author: CERCONE, President Judge:

text:
    456 A.2d 163
    James F. REMICK, Appellant, v. Audrey A. REMICK. James F. REMICK, v. Audrey A. REMICK, Appellant.
    Superior Court of Pennsylvania.
    Argued May 21, 1982.
    Filed Jan. 28, 1983.

      J. Michael Williamson, Lock Haven, for James F. Remick.
    Morton Fromm, Lock Haven, for Audrey A. Remick.
    Before CERCONE, President Judge and HESTER, BRO-SKY, ROWLEY, McEWEN, JOHNSON and POPOVICH, JJ.
   CERCONE, President Judge:

These cross appeals arise from a decree of the Clinton County Court of Common Pleas granting the appellee-husband a divorce and ordering him to pay permanent alimony in the amount of $80.00 per week as well as seventy-five percent of the appellant-wife’s counsel fees, but denying the wife’s petition for alimony pendente lite. We now affirm as to the awards of permanent alimony and counsel fees, but reverse and remand as to the denial of the wife’s petition for alimony pendente lite.

James and Audrey were married in 1950. James left the marital home in 1968 and filed the instant divorce action. Although an appearance was entered on Audrey’s behalf shortly thereafter the case remained dormant until 1980. In a related though independent matter, James was later ordered to pay $30.00 per week in spousal support. In 1980, James requested permission to amend his original divorce complaint in order to proceed under the new Divorce Code, which permission was granted. James then filed an amended complaint alleging that the marriage was irretrievably broken and averring that the parties had lived separate and apart for more than three years. Audrey thereupon responded with an answer and a counterclaim seeking alimony pendente lite, counsel fees, and permanent alimony. A hearing on the complaint and counter-claim was held before a Master, who recommended that the divorce be granted, that Audrey be awarded alimony pendente lite in the amount of $94.00 per week until the granting of the divorce and permanent alimony in the same amount after the granting of the divorce, as well as that James pay seventy-five percent of Audrey’s counsel fees. Both parties filed exceptions to the Master’s recommendations. The lower court then entered a decree in divorce, and further, disallowed the recommendation for alimony pendente lite and lowered the amount of permanent alimony to $80.00 a week, but it awarded the counsel fees as the Master had recommended. These timely cross appeals followed. The appeals were originally argued before a panel of this Court. However, due to the significance of the matters raised on appeal the case was subsequently ordered reargued before the Court en banc.

I.

James first argues several alleged errors in the award of alimony to Audrey. Audrey contends in her appeal that the amount of the alimony awarded is insufficient.

Under Section 501 of the Divorce Code alimony may be awarded if the party seeking the alimony

(1) lacks sufficient property ... to provide for his or her reasonable needs; and
(2) is unable to support himself or herself through appropriate employment
23 P.S. § 501(a).

James now contends that the lower court improperly considered the length of the parties’ marriage, the parties’ standard of living during the marriage, and James’s “marital misconduct” in determining the amount of the alimony awarded. He also argues that there was no evidence of his income before the lower court because Audrey did not formally move the admission into evidence of James’s Income and Expense Statement, which was filed in accordance with Pa.R.C.P. 1920.31(a). More fundamentally, James argues that Audrey does not lack sufficient property to provide for her needs, and that she failed to establish by competent evidence that she is unable to support herself through appropriate employment.

Initially we are faced with determining the scope of our review of orders awarding alimony pendente lite, counsel fees or permanent alimony under the new Divorce Code. No Pennsylvania case has yet delineated by what standard under the new act we are to judge such awards, because the Act is silent on this point. We must look then instead to case law under the prior Divorce Act as well as to current, analogous cases.

Under the Divorce Law of 1929, an appellate court would reverse an award of alimony pendente lite and counsel fees only for an abuse of discretion by the lower court. See, e.g. Oswald v. Oswald, 263 Pa.Superior Ct. 85, 397 A.2d 7 (1979); Jack v. Jack, 253 Pa.Superior Ct. 538, 385 A.2d 469 (1978). Likewise, spousal (or child) support orders were, and still are, reviewed by the abuse of discretion standard. See e.g., Stump v. Stump, 291 Pa.Superior Ct. 65, 435 A.2d 221 (1981), Commonwealth ex rel. Hartranft v. Hartranft, 267 Pa.Superior Ct. 572, 407 A.2d 389 (1979). This deference was accorded to the lower court because it saw and heard the witnesses and determined their credibility. McCurry v. McCurry, 279 Pa.Superior Ct. 223, 420 A.2d 1113 (1980), Commonwealth v. Goodyear, 270 Pa.Superior Ct. 326, 411 A.2d 550 (1979). Since alimony did not come into existence in Pennsylvania until the enactment of the new Divorce Code it has no case history.

