text:
    555 A.2d 173
    COMMONWEALTH of Pennsylvania v. Clarence J. MEHALIC, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1988.
    Filed March 1, 1989.

      Leonard I. Sharon, Lewiston, Me., for appellant.
    Daniel M. Myshin, Assistant District Attorney, Greens-burg, for Com., appellee.
    Before BROSKY, JOHNSON and MELINSON, JJ.
   MELINSON, Judge:

This is an appeal from the Judgment of Sentence of the Court of Common Pleas of Westmoreland County in which Appellant, Clarence J. Mehalic, was sentenced to serve a term of imprisonment as a result of his conviction on the charges of criminal conspiracy, criminal solicitation, simple possession of a controlled substance (two counts), possession with intent to deliver a controlled substance (two counts), and delivery of a controlled substance (two counts). We affirm.

On 6 April 1985, Phillip Topper was arrested at his parents’ home in Emmitsburg, Maryland on drug-related charges. After his arrest, Topper met with agents of the United States Drug Enforcement Agency (hereinafter “DEA”), the Maryland State Police, and the Emmitsburg Police Department. The Maryland authorities negotiated a plea agreement with Topper in which he agreed to cooperate in providing a substantial felony prosecution.

Topper informed the DEA and Maryland authorities that his source for cocaine was Mehalic. The DEA arranged for Topper to place two intercepted telephone calls to Mehalic in order to arrange a controlled drug buy. A controlled buy was scheduled by Topper to occur on 22 April 1988 at the Donegal Exchange of the Pennsylvania Turnpike in Westmoreland County. All previous drug transactions between Mehalic and Topper had occurred in Westmoreland County and Mehalic is a resident of the county. Pennsylvania State Police arrested Mehalic at the interchange and charged him with criminal conspiracy (six counts), possession of a controlled substance (two counts), possession with intent to deliver a controlled substance (two counts), delivery of a controlled substance (two counts), and criminal solicitation.

Mehalic filed a pre-trial motion requesting, inter alia, the suppression of the tape recorded telephone calls between Topper and Mehalic. After a hearing, the motion was denied by the Honorable Donetta W. Ambrose.

The Honorable Charles H. Loughran Jr. presided over a jury trial at which Mehalic was convicted of seven of the thirteen drug related charges. Mehalic filed post-trial motions which were denied by Judge Loughran. On 26 January 1988, Mehalic was sentenced, as follows:

(a) two (2) to four (4) years of imprisonment and a Five Thousand Dollar ($5,000.00) fine for possession with intent to deliver a controlled substance, two (2) to four (4) years of imprisonment for criminal solicitation;
(b) two (2) to four (4) years of imprisonment for possession with intent to deliver a controlled substance to run concurrently with two (2) to four (4) years of imprisonment for delivery of a controlled substance and six (6) to twelve (12) months of imprisonment for possession of a controlled substance;
(c) two (2) to four (4) years of imprisonment for criminal conspiracy to run concurrently with (a) above.

Mehalic filed a motion for modification of the sentence. The motion was denied by Judge Loughran. This timely appeal follows.

On appeal, Mehalic presents four broad issues for our consideration, set forth in his brief as follows:

I. Whether Mehalic’s conversations recorded by federal agents in violation of federal law should be excluded.
II. Whether a plea bargain wholly conditioned upon the return of a major felony prosecution violates due process.
III. Whether the lower court’s rulings hindered counsel from accurately portraying the motives, character and bias of the key prosecution witness, Phillip Topper.
IV. Whether Mehalic’s two to four year term of imprisonment is overly harsh as indicated by the undisputed evidence presented at sentencing.

Brief for Appellant at vi.

I. Admissibility of Tape Recorded Telephone Conversations

Initially, Mehalic contends that the trial court erred in failing to suppress the tape recorded telephone conversations between Mehalic and Topper. The tape recordings were made pursuant to a federal wiretapping statute, 18 U.S.C. Section 2510 et seq. Although both the Commonwealth and Mehalic concede that the recording were conducted in accordance with the guidelines delineated in the federal statute, the recording did not comply with the procedures for a consensual tape recording set forth in Sections 5704(2)(i) and (2)(ii) of this Commonwealth’s Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons.Stat.Ann. Sections 5701 et seq. (hereinafter “Wiretapping Act”). Mehalic argues that the federal recordings are inadmissible in a state prosecution because they do not comply with the requirements of the Commonwealth’s more restrictive wiretapping statute.

Mehalic cites cases from other jurisdictions in support of his proposition. However, we have previously addressed this issue in Commonwealth v. Trignani, 334 Pa.Super. 526, 483 A.2d 862 (1984) and Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744 (1984). In Trignani, the Bureau of Alcohol, Tobacco and Firearms of the United States Department of the Treasury was conducting an investigation into an arson. An electronic listening device was attached to a federal informant with his full knowledge and consent in order to gather evidence for the investigation. Numerous face to face conversations and telephone conversations between the informant and other persons were intercepted by federal authorities and a Pennsylvania State Trooper in the joint investigation. Trignani moved to suppress the admission of the recordings into evidence. The motion was denied and several conversations were played to the jury at trial. Post-trial motions challenging the admissibility of the recorded conversations were filed and denied.

A panel of this court considered the admissibility, in a Commonwealth prosecution, of the conversations intercepted pursuant to federal law. Appellant argued that the Commonwealth failed to get an order from this court expressly authorizing the interception of oral or wire communications, thereby knowingly circumventing the requirements of the Wiretapping Act by obtaining a wiretap pursuant to federal law. We noted that the Appellant did not present any evidence to convince us that the Commonwealth deliberately circumvented the dictates of the Commonwealth statute. Further, we held that Section 5717(c) of the Commonwealth’s Wiretapping Act clearly expressed the intent of the legislature that “the contents of any wire or oral communication which is intercepted pursuant to federal authority may be admissible evidence in Pennsylvania courts.” Trignani, 334 Pa.Super. at 531-532, 483 A.2d 862.

“We must conclude that the use in this Commonwealth of taped conversations secured through a legally authorized federal wiretap is not in contravention of the Pennsylvania Anti-wiretap statute, and that any evidence disclosed by such means may be admissible in our courts. To reach any other result would severely hamper the detection and apprehension of members of organized crime syndicates and would impose severe restrictions on this Commonwealth’s law enforcement personnel.”

Trignani, 334 Pa.Super. at 534, 483 A.2d 862.

Here, the DEA intercepted communications pursuant to the federal wiretapping statute. There is no contention contained in Mehalic’s brief either that the interception violated the federal statute or that the law enforcement officials of the Commonwealth knowingly attempted to circumvent the provisions of the Commonwealth’s Wiretapping Act. In light of the holdings of this court in Trignani and Taraschi, and considering the plain language of Section 5717(c) of the Wiretapping Act, we find that the trial court did not err in admitting the recordings into evidence at trial.

II. Plea Agreement Contingent Upon Substantial Prosecution

We now turn to a consideration of whether the trial court erred in permitting Topper to testify on behalf of the Commonwealth. Mehalic argues that it was a violation of the Due Process Clause of the Fifth Amendment of the United States Constitution to permit Topper, who had entered into a plea agreement with Maryland law enforcement officials, to testify against Mehalic. The plea agreement provided, in pertinent part:

6. That if Phil’s cooperation does not result in a substantial felony prosecution, this plea bargain will be cancelled, however, the State agrees that none of the information furnished by Phil pursuant to the plea bargain will be utilized in the prosecution against him. Additionally, the Defendant retains the right to contest the warrant and any other aspect of the prosecution by appropriate motion. If Phil is convicted, the State will advise the sentencing Judge of his cooperation.

Commonwealth’s Trial Exhibit No. 2. Mehalic urges us to construe the language of this agreement to mean that Topper’s plea bargain would have been cancelled unless Mehalic had been convicted; thus, his testimony was corrupt and not admissible at trial. The Commonwealth counterargues that Topper’s plea agreement was unaffected by the success or failure of the prosecution of Mehalic. The trial court held that “Topper had already been sentenced [by the State of Maryland]. His plea agreement was not contingent upon the success of the defendant’s prosecution.” Trial Court Opinion at page 8.

At trial, Topper testified that: he entered a guilty plea to a charge of possession of cocaine on 8 January 1986 in Frederick, Maryland; on 18 February 1986, he was sentenced to serve two (2) years of probation, and a suspended prison sentence; on 13 August 1986, his sentence was modified to one year of probation. The record is unclear whether Topper was required to comply with the terms of his plea agreement as part of his sentence or modified sentence. However, this fact is not critical to our final disposition of the issue.

If Topper was not required, as part of his sentence, to comply with the terms of the plea agreement, then the State of Maryland was powerless to modify the sentence imposed upon Topper. Hence, if Maryland authorities were incapable of successfully attaining a modification of Topper’s sentence, then Topper’s credibility at trial could not be undermined by any taint of an alleged compulsion to testify in favor of the Commonwealth. Additionally, assuming arguendo that Topper’s sentence was open to revocation by Maryland authorities, we nevertheless find that the trial court did not err in permitting him to testify against Mehalic.

The appellate courts of this Commonwealth have permitted witnesses to testify on behalf of the prosecution under circumstances in which the witness’s bias, motive, or self-interest may be a crucial factor in determining the weight to be afforded his or her testimony. In Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), three persons allegedly committed numerous house burglaries and a murder. One of the persons (hereinafter “Crater”) was arrested three days after the murder on charges unrelated to the murder and burglaries. While being transported to his arraignment on the unrelated charges, Crater implicated the two other persons in the murder. As a result of Crater’s statements, his two cohorts in the burglaries and murder were arrested. The Commonwealth called Crater as a witness to testify against the two defendants. The defendants were not permitted to cross-examine Crater on whether he had been promised, in return for his testimony, leniency on the criminal charges pending against him in the same county. Relying largely upon the testimony of Crater, the jury convicted the defendants of second degree murder. This court affirmed the Judgment of Sentence.

