author: CIRILLO, Judge:

text:
    503 A.2d 980
    George HADE v. NATIONWIDE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1985.
    Filed Jan. 28, 1986.

      Joseph A. Whip, Norristown, for appellant.
    Gustine Pelagatti, Philadelphia, for appellee.
    Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying a petition to vacate or modify an arbitration panel’s award. We affirm.

The appellant insurance company issued an automobile policy to appellee. By the terms of the contract, disputes over policy coverage arising between the parties can be submitted to arbitration. Concerning the situs of such arbitration, the policy states that “unless the insured and company agree otherwise, arbitration will take place in the county and state in which the insured lives.” Appellee resides in Montgomery County.

Following a car accident in which he was injured, appellee sought uninsured motorist benefits under the policy. Counsel for appellee, his office being in Philadelphia, filed a “petition to compel arbitration and appoint a third arbitrator” in the Philadelphia County Court of Common Pleas. In order to comply with the terms of the policy, the Honorable Thomas A. White compelled arbitration in Montgomery County; further, since the parties could not agree upon a neutral arbitrator, the judge chose one from Montgomery County to complete the three man panel. The arbitration resulted in a $300,000.00 award in favor of appellee.

Appellant challenges the award on three separate grounds. First, it asserts that all of Judge White’s actions are null and void because he had no jurisdiction over the matter. Second, appellant contends Judge White improperly retained venue in contravention of the policy; in other words, he should have transferred the matter to Montgomery County at the outset to let a Montgomery County judge compel arbitration and choose an arbitrator. Lastly, appellant argues the award was excessive because it included recompense for the misconduct of an agent of appellant, a matter beyond the scope of arbitrable issues.

The first argument is wholly without merit, since both subject matter and personal jurisdiction are easily found. The very fact that a court of common pleas is competent to handle this general class of cases, 42 P.C.S. § 931, allows a finding of subject matter jurisdiction regardless of whether the court can ultimately grant relief in the case. See Schifano v. Schifano, 324 Pa.Super. 281, 471 A.2d 839 (1984). As concerns personal jurisdiction,- it is properly based upon appellant’s carrying on of business within the Commonwealth, pursuant to 42 P.C.S. § 5301(a)(2)(iii). In appellant’s view, Philadelphia cannot have jurisdiction because the arbitration cannot take place there. Such reliance on the arbitration clause is misplaced, for we have explicitly held that such a clause in a contract cannot divest a court of jurisdiction. See Chester City School Authority v. Aberthaw Construction Company, 460 Pa. 343, 333 A.2d 758 (1975); Woodward Heating and Air Conditioning v. American Arbitration Association, 259 Pa.Super. 460, 393 A.2d 917 (1978); Wechsler v. Newman, 256 Pa.Super. 81, 389 A.2d 611 (1978).

We turn now to appellant’s second procedural attack upon the arbitration award. Again relying on the arbitration clause, appellant argues Judge White improperly retained venue when he compelled arbitration and appointed a neutral arbitrator. In appellant’s view, since the arbitration itself could only occur in Montgomery County, then only a judge from that county could act on the petition seeking arbitration.

We agree with the general proposition that when an arbitration clause calls for arbitration in one particular county, parties to the contract are limited to that single forum even though the general venue rule, Pa.R.Civ.P. 2179, might allow for arbitration in any of several counties. This is only logical, for the limitation is a straightforward contractual restriction voluntarily entered into by the parties. See Chester City School Authority, supra. By the same token, however, the provision calling for arbitration in only one county cannot be read as anything more than a contractual restraint. In other words, such a clause does not wrestle venue away from those counties outlined in Rule 2179; it only prohibits the parties from availing themselves of those options.

Applying this reasoning to the case before us, Philadelphia had venue over this action at all relevant times, since pursuant to Pa.R.Civ.P. 2179, venue lies (among other places) in any county in which appellant does business. The arbitration clause, which was silent as to where an action might be commenced, only prohibited the parties from going to arbitration in Philadelphia. The clause called for arbitration in Montgomery County, and that is precisely where it occurred. Judge White, sitting on a court with proper venue, complied to the letter with the policy restrictions, and we therefore conclude that he acted properly on appellee’s petition.

In a related argument, appellant asserts there is a specific provision concerning the judicial appointment of a third arbitrator which was improperly disregarded. The policy states that when the parties reach an impasse in choosing a third, neutral arbitrator, an application for judicial appointment of an arbitrator shall be made only in the county “where the action is then pending.” We do not find the provision controlling here, because there was no pending action until the petition seeking appointment of an arbitrator was filed; it was that very petition which served to initiate the present action. Thus, there is no danger that appellant will be faced with the hardship of appearing in an action in one county and arbitration hearings in another. In conclusion, this argument does not alter our finding that there were no procedural defects in the proceedings which culminated in the award to appellee.

Finally, we consider appellant’s contention that the arbitration panel’s award of $300,000.00 was excessive. It was determined at the hearing that an insurance carrier who is an agent of appellant misled appellee regarding the extent of his insurance coverage. The award in large part was a compensation for the agent’s acts. Appellant argues that if its agent misled appellee, this is at best the basis for a separate tort action; the issue does not amount to a “dispute over coverage” and therefore is not within the terms of the arbitration clause. Thus, appellant concludes the award should be restricted to the $60,000.00 policy limit.

At common law, the arbitrator is the final judge of both law and fact. Hassler v. Columbia Gas Transmission Corp., 318 Pa.Super. 302, 464 A.2d 1354 (1984). An arbitration award is conclusive and will not be modified upon the mere urging that it is excessive. Cargill v. Northwestern National Insurance Co. of Milwaukee, 316 Pa.Super. 139, 462 A.2d 833 (1983). Thus, it will only be upset on appeal if it is the result of fraud, misconduct, corruption, or some other irregularity. Flamini v. General Accidental Fire and Life Assurance Corp., 328 Pa.Super. 406, 477 A.2d 508 (1984); Greenspan v. United Services Auto Association, 324 Pa.Super. 315, 471 A.2d 856 (1984). “Irregularity” refers not to the award itself, but to the process used in arriving at the award. Press v. Maryland Casualty Company, 227 Pa.Super. 537, 324 A.2d 403 (1974). Admittedly, a finding that the panel considered an issue beyond the scope of the arbitration clause would support a modification of the award on appeal. In this connection, we observe that in the face of the rule giving common law arbitrators unfettered discretion, it has been explicitly held that whether a given dispute is within the terms of an arbitration agreement is for the court to determine, provided this issue is not intertwined with the merits of the claim. Sharon Steel Corp. v. Jewell Coal and Coke Co., 735 F.2d 775 (3rd Cir.1984); Hassler v. Columbia Gas Transmission, supra. See generally 5 Am.Jr.2d Arbitration § 15 (1962).