In contrast to the scope of review used in appeals from orders for alimony pendente lite, counsel fees or support, decrees in divorce were examined with an “extremely broad” scope of review. Shuda v. Shuda, 283 Pa.Superior Ct. 253, 423 A.2d 1242 (1980). As we explained in Shuda:

The reason our scope of review is so broad is that the Commonwealth has an interest in marriage as a foundation of our social structure and a corresponding concern that a divorce not be granted unless the statutory requirements have been fully satisfied. Nacrelli v. Nacrelli, 288 Pa. 1, 136 A. 228 (1927); Middleton v. Middleton, 187 Pa. 612, 41 A. 291 (1898).
Id. 283 Pa.Superior Ct. at 260, 423 A.2d at 1245-1246.

Similarly, in child custody cases the scope of our review is a broad one, subject to the proviso that we do not attempt to nullify the court’s fact-finding functions, although we are free to draw our own factual inferences and legal conclusions. See e.g. Jon M. W. v. Brenda K., 279 Pa.Superior Ct. 50, 420 A.2d 738 (1980); Commonwealth ex rel. Drum v. Drum, 263 Pa.Superior Ct. 248, 397 A.2d 1192 (1979).

While this Court is very much concerned with orders affecting the property rights of the parties to a marriage or the support of the children from that union, our concern in those, essentially monetary judgments is not as paramount as it is with the decisions ruling on the status of the marriage or custody of the children. Under the new Divorce Code, orders for alimony pendente lite or counsel fees should continue to be reviewed on appeal under an abuse of discretion standard, inasmuch as the character of the remedy continues to remain unchanged. On the same reasoning, alimony orders under the Code should also be reviewed only for an abuse of discretion and not broadly, as is the actual decree in divorce. This approach is in keeping with both the case history developed under the prior law and within the aims of the Divorce Code.

James argues that the court improperly considered the length of the parties’ marriage and the standard of living they enjoyed during the marriage in fixing the amount of alimony. We cannot agree. Section 501(b) of the Divorce Code reads in pertinent part:

(b) In determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including:
(5) The duration of the marriage.
(8) The standard of living of the parties established during the marriage.
23 P.S. § 501(b)(5) & (8).

In light of the Legislature’s express mandate that a court shall consider the very factors of which James now complains, we are at a loss to conclude how the court could have abused its discretion in this regard.

James further objects that the lower court’s award of alimony was higher than it should have been because the court considered evidence of James’s marital misconduct. Although the statute clearly reads that the court must consider the “marital misconduct of either of the parties during the marriage...” 23 P.S. § 501(b)(14) (Emphasis added), James apparently contends that only the marital misconduct of the spouse requesting the permanent alimony should be considered. We have scanned the alimony statutes in other states for guidance and find that some statutes specifically state that marital misconduct may only be considered to bar the dependent spouse from receiving alimony, see, e.g. Tenn.Code Ann. § 36-826 (Supp.1981), while others grant alimony upon a showing of marital misconduct on the part of the obligor spouse, e.g., Ohio Rev.Code Ann. § 3105.14 (Page 1980). Pennsylvania’s Divorce Code, however, states that the lower court shall consider the marital misconduct of “either” spouse. There is no reason to believe that the Legislature intended this provision to mean anything other than what it says. The lower court was correct in considering James’ marital misconduct.

James also argues that there was no evidence before the Master or the court of his income. He contends that Audrey’s failure to formally move for the admission of his Income and Expense Statement at the Master’s hearing precluded the Master and the court from determining the level of his income. The lower court concluded that the requirement that a statement of this type be filed by each party pursuant to Rule 1920.31(a), and the additional requirement that it be attached to the Master’s Report pursuant to Rule 1920.54(a) obviated the need for formally introducing the statement into evidence at the Master’s hearing. See Pa.R.Civ.P. 1920.31(a) and 1920.54(a). This procedure, in our opinion was correct and free of error. It has long been held that pleadings can be made part of the record “by offer and admission or court direction.” Volpe v. Atlantic Crushed Coke Co., 208 Pa.Superior Ct. 11, 220 A.2d 393 (1966) (Emphasis added). Moreover, we can conceive of no compelling reason to require a formal request for admission of such a statement into evidence when the statement has been prepared and admitted by the very party against whom it is offered.