The Pennsylvania Supreme Court reversed and remanded the matter for a new trial holding that “whenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury.” Evans, 511 Pa. at 224, 512 A.2d 626. Further, the court stated,

The jury may choose to believe the witness even after it learns of actual promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise a doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury’s determination of the case____ While we have always acknowledged the right of a party to impeach by showing bias, new in the present case is our willingness to acknowledge what we had previously thought was too speculative: that a prosecution witness may be biased because of the expectation of leniency in some pending matter even when no promises have been made. Thus, we hold that the right guaranteed by Article I. Section 9 of the Pennsylvania Constitution to confront witnesses against a defendant must be permitted to challenge a witness’s self-interest by questioning him about possible or actual favored treatment by the prosecuting authority in the case at bar, or in any other non-final matter involving the same prosecuting authority-

Evans, 511 Pa. at 225-226, 512 A.2d 626.

In Commonwealth v. Gay, 369 Pa.Super. 340, 535 A.2d 189 (1988), the defendant was convicted of numerous charges as a result of a non-fatal shooting during a group altercation at a carnival. The Commonwealth presented two witnesses, whom the defendant alleged were involved in the altercation, to testify that the defendant committed the shooting. The defense sought to cross-examine the two witnesses concerning their status as persons on juvenile probation. The defense theorized that the witnesses may have testified in favor of the Commonwealth to avoid a revocation of their probations as a result of the altercation. The trial court sustained the Commonwealth’s objections to this line of questioning.

A panel of this court reversed the trial court and remanded the matter for a new trial. The Gay panel did not hold that the two witnesses were too corrupt to testify. Rather, the panel concluded that the testimony was admissible so long as the defense was given the opportunity to probe the potential motives and self-interests of the witnesses.

In Commonwealth v. Cauto, 369 Pa.Super. 381, 535 A.2d 602 (1987), the defendant was convicted of sexual offenses against three juvenile males. The defense desired to cross-examine two of the juvenile victims who testified on behalf of the prosecution to show their bias or self-interest in testifying in a manner favorable to the prosecution. One of the youths had criminal charges pending against him. The other youth was on probationary status as a juvenile delinquent.

In the instance of D.D., the potential for bias is evident from the fact that at the time of trial, he had charges pending against him in juvenile court. Similarly, the probationary status of R.H. as a juvenile delinquent, subject to the ongoing supervision of the juvenile court, presented an apparent potential for biased testimony.

Cauto, 369 Pa.Super. at 388, 535 A.2d 602. Once again, this court, relying upon Evans, determined that it was proper for the two juveniles to testify for the prosecution, and that the defense was entitled to cross-examine the witnesses to show bias or self-interest.

After reviewing Evans and its progeny, it is evident the courts of this Commonwealth have permitted the testimony of witnesses who might have a self-interest in testifying favorably for the Commonwealth. In Evans, the Supreme Court held that it is a violation of the Confrontation Clause of the Pennsylvania Constitution to forbid a defendant from probing a prosecution witness’s potential for bias or self-interest. Similarly, in the cases decided since Evans, the courts have uniformly followed the mandate of Evans and have allowed cross-examination of Commonwealth witnesses to seek out potential biases or self-interests. Although the issue in the instant matter is framed in terms of a violation of the Due Process Clause of the Fifth Amendment of the United States Constitution, we perceive the reasoning of Evans and its progeny to be controlling. We construe the Pennsylvania line of cases to permit the potentially corrupt witnesses to testify for the prosecution while allowing the defense to unearth, through effective cross-examination, and to present to the jury any bias, motive, or self-interest.

Moreover, the federal courts have addressed Fifth Amendment challenges substantially similar to the case at bar, and have permitted witnesses such as Topper to testify on behalf of the prosecution. Mehalic cites two federal cases, United States v. Waterman, 732 F.2d 1527 (8th Cir., 1984), cert. denied, 471 U.S. 1065, 105 S.Ct. 2138, 85 L.Ed.2d 496 (1985), and United States v. Moeckly, 769 F.2d 453 (8th Cir., 1985), cert. denied, 475 U.S. 1015, 106 S.Ct. 1196, 89 L.Ed.2d 311 (1986), to strengthen his proposition that Topper’s testimony is inadmissible. Neither of these cases convinces this court that there has been a violation of Mehalic’s Fifth Amendment right to Due Process.

In Waterman, a witness for the prosecution, in a mail fraud case, entered into an agreement with the federal government.

“The substance of the agreement was that, if Gamst’s [the prosecution witness’s] cooperation in the form of truthful testimony led to further indictments, the government would (1) affirmatively recommend that Gamst’s sentence be reduced by two years____ If, however, Gamst’s testimony did not lead to the indictment of other individuals, then the government ... would not specifically recommend any reduction in his sentence____”

Waterman, 732 F.2d at 1530, quoting United States v. Waterman, CR 81-0-47 (D.Neb. August 17, 1983). Waterman challenged the constitutionality of permitting Gamst to testify on the ground that the testimony violated Waterman’s rights guaranteed by the Due Process Clause of the Fifth Amendment. The Eighth Circuit Court of Appeals interpreted this agreement between Gamst and the government to mean that Gamst’s sentence was contingent upon a successful prosecution. The circuit court noted, “This case involves not the undisclosed possibility of bias, but the disclosed encouragement and reward of bias.” Waterman, 732 F.2d at 1532. Despite this strong language, this pure “contingency fee” agreement was upheld by an equally divided court. The testimony of the government witness was admissible at trial.

Interestingly, the second case cited by Mehalic, Moeckly, lends support to the Commonwealth’s position. In Moeckly, the government’s chief witness testified pursuant to a plea agreement conditioned upon sentencing recommendations. These recommendations were to be made to the court by the government in the witness’s case, provided that the quality and quantity of the witness’s testimony met government standards. The defendants, relying on Waterman, argued that they were denied due process because the government’s discretion to make sentencing recommendations and parole eligibility contingent on the “quality” of his testimony created a great risk of perjury. The Eighth Circuit adopted the finding of the district court that the “quality” of testimony referred to truthfulness and not to obtaining convictions. Therefore, the circuit court reasoned, the plea agreement was not contingent upon the success of the prosecution. Also, the circuit court refused to prohibit the testimony of another government witness in return for a lighter sentence.

Other federal cases also lend support to the position espoused by the Commonwealth. In United States v. Betancourt, 838 F.2d 168 (6th Cir., 1988), cert. denied, — U.S. —, 108 S.Ct. 1748, 100 L.Ed.2d 210, a government witness testified pursuant to a plea agreement which contained the provision that his own sentence was contingent upon honest testimony which resulted in indictments. The circuit court noted that the circumstances surrounding the plea agreement were brought out fully during voir dire and during the examination of the witness. In United States v. Gomez, 810 F.2d 947 (10th Cir., 1987), cert. denied, 482 U.S. 908, 107 S.Ct. 2488, 96 L.Ed.2d 379, a government witness made an agreement with federal authorities under which he would reveal his knowledge of the defendant’s activities in return for a guilty plea on only one of numerous charges lodged against the witness. The government agreed to support a motion for a reduction of the witness’s sentence if the witness fully cooperated with the government and testified truthfully. The Tenth Circuit upheld the validity of this agreement and permitted the witness to testify.

In United States v. Dailey, 759 F.2d 192 (1st Cir., 1985), the First Circuit upheld a conviction where the plea agreement stated that the government would recommend a reduced sentence depending “upon the value to the government” of the testimony. Similarly, in United States v. Tarantino, 846 F.2d 1384 (D.C.Cir., 1988), a government witness entered into a plea agreement which contained the provision that the government would advise the sentencing judge (in the witness’s case) of “the full nature, extent, and value of the cooperation provided” by the witness. Tarantino, 846 F.2d at 1418. The circuit court rejected the defendants’ protestations that the testimony was inadmissible because it represented the fruits of a prohibited contingent plea bargain. Instead, the circuit court likened this plea agreement to a typical plea agreement under which an accomplice agrees to testify against another defendant in return for a reduced sentence. Finally, the federal courts have held that an informer, whose pay was dependent on a government evaluation of the quality and quantity of the informer’s testimony, was not prohibited from testifying. United States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir., 1987), cert. denied, — U.S. —, 108 S.Ct. 749, 98 L.Ed.2d 762 (1988) (“It is up to the jury to evaluate the credibility of the compensated witness.”); see United States v. Cresta, 825 F.2d 538 (1st Cir., 1987), cert. denied, — U.S. —, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988); United States v. Persico, 832 F.2d 705 (2nd Cir., 1987), cert. denied, — U.S. —, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988).

Here, the trial court clearly noted that Topper had already been sentenced in Maryland; thus, if this finding of the trial court is correct, Topper’s sentence was not contingent upon favorable testimony or a successful prosecution because sentence had already been imposed. Further, if the plea agreement was incorporated into Topper’s sentence, the plain language of Topper’s plea agreement indicates that his testimony was not contingent upon the return of a successful prosecution, rather it was contingent upon a substantial prosecution.

