A.2d 1021 (1982); Commonwealth v. Tisdale, 233 Pa.Super. 77, 334 A.2d 722 (1975); cf. Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982) (proper to consider that a defendant has been placed in A.R.D. program). It was this reasoning that led the sentencing judge in the instant case to consider appellant’s prior conviction. From the portion of the sentencing transcript quoted above, it is quite clear that the sentencing, judge was well aware that appellant’s prior conviction had been reversed and that on retrial he was found not guilty. He had read the Supreme Court opinion and accurately summarized the circumstances of the case. He did not consider the prior case as a conviction. It was one of the factors that led him to conclude that appellant was a danger to the community and that appellant had been “given an opportunity. He didn’t use it.” (Tr. 12) I do not believe that Commonwealth v. Calvert, 463 Pa. 211, 344 A.2d 797 (1975) mandates reversal under these circumstances.

In Calvert, the sentencing court considered prior convictions which, on appeal, were alleged to have been obtained in uncounseled proceedings. The convictions were considered as prior convictions. .There is no indication that these past convictions had been reversed; indeed, it appears that the issue of Calvert’s right to counsel in the prior cases was first raised in the proceeding at issue. Thus, the sentencing judge had considered as convictions prior convictions which apparently would have been reversed had appeals been taken. Our Supreme Court determined that this was improper and ordered resentencing without consideration of these convictions. I believe the remedy in Calvert must be confined to the particular facts of that case. Had Calvert appealed the prior convictions, received new trials with counsel, Commonwealth ex rel. Goodfellow v. Rundle, 415 Pa. 528, 204 A.2d 446 (1964), and been convicted on retrial, the sentencing judge could properly have considered that conviction as it would not have been constitutionally infirm. Since such was not possible, the remedy applied by the Supreme Court was the only feasible one. I do not believe Calvert stands for the proposition that a sentencing court can never consider a conviction which has been reversed, regardless of whether the sentencing court is aware of all the facts or not. Rather, I believe the authorities relied upon by the sentencing judge in the instant case and recited above are appropriate precedent for the action taken herein. Thus, I would permit consideration of the circumstances of the prior conviction as long as all of the facts are before the sentencing judge, as indeed they were here. I would therefore affirm the judgment of sentence.

      . The exact nature of the constitutional infirmity is, of course, not relevant to the application of the rule of Calvert. The infirmity in Calvert was different than in appellant’s reversal. But that is simply of no import for our purposes here.

      . See, Commonwealth v. Hailey, 470 Pa. 488, 368 A.2d 1261 (1977).

      . Although the distinction is not necessarily a part of my reasoning above, I would also note that appellant’s prior conviction was not reversed on constitutional grounds. It was reversed because of a violation of the "interested adult” rule of Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), which rule has recently been abrogated by our Supreme Court. See, Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984); Commonwealth v. Christmas, 502 Pa. 218, 465 A.2d 989 (1983).