Additionally, James contends that Audrey failed to establish her inability to support herself by appropriate employment. True, Audrey did not present expert medical testimony to verify her physical disability. Her evidence consisted only of her testimony that she receives Social Security disability benefits and a description of her particular physical symptoms. While we agree that a stronger case on Audrey’s behalf might have been presented, we do not agree that the record is insufficient to prove her inability to support herself through appropriate employment. It was certainly within the Master’s province to observe her, to accept her undisputed testimony as to her physical complaints and her employment experience and training, and to infer therefrom that she is unable to support herself through appropriate employment. Mirabella v. Metropolitan Life Insurance Company, 143 Pa.Superior Ct. 500, 18 A.2d 474 (1941).

Finally, James argues rather unabashedly that the court erred in awarding permanent alimony in any amount because, as he asserts, Audrey does not lack sufficient property to provide for her needs because of “the proliferation of governmental benefits to which the Defendant would be entitled if she were only to apply for the same____” We approach this argument with a distinct air of incredulity. The record shows that Audrey is currently receiving Social Security disability benefits and living in subsidized housing at a very low rental rate. It appears, therefore, that James is suggesting that Audrey would be eligible for public assistance benefits, and other social welfare benefits and, therefore, does not need alimony. We do not believe the Legislature enacted the alimony provisions of the Divorce Code with the intent that the financial welfare of a dependent spouse should devolve upon the Commonwealth following divorce. The public policy provisions of the Code clearly state that one of the purposes is “to effectuate economic justice between the parties____” 23 P.S. § 102(a)(6) (Emphasis added). Just as spousal support is for the purpose of preventing a dependent spouse from becoming a public charge, Hellman v. Hellman, 246 Pa.Superior Ct. 536, 371 A.2d 964 (1977), so should permanent alimony be viewed in a similar light. The purpose of social welfare benefits is to subsidize whatever other resources a recipient may have or may be entitled to and should be a last resort, not a first one. See, e.g., Armlovich v. Commonwealth, Department of Public Welfare, 49 Pa.Cmwlth. 603, 411 A.2d 893 (1980). (Benefits denied to widow who could have obtained railroad retirement benefits on her husband’s account but chose not to.) We conclude that the necessity and amount of permanent alimony should be determined without regard to whether the dependent spouse would be entitled to public assistance or other social welfare benefits absent the payment of alimony.

For her part, Audrey argues on her appeal that the amount of the alimony awarded her is inadequate. However, she too advances no argument to substantiate a claim of abuse of discretion by the lower court in determining the amount of the alimony. Thus, we will affirm the lower court’s order as to permanent alimony in all respects.

II.

Both the Master and the lower court agreed that reasonable attorneys fees in this matter would be $885.00 and that James should pay 75% of this sum, or $664.00. We will not reverse a lower court’s decision in such a case absent a plain abuse of discretion. Young v. Young, 274 Pa.Superior Ct. 298, 418 A.2d 415 (1980). James’s only objection to the award of counsel fees is that much of Audrey’s counsel’s time was spent pursuing a frivolous issue in the divorce aspect of the case. Even a brief review of the record disputes this contention. James made no objection to the admission into evidence of an itemized statement of these fees. That statement clearly shows that only one hour out of a total of 14% hours was spent on that issue. Even if we assume that the issue counsel investigated was totally meritless (which we need not and do not decide), and considering all of the factors involved, especially the gross disparity of the parties’ incomes we do not conclude that the award constituted an abuse of discretion. Thus, we will not reverse the order as to counsel fees.

III.

Lastly, we consider Audrey’s contention that the lower court erred in refusing her request for alimony pendente lite.