While none of the above-discussed federal and Commonwealth cases involves an interpretation of a “substantial prosecution,” we believe those cases are closely analogous to the case at bar and are persuasive in their reasoning. Mehalic has been unable to convince us, and we do not find, that a “substantial prosecution” connotes a “successful prosecution.” After a thorough review of the record and the briefs, we have discovered no evidence that Topper believed his plea agreement was contingent upon the return of a conviction of Mehalic. It was within the province of the jury to determine the appropriate weight to assign to Topper’s testimony under these circumstances. Although this court is mindful of the dangers inherent in permitting a witness to testify pursuant to an agreement with the Commonwealth by which terms the witness may reap a benefit contingent on the substance of his testimony, in light of the federal and Commonwealth case law, we find that the admission of Topper’s testimony does not violate Mehalic’s rights to due process under the Fifth Amendment.

III. Admissibility of Prosecutorial Remarks

Mehalic asserts that certain remarks made by the prosecutor, allegedly vouching for Topper’s credibility, were so egregious that they warranted the grant of a mistrial. The following remarks were made during the cross-examination of Topper:

Mr. Sharon (Mehalic’s attorney): And again, is it your understanding that plea bargain, sir, that in order for you to not be prosecuted in Westmoreland County, to have a misdemeanor on your record____
Miss Pickering (Assistant District Attorney): Pardon me, I don’t mean to interrupt. I can state unequivocally that the plea bargain had nothing to do with Westmoreland County, Pennsylvania, I don’t think.

Notes of Testimony, 6-12 January 1987, page 305.

It is the law of this Commonwealth that the prosecutor is bound to limit statements to facts in evidence and those inferences which derive reasonably from the evidence at trial. Commonwealth v. Johnson, 516 Pa. 527, 533 A.2d 994 (1987); Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985). A prosecutor may not express a personal opinion of a defendant’s guilt or credibility. Bricker, 506 Pa. at 580, 487 A.2d 346 (citations omitted). The prosecutor may not argue facts outside the record “unless such facts are matters of common public knowledge based on ordinary human experience or matters of which the court may take judicial notice.” Commonwealth v. Brooks, 362 Pa.Super. 236, 238, 523 A.2d 1169, 1170 (1987), quoting Commonwealth v. Danzy, 234 Pa.Super. 633, 638, 340 A.2d 494, 497 (1975). Lastly, it is well settled that comments by the prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the members of the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. Commonwealth v. Thomas, 372 Pa.Super. 349, 362, 539 A.2d 829, 836 (1988) (citations omitted); see Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984), cert. denied, 469 U.S. 971, 105 S.Ct. 370, 83 L.Ed.2d 306 (1984), rehearing denied, 472 U.S. 1033, 105 S.Ct. 3516, 87 L.Ed.2d 644 (1985).

Mehalic claims that the prosecutor’s remarks, on evidence purportedly outside the record, vouched for the credibility of Topper; thereby, resulting in prosecutorial misconduct. We disagree. The matters referred to by the prosecutor were not outside the record. Topper had previously testified that he entered into the plea agreement with Maryland authorities, not Westmoreland County authorities. More importantly, Topper testified in response to what cooperation he was entitled to give under the terms of the plea agreement, as follows: “The cooperation was to give the name of my supplier and anybody else I might know that is supplying cocaine to people in the State of Maryland particularly, and in the State of West Virginia as well.” Notes of Testimony, 6-12 January 1987, page 116.

Topper made no mention of an arrangement with the Commonwealth or Westmoreland County whereby he was compelled to provide testimony. Mehalic’s argument that the prosecutor’s remarks prevented Mehalic from presenting to the jury Topper’s precise understanding of the terms of the agreement is spurious. The defense was not prohibited from eliciting the personal opinions of Topper on cross-examination. In the absence of any reference by Topper to an agreement with Westmoreland County and considering the availability of effective cross-examination on this point, we conclude the prosecutor could assert, as a reasonable inference from Topper’s testimony, that the plea agreement had nothing to do with Westmoreland County. Accordingly, the statement by the prosecutor did not rise to the level of misconduct.

IV. Denial of a Request for Continuance

Mehalic complains that the prosecution did not turn over to the defense some notes which were prepared at a meeting between Topper, the Maryland State Police, the Emmitsburg, Maryland Police, and the DEA. Mehalic requested a continuance to obtain the notes of the meeting. The granting or refusal of a request for a continuance is vested in the discretion of the trial court. Commonwealth v. Brown, 351 Pa.Super. 119, 124, 505 A.2d 295, 298 (1986); Commonwealth v. Lore, 338 Pa.Super. 42, 59, 487 A.2d 841, 850 (1984). The denial of a continuance will be reversed on appeal only upon a showing of palpable and manifest abuse of discretion. Brown, 351 Pa.Super. at 125, 505 A.2d 295. Further, we shall not reverse a denial of a motion for continuance in the absence of prejudice. Brown, 351 Pa.Super. at 126, 505 A.2d 295. We must evaluate the merits of Mehalic’s claim, that discovery was available to the Commonwealth and withheld from the defense, to determine whether the trial court abused its discretion in failing to grant the continuance.

Under Rule 305 of the Pennsylvania Rules of Criminal Procedure the Commonwealth must disclose to the defendant at the discretion of the trial court:

B. Disclosure by the Commonwealth
(2) Discretionary with the Court ...
(b) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial; ...

Pa.R.Crim.P. Section 305(B)(2)(b). The prosecution must make available, upon request, during the trial all relevant pre-trial statements of witnesses in the possession of the Commonwealth. Commonwealth v. Meo, 362 Pa.Super. 328, 524 A.2d 902 (1987) (citations omitted); see Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d 980 (1984). Defense counsel is allowed, access to such statements “so that he may uncover inconsistencies between a witness’ pre-trial statements and his testimony at trial.” Meo, 362 Pa.Super. at 334, 524 A.2d 902, quoting Commonwealth v. Rines, 247 Pa.Super. 429, 434, 372 A.2d 901, 903-904 (1977).

The trial court conducted a hearing to determine whether the materials requested by Mehalic were available to the Commonwealth. Judge Loughran adjudged that thé Commonwealth had made good faith efforts to locate the records, and, if the records existed, they were not possible to obtain. After a review of the hearing transcript regarding this issue, we agree with the trial court’s assessment.

Trooper Clifford Jobe Jr. of the Pennsylvania State Police testified, in pertinent part: Daniel Myshin, the Assistant District Attorney for Westmoreland County, asked Jobe to contact all of the agencies involved in the original investigation of Topper to obtain additional discovery information; Jobe contacted officials of the DEA, the Maryland State Attorney’s Office, Maryland State Police, and the West Virginia State Police in an attempt to acquire discoverable material; Jobe was informed by representatives of each of those organizations that any and all discoverable material had already been provided; Jobe unsuccessfully attempted to locate or contact the chief of police of the defunct Emmitsburg Police Department; Jobe had received from the Maryland State Attorney’s Office the police reports relative to this case.

Joseph Flannery testified that he was the DEA agent present at the interview of Topper. Flannery stated that he did not take any notes at, or subsequent to, the interview.

Myshin, the Assistant District Attorney, testified: On 10 November, Myshin and Mehalic’s counsel met in Judge Ambrose’s chambers; at that time, Mehalic’s counsel requested any additional discovery pertinent to the charges against Topper in Maryland; Mehalic’s counsel requested, and was given, a continuance; Myshin discussed how to get the information with Troopers Jobe and King; Myshin spoke with officials of the Maryland State Attorney’s Office, and he received a letter from them confirming that they did not have any of Topper’s statements in their possession; Myshin contacted the City Council Building in Emmitsburg and inquired about the police department and the whereabouts of the former police chief; “Christy” informed Myshin that the police department ceased to exist and the whereabouts of the police chief were unknown; the Mayor of Emmitsburg informed Myshin that all records from the police department would be in the possession of the police chief; and, Topper told Myshin that Topper did not make any statements to West Virginia authorities.

After hearing all of this testimony, the trial court granted a continuance until the next day to enable the Commonwealth to try to locate any additional statements if they existed. The next day, Trooper Jobe was recalled to the witness stand, and he testified with respect to action during the continuance, as follows: he spoke to Topper’s attorney who reported that he was unaware of any statements made by Topper to West Virginia officials; he contacted the former police chief; the former police chief asserted that he did take notes at a meeting with Topper, that he was not in possession of any files, and that the campus police at West Virginia University at Morgantown might have notes; the university police did not possess notes of conversations with Topper; and, Jobe spoke with DEA officials who again denied having any notes of interviews with Topper.

Mehalic has failed to establish that the notes taken by the former police chief still existed at the time of trial. The Commonwealth conducted an exhaustive search in a vain attempt to locate notes of interviews with Topper. Because the notes, if they had existed, were neither in the possession of the Commonwealth nor attainable by the Commonwealth after extensive efforts, the Commonwealth cannot be deemed remiss in failing to provide them to the defense. Accordingly, the trial court did not abuse its discretion in refusing to grant a longer continuance to search for these phantom notes.

V. Commonwealth’s Use of Prior Consistent Statements

Mehalic avers that on two instances the Commonwealth impermissibly bolstered the testimony of Topper by utilizing prior consistent statements. First, the following dialogue occurred during direct examination of Topper:

Miss Pickering (Assistant District Attorney): Whose cocaine was that?
Topper: That was mine.
Miss Pickering: Did you tell the police that?
Topper: Not at the time of arrest.
Miss Pickering: Did you at some other time?
Topper: Yes, I did____
Mr. Sharon (Mehalic’s Attorney): Objection hearsay.

Notes of Testimony, 6-12 January 1987, page 110. Second, a similar line of questioning was objected to as hearsay by Mehalic’s counsel later in the direct examination of Topper.