Our task is to reach a decision that embraces certain important principles that are somewhat antagonistic. On the one hand, it has been held that arbitration agreements are not to be extended by implication. Hassler v. Columbia Gas Transmission, supra. Yet we also realized in Hassler that the general policy of the courts of this Commonwealth as to arbitration clauses is also a very important consideration.

In some jurisdictions, such as New York, arbitration is typically limited to the issues of negligence and damages when the claim involves uninsured motorist benefits. By the more popular view, however, any issue related to coverage is within the purview of the arbitration clause. See 29 A.L.R.3d Uninsured Motorist Risk-Arbitration § 2 (1970). Pennsylvania is in accord with this prevailing view. Id.

In National Grange Mutual Insurance Co. v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968), our Supreme Court considered a provision whereby a disagreement as to amounts “which may be owing” shall go to arbitration. The Court concluded that any dispute related to coverage should be arbitrated, not just those related to the claimant’s right to recover. In so holding, the Court expressed the view that court proceedings should not be compounded upon the arbitration process, insofar as the parties agreed to one form of resolution, arbitration, for coverage disputes. Other cases have similarly recognized the policy favoring the arbitration of all coverage-related issues. See Allstate Insurance Co. v. Taylor, 434 Pa. 21, 252 A.2d 618 (1969); Allegheny Home Improvement Corp. v. Franklin, 308 Pa.Super. 225, 454 A.2d 103 (1982); Hart v. State Farm Mutual Auto Insurance, 288 Pa.Super. 53, 431 A.2d 283 (1981); Gordon v. Keystone insurance Co., 277 Pa.Super. 198, 419 A.2d 730 (1980); Oxford Board of School Directors v. Comm. La bor Relations Board, 31 Pa.Cmwlth. 441, 376 A.2d 1012 (1977). Indeed, in Wolf v. Baltimore, 250 Pa.Super. 230, 378 A.2d 911 (1977), we concluded that a grievance is only-outside the arbitration clause when it can be said with “positive assurance” that the clause was never intended to embrace such an issue.

Our review of the relevant case law has unearthed no opinions in which a court of this Commonwealth was faced with the issue of whether misleading actions of an insurance company’s agent is an arbitrable issue when uninsured motorist benefits are sought. Certainly, we are not prepared to hold that such agent misconduct is patently arbitrable. However, given the facts of this case in light of the principles set forth supra, we hold that the award of $300,000.00 must stand. We cannot say with “positive assurance” that an agreement to arbitrate disputes over coverage does not encompass the misleading acts of appellant’s agent.

It may be true that the agent’s conduct forms the basis for a separate tort action. However, beyond the fact that such an argument is inconsistent with judicial economy (this being one of the reasons arbitration clauses are broadly construed), it simply is not a determinative factor in passing upon arbitrability. See 5 Am.Jur.2d Arbitration § 54 (1962). As the Commonwealth Court held in Shaler Area Education Association v. Shaler Area School Dist., 61 Pa.Cmwlth. 211, 433 A.2d 168 (1981), a dispute will be considered within the arbitration clause if it “rationally relates” to the matter of coverage. We find such a rational relation in this case, since the agent’s conduct went directly to the issue of coverage — namely, appellee’s misunderstanding as to the extent of it. Appellant urges no limitations in the contract to the effect that “disputes over coverage” refers only to a determination of appellant’s liability after injuries are sustained. For us to read such an implication into the contract would be contrary to the above-stated principles calling for a reasonable effort to enforce an arbitration clause.

In conclusion, we find no “irregularity” in the panel’s decision to include damages for the agent’s misleading acts in the award. This being the only possible ground for disturbing the award, we therefore reject appellant’s argument that it is excessive.

Order affirmed.

      . Pa.SXiv.P. 2179 provides:
      (a) Except as otherwise provided by an Act of Assembly or by subdivision (b) of this rule, a personal action against a corporation or similar entity may be brought in and only in
      (1) the county where its registered office or principal place of business is located; or
      (2) a county where it regularly conducts business;

        Note; See Rule 2198

      (3) the county where the cause of action arose; or
      (4) a county where a transaction or occurrence took place out of which the cause of action arose.
      (b) An action upon a policy of insurance against an insurance company, association or exchange, either incorporated or organized in Pennsylvania or doing business in this Commonwealth, may be brought
      (1) in a county designated in Subdivision (a) of this rule; or
      (2) in the county where the insured property is located; or
      (3) in the county where the plaintiff resides, in actions upon policies of life, accident, helath, disability, and live stock insurance or fraternal benefit certificates.
      Adopted Nov. 26, 1943, effective Aug. 1, 1944. Amended March 27, 1956, effective July 1, 1956.

      . Due to the differences between common law arbitration (the type here before us), and statutory arbitration, See Gentile v. Weiss, 328 Pa.Super. 475, 477 A.2d 544 (1984), we reject appellant’s contention that the statutory rules for commencement of an action have any applicability here.

      . Both Hart and Gordon were eventually overruled in White v. Concord Mutual Ins. Co., 296 Pa.Super. 171, 442 A.2d 713 (1982), affirmed 500 Pa. 103, 454 A.2d 982 (1982), but only because in compelling arbitration they overlooked a rule calling for determination by the courts of the validity of the uninsured motorist clause itself. The proposition for which the cases are here cited was not challenged.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    503 A.2d 984
    COMMONWEALTH of Pennsylvania v. Deborah Ann GREEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed Jan. 31, 1986.

      David Sigismonti, Philadelphia, for appellant.
    Stuart B. Suss, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before McEWEN, MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence entered pursuant to appellant’s guilty plea to a charge of driving under the influence of alcohol. At a separate penalty hearing, appellant was sentenced to the mandatory term of 30 days to 23 months incarceration for recidivist offenders. After denial of a motion for reconsideration, this appeal was lodged.

Two issues are raised, the first of which challenges the constitutionality of the drunk driving statute. Such questions have been answered to appellant’s detriment in Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985).

Appellant also claims that infringement of her due process rights occurred through the Commonwealth’s failure to include in the criminal information, notice of its intention to invoke the sentence enhancement provisions applicable to habitual violators of the drunk driving law.

This Court has recently held in Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985), that notice of prior convictions under the statute need not be included in a complaint or information as they are not elements of the offense charged, and do not affect the maximum penalty. We would carry this rule one step further, holding that information concerning prior drunk driving convictions must be excluded from the charge sheet because of the potentially prejudicial effect of such data upon the fact finder. A criminal history need be presented to the sentencing authority only after conviction and prior to sentencing, Reagan, supra, as the penalty is mandatory and therefore “pre-fashioned”, requiring no time for extensive calculations.