The Master recommended that the court award her alimony pendente lite in the amount of $94.00 per week retroactive to the date of the filing of her counterclaim and further ordered that the alimony pendente lite should continue until the granting of a decree in divorce. James filed exceptions to this recommendation arguing that the existence of an outstanding order for spousal support of $30.00 per week barred the award of alimony pendente lite. The lower court granted James’s exception to the alimony pendente lite based on the authority of a recent panel decision of this Court: Thoma v. Thoma, 284 Pa.Superior Ct. 249, 425 A.2d 797 (1981). At the time the lower court decided the instant case it did not have the benefit of this Court’s ruling in Commonwealth ex rel. Homsher v. Homsher, 289 Pa.Superior Ct. 112, 432 A.2d 1076 (1981), which reached the opposite conclusion regarding alimony pendente lite vis-a-vis spousal support. Our analysis of Thoma as compared with Homsher convinces us that the Homsher decision is correct and that the lower court wrongfully denied Audrey alimony pendente lite. We therefore remand this case to allow a determination of an appropriate amount of alimony pendente lite, and, by doing so overrule Thoma.

As we have often stated the purpose of alimony pendente lite is to enable the dependent spouse to maintain or defend the principal action in divorce. See, e.g., Keller v. Keller, 275 Pa.Superior Ct. 573, 419 A.2d 49 (1980). It is intended to cover only the period during which the divorce proceeding may, with due diligence, be prosecuted to conclusion, See, e.g., Heilbron v. Heilbron, 158 Pa. 297, 27 A. 967 (1893); Wargo v. Wargo, 184 Pa.Super. Ct. 587, 136 A.2d 163 (1957). And, it is ancillary to the principal action in divorce. See 23 P.S. §§ 104, 401(b). The duty of spousal support, on the other hand arises out of the marital relationship itself and terminates when the marriage ends. See, e.g., White v. White, 226 Pa.Superior Ct. 499, 313 A.2d 776 (1973).

The Thoma case arose under the old Divorce Law; involved an order granting the wife alimony pendente lite and a subsequent petition by the husband asking the court to cancel the alimony pendente lite. At approximately the same time, the wife filed a separate complaint for spousal support, which the court awarded her soon thereafter. The husband then appealed the support order to this Court. A hearing before the lower court on the husband’s petition to cancel the alimony pendente lite was held shortly after the appeal from the support order was taken. The hearing court suggested that the parties ask the Superior Court to remand the support case so that the lower court could consider the question of support and alimony pendente lite at the same time. The husband refused this suggestion, whereupon the lower court denied his request to terminate the alimony pendente lite, and the husband appealed. In the appeal of the alimony pendente lite order, a panel of this Court ruled that allowance of both alimony pendente lite and support was improper and reversed the lower court’s order awarding alimony pendente lite to the wife, citing Commonwealth ex rel. Rubin v. Rubin, 230 Pa.Superior Ct. 591, 326 A.2d 578 (1974) as authority.

The Rubin case involved an action in divorce a m.e.t. (a mensa et thoro), that is, from bed and board, essentially a legal separation. The issue in Rubin was whether an award of permanent alimony ordered as part of a divorce from bed and board, precluded an order for spousal support, and vice versa. This Court in Rubin found that one of these remedies precluded the other. In so holding, we looked to a line of cases beginning with Heilbron v. Heilbron, 158 Pa. 297, 27 A. 967 (1893) which stand for the proposition that a divorce a m.e.t. awarding permanent alimony to the wife is a bar to any action for support on behalf of the wife____” Marra v. Marra, 189 Pa.Superior Ct. 180, 184, 149 A.2d 175, 177 (1969). Rubin, however, did not address any question pertaining to alimony pendente lite.

The second of the two cases under discussion here, Homsher, like Thoma, arose under the old Divorce Law. In Homsher, the wife left the marital home, whereupon the husband filed a complaint in divorce a v.m., (a vinculo matrimonii), an absolute divorce. The wife responded by filing a complaint for spousal support. The lower court ordered the husband to make a weekly payment in support to his wife as well as pay an additional amount weekly for alimony pendente lite. The husband contended on appeal before this Court that orders for alimony pendente lite and support are mutually repugnant and that the award of one bars the award of the other. The Homsher panel did not agree with the husband’s contention, and affirmed the order of the lower court, citing Hutchison v. Hutchison, 492 Pa. 118, 422 A.2d 501 (1980). In Hutchison, the Court wrote, “Support is a cause of action separate and distinct from alimony pendente lite____” 492 Pa. at 121 n. 1, 422 A.2d at 502 n. 1, for which proposition the Court cited approvingly Belsky v. Belsky, 196 Pa.Superior Ct. 374, 175 A.2d 348 (1962). A review of the Belsky opinion reveals that it squarely addresses the issue, saying