In Mehalic’s post-trial motions and on appeal, Mehalic has abandoned the hearsay objections and has asserted a new theory of error. This court cannot review a case upon a theory different from that relied upon in the trial court, or raised for the first time on appeal. Commonwealth v. Gordon, 364 Pa.Super. 521, 542, 528 A.2d 631, 638 (1987) (per curiam) (citations omitted). A theory of error different from that presented to the trial jurist is waived on appeal, even if both theories support the same basic allegation of error which gives rise to the claim for relief. Gordon, 364 Pa.Super. at 543, 528 A.2d 631. It is a firm rule in this jurisdiction that if the ground upon which an objection to the admission of evidence is specifically stated, all other reasons for the exclusipn of the evidence are waived and may not be raised thereafter. Commonwealth v. Williams, 476 Pa. 557, 569, 383 A.2d 503, 509 (1978); Commonwealth v. Harley, 275 Pa.Super. 407, 418 A.2d 1354 (1980). Mehalic never objected to the above-mentioned testimony on the grounds that the Commonwealth was using prior consistent statements to bolster Topper’s testimony. Consequently, Mehalic has waived this issue on appeal.

VI. Challenge to Omission of a Requested Jury Instruction

It is Mehalic’s allegation that the trial court erred in failing to instruct the jury that Topper’s drug conviction may be used to adversely reflect upon his credibility. “It is well settled that a witness may be impeached on the basis of a prior conviction only if the crime involves dishonesty or false statement.” Commonwealth v. Williams, 371 Pa.Super. 509, 512, 538 A.2d 557, 558 (1988), quoting Commonwealth v. Penn, 497 Pa. 232, 244, 439 A.2d 1154, 1160 (1982), cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857.

Evidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of confinement is within ten years of the trial date. If a period greater than ten years has expired the presiding judge must determine whether the value of the evidence substantially outweighs its prejudicial effect.

Williams, 371 Pa.Super. 512-513, 538 A.2d 557, quoting Commonwealth v. Randall, 515 Pa. 410, 415, 528 A.2d 1326, 1329 (1987). “Crimen Falsi" is defined as an “offense which involves some element of deceitfulness, untruthfulness, or falsification bearing on witness’ propensity to testify truthfully.” Black’s Law Dictionary 335 (5th ed. 1979).

Topper pled guilty to a charge of possession of cocaine. The possession of narcotics is not an offense which involves an element of deceitfulness or falsification. See Commonwealth v. Candia, 286 Pa.Super. 282, 288, 428 A.2d 993, 996 (1981) (Guilty plea on a marijuana charge is not a crimen falsi offense.); Commonwealth v. Hayes, 314 Pa.Super. 112, 127, 460 A.2d 791, 798 (1983) (Spaeth, J., dissenting); United States v. Thompson, 559 F.2d 552 (9th Cir., 1977). Further, the trial court errs only when its refusal to read a tendered point for charge to the jury is prejudicial. Commonwealth v. Potts, 314 Pa.Super. 256, 460 A.2d 1127 (1983); Commonwealth v. Henderson, 249 Pa.Super. 472, 378 A.2d 393 (1977). Clearly, the trial court did not commit error by refusing to give Mehalic’s proffered jury instruction when the evidence contained in the body of the instruction was inadmissible to impeach Topper’s credibility. Accordingly, we find no merit to this claim.

VII. Challenge to the Discretionary Aspects of Sentencing

Lastly, Mehalic avers that, when sentencing him, the trial court failed to give the proper consideration to the extent of his cooperation with federal authorities, to his good standing in the community, and to the sentence imposed on Topper. All of these sentencing factors are relevant to the discretionary aspects of sentencing. As such, the allowance of an appeal is discretionary with this court. 42 Pa.Cons.Stat.Ann. Section 9781(b); Commonwealth v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988). The Pennsylvania Rules of Appellate Procedure mandate that any party who challenges the discretionary aspects of a sentence must set forth, in his or her brief, a concise statement of the reasons relied upon for allowance of an appeal. See Pa.R. App.P. 2119(f). A failure to include a concise statement of the reasons relied upon for allowance of appeal, as required by rule 2119(f), renders the appeal defective. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). The defect, however, is procedural, and it may be waived by the Appellee. Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc).

In the case of waiver by the Appellee, we shall determine whether the Appellant has presented a substantial issue regarding the alleged inappropriateness of the sentence. Krum, 367 Pa.Super. at 520, 533 A.2d 134. Only when it appears that there is a substantial question that the sentence imposed is not appropriate will the discretionary aspects of the sentence be reviewed. 42 Pa.Cons.Stat.Ann. Section 9781(b); Commonwealth v. Stalnaker, 376 Pa.Super. 181, 545 A.2d 886 (1988); Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987). The determination of whether the Appellant has raised a substantial question rests within the sound discretion of this court. Felix, 372 Pa.Super. at 151, 539 A.2d 371. We must then review the Appellant’s brief, not the record, to determine whether a substantial question has been raised. Tuladziecki, 513 Pa. at 513, 522 A.2d 17. For the limited purpose of determining whether a substantial question exists, we must accept Appellant’s assertions of fact as true. Commonwealth v. DeSanto, 379 Pa.Super. 435, 550 A.2d 236, 238 (1988). We find that Mehalic has presented a substantial question for review. We therefore allow this appeal.

In Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115, 121 (1987), this court, citing Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978), stated, in pertinent part:

Imposition of a proper sentence under the Sentencing Code is a matter vested in the sound discretion of the trial court whose determination must be respected unless it is a manifest abuse of discretion____ The trial court must thoroughly examine the facts and circumstances of the crime and the background and character of the defendant----likewise, the court should consider any information in the record bearing on degree of punishment.

Losch, 369 Pa.Super. at 204, 535 A.2d 115, citing Knight, 479 Pa. at 212-213, 387 A.2d 1297. If a sentence imposed is within statutory limits, there is no abuse of discretion unless the sentence is so manifestly excessive as to inflict too severe a punishment. Commonwealth v. Martin, 328 Pa.Super. 498, 501, 477 A.2d 555, 557 (1984) (citations omitted).

On 21 December 1987, the trial court conducted a lengthy hearing at which witnesses from Mehalic’s community presented character testimony on his behalf. The trial court ordered a presentence investigation, and the trial court presided over an in camera discussion between the parties concerning Mehalic’s cooperation with federal authorities. A careful review of the record belies Mehalic’s contentions and unequivocally indicates that Judge Lough-ran considered the testimony of Mehalic’s character witnesses, Mehalic’s cooperation with federal authorities, the discrepancy between his sentence and Topper’s sentence, the presentence report, and other factors. See Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). In addition, the sentence was within statutory limits. Therefore, we find that the trial court did not abuse its discretion in sentencing Mehalic.

Judgment of Sentence affirmed.

      . Mehalic also cites Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987) as general support for his position. Schaeffer has been effectively overruled by the Pennsylvania Supreme Court’s decision in Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988).

      . Section 5717. Disclosure or use of contents of wire or oral communications or derivative evidence
      (c) Otherwise authorized personnel. — Any person who, by any means authorized by the laws of another state or the Federal Government, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents or evidence to an investigative or law enforcement officer and may disclose such contents or evidence where otherwise admissible while giving testimony under oath or affirmation in any proceeding in any court of this Commonwealth. 18 Pa.Cons.Stat.Ann. Section 5717(c).

      . In Taraschi, we cited 18 Pa.Cons.Stat.Ann. Section 5717(c) and held that the content of wiretaps, lawfully performed under the auspices of federal authority and pursuant to the federal wiretapping statute, are admissible as evidence in a prosecution in this Commonwealth.

      . RULE 4-345. SENTENCING — REVISORY POWER OF COURT
      (b) Modification or Reduction — Time for. — The court has revisory power and control over a sentence upon a motion filed within 90 days after its imposition (1) in the District Court, if an appeal has not been perfected, and (2) in a circuit court, whether or not an appeal has been filed. The court may modify or reduce or strike, but may not increase the length of, a sentence. Thereafter, the court has revisory power and control over the sentence in case of fraud, mistake, or irregularity ... Md.R.Crim.Proc. 4-345(b).
      There is no Maryland case law on the issue of whether the state may prove fraud, mistake, or irregularity in the sentence of a defendant who does not comply with the terms of a plea agreement which is not incorporated into the sentence.

      . Topper pled guilty to one count of possession of cocaine while Mehalic was convicted by the jury of seven narcotics offenses. Moreover, there is no requirement that a court explain disparity between sentences in different jurisdictions. See Commonwealth v. Hainsey, 379 Pa.Super. 376, 550 A.2d 207 (1988) (sentences disparate in same county arising out of same transaction or occurrence).


source: Caselaw Access Project

author: MELINSON, Judge:

license: Public Domain

text:
    555 A.2d 185
    COMMONWEALTH of Pennsylvania v. Richard Alan SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1988.
    Filed March 1, 1989.

      Gregory Cecchetti, Assistant Public Defender, New Kensington, for appellant.
    Judith Karns-Ciszek, Assistant District Attorney, Ligonier, for Com., appellee.
    Before BROSKY, JOHNSON and MELINSON, JJ.
   MELINSON, Judge:

This is an appeal from the conviction and Judgment of Sentence in the Court of Common Pleas of Westmoreland County. We affirm.

In the early morning hours of August 4, 1986, Richard Alan Smith, the appellant at bar, was driving his car in Hempfield Township, Westmoreland County. Smith lost control of the vehicle after failing to negotiate a turn. Apparently, the car rolled several times. Smith’s passenger, Joy Ellen Rothgeb, died as a result of injuries sustained in the crash. Smith was taken to Monsour Hospital for treatment of his injuries.