However, Reagan also directs that where a guilty plea is involved, notification of intent to prosecute the defendant as a recidivist must be provided to thé accused prior to his entering the plea. We have already determined, contrary to appellant’s contention, that an information or complaint is not the vehicle by which such notice is to be served. In appellant’s case, there was oral notice given at the commencement of the plea hearing and prior to the colloquy that this was a second offense, and, therefore, fell within the ambit of the subsequent offense section of the drunk driving law. There was no objection or challenge to the validity of the conviction at that time.

At the sentencing hearing held two months later, appellant was offered the opportunity to withdraw her plea before sentence was pronounced. At that time, the court stated:

THE COURT: ... And it is my conclusion, as a matter of law that, based on the record I have in front of me, that would have to be considered a second DUI and, therefore, I would have to impose a minimum of 30 days. Now, do you understand that.
THE DEFENDANT: Yes, sir.
THE COURT: And in light of that, is it still your wish to, and intention to enter a plea of guilty to this charge?
THE DEFENDANT: Yes, sir.

S.T. at 3-4.

What appellant experienced was one of two alternative procedures we find adequate to fulfill the Reagan requirements: oral notice, coupled with, at a later procedure, the option of retracting the plea. The other option is, of course, written notice a reasonable time prior to entry of the plea. In either case, “... the defendant still has an adequate opportunity to deny the prior conviction, challenge its timeliness, or offer any explanation for it.” Id., 348 Pa.Superior Ct. at —, 502 A.2d at 707.

Given the sequence of events in appellant’s case, her due process rights have emerged intact. „

Judgment of sentence affirmed.


author: WICKERSHAM, Judge:

text:
    503 A.2d 986
    COMMONWEALTH of Pennsylvania v. George W. MANHART, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted April 18, 1985.
    Decided Jan. 28, 1986.

      Michael A. McGinley, Ashland, for appellant.
    Jacqueline L. Russell, Assistant District Attorney, Potts-ville, for Com., appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   WICKERSHAM, Judge:

This is an appeal from the judgment of sentence imposed by the Honorable Donald D. Dolbin of the Court of Common Pleas of Schuylkill County. Appellant, George W. Manhart, Jr., was tried and convicted by a jury of robbery and other related crimes. We affirm the judgment of sentence.

On May 7, 1983, at approximately 1:00 A.M., Ms. Vicki Urbon, the proprietor of Urbon’s Pharmacy, was disturbed by a loud crash below her second floor apartment. Ms. Urbon immediately ran down the stairway leading from her apartment to the pharmacy located on the first floor. Entering the pharmacy, she noticed that the door leading to the street had been smashed.

At this time, an intruder approached Ms. Urbon armed with a hand gun. Two lights, one three (3) feet and another ten (10) feet from her, illuminated his features. Ms. Urbon testified that the intruder was no more than three (3) feet from her and that she “had a one hundred percent look at [his] face.” N.T. at 49. She described the intruder as approximately 5'8" tall, and between 140-150 pounds, with brown hair and brown eyes. He was dressed in blue jeans, a bright blue short-sleeve shirt, cowboy boots, and a rolled up knit hat, according to her testimony. Ms. Urbon noted that the intruder had a mark on his upper lip and that his eyes “drifted” and did not move in unison with one another.

Ms. Urbon further testified that the intruder spoke to her for about five minutes and demanded certain drugs by placing the hand gun to her head and threatening to kill her. Ms. Urbon stated that she complied with the gun-toting intruder’s demands, handing him several bottles of narcotics from a storage cabinet. As the intruder attempted to exit through the damaged front door, he slipped, cutting his right forearm on the door’s broken glass. He then regained his composure and took flight.

Ms. Urbon notified the Butler Township Police Department of the break-in. Shortly thereafter, Ms. Urbon reviewed a book of approximately 24-45 photographs and immediately identified a photograph of appellant. At a later time, Ms. Urbon was shown a different array of photographs, containing over 120 photos, and once again singled out appellant’s picture.

Several days later, Trooper Bulavage of the Pennsylvania State Police, and Chief Davies of the Butler Township Police Department apprehended appellant. When appellant was arrested, both officers observed a partially healed cut on his right forearm. Additionally, they noticed that appellant had a deformed upper lip and one eye which tended to “wander.”

Appellant was tried before a jury on charges of robbery, burglary, theft and reckless endangerment. Post-verdict motions being denied, appellant was sentenced to a total of two and one-half (2V2) to five (5) years imprisonment to run consecutive to any sentence he was already serving. Appellant filed this direct appeal.

Appellant puts forth five issues for our review. We shall address appellant’s sufficiency argument first.

The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all reasonable inferences favorable to it, there is sufficient evidence to find every element of the crime and the identity of the accused beyond a reasonable doubt____ The entire record with all evidence actually received must be considered, whether or not the lower court’s rulings thereon were correct.

Commonwealth v. Minnis, 312 Pa.Super. 53, 55, 458 A.2d 231, 232 (1983) (citations omitted). Viewing the evidence under this standard, we agree with the lower court that the Commonwealth has proven all elements beyond a reasonable doubt.

Appellant next cites four specific instances which, he avers, reflect the ineffectiveness of his trial counsel. Since appellate counsel raised the ineffectiveness claim of trial counsel at the first stage of the proceedings in which appellate counsel represented appellant, the issue is properly before this court. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). We now turn to the standard which controls when a counsel’s effectiveness is placed at issue.

Our task in cases of this nature ... encompasses both an independent review of the record, ... and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives---- We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record____ [T]he balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.

Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-605, 235 A.2d 349, 352-353 (1967) (citations and footnotes omitted) (emphasis in original). Commonwealth v. Kerpan, 508 Pa. 418, 498 A.2d 829 (1985).

Applying the standard set out above, we now address appellant’s contention that counsel was ineffective for not requesting a mistrial when a police officer testified that police photo arrays included criminal photographs. A review of the record discloses that upon direct examinátion by the Commonwealth, Trooper Ronald Souchak of the Pennsylvania State Police testified:

Q Now, was Miss Urbon there—
A Yes, she was.
Q —when you arrived?
A Yes, she was.
Q And did you have any interview with her?
A Yes, I did.
Q And what was the extent of that?
A I asked Miss Urbon ... Well, prior to this, Officer Bernodin had advised me as I had entered the establishment that they had a mug shot ... Or a photo album of people who had been arrested for crimes in the Ashland area, and he advised that he had given this to Miss Urbon to look at, and upon introducing myself ...
Mr. McLaughlin: Your Honor, I am going to object. This is all hearsay going on too far.
THE COURT: Yes, we sustain that objection. A photo album was produced. You can go on from there.
Q And with the receipt of that information, then what did you do, sir?
A I had asked Miss Urbon if she had discovered anybody in this particular photo album that she possibly could recognize as the perpetrator of the crime.