The purpose of alimony pendente lite is to enable the [financially dependent spouse] to maintain the principal action, and it differs somewhat in character from an order for support. The existence of an order ... requiring [one spouse] to pay support to [the other] does not prevent the court ... from awarding alimony pendente lite nor is the refusal of the court ... to enter an order of support a bar to a claim for alimony pendente lite in a subsequent divorce proceeding____ Conversely, neither the existence nor vacation of an award of alimony pendente lite ... is a bar to the securing of an order for support____ The two proceedings may run concurrently. 196 Pa.Superior Ct. at 377-378, 175 A.2d 348 (citations omitted) (emphasis added).

In Belsky, this Court also took special note of the fact that even though the complaint then at bar set forth an action for divorce from bed and board, the case did not involve a request for permanent alimony but, rather, a request for alimony pendente lite.

The Thoma case relied solely upon Commonwealth ex rel. Rubin v. Rubin, supra. However, the Rubin case involved a divorce from bed and board with an accompanying award of permanent alimony; at issue in Thoma was an order for alimony pendente lite. Secondly, Thoma did not take into account the Belsky decision, wherein this Court took a view opposite from that in Thoma. Thirdly, the Supreme Court in Hutchinson, a case which came down several months prior to Thoma, took the position, albeit in dictum, that alimony pendente lite served a different purpose from an order for spousal support.

Admittedly, the rule which permits a party to maintain actions both for support and alimony pendente lite is not without its critics, yet we find it to be the better rule.

' In brief, the lower court erred when it denied Audrey's petition for alimony pendente lite based on Thoma v. Thoma, supra, which prior decision of this Court we now specifically overrule.

Accordingly, the instant case will be remanded to allow the lower court to determine the appropriate amount of alimony pendente lite, if any, to which Audrey is entitled.

Affirmed as to alimony and counsel fees, reversed as to alimony pendente lite and remanded for action below not inconsistent with this opinion. Jurisdiction is not retained.

      . Act of April 2, 1980, P.L. 63, No. 26 § 501: 23 P.S. § 501.

      . Act of May 2, 1929, P.L. 1237, § 1 et seq., 23 P.S. § 1 et seq. repealed by the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, § 801, 23 P.S. § 801.

      . Actions for spousal support may be filed pursuant to Pa.R.C.Pro. 1910.1 et seq. The obligation/right to support is imposed by law as an incident of the marital status and a dependent spouse seeking support need not present as grounds for leaving evidence that would also entitle that spouse to a divorce. Rather, the party need only show an adequate legal cause for leaving. Larkin v. Larkin, 262 Pa.Superior Ct. 294, 396 A.2d 761 (1978).

      . Note, however, that Pennsylvania did, under the old law, have a remedy labeled "alimony” or "permanent alimony”. However, this award was by law limited only to divorces from bed and board or by reason of insanity, both of which were little more than legal separations. Practically speaking, then, "permanent alimony" under the old Divorce Law performed much the same function as an order for support, a conclusion which this Court reached in Commonwealth ex rel. Rubin v. Rubin, 230 Pa.Superior Ct. 591, 326 A.2d 578 (1974). See also note 6 infra, and accompanying text.
      By contrast, the type of alimony which is now at issue is a new remedy under Pennsylvania law for it permits an award of alimony following a permanent divorce.

      . See Note 2, supra.

      From the facts recited in the opinion in Thoma it is impossible to determine whether it involved a complaint in divorce a m.e.t. or a complaint in divorce a v.m.

      . Although in common parlance the term "alimony” or "permanent alimony” is used as a label for the type of support which, previously, was only available in other states following an absolute divorce, under the old Divorce Law the term had a special meaning in Pennsylvania. Whereas the old Law did not allow for alimony following an absolute divorce (divorce a v.m.), the Law did permit the courts to award “permanent alimony” where the divorce was from bed and board. The Act of 1929, May 2, P.L. 1237 § 47, 23 P.S. § 47 (1955). It must be stressed that when Rubin, supra, refers to "permanent alimony”, the Court is talking about alimony following a divorce from bed and board under the Divorce Law of 1929. Rubin, supra, 230 Pa.Superior Ct. at 594, 326 A.2d at 580.