Troopers Robert Weaver and Bruce Petrik of the Pennsylvania State Police were dispatched to the scene of the accident to investigate. After reviewing the scene of the accident, including the dead body of Ms. Rothgeb, Trooper Weaver went to Monsour Hospital to interview Smith who was being treated for his injuries. Trooper Weaver testified that Smith smelled of alcohol, and that Smith had bloodshot and glassy eyes. Trooper Weaver advised Smith of his constitutional right to remain silent, although he did not arrest Smith. Smith refused to sign a written waiver of this right. The trooper then asked Smith for a blood sample, but Smith made no response. A nurse at the hospital instructed Smith to put out his arm and a blood sample was drawn. This occurred at 2:05 A.M. Smith’s blood alcohol level at that time was .228%. (Smith’s blood was drawn for medical purposes when he first came into the hospital. No blood alcohol test was performed on that sample.) Two other blood samples were drawn later into the morning, one at 2:50 A.M., and the other at 3:55 A.M. The blood alcohol levels for these two tests were determined to be .203% and .195%, respectively.

At approximately 3:00 A.M., Trooper Petrik came to the hospital. He requested, and received, permission from the hospital staff to interview Smith. Smith had not been placed under arrest and was not arrested at that time. The trooper identified himself and told Smith that he was investigating the accident in which Smith was involved. According. to the testimony of Trooper Petrik, Smith was not arrested at this time because the investigation was ongoing. Trooper Petrik further testified that Smith was not taken into custody and his movement was not restricted in any way. The trooper then asked Smith if Smith recalled his refusal to waive his constitutional right to remain silent and if Smith was willing to talk. According to the trooper, Smith then willingly began to answer questions about the circumstances of the accident.

Trooper Petrik came back to the hospital on August 6, 1986, and advised Smith of his right to remain silent. After signing a waiver of this right, Smith discussed the accident with Trooper Petrik. Smith was arrested on August 9, 1986, after his release from the hospital. He was charged with Driving Under the Influence of Alcohol, 75 Pa.Cons. StatAnn. Section 3731(a)(1), Homicide by Vehicle, 75 Pa. Cons.Stat.Ann. Section 3732, Homicide by Vehicle While Driving Under the Influence, 75 Pa.Cons.Stat.Ann. Section 3735, and a summary offense.

Thereafter, an omnibus pre-trial motion to suppress was filed on behalf of Smith requesting suppression of the blood test results and the statements given to Trooper Petrik. A hearing was held before the Honorable Charles H. Lough-ran, and after receipt of the briefs of the parties, the court denied Smith’s motion. A jury trial was then held before the Honorable Bernard F. Scherer. Smith was found guilty of all charges.

Subsequently, Smith filed a motion for a new trial and/or in arrest of judgment. After briefs and argument, the motion was denied by the trial court. On February 16, 1988, Smith was sentenced to a term of imprisonment of three and one-half (3V2) to seven (7) years, a Three Hundred dollar ($300) fine and court costs. This appeal followed.

Smith presents six issues on appeal, presented in his brief as follows:

I. Whether the suppression court erred in not suppressing the results of the appellant’s blood tests since the withdrawals of the appellant’s blood were searches conducted without a warrant at a time when the appellant was not under arrest and the appellant had not given actual consent nor was implied consent applicable.
II. Whether the suppression court erred in not suppressing appellant [sic] oral statement. Said oral statement having been transcribed into notes by Trooper Petrick [sic] on August 4, 1986. This being error since appellant’s Miranda rights had not been read to him prior to the statements, and, further, Trooper Petrick [sic] relied on Trooper Weaver’s prior recitation of Miranda rights which waiver of rights was refused by the appellant.
III. Whether the trial court erred in denying appellant’s request for voir dire questions, 22 thru 27, which denied the appellant the opportunity of a jury of his peers and was prejudicial.
IV. Whether the trial court erred in introducing the Mons-our Hospital records reading of .195% since the blood alcohol content reading was remote in time and a violation of the doctor/patient privilege since the appellant was not aware the blood alcohol content reading was to be used for prosecutorial purposes.
V. Whether the trial court erred in not granting a mistrial since the Monsour Hospital reading of .195% was introduced as evidence when the Commonwealth did not inform the defense prior to the trial that it intended to introduce the .195% blood alcohol reading.
VI. Whether the trial court erred in not permitting the defense counsel to argue portions of the appellant's medical records which were introduced into evidence, in their entirety, without objection, in his closing arguments to the jury.

Brief for appellant at 1-2.

Smith’s first two issues allege erroneous rulings by the suppression court. When the Superior Court is called upon to review the ruling of a suppression court, our initial task is to determine whether the factual findings are supported by the record. In making this determination, if the suppression court held for the prosecution, the Superior Court must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986). Accordingly, if the suppression court’s findings of fact are supported by the record we are bound by the suppression court’s factual findings. Commonwealth v. Stein, 369 Pa.Super. 409, 535 A.2d 616 (1987). It is for the suppression court as the trier of fact, rather than the reviewing court, to determine credibility. Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986). We are not bound, however, by the suppression court’s conclusions of law. White, 358 Pa.Super. at 128, 516 A.2d 1211.

Smith’s first contention regarding the propriety of the suppression court’s findings concerns the blood samples drawn at the hospital. Specifically, he argues that the blood alcohol readings should not have been admitted into evidence because he had not been placed under arrest before the blood samples were drawn and that probable cause did not exist to support this warrantless search.

The taking of a blood sample is a search and seizure subject to the provisions of the Fourth Amendment to the United States Constitution. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Commonwealth v. Monahan, 378 Pa.Super. 623, 549 A.2d 231 (1988). We agree with Smith that a search incident to a lawful arrest is one way to validate the taking of a blood sample, see Schmerber, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, however, the “implied consent” provision of the Motor Vehicle Code, 75 Pa.Cons.Stat.Ann. Section 1547(a), supports the validity of the search at bar. This section, in pertinent part, provides:

Section 1547. Chemical testing to determine amount of alcohol or controlled substance
(a) General Rule.- — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:
(1) while under the influence of alcohol or a controlled substance or both; or
(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

Subsection (a)(1) of the above statute authorizes a chemical test of a suspect’s blood, without the suspect’s consent, if the officer has reasonable grounds to believe that the suspect was driving under the influence of intoxicating liquor. Commonwealth v. Pelkey, 349 Pa.Super. 373, 503 A.2d 414 (1985); Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985). Although the statute fails to define reasonable grounds, it has been construed to be the equivalent of probable cause. Pelkey, 349 Pa.Super. at 378, 503 A.2d 414; Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452 (1974). Accordingly, this court has concluded that subsection (a)(1) of the implied consent statute is constitutionally valid if probable cause existed for a police officer to believe that a suspect has been driving under the influence of alcohol or a controlled substance. Cieri, 346 Pa.Super. at 87, 499 A.2d 317; Quarles, 229 Pa.Super. at 388, 324 A.2d 452. Probable cause exists when an officer has knowledge of sufficient facts and circumstances, gained through trustworthy information, to warrant a prudent man to believe that the person seized has committed a crime. Pelkey, 349 Pa.Super. at 378-79, 503 A.2d 414.

Furthermore, under recent case law, as long as probable cause exists, an arrest does not have to precede a request for a blood sample. Pelkey, 349 Pa.Super. at 379, 503 A.2d 414; Cieri, 346 Pa.Super. at 89-90, 499 A.2d 317. Neither is chemical testing only valid when it occurs at the scene of the accident. Thus, in Pelkey, where the defendant/driver was taken to a hospital for treatment of his injuries, the blood alcohol test “performed at the hospital constituted less of an intrusion than that which constitutionally might have occurred at the accident scene.” Pelkey, 349 Pa.Super. at 380, 503 A.2d 414. The court reasoned that this decision was “premised on the fact that the police neither invaded nor seized and detained the individual in order to administer the test.” Id.

In the case at bar, Trooper Weaver testified that Smith smelled of alcohol and that Smith’s eyes were glassy and bloodshot. Trooper Weaver knew that Smith was the driver of the car from interviews with the ambulance crew. Furthermore, Trooper Weaver went to the accident scene and made a first-hand observation of the wreckage. The trooper concluded that Smith’s car rolled over at least once, but more likely it rolled over several times. This court has repeatedly upheld probable cause to conduct a blood alcohol test under subsection (a)(1) of the implied consent statute where the defendant has looked and smelled like he has consumed alcohol and a serious one car or head-on accident has occurred. See Commonwealth v. Kelly, 365 Pa.Super. 28, 528 A.2d 1346 (1987); Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985); Commonwealth v. Guiliano, 274 Pa.Super. 419, 418 A.2d 476 (1980). Accordingly, because Trooper Weaver had probable cause to believe that Smith had been under the influence of alcohol when he was driving, the blood alcohol test performed at Monsour Hospital before Smith was arrested was valid pursuant to 75 Pa.Cons.Stat.Ann. Section 1547(a)(1).

Moreover, we find that the blood test performed at bar was valid under the tenets of Section 1547(a)(2). Here, Smith does not allege that this implied consent provision is unconstitutional; accordingly, we will not address the constitutionality of subsection (a)(2). See Pelkey, 349 Pa.Super. at 380, n. 2, 503 A.2d 414. Instead, he argues that the police lacked probable cause to take the blood sample because they had only the knowledge of a “possible fatality” at the time Smith’s blood was taken. Smith’s position is clearly belied by the notes of testimony of the suppression hearing. There, Officer Weaver testified that he saw the dead body of Joy Rothgeb at the scene of the accident.