N.T. at 68 (emphasis added).

Appellant’s trial counsel made a hearsay objection to this testimony. Appellant now avers that effective counsel should have requested a mistrial at this juncture. We agree.

“Where the record on appeal clearly shows that there could have been no reasonable basis for a damaging decision or omission by trial counsel, then of course the judgment must be vacated and appropriate relief ... granted.” Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976) (footnote omitted). Instantly, appellant’s trial counsel failed to request a mistrial when a police officer improperly referred to photographs of the appellant being in the possession of the police. Upon review of the record, we can perceive no “reasonable basis” for trial counsel’s failure to request a mistrial. See Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972) (reference to a defendant’s photograph constitutes reversible error). See also Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985); Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973). We, therefore, find trial counsel’s stewardship ineffective.

In light of our recent decision in Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985), however, our analysis of this issue must pass through one more test. Appellant must now prove to this court that counsel’s ineffectiveness prejudiced his case. It is under this analysis that wé find appellant has not met his burden. As in Pierce, after making a comprehensive examination of the entire record, we conclude that the evidence overwhelmingly established appellant’s guilt, and that any error was harmless beyond a reasonable doubt. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155, (1978) (error cannot be found harmless unless appellate court is convinced beyond a reasonable doubt).

As already stated, the Commonwealth produced evidence that appellant entered the pharmácy under cover of darkness, confronted and robbed Ms. Urbon, and fled from the scene. Ms. Urbon gave police a detailed description of appellant, and identified appellant on two later occasions from a compilation of police photographs. Police later apprehended appellant, who matched Ms. Urbon’s physical description. Counsel’s error for not moving for mistrial was so insignificant, by comparison to the overwhelming evidence, that the decision reached would not have been different absent the error.

Appellant further contends that he was denied effective assistance of counsel because his trial counsel failed to discover or request suppression of the photo identifications. Again, we begin our analysis by returning to Pierce. Trial counsel’s failure to file pre-trial motions “is deemed ineffective if the issue not raised is of arguable merit and counsel had no reasonable basis for failing to assert it.” Commonwealth v. Moore, 321 Pa.Super. 1, 9, 467 A.2d 862, 866 (1983). We find appellants claims of arguable merit and can find no reasonable basis for counsel’s damaging omissions; counsel was therefore ineffective. Appellant has once again, however, failed to meet his burden of showing prejudice due to counsel’s errors.

The [Garvin plurality] would require that the defendant bear the burden of proving that counsel’s ineffective representation so prejudiced his case that he was deprived of a fair trial. That is, ‘[a] finding that [the defendant] is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice to the defendant.’

Commonwealth v. Pierce, supra, 345 Pa.Superior Ct. at 329, 498 A.2d at 425-26 quoting Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984).

Appellant attempts to meet this burden by arguing that trial counsel “would surely have then been able to better prepare for the trial,” (Brief for Appellant at 8), by utilizing discovery, and that failure to request suppression did not “serve his client’s interests in any way, shape or form.” (Brief for Appellant at 9). Appellant’s arguments do not rise to the level of prejudice that Pierce requires.

Appellant’s final issue, pertaining to the suggestiveness of the photo identifications, was effectively addressed by the lower court as meritless. We concur, and therefore find that counsel could not be found ineffective on the issue.

In summary, we find no issue among those raised by appellant which would support a reversal of the judgment of sentence of the lower court.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 3701

      . Appellant raises the following issues on appeal:
      1. Was the victim’s ID. evidence insufficient to sustain the defendant’s convictions on all counts?

        2. Was the defendant’s trial counsel ineffective in failing to request discovery in accordance with the Pa.R. of Crim.Pro?
      3. Was the defendant’s trial counsel ineffective in failing to request suppression of the photo ID’s.?
      4. Was the defendant’s trial counsel ineffective in failing to move for a mistrial following the police officer’s testimony that the photo array was compiled from pictures of people who had committed crimes in the past in the area?
      5. Were the photo ID’s, so suggestive as to taint the victim’s in-court ID. of the defendant? (and was trial counsel therefore, ineffective for failing to object?) [sic]
      Brief for Appellant at 1-2.

      . Cf. Commonwealth v. Reiss, 503 Pa. 45, 468 A.2d 451 (1983); Commonwealth v. Bey, 294 Pa.Super. 229, 439 A.2d 1175 (1982); Commonwealth v. DeMarco, 225 Pa.Super. 130, 310 A.2d 341 (1973).

      . We note that there is no basis to support appellant’s contention that the victim, Ms. Vicki Urbon, lacked credibility in her identification.

      . Our standard for review of ineffective assistance of counsel claims has changed recently; our prior practice had been to remand for a hearing on ineffectiveness whenever such a claim was made on appeal, if no hearing had been held by the trial court. The Supreme Court, however, condemned that practice in Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984), and set forth a new procedure; the appellate court is to evaluate the ineffectiveness claims and decide whether they have merit. If they have no merit, no evidentiary hearing is necessary. Id., 505 Pa. at [306], 479 A.2d at 957.

        Commonwealth v. Hill, 340 Pa.Super. 155, 160, 489 A.2d 889, 891 (1985).

      . Appellant also attempts to argue that trial counsel was ineffective for failing to request a cautionary instruction on the reliability of the victim’s in-court identification of appellant. This issue was not set forth in appellant’s statement of the questions involved portion of his brief nor suggested thereby. Therefore, it will not be considered. Commonwealth v. Gray, 339 Pa.Super. 385 n. 3, 489 A.2d 213 n. 3 (1985) (citing; Pa.R.A.P. 2116(a)). In passing, the positive identification need not have been accompanied by a caution. See Commonwealth v. Kloiber, 378 Pa. 412, 414, 106 A.2d 820, 826 (1954) cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954).


author: WIEAND, Judge:

text:
    504 A.2d 186
    Mary GANSTER, Frances S. Cannon, Frank Janicki and Catherine Janicki, his wife, Appellants, v. WESTERN PENNSYLVANIA WATER COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued May 13, 1985.
    Filed Dec. 13, 1985.
    Reargument Denied Feb. 12, 1986.

      John D. Hendricks, Pittsburgh, for appellants.
    James F. Manley, Pittsburgh, for appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

In this action to recover for damages allegedly caused to improved real estate by escaping water, the trial court allowed the defendant water company’s risk manager to read from copies of reports in company records that a water sample had been collected, analyzed in a laboratory and found to be “not our water.” In this appeal from a defense verdict, the appellant property owners contend that the ruling of the trial court which allowed this evidence was erroneous. We agree. Therefore, we reverse and remand for a new trial.