      . Heilbron v. Heilbron, 158 Pa. 297, 27 A. 967 (1893) involved an action for divorce a v.m. The court denied the husband the divorce but awarded alimony pendente lite to continue “until further order of the court.” The Supreme Court reversed the order because the husband's liability for alimony pendente lite should have ceased with the entry of the decree denying the divorce sought. The Court also reversed the decree and granted the husband the divorce.

      . See notes 2 and 6, supra.

      . Id.

      . See, Freedman, Law of Marriage and Divorce in Pennsylvania, § 442, p. 908:. "[T]he reasoning upon , which the rule arose is not impressive.”


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    456 A.2d 171
    COMMONWEALTH of Pennsylvania v. Jessie James GRIFFIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1981.
    Filed Jan. 28, 1983.
    Petition for Allowance of Appeal Denied May 16, 1983.

      Vincent J. Quinn, Assistant Public Defender, Lancaster, for appellant.
    Michael Ranck, District Attorney, Lancaster, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   CAVANAUGH, Judge:

Appellant Jessie James Griffin was tried by a jury and convicted of robbery, conspiracy, attempted murder, terroristic threats and simple assault. The charges arose out of an incident which took place at a branch office of the National Central Bank located in Bridgeport, Pennsylvania. Following the denial of post-verdict motions, appellant was sentenced to a term of imprisonment. The instant appeal was then filed. For the reasons discussed below, we now vacate the judgment of sentence on the attempted murder charge and affirm the judgment of sentence on the remaining charges.

The facts leading to appellant’s arrest are as follows. At approximately 11:07 a.m. on October 9,1979, Officer Savage of the East Lampeter Township Police Department received a call through the County Radio Network that the alarm at the National Central Bank had been activated. Officer Savage proceeded to the bank in a marked police vehicle. As he pulled up behind the bank, he encountered two black males, one of whom pointed a gun at him. Several shots were fired into the driver’s side of the police cruiser. When the shooting stopped, Officer Savage reported over the county radio that two black males had shot at him and had fled the scene in an unknown direction.

Meanwhile, Troopers Ator and Harnish of the Pennsylvania State Police also proceeded to the bank in response to the alarm. As they entered a passageway between two stores which were adjacent to the bank, they observed a maroon over silver Cougar automobile exiting the plaza parking lot at a high rate of speed. The state troopers left in pursuit of this vehicle. Trooper Ator observed that there were two occupants in the car and that one, the passenger, appeared to be taking clothing off and crawling from the back to the front seat. Within moments, the officers received a radio message that there had, in fact, been a robbery and that shots had been fired. Trooper Ator then activated the sirens and flashing lights on his vehicle. The Cougar did not stop, but instead attempted to evade the police officers by entering a parking lot and turning around to emerge traveling in the opposite direction. A brief high-speed chase ensued. Within moments the officers came upon the vehicle stalled on the median divider strip of a highway entrance ramp. One black male in the area was immediately seized and taken into custody.

Trooper Ator approached the disabled vehicle and observed green overalls, a blue bank deposit bag, and an open paper bag containing money in the car. Chief Glick of the East Lampeter Township Police Department, who had also been chasing the Cougar, had arrived on the scene by this time and informed Trooper Ator that the bank had been robbed by two black males who had fired shots at Officer Savage. At this point, Trooper Ator’s attention was attracted to persons in a nearby industrial park who were pointing and yelling that the individual who was in the car had run in the direction of the industrial buildings. One observer told Trooper Ator that a person had run between a railroad boxcar and a nearby building. Another individual, who was located on top of a tank truck, told Trooper Ator that there was- a person on the roof of the building. Trooper Ator then saw the appellant peering over the roof of the building, ordered him down from the roof, and placed him under arrest at about 11:20 a.m. Appellant’s arrest was therefore completed within approximately fifteen minutes of the time the' bank alarm was first activated.