Furthermore, even without the fatality, Officer Weaver had probable cause to order a blood test performed on Smith. Under subsection (a)(2), a fatal injury to a passenger is not the only circumstance warranting implied consent of a blood test of the automobile’s driver; rather, under that subsection, a blood sample may be drawn from the operator if he or any passenger requires treatment at a medical facility as a result of an accident. 75 Pa.Cons.Stat. Ann. Section 1547(a)(2). Here, it was clear to Trooper Weaver that there had been an accident, that Smith had been the driver, and that Smith required treatment at a medical facility. Accordingly, the trial court did not abuse its discretion in finding that Smith’s Fourth Amendment rights were not violated by the blood samples taken at the hospital.

Smith’s second contention is that the suppression court erred in not suppressing the statements he made to Officer Petrik at 3:00 A.M. on August 4, 1986, because Petrik did not advise Smith that Smith had a constitutional right to remain silent. In the seminal case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court of the United States held that a suspect’s privilege against self-incrimination is jeopardized when he is placed in custody or his freedom is otherwise deprived, and he is subjected to questioning. Thus, immediately prior to undergoing a “custodial interrogation,” the suspect must, in the absence of a clear, intelligent waiver of the constitutional rights involved, be advised that he has a right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed. If the warnings are not given, any statement made during custodial interrogation cannot be used by the prosecution. Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

In Commonwealth v. Chacko, 500 Pa. 571, 577, 459 A.2d 311, 314 (1983), the Pennsylvania Supreme Court followed the mandates of Miranda and ruled that “[t]he test for determining whether a suspect is being subjected to custodial interrogation so as to necessitate Miranda warnings is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation.” This court has further stated that the fact that a defendant was the focus of the investigation is a relevant factor in determining whether he was in custody; however, the fact that a police investigation has focused on a particular person no longer automatically requires Miranda warnings. Commonwealth v. Fento, 363 Pa.Super. 488, 526 A.2d 784 (1987).

In the case at bar, the suppression court held a hearing to determine whether Smith’s rights were violated as a result of the interview with Trooper Petrik on August 4, 1986. After hearing the testimony of the trooper concerning the events of that morning, the court found that Smith was not deprived of his freedom of movement when the interview took place. We find that this factual conclusion is adequately supported by the record; accordingly, we find that Smith’s Miranda rights were not violated by this interview.

Trooper Petrik went to Monsour Hospital to interview Smith in order to complete his investigation of the circumstances of the accident. At the hospital, the trooper requested permission from the hospital staff to talk to Smith. Only after receiving permission, and following a delay while Smith was being treated, did Petrik speak with Smith. Although he received two of Smith’s blood samples from Trooper Weaver before the interview, the results of the samples were not made available to Trooper Petrik until the following day. Accordingly, Trooper Petrik testified that he did not arrest Smith on the morning of August 4, 1986, because the investigation of the accident was ongoing.

Trooper Petrik testified that during the interview Smith was not restricted from contact with others. In fact, the trooper testified that Smith’s movement was not restricted by him in any way. Both before and after the interview, hospital personnel were able to treat Smith without interference from the police. After receiving permission to speak with Smith, Petrik did not tell the personnel that he and Smith were not to be disturbed during the interview. Finally, the trooper testified that he specifically told Smith during the interview that Smith was not under arrest and that charges may subsequently be filed pending the outcome of the investigation.

The testimony of Trooper Petrik clearly reveals that Smith was not physically deprived of his freedom of movement at 3:00 A.M. on August 4, 1986, as a result of the questioning by Trooper Petrik. The restraint on Smith’s freedom of movement was brought about by the injuries he sustained in the accident. These injuries required Smith to remain in the hospital until August 9. Thus, any restraint placed on Smith was for medical purposes by hospital personnel, rather than for investigative purposes by Trooper Petrik. See Commonwealth v. Fento, 363 Pa.Super. 488, 526 A.2d 784 (1987).

Based on the foregoing, although Smith was the focus of the police investigation regarding the automobile accident that took the life of Joy Ellen Rothgeb, we find that the factual finding of the suppression court that Smith was not in custody is supported by the record. Accordingly, Smith’s Miranda rights were not violated at bar.

Smith next contends that the trial court erred in denying his request to ask prospective jurors certain voir dire questions. The questions that the trial court denied were as follows:

[1] Are you inclined to believe that it is unlawful for anyone to drive an automobile after consuming an alcoholic beverage, regardless of the quantity or its effect upon the individual?
[2] Do you believe that any person who drinks an alcoholic beverage and then drives a car has violated a law regardless of the effect upon him, or the quantity consumed?
[3] Would you be prejudiced against a person who might take a drink and then drive an automobile?
[4] Would you find this defendant guilty solely because the evidence disclosed that he had consumed an alcoholic beverage and then drove an automobile?
[5] Do you believe that the machine testing blood alcohol level is accurate, regardless of proof of proper operation?
[6] If you find the defendant’s blood alcohol level was .10% or greater but you are unable to conclude beyond a reasonable doubt that this blood alcohol level was the direct cause of the accident, will you find the defendant not guilty?

The scope of voir dire rests within the sound discretion of the trial court and will not be reversed on appeal absent a gross abuse of discretion. Commonwealth v. Delligatti, 371 Pa.Super. 315, 538 A.2d 34 (1988); Commonwealth v. Lark, 350 Pa.Super. 558, 504 A.2d 1291 (1986). In reviewing a decision of a trial court regarding voir dire, the Supreme Court of this Commonwealth has stated:

It must be remembered the purpose of the voir dire examination is to provide an opportunity to counsel to assess the qualifications of prospective jurors to serve, (citations omitted). It is therefore appropriate to use such an examination to disclose fixed opinions or to expose other reasons for disqualification, (citations omitted). Thus the inquiry must be directed at ascertaining whether the venireperson is competent and capable of rendering a fair, impartial and unbiased verdict, (citations omitted).

Commonwealth v. Drew, 500 Pa. 585, 588, 459 A.2d 318, 320 (1983). See Commonwealth v. Ingber, 516 Pa. 2, 531 A.2d 1101 (1987). Furthermore,

It is equally well established that voir dire is not to be used to attempt to ascertain a prospective juror’s present impression or attitudes.
‘It is well-settled that the examination of jurors under voir dire is solely for the purpose of securing a competent, fair, impartial and unprejudiced jury____ Neither counsel for the defendant nor for the Commonwealth should be permitted to ... ask direct or hypothetical questions designed to disclose what a juror’s present impression or opinion may be or what his attitude or decision will likely be under certain facts which may be developed in the trial of the case. While considerable latitude should be permitted on a voir dire, the inquiry should be strictly confined to disclosing qualifications of a juror and whether a juror has formed a fixed opinion or may otherwise be subject to disqualifications for cause.’ Commonwealth v. McGrew, 375 Pa. 518, 525, 100 A.2d 467, 470 (1953) (citations omitted).

Drew, 500 Pa. at 589-90, 459 A.2d 318, quoting Commonwealth v. Johnson, 452 Pa. 130, 134, 305 A.2d 5, 7 (1973) (emphasis in original).

In the case at bar, Smith was slated to be prosecuted for having driven while intoxicated. In order to prove this, the Commonwealth intended to introduce evidence of the defendant’s blood alcohol content. Clearly, the proposed voir dire questions in issue were designed to disclose what a juror’s attitude would be toward facts that would come out in the trial of the case.

Furthermore, the questions proposed by Smith were attempts to quiz the panel members on their interpretation of the law of the Commonwealth. It is solely the function of the trial court to instruct the jury on the law and voir dire questions encompassing legal principles are improper. Commonwealth v. Robbins, 358 Pa.Super. 225, 516 A.2d 1266 (1986); Commonwealth v. Voss, 333 Pa.Super. 331, 482 A.2d 593 (1984). Accordingly, the trial court did not abuse its discretion in refusing to permit Smith to ask the voir dire questions in issue.

Smith’s fourth contention is that the trial court erred in introducing the results of the blood alcohol test taken at 3:55 A.M. because the test was remote in time to the accident. He also argues that this test was a violation of the doctor/patient privilege because Smith did not know that the test was to be used for prosecutorial purposes, and he did not consent to the use of the hospital records in a criminal prosecution. Smith, however, offers no legal authority for his position. The reason for this conspicuous absence is that Smith’s contention is neither grounded in law nor in logic.

Section 3755 of the Motor Vehicle Code provides that hospital personnel shall be permitted to take blood samples from those individuals who require medical treatment in a hospital emergency room when probable cause exists to believe that the person violated Section 3731 of the Vehicle Code. Thus, when a police officer determines that probable cause exists to believe that the individual was driving a motor vehicle while under the influence, and he requests hospital personnel to obtain a blood sample, hospital personnel have an affirmative duty to perform the test and report the results to the police. 75 Pa.Cons.Stat.Ann. Section 3755; Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1988) (en banc).

Furthermore, Section 1547(j) of the Motor Vehicle Code provides that hospital personnel cannot refuse to perform chemical tests on an individual at the behest of a policeman unless unusual circumstances are present at the time the request is made. Although the Pennsylvania Department of Health regulations conflict with the Motor Vehicle Code on this issue, see 28 Pa.Code Sections 5.53 and 115.27, this court in a recent en banc opinion has found that the mandates of the Motor Vehicle Code should prevail on this issue. Hipp, 380 Pa.Super. at 345, 551 A.2d 1086.

At bar, we have already found that the police had probable cause to believe that Smith was intoxicated when driving his automobile on August 4, 1986. Accordingly, the trial court did not err in permitting the introduction of the blood samples taken at the hospital at the behest of the Pennsylvania State Police.