The property owners, Mary Ganster, Frances S. Cannon, and Frank and Catherine Janicki, brought suit against Western Pennsylvania Water Company to recover damage to improvements on their real estate allegedly caused by water escaping from mains along DeWalt Drive in Baldwin Township, Allegheny County. At trial, the property owners produced testimony that water had been observed bubbling through the road surface. Escaping water, they contended, had also flowed subsurface to their properties where it caused damage to the foundations of their homes. At trial, the property owners and the water company called expert witnesses who gave conflicting testimony regarding negligence and whether water escaping from mains in the street had caused the damages. The water company then called its risk manager, Herman Kreuzer, who produced water company records to show that an employee had responded to a call to turn on the water at the Ganster home. The company’s business records showed that when the water had been turned on at the curb, their employee had also gathered a sample of surface water on the property. This sample, according to the water company’s records, had been taken to the lab for analysis. According to the trial record, the following then occurred:

Q What were the results of the test.
MR. HENDRICKS: I object, Your Honor, unless the individual who performed these tests is present to testify, further that there is no testimony of where this water sample was taken from at the house. That may have a great deal to do with what was found in the water. There is absolutely no evidence other than he took a water sample from house 409. I don’t know if that means inside the house or around it or behind it.
THE COURT: What do the records show, sir?
THE WITNESS: It just indicates that a sample was taken at house 409.
THE COURT: Is that all the record says?
THE WITNESS: Yes.
THE COURT: All right. Objection overruled. The test was taken. That’s all.
BY MR. MANLEY:
Q The record also indicates the sample was taken down to the lab, does it not?
A Yes, the sample was taken from the home and delivered to the lab.
Q And did you receive a lab — is this lab report the third page of Exhibit G?
A Yes.
Q What was the result of the test?
MR. HENDRICKS: Again, Your Honor, I am going to object. The individual who did this test is not here. There is no foundation laid that Mr. Kreuzer is an expert in interpreting reports. There is no report here other than what it states here. It doesn’t state the foundation for it. Again it is testing water and again we don’t know where it came from. Furthermore, the defendant did not supply me with the experts’ reports regarding the water conditions.
THE COURT: Mr. Manley, what is your response?
MR. MANLEY: It was never asked for.
THE COURT: What is your response to his objection?
MR. MANLEY: If the Court please, these are records that the water company keeps in the regular course of business. They do this as a matter of routine. And the report is part of our records. The report is made at the time and the date indicated on the report.
THE COURT: What does the record show with respect to the results of the test?
MR. MANLEY: If I say that, Your Honor, then there would be objections.
I will show you.
THE COURT: All right. The Court views this as being part of the [business] records, an exeption [sic] to the hearsay rule. You have your exception, sir.
BY MR. MANLEY:
Q What was the result of the lab test, Mr. Kreuzer?
THE COURT: As shown on the records.
THE WITNESS: On July 26th, the lab report was submitted for 409 Pearce Road, not our water.
MR. MANLEY: Okay.

The Uniform Business Records as Evidence Act provides as follows:

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

42 Pa.C.S.A. § 6108(b). The Supreme Court, in In re Estate of Indyk, 488 Pa. 567, 413 A.2d 371 (1979), stated the purpose of the business records exception to the hearsay rule as follows:

“The general purpose of the Business Entry Statute was to enlarge the old common-law shopbook exception to the hearsay rule by eliminating the many illogical distinctions which had evolved during the period when the one-man type of business enterprise was the predominant dorm [sic] of business organization. Today, instead of a single shopkeeper who transacts and records the sale, there are a myriad of sales girls, department heads, bookkeepers, etc., etc., etc., who compile summaries and consolidate the records made by others. Quite often different individuals have personal knowledge of the various phases of a transaction so that no one individual has knowledge of the entire transaction. In addition, the frequent turnover of personnel often makes it impossible to identify the employee — if it were only one — who took part in the transaction. Under these circumstances, to require the entrant to have personal knowledge of the event recorded, and to require proof of the identity of the recorder, would exclude almost all evidence concerning the activities of large business organizations — a result diametrically opposed to the purpose and spirit of the [Uniform] Business Records as Evidence Act. (Footnote omitted).”

Id., 488 Pa. at 571-572, 413 A.2d at 373, quoting Fauceglia v. Harry, 409 Pa. 155, 158-159, 185 A.2d 598, 600 (1962). The rule

is justified on grounds analogous to those underlying other exceptions to the hearsay rule. Unusual reliability is regarded as furnished by the fact that in practice regularly kept records have a high degree of accuracy (as compared to other memoranda). The very regularity and continuity of the records are calculated to train the recordkeeper in habits of precision; if of a financial nature, the records are periodically checked by balance-striking and audits; and in actual experience the entire business of the nation and many other activities function in reliance upon records of this kind.

McCormick on Evidence § 306, at 872 (3rd ed. 1984).

To satisfy the requirements of the rule, a business record in the form of memoranda reports or data compilations must be made at or near the time of the events reflected in the records. “A determination as to whether the recording of the event is sufficiently contemporaneous with the event is left to the broad discretion of the trial court.” In re Estate of Indyk, supra 488 Pa. at 572 n. 2, 413 A.2d at 373 n. 2. See: Henderson v. Zubik, 390 Pa. 521, 524, 136 A.2d 124, 126 (1957).

The records must also be kept in the course of a regularly conducted business, and it must be the regular practice of the business to keep records of the type offered into evidence. “In the regular course of business” includes entries made systematically and as part of a regular routine which requires the recording of events or occurrences, the reflection of transactions with others. These essentials must be established by testimony of the custodian or of another qualified witness. It is not essential for the admission of evidence under this rule, however, to produce either the person who made the entries in question or the custodian of the record at the time the entries were made. The witness need only possess adequate knowledge of the regularity of the record keeping process to qualify the records under the Act. In re Estate of Indyk, supra 488 Pa. at 573, 413 A.2d at 373-374.

Finally, it is essential that no lack of trustworthiness appear in the source of information or the method or circumstances of preparation. The factors to be weighed in evaluating the trustworthiness of business records include whether there was either motive or opportunity to prepare an inaccurate record, the period of delay prior to preparation of the record, the nature of the information recorded, the systematic checking, whether there was regularity and continuity in maintaining the records and whether the business relied on them. “In the case of records kept in the regular course of business the circumstantial guarantee of trustworthiness arises from the regularity with which they are kept.” Fauceglia v. Harry, supra 409 Pa. at 160, 185 A.2d at 601.