Furthermore, logic undermines Smith’s argument that the extended period of time between the accident and the fourth blood sample taken provides for the preclusion of the sample into evidence. Four blood samples were taken from Smith. The only blood test that he objects to here was the last blood test, taken at approximately 3:55 A.M.. This test was performed at least two hours after the accident occurred. Smith’s blood alcohol reading from this test was .195%, which was lower than the other three test results. Section 3731(a)(4) of the Motor Vehicle Code states that “a person shall not drive, operate or be in actual physical control of the movement of any vehicle while ... the amount of alcohol by weight in the blood of the person is 0.10% or greater.” This court has found that this rule specifies the quantum of proof which is legally sufficient to sustain the Commonwealth’s burden of proof of this element of the crime of driving while intoxicated. Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985). Here, the Commonwealth had already performed two blood tests on Smith taken closer to the time of the accident. If Smith was to have a blood alcohol content over .10%, it was clearly more likely to be from one of these two samples, not from the final test taken over two hours after the accident occurred. If Smith’s blood alcohol content was over .10% from one or both of these samples, then the Commonwealth would have already obtained evidence which was legally sufficient to prove that Smith’s blood alcohol level was over the legal limit when he was driving. If both of the first two tests revealed that Smith had a blood alcohol level below .10%, then, obviously, the final sample would also have a blood alcohol level below .10%. Accordingly, in either scenario, the importance of the results of the final blood test performed on Smith would have been de minimis.

Smith's fifth contention is that the trial court erred in not granting a mistrial because the Commonwealth did not inform the defense before trial that it intended to introduce the results of Smith’s final blood test. The record belies this contention.

The records custodian of Monsour Hospital was subpoenaed for the suppression hearing held in this case. Smith was given access to his medical records before the hearing. Additionally, a copy of these records was provided to the defense after the suppression hearing. The medical records included the reports on all of the blood alcohol tests performed on Smith and subsequently used at trial by the Commonwealth. The records were submitted to the defense in their entirety before trial began. Accordingly, the trial court did not err in denying Smith’s request for a mistrial regarding this contention.

Smith’s final allegation is that the trial court erred in not permitting the defense to argue opinion portions of Smith’s medical records in its closing argument to the jury. Specifically, the defense attempted to argue in its closing that an attending physician had examined Smith and had written on a summary sheet that Smith appeared alert and oriented and that his answers to questions were coherent.

Under the business records exception to the hearsay rule, hospital records have been admitted into evidence to show the fact of an individual’s hospitalization, the treatment prescribed, and the symptoms found. Williams v. McClain, 513 Pa. 300, 520 A.2d 1374 (1987); Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975). A medical opinion contained in a hospital record, however, which is offered as expert testimony has been held to be inadmissible unless the doctor who prepared the report is available for in-court cross-examination regarding the accuracy, reliability, and veracity of his opinion. Commonwealth v. Jackson, 367 Pa.Super. 6, 532 A.2d 28 (1987).

Here, Smith did not even attempt to introduce the opinion of the treating physician during the course of the trial. At that time, the opinion would only have been admissible if the treating physician was available to be cross-examined by the Commonwealth regarding his opinion. Instead, Smith attempted to introduce the opinion during his closing argument, a time when no cross-examination is permitted. Clearly, the trial court did not err in precluding the defense from arguing the opinions contained in Smith’s medical records in its closing to the jury.

Judgment of Sentence affirmed.

      . 75 Pa.Cons.Stat.Ann. Section 3731(a)(4) is violated when an individual has a blood alcohol content of .10% or more while operating a motor vehicle in Pennsylvania.


author: ROWLEY, Judge:

text:
    555 A.2d 193
    William LESSNER v. Birdie L. RUBINSON and First Pennsylvania Bank. Appeal of William LESSNER, by his Executor, Herbert PRESSMAN, Esquire.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1988.
    Filed March 8, 1989.

      Herbert Pressman, Philadelphia, for appellant.
    Louis S. Criden, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, McEWEN, DEL SOLE, MONTEMURO, BECK and TAMILIA, JJ.
   ROWLEY, Judge:

This appeal challenges a final decree of the Court of Common Pleas of Philadelphia County, which ruled that a bank Certificate of Deposit (“C.D.”) in the joint names of William Lessner (decedent) and Birdie L. Rubinson, his sister, is not an asset of the decedent’s estate, but rather the property of Birdie L. Rubinson. The court also ruled that a $5,000 check given by William to Birdie was a gift and is not an asset of the estate. We affirm in part and reverse in part.

Our Court has held that the

findings of a trial judge in a non-jury case must be accorded the same weight and effect on appeal as the verdict of a jury, and will not be reversed in the absence of an abuse of discretion or a finding of a lack of evidentiary support. The appellate court, in these circumstances, is limited to determinations of whether the trial court’s findings are supported by competent evidence and whether the trial court committed an error of law.

Brenna v. Nationwide Insurance Co., 294 Pa.Super. 564, 567, 440 A.2d 609, 611 (1982) (citations omitted). With this standard of review in mind, we summarize the facts as found by the trial court.

On or about July 18, 1978, William Lessner and his sister, Birdie Rubinson went to the First Pennsylvania Bank (“the Bank”) to obtain a Certificate of Deposit (“the replacement C.D.”) to replace a $50,000 C.D. which William had owned with his wife, Anna. The amount of the replacement C.D. was $50,000, it was made payable to “William Lessner or Birdie L. Rubinson”, and it matured on April 1, 1979.

Upon maturity of the replacement C.D., a new C.D. (“the third C.D.”), dated April 1, 1979, was issued, also in the amount of $50,000 and for four years. This third C.D. was issued in the name of “William Lessner or Birdie Rubin-son,” as well. The third C.D. is at the center of this dispute.

The trial court found as a fact that the third C.D. remained in the constant possession and control of Birdie from the time it was issued. The court also found that Birdie did not contribute any funds toward purchase of the C.D. It is uncontradicted that before the third C.D. was to mature on April 1, 1983, William requested that Birdie return it to him so that he could get a higher rate of interest elsewhere. Birdie refused. William brought this action in the Court of Common Pleas on March 31, 1983 seeking to enjoin Birdie from redeeming the third C.D.

In addition to the $50,000 C.D., a check in the amount of $5,000 is at issue in this case. William alleged in Count II of his complaint that on July 1, 1982 Birdie requested that he loan her $5,000 so that, together with $5,000 of her own funds, she could purchase a $10,000 C.D. for herself. William alleged that he complied with her request, but never received repayment of the $5,000. The trial court made no specific findings of fact regarding the $5,000 in dispute except to note that William claimed the payment of $5,000 to Birdie was a loan.

William died on July 28, 1984 before the date of trial. William’s executor was substituted as plaintiff upon filing a suggestion of death. Following a bench trial held in February 1986, the Honorable Calvin J. Wilson concluded that the C.D., as well as the $5,000 check, were gifts by William to his sister and, therefore, did not constitute any part of his estate. William’s executor has appealed.

Appellant presents seven issues on appeal, which may be most efficiently distilled into two arguments: 1) that the trial court erred in not applying 20 Pa.C.S. § 6303(a) in deciding the issue of the ownership of the third C.D., and 2) that the evidence was insufficient to support the trial court’s decision.

I.

First, William’s executor argues that Chapter 63 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S., governs disposition of the matter, and that the trial court erred in not applying § 6303(a) of that Chapter to the case at bar.

Principally, counsel contends that the enactment by our legislature of § 6303(a) changed the prior law by creating a rebuttable presumption that parties who create a joint account do not by such act intend a beneficial change of ownership of the deposited funds. Thus, the executor argues, the act of obtaining the replacement C.D., as well as the third C.D., did not result in a gift to Birdie because William supplied all of the funds for the purchase and Birdie contributed nothing. Counsel contends that the trial court erred in not applying § 6303(a) to the facts in the case at bar.

The presumption under § 6303(a) is that during the lifetime of the parties, a joint account belongs to the party or parties who contributed the funds:

(a) Joint account. — A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sum on deposit, unless there is clear and convincing evidence of a different intent. (Emphasis added.)

There can be no doubt that section 6303(a) is the statute under which this case must be decided because Mr. Lessner commenced the litigation while he was still living.

Prior to the enactment of section 6303(a), efforts to ascertain the owner or owners of funds often resulted in a state of confusion. See In re Estate of Cilvik, 439 Pa. 522, 267 A.2d 836 (1970) (“involv[ng] the ownership of a joint savings account opened under one of those perplexing and vexing bank signature cards”); see also In re Estate of Bowser, 470 Pa. 154, 367 A.2d 1088 (1977); Hollinger, “Annual Survey of Pennsylvania Legal Developments in the Law — Decedents’ Estates and Trust Laws,” 48 Pa.B.A.Q. 406, 408. Decisions in such cases often turned on “the exact wording of the deposit account and the signature card and the agreement, if any, accompanying it.” In re Estate of Bunn, 413 Pa. 467, 469, 198 A.2d 518, 519 (1964). Our Supreme Court, however, has noted that the enactment of Chapter 63 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. §§ 6301-6306, “alters and simplifies in several significant respects the law of this Commonwealth applicable to joint interests in bank accounts.” In re Estate of Young, 480 Pa. 580, 584 n. 8, 391 A.2d 1037, 1039 n. 3 (1978); see also In re Estate of Pitone, 489 Pa. 60, 413 A.2d 1012 (1980).

Section 6303 is explained in the official comment thereto:

This section reflects the assumption that a person who deposits funds in a multiple-party account normally does not intend to make an irrevocable gift of all or any part of the funds represented by the deposit. Rather, he usually intends no present change of beneficial ownership. The assumption may be disproved by proof than (sic) a gift was intended. (Emphasis added.)