The Act does not make relevant that which is irrelevant or make all business and professional records competent regardless of by whom, in what manner and for what purpose they were compiled or offered. Haas v. Kasnot, 371 Pa. 580, 586, 92 A.2d 171, 174 (1952); Grogan v. Michael, 349 Pa. 369, 373, 37 A.2d 715, 717 (1944); Ingram v. City of Pittsburgh, 346 Pa. 45, 48, 29 A.2d 32, 34 (1942); Freedman v. Mutual Life Insurance Co. of New York, 342 Pa. 404, 414, 21 A.2d 81, 86 (1941).

It was not necessary for Kreuzer, in this case, to have personal knowledge of the acts recorded in order to prove the authenticity of the company’s records. “The business records exception to the hearsay rule was meant to allow for the situation where larger departments for recording business transactions make it virtually impossible to identify each person at each phase of the recording ... process.” Campbell v. Royal Indemnity Co. of New York, 256 Pa.Super. 312, 320, 389 A.2d 1139, 1143 (1978). “Under these circumstances, to require the entrant to have personal knowledge of the event recorded, and to require proof of the identity of the. recorder, would exclude almost all evidence concerning the activities of large business organizations — a result diametrically opposed to the purpose and spirit of the Uniform Business Records as Evidence Act.” Fauceglia v. Harry, supra 409 Pa. at 159, 185 A.2d at 600.

“The purport of the Act is merely to require that the basic integrity of the record keeping is established. Where it can be shown that the entries were made with sufficient contemporaneousness to assure accuracy and that they were made pursuant to the business practices and not influenced by the litigation in which they are being introduced, a sufficient indicia of reliability is provided to overcome their hearsay nature.” In re Estate of Indyk, supra 488 Pa. at 572, 413 A.2d at 373. Kreuzer, who possessed adequate knowledge of the regularity of the record keeping process of the water company, testified that the records which the company sought to introduce were request forms which were compiled as a matter of course whenever a customer called in a request or a complaint. We conclude from this testimony that the request form indicating that plaintiff Mary Ganster had made a request to turn on the water at her house was properly admitted into evidence by the trial court to show the work done by the employee. The records could also be used to show that the employee who turned on the water had taken a sample of surface water from the property.

The report of the laboratory analysis of water collected by the water company employee, however, represented an employee’s opinion that the water collected from the property was not Western Pennsylvania Water Company water. Kreuzer testified that the water company’s laboratory had tested a sample of water from 409 Pearce Road and that the report showed that the water was not Western Pennsylvania’s water. This was a conclusion drawn from a laboratory analysis. It raised, not for the first time, the question whether conclusions and opinions are admissible pursuant to the business records exception to the hearsay rule.

Most decisions considering the admissibility of opinions contained in business records have involved hospital or doctors’ records. See, e.g.: Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975); Fauceglia v. Harry, supra; Morris v. Moss, 290 Pa.Super. 587, 435 A.2d 184 (1981); In re Wildoner, 268 Pa.Super. 271, 407 A.2d 1351 (1979); Commonwealth v. Seville, 266 Pa.Super. 587, 405 A.2d 1262 (1979); Commonwealth v. McNaughton, 252 Pa.Super. 302, 381 A.2d 929 (1977). Hospital records which satisfy the requirements of the Business Records Act are admissible to show facts of hospitalization, treatment prescribed, and symptoms given. Commonwealth v. DiGiacomo, supra 463 Pa. at 455, 345 A.2d at 608; Commonwealth v. McNaughton, supra 252 Pa.Super. at 306, 381 A.2d at 931. However, a medical opinion contained in a hospital record and offered as expert testimony, as a general rule, is not admissible unless the doctor who prepared the report is available for in-court cross-examination regarding the accuracy, reliability, and veracity of his opinion.

An opinion expressed in hospital records [were they to be admitted without the presence of the physician] is subject to no such searching inquiry as to accuracy, soundness, and veracity. Hence the danger in admitting them is very great. However admirable, whatever the character and reputation of the institution from which records come, to deny [the opposing party] the opportunity to test the correctness of the diagnosis and ascertain the qualifications of the assertor ... is to deny [the opposing party] a substantial right.

Paxos v. Jarka Corp., 314 Pa. 148, 154, 171 A. 468, 471 (1934).

The most recent statement of the rule by the Supreme Court appears in Commonwealth v. DiGiacomo, supra, where the Court said:

The law is clear that hospital records are admissible to show the fact of hospitalization, treatment prescribed, and symptoms given. Act of May 4, 1939, P.L. 42, No. 35, § 2, 28 P.S. § 91b; Commonwealth v. Mobley, 450 Pa. 431, [301] A.2d 622 (1973); Platt v. John Hancock Mutual Life Insurance Co., 361 Pa. 652, 66 A.2d 266 (1949). Medical opinion contained in the records and proffered as expert testimony is not admissible however where the doctor is not available for cross-examination. See Jones Appeal, 449 Pa. 543, 297 A.2d 117 (1972). Here, appellant attempted to have the custodian of records testify as to the admitting diagnosis of the injuries sustained. Such testimony is in the nature of expert opinion testimony and accordingly was properly excluded. See, generally, McCormick, Handbook of the Law of Evidence, 732 (2d ed. 1972).

Id. 463 Pa. at 455-456, 345 A.2d at 608. Concurring Opinions written by Justice Roberts and Justice Pomeroy suggested that the rule should be modified to allow hospital records in evidence to show diagnoses of injuries in limited situations as, perhaps, where all physicians would agree to the diagnosis and there would be no real dispute regarding the same. This view was not adopted by a majority of the Court, however, and is not now the law in this Commonwealth.

The decisions of the Superior Court have not always been consistent. In Myers v. Genis, 235 Pa.Super. 531, 344 A.2d 691 (1975), the Court, although acknowledging that Pennsylvania decisions excluded medical records containing diagnoses or medical opinions, relied upon federal practice to hold that records of a deceased physician were admissible in evidence to show his medical opinion. Because this decision preceded and was impliedly overruled by the Supreme Court in DiGiacomo, it cannot be relied upon to support the trial court’s ruling in the instant case.

Later, a majority of the Superior Court distinguished DiGiacomo. In Commonwealth v. Campbell, 244 Pa.Super. 505, 368 A.2d 1299 (1976), the Court held that hospital records were admissible to show that spermatoza was present in the vaginal tract of a criminal prosecutrix at the time she was examined. The Court concluded in support of its holding that the presence of spermatoza was a fact and not merely a medical opinion. Id., 244 Pa.Superior Ct. at 510, 368 A.2d at 1301. Judges Spaeth and Hoffman dissented on grounds that DiGiacomo was controlling and required exclusion of the evidence.