The trial court found as a fact that Birdie did not contribute any of the funds toward the C.D., and the record supports this finding.

William’s executor claims that the trial court erred in not applying § 6303(a) to the case at bar. While the court did not specifically refer to the statute in its opinion, there can be no doubt that the court applied the principle of law set forth in § 6303(a). The court concluded “it is the burden of Birdie L. Rubinson to establish the existence of a gift inter vivos by clear, precise, direct and convincing evidence.” This language achieves the same result as does an application of § 6303(a). Thus, we find no error in the principle of law or burden of proof applied by the trial court.

II.

Having found that the proper standard was applied by the trial court, we next address the argument of William’s executor that the evidence proffered by Birdie and admitted at trial was not sufficient to establish that William intended the $50,000 C.D. and the $5,000 check to be gifts inter vivos. We agree that the evidence regarding the $50,000 C.D. was insufficient to prove a gift inter vivos.

Section 6303(a) requires the presentation of “clear and convincing” evidence to establish a gift. Our Supreme Court has set forth the standard for “clear and convincing” evidence:

[Tjhe witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct, weighty, and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.

In re Estate of Fickert, 461 Pa. 653, 658, 337 A.2d 592, 594 (1975), quoting La Rocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963).

Two elements must be shown in order to establish a valid inter vivos gift. First, there must be an intention to make an immediate gift. Second, there must be actual or constructive delivery to the donee such as will divest the donor of dominion and control of the subject matter of the gift. Ashley v. Ashley, 482 Pa. 228, 393 A.2d 637 (1978); Livingston v. Livingston, 275 Pa.Super. 285, 418 A.2d 724 (1980).

There is no dispute that the second element, actual delivery, was met in this case. Indeed, suit was brought precisely because Birdie had the third C.D. in her possession. We must determine, therefore, whether Birdie proved by clear and convincing evidence William’s intention to make an immediate gift.

It is well-settled that “[d]onative intent is one of the essential elements of a completed inter vivos gift.” In re Estate of Gladowski, 483 Pa. 258, 262, 396 A.2d 631, 633 (1979). Prior to the enactment of Chapter 63, “the creation of a joint interest in a bank account with rights of survivor-ship, evidenced by the signatures of both parties, [was] prima facie evidence of the intent of the party funding the account to make an inter vivos gift to the other joint tenant.” Id. (emphasis added); accord In re Estate of Young, 480 Pa. 580, 391 A.2d 1037 (1978); In re Estate of Keeney, 465 Pa. 45, 348 A.2d 108 (1975); In re Estate of Scott, 455 Pa. 429, 316 A.2d 883 (1974); see also In re Estate of Dzierski, 449 Pa. 285, 296 A.2d 716 (1972) (“where a sole owner of a bank account converts the account into a joint one owned by himself and another, as evidenced by a duly signed signature card, the transaction is prima facie one of an inter vivos gift”).

Conversely, when a bank account was opened with the donor’s own money and the effect of the language used was to confer upon the donee only the right to withdraw the money, i.e. a convenience account, there was no inter vivos gift. In re Elliott’s Estate, 378 Pa. 495, 106 A.2d 453 (1954); Chadrow v. Kellman, 378 Pa. 237, 106 A.2d 594 (1954); In re Kata’s Estate, 363 Pa. 539, 70 A.2d 351 (1950).

As our Supreme Court has noted, the law regarding joint accounts has been simplified by Chapter 63. To reiterate, our legislature has provided through § 6303(a) that while all parties to a joint account are living, the account belongs to the person who contributed the money, unless a different intent is proven by clear and convincing evidence. Counsel for Birdie asserts that evidence of William’s actions on the day the replacement C.D. was obtained from the bank clearly and convincingly proves William’s intent to make an immediate gift of the C.D. to Birdie.

Counsel points to the following evidence in' support of his argument. Birdie testified that on the day she accompanied William to the Bank, he handed the first C.D. (the one in William’s and Anna’s names) to the bank clerk. The clerk put “William Lessner or Birdie Businson (sic)” on the replacement C.D. and handed it to William, who in turn handed it to Birdie. N.T. 2/27/86 at 22. As William handed the C.D. to Birdie, he purportedly said “this is yours.”

In support of his position, counsel for Birdie places great weight on In re Estate of Chiara, 467 Pa. 586, 359 A.2d 756 (1976). In that case our Supreme Court was called upon to determine whether a valid gift had been made by a mother to her son when she gave him a $16,000 cashier’s check with which to purchase a C.D. and the C.D. was made out in the name of “Mrs. Constance Chiara or Joseph E. Chiara.” The Court held

[t]he requirement of donative intent was sufficiently proved through Joseph’s uncontradicted testimony that he was told by his mother when she gave him the money with which to purchase the certificates that he was to “keep it for myself.”

Id., 467 Pa. at 591-92, 359 A.2d at 759 (footnote omitted). We find that Birdie’s reliance upon Chiara is misplaced. In the case at bar, the statement “this is yours” was struck from the record by the trial court. N.T. 2/27/86 at 23. Because we are precluded from considering any testimony not of record, Chiara is inapplicable to the case at bar. McAllonis v. Pryor, 301 Pa.Super. 473, 448 A.2d 5 (1982) (“an appellate court cannot consider anything which is not part of the record in the case”).

Counsel for Birdie also directs our attention to deposition testimony by William stating that he intended to leave everything to Birdie upon his death. William testified:

shortly after my wife’s death the Certificate matured. I was going to leave everything to Birdie____ That meant everything, the furniture, jewelry, the two fur coats and jewelry (sic). It was to be given to her. She was the only one who was not married. Through the years I took care of her financially____ She is going to get it____ I didn’t know whether, how long I am going to live, or am I supposed to die before my wife. I have a bad heart, a pacemaker. I have diabetes; I have a little bit of everything.

N.T. 2/25/86 at 25-26. This testimony does not clearly and convincingly establish William’s intent to make an immediate gift at the time he handed the C.D. to Birdie. At most, it shows an intent to leave his estate to her in the future, i.e., at his death.

In addition to the evidence already discussed, other evidence in the record indicates that an immediate gift to Birdie was not contemplated by William. Exhibit D-l, a photocopy of the replacement C.D., shows that the certificate was signed only by William Lessner at the time of its redemption on April 1, 1979. If William had intended an immediate gift to Birdie on July 18, 1978, of the replacement C.D., as her counsel contends, one would have expected to find her endorsement on the C.D., and not that of William. Further, William and Birdie each testified that William received all of the regular interest payments from both the replacement C.D. and the third C.D. N.T. 2/25/86 at 27 and 2/27/86 at 51. Thus, we hold that Birdie Rubin-son has failed to prove by clear and convincing evidence that an inter vivos gift of $50,000 was made to her by William, either on July 18, 1978 or on April 1, 1979.

The matter of the $5,000 check given by William to Birdie on December 29, 1978, remains. William’s executor contends that the check was a loan rather than a gift. The burden of proof, as to this contention, is on the executor. The trial court held, without discussion, that the $5,000 check was a gift. We have reviewed William’s deposition testimony concerning the $5,000 check, as well as the testimony of Birdie, and we find no basis on which to overturn the trial court’s holding that the, check was not a loan. William, testified that Birdie requested that he lend her $5,000 so that she could add it to $5,000 of her own money in order to purchase a $10,000 bond. N.T. 2/25/86 at 29. Birdie testified that she purchased a $10,000 C.D. around that time. N.T. 2/27/86 at 73. However, Birdie testified that she cashed the $5,000 check, Exhibit P-12, at William’s request and gave the cash proceeds to William so that he could supply a nephew with $5,000 with which to open a used car business. The question of whether the $5,000 was used by Birdie to purchase her C.D., or was delivered to William’s nephew per William’s instructions, was obviously a question of credibility for the trier of fact. Since there is evidentiary support for the trial court’s conclusion that the $5,000 was not a loan to Birdie, we may not disturb that finding.

For the foregoing reasons we affirm the judgment of the trial court as to the $5,000 check, but reverse as to the $50,000 certificate of deposit.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART.

      . Uncontradicted testimony established that Anna had died three months earlier. Anna and William had purchased the $50,000 C.D. on April 1, 1975. It had been issued for a term of four years.

      . The third C.D. was actually issued on April 2, 1979. April 1st was a Sunday.

      . During the litigation, by agreement of the parties, the C.D. at issue was redeemed and the proceeds placed in a money market account. That transaction has no effect upon the legal rights or responsibilities of either party.

        . See Fiduciary Review, September, 1976, at 2. ''[S]ection [6303] is limited to a description of ownership while the original parties are alive. No present change of beneficial ownership occurs and there is no presumption that an inter vivos gift was intended.”

      . But see In re Kata’s Estate, 363 Pa. 539, 70 A.2d 351 (1950) (“the mere handing of a bank book, even though accompanied by words showing an intention to make a gift of the bank account is not sufficient delivery to constitute a gift of that account”).

      . "In a ‘convenience account,’ although the depositor permits another to withdraw funds from the account, he authorizes and/or intends that such withdrawals be exclusively for his benefit and at his request.” In re Estate of Bowser, 485 Pa. 209, 214 n. 4, 401 A.2d 733, 735 n. 4 (1979) (citations omitted).

      . Significantly, "joint account" is defined as “an account payable on request to one or more of two or more parties whether or not mention is made of any right of survivorshp." 20 Pa.C.S. § 6301 (emphasis added).

      . Thus, the record before us shows only that William handed the C.D. to Birdie.