In Commonwealth v. McNaughton, supra, Judge Hoffman’s opinion for the court, with two judges concurring and one judge concurring specially, followed the general rule and held that “medical opinion contained in [hospital] reports and offered as expert testimony is not admissible unless the doctor who prepared the report is available for in-court cross-examination regarding the accuracy, reliability, and veracity of his opinion.” Id. 252 Pa.Super. at 307, 381 A.2d at 931.

Finally, in Emerick v. Carson, 325 Pa.Super. 308, 314, 472 A.2d 1133, 1136 (1984), allocatur denied, a panel of the Superior Court held, without reference to prior decisions, that where blood had been drawn at a community hospital and routinely sent to another hospital for analysis and the analysis report had been incorporated into the community hospital’s regular records, the analysis was admissible upon authentication by the community hospital’s medical records librarian. Although this decision appears at first blush to be in conflict with DiGiacomo, it may be that it can be distinguished as representing the recordation of fact in much the same manner as in Commonwealth v. Campbell, supra. In any event, we find Emerick not controlling of our decision in this case.

For present purposes, we accept the rule, as stated in DiGiacomo, that testimony in the nature of expert opinion is not admissible as a business record unless the expert rendering the opinion is available for cross-examination. “Cross-examination,” it has been said, “is a vital and fundamental part of a fair trial.” Commonwealth v. Shirey, 333 Pa.Super. 85, 151, 481 A.2d 1314, 1350 (1984). Although the right of cross-examination is not absolute and although hearsay evidence may be received upon proof of exceptional circumstances, including factual evidence received under the business records in evidence exception (Commonwealth v. Scatena, 332 Pa.Super. 415, 438, 481 A.2d 855, 867 (1984)), cross-examination is particularly important where it is the only means for testing the reliability of an opinion regarding disputed facts.

In the instant case, whether appellants’ damages had been caused by water escaping from appellee’s water lines was an important fact. Appellants were not entitled to recover damages unless they showed, by a preponderance of the evidence, that their damages had been caused by water emanating from the water company’s lines. To permit in evidence the conclusion appearing in a copy of a water company record that it’s “not our water,” without identifying the person rendering the opinion or subjecting him or her to cross-examination, was under the circumstances of this case an abuse of discretion and error. The risk manager who read the report had no personal knowledge of the statement contained in the report. The result was that someone’s opinion that it’s “not our water” was “totally insulated from any challenge regarding its veracity and reliability.” See: Commonwealth v. McNaughton, supra 252 Pa.Super. at 307, 381 A.2d at 932. Such an opinion should not have been received in evidence.

Reversed and remanded for a new trial. Jurisdiction is not retained.

SPAETH, President Judge, concurs in the result.


author: PER CURIAM: FEENEY, Judge,

text:
    504 A.2d 193
    COMMONWEALTH of Pennsylvania v. Randy TANGLE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 11, 1985.
    Filed Jan. 3, 1986.
    Reargument Denied Feb. 14, 1986.

      Terrence P. Cavanaugh, Erie, for appellant.

      Ernest J. DiSantis, Jr., Assistant District Attorney, Erie, for Com., appellee.
    Before DEL SOLE, HESTER and FEENEY, JJ.

       Judge John M. Feeney, of the Court of Common Pleas of Allegheny County, Pennsylvania, is sitting by designation.

   PER CURIAM:

This is a direct appeal from a conviction for burglary and criminal attempt for which appellant received a sentence of four to eight years. We hold that the trial court erred in allowing the Commonwealth to introduce rebuttal evidence of appellant’s prior record for burglary for the purpose of impeachment, and grant a new trial.

The facts may be summarized as follows. Arriving home at 9:30 P.M. on January 29, 1983, Samuel Opatich discovered that the window in the door of the rear entry to his home was broken. Opatich also noticed fresh blood dripping down the inside of the door to the floor. Opatich immediately called the police. Two officers arrived shortly and followed a fresh trail of blood to a restaurant two blocks away.

At approximately 9:20 P.M., Amy Allen, a hostess at the restaurant, had been confronted by appellant, who was holding his arms across his stomach and appeared to be ill. Allen directed him to the men’s restroom, then reported his condition to the restaurant manager, Sharon Anderson. Anderson and a busboy went into the men’s room. Appellant had left, but the floor was covered with blood. They cleaned the floor and noticed a trail of blood out onto the sidewalk.

Shortly thereafter, appellant sought treatment of two cuts on the back of his left hand at a nearby hospital emergency room, where he said he cut his hand on a basement window. Due to the severity of the lacerations, a cardiovascular surgeon was summoned to treat the injury.

Three days later, appellant was arrested pursuant to a warrant. After receiving Miranda warnings, he stated to the police that he had cut his hand while washing dishes. Two days later, he repeated to his probation officer that the injury occurred while washing dishes.

At trial, appellant presented an alibi defense. He relied on three relatives, who testified they were with him at home on the evening of the burglary until he cut his hand trying to open a basement window and went to the hospital. In addition, two friends testified in similar fashion. Appellant himself testified that he was home on the evening in question and cut his hand on the basement window.

To impeach appellant’s credibility, the Commonwealth presented rebuttal evidence that appellant had pleaded guilty two years earlier to a burglary charge. The jury found appellant guilty on the charge of burglary and criminal attempt, and he was sentenced to four to eight years incarceration.

At issue is whether the court erred in admitting rebuttal evidence of appellant’s burglary conviction to impeach his credibility.

The court correctly stated that it must apply the five factors set forth in Commonwealth v. Roots, 482 Pa. 33, 39-40, 393 A.2d 364, 367 (1978):

1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecution’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant’s credibility.

The Roots court emphasized that the foregoing list was neither exclusive nor exhaustive, but only illustrative. Id. It is clear that the balancing of these and similar factors is not a mechanical process, but requires a careful weighing of the matter and demands particular sensitivity to the natural tendency of a criminal record to suggest to a jury an accused’s propensity to commit crime. The court should be aware of its “inherent potential for prejudice.” Id., 482 Pa. at 41, 393 A.2d at 368.

We hold that the trial court erred in applying the Roots test. Only two of the five factors were addressed. The court noted the recent occurrence of the prior conviction, which was only two years prior to appellant’s trial. It was then stated that appellant “called three [sic] witnesses to substantiate his alibi,” which, together with appellant’s testimony, impeached the key Commonwealth witness. The opinion continued: “It would have placed the Commonwealth in a disadvantaged state if they could not in turn impeach the credibility of [appellant] through the use of his prior record.” Slip opinion at 2. Every time a prior record is suppressed when an accused testifies in his own behalf, the Commonwealth’s case is damaged. Were this to be the overriding factor, there would be no need for the five-point balancing test of Roots.

The other factors were not considered. We note that appellant was twenty-two years of age at the time of trial. The Commonwealth possessed, and used, alternative means of attacking appellant’s credibility. Both a police officer and appellant’s probation officer testified that he told them on different occasions that he had cut his hand while washing dishes, which were prior statements inconsistent with his trial testimony. We note, too, that of appellant’s five witnesses, three were members of his immediate family and two were friends, and that none of them observed the “accident” though all five claimed to be at home with appellant. Under the circumstances, appellant had no other means of presenting his version of the injury than to testify in his own defense.

Together with the preceding factors, we weigh heavily the fact that appellant’s prior record consisted of a conviction of the same offense for which he stood charged in this trial. This circumstance will always strongly suggest to the jury a predisposition to commit the charged offense. It is axiomatic that admission of a prior criminal record for this purpose is impermissible. We believe that admission of appellant’s burglary conviction had a greater tendency to suggest a propensity towards burglary than to discredit his truthfulness as a witness.

Having considered all the factors set forth in Roots, supra, we hold that appellant’s prior criminal record should not have been admitted in evidence, and that appellant is entitled to a new trial.

I agree with that portion of the concurring and dissenting opinion which holds that it was error for the trial court not to conduct a Bighum hearing in camera prior to the commencement of the trial, as set forth in Commonwealth v. Hill, 302 Pa.Super. 377, 448 A.2d 1090 (1982). Appellant was thereby denied a meaningful choice as to whether to testify in his own behalf.

I do not agree with that portion of the Concurring and Dissenting Opinion which would impose upon the Commonwealth the exclusive responsibility of requesting a Big-hum hearing and further, that failure to do so prior to trial acts as a waiver of the Commonwealth’s right to use the impeaching material.

Judgment of sentence vacated and case remanded for new trial.

FEENEY, J., files a concurring and dissenting opinion.

FEENEY, Judge,

concurring and dissenting:

I agree with the majority that the trial court erred in allowing the Commonwealth to present rebuttal evidence of a prior burglary offense by appellant inasmuch as the lower court considered only two of the five factors to be weighed pursuant to Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973) and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978). Accordingly, I concur that judgment of sentence must be vacated and this case remanded for a new trial.

However, I must dissent from the implied approval by the majority in its Opinion of the time at which and manner in which the trial court evaluated the Roots criteria in this case. The record discloses that after appellant had testified in his own defense and during his cross-examination by the Commonwealth, appellant’s defense counsel objected to the prosecutor’s line of questioning indicating at sidebar that it was bound to lead to disclosure of appellant’s prior record thereby unduly prejudicing the jury against appellant. At that point the Commonwealth indicated for the first time that it intended to present, as it subsequently did, rebuttal testimony regarding appellant’s prior record of crimen falsi. The sidebar discussion in response to defense counsel’s objection constituted the entire extent of the trial court’s inquiry as to the Roots factors.

In Commonwealth v. Hill, 302 Pa.Super. 377, 448 A.2d 1090 (1982), this Court stated:

When the admissibility of prior convictions is an issue, the court must conduct an in camera Bighum hearing prior to the commencement of trial. Once the court has determined the admissibility of prior convictions before trial, a defendant can more intelligently weigh his or her decision to testify at trial, [footnote omitted.] 302 Pa.Super at 382, 448 A.2d at 1093.

In Commonwealth v. Jennings, 335 Pa.Super. 404, 484 A.2d 409 (1984), this Court reiterated the quoted language from Hill and held that, because there had been no in camera Bighum hearing prior to trial to determine the admissibility of his prior criminal record, the defendant was effectively denied a meaningful choice as to whether or not to testify for himself. In light of these decisions, the trial court in this case clearly erred in entertaining the issue of admissibility of appellant’s prior record after appellant had taken the stand and presented his defense.

Moreover, I would hold that the Commonwealth, having failed to request a Bighum hearing at such time as not to impinge upon appellant’s right to have a meaningful choice as to whether to testify in his own defense or not, waived any right it may have had to use the impeachment material. The obligation of raising the issue of admissibility of a prior record for impeachment purposes and precipitating a Big-hum hearing properly rests solely with the prosecution for four reasons.

First, the prosecution, by virtue of its access to criminal court documents and law enforcement records, assuredly is aware of any potential impeachment by a prior record whereas defense counsel, despite due inquiry, may not have been advised or may have been incorrectly or inadequately informed by the client of any previous convictions.

Next, as was recognized in Bighum:

Although the statutory law of this jurisdiction expressly prohibits a defendant in a criminal case from being cross-examined as to other crimes he may have committed with two exceptions, our decisional law has made it clear that the Commonwealth may introduce in rebuttal evidence of prior convictions to attack the credibility of a defendant who has elected to testify in his own behalf, [footnote omitted.] Id., 452 Pa. at 562-63, 307 A.2d at 260.

The Commonwealth, consequently, must necessarily be the moving party in seeking to utilize the impeachment material.

Third, placing the obligation on the Commonwealth to initiate a Bighum proceeding is wholly consistent with the prosecution’s burden to show that the need for the evidence overcomes its inherent potential for prejudice. Com. v. Roots, supra.

Finally, the Commonwealth, knowing the existence, nature and extent of a defendant’s prior record, is certain, unlike the defendant, to possess all of the information that must be considered by the court in ruling on the issue of admissibility of a prior record for impeachment purposes pursuant to Roots, i.e.:

(1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; (2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; (3) the age and circumstances of the defendant; (4) the strength of the prosecution’s case and the prosecution’s need to resort to the evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and (5) the existence of alternative means of attacking the defendant’s credibility, [footnote omitted.] 482 Pa. at 39-40, 393 A.2d at 367.

In view of the information available to the Commonwealth, and the prosecutor’s burden of establishing that the probative value of a defendant’s prior record outweighs the prejudice that will inure to the defendant and the requirement that an in camera Bighum hearing be held prior to trial, the only meaningful result in any case where the Commonwealth fails to request a timely Bighum hearing is that the prosecution has waived its right to use impeachment evidence of the defendant’s prior record. Without question, the Commonwealth abandoned any right it may have had to use such testimony in this case by raising the question of its admissibility only after appellant had elected to testify in his own defense.

Accordingly, I would hold that the trial court erred in considering the admissibility of, much less admitting, evidence of appellant’s record and would vacate judgment of sentence and remand the case for a new trial.

      . Due to our disposition, we need not address appellant’s two claims related to ineffective assistance of trial counsel. Appellant’s other two arguments, that the court erred in permitting the testimony of Sharon Anderson because her name was not disclosed to appellant in the Commonwealth’s notice of alibi witnesses, and that appellant’s sentence was excessive, are totally without merit.

      . The court also stated that this "was not an attempt to smear [appellant’s] character,” slip opinion at 2 (emphasis added), but did not address its tendency to suggest a propensity to commit the crime charged rather than to impeach credibility.