On November 1, 1979, the District Attorney of Lancaster County filed Information Nos. 1924 and 1925 of 1979. Information No. 1924 charged appellant with robbery, attempted murder, and criminal conspiracy, while Information No. 1925 charged him with simple assault and terroristic threats. Various pre-trial motions were denied and appellant was tried by a jury in January, 1980. As stated above, he was found guilty of all five charges. Following the denial óf post-verdict motions, appellant was sentenced as follows: ten to twenty years imprisonment on the robbery offense; five to ten years imprisonment for attempted murder; five to ten years imprisonment for criminal conspiracy; two and one-half to five years imprisonment for terroristic threats; and two years probation for simple assault.' All the sentences were to run concurrently with each other but consecutive to other sentences then being served by appellant. Appellant was also fined $100.00 on the robbery charge and ordered to pay the costs of prosecution on all charges.

Appellant raises several issues on appeal. His first claim is that the lower court erred in denying his application to quash the count charging him with terroristic threats. The information alleged that when the head teller, Katherine Hess, refused to open the vault, appellant stated to her, “I ought to kill you,” and that the statement was made while appellant was kicking her and brandishing a firearm at her. According to 18 Pa.C.S.A. § 2706, a person commits the crime of terroristic threats “if he threatens to commit any crime of violence with intent to terrorize another____” Appellant admits that the information alleged sufficient facts to indicate that he uttered a statement with intent to terrorize. He contends, however, that the statement “I ought to kill you” is not, by definition, a threat. We need not look at the statement in a vacuum. Rather, we will consider the statement in light of the surrounding circumstances. Commonwealth v. Holguin, 254 Pa.Super. 295, 306 n. 12, 385 A.2d 1346, 1352 n. 12 (1978); Commonwealth v. White, 232 Pa.Super. 176, 335 A.2d 436 (1975). We feel that the statement “I ought to kill you,” made during the course of a robbery by someone brandishing a gun and kicking the person to whom the statement was made, is sufficient to constitute a threat under section 2706 of the Crimes Code. Therefore, it was not error for the lower court to deny appellant’s application to quash the count charging him with terroristic threats.

Appellant next claims that the lower court érred in denying his motion to suppress certain evidence. This claim is based on appellant’s contention that his arrest was not based on probable cause and was, therefore, illegal. He alleges that an oral statement made by him in which he admitted participating in the bank robbery should be suppressed as the fruit of an illegal arrest, and that since the probable cause section of the search warrant affidavit was based, in part, on the illegally obtained inculpatory statement, the search warrant is invalid and certain items seized pursuant to it must be suppressed.

With regard to the existence of probable cause, we have stated that:

Probable cause to arrest exists if the facts and circumstances within the officer’s knowledge have been gained by reasonably trustworthy means and are sufficient to warrant a man of reasonable caution to believe that the suspect has committed or is committing a crime. Commonwealth v. Murray, 437 Pa. 326, 263 A.2d 886 (1970); Commonwealth v. Marino, 435 Pa. 245, 255 A.2d 911 (1969), cert. denied, 397 U.S. 1077, 90 S.Ct. 1526, 25 L.Ed.2d 811 (1970). We are mindful that we should not assess the sufficiency of the officer’s information as legal technicians examining the situation in retrospect, but rather that the concept of probable cause involves dealing with probabilities arising from the practical considerations of everyday life upon which prudent men rely. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Donnelly, 233 Pa.Super. 396, 336 A.2d 632 (1975).

Commonwealth v. Pytak, 278 Pa.Super. 476, 483, 420 A.2d 640, 644 (1980).

We have reviewed the testimony presented at the suppression hearing, as summarized above, and we have no difficulty concluding that the facts and circumstances known to Trooper Ator at the time appellant was ordered down from the rooftop and arrested were sufficient to warrant his belief that the appellant had participated in a bank robbery. Since appellant’s warrantless arrest was based on probable cause, it was not illegal, and evidence obtained as a result of the arrest was properly admitted at trial.

Appellant’s next claim is that the lower court abused its discretion by permitting the attachment for joint trial of informations 1924 and 1925. Information No. 1924 charged appellant with robbery, attempted murder, and criminal conspiracy. Information No. 1925 charged him with simple assault and terroristic threats. Since all of the charges arose out of the same criminal episode, the Commonwealth was compelled to consolidate the charges for trial under the holding in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854 (1974), cert. den., 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). Appellant argues that the Commonwealth could not try the charges together absent the filing of a formal pre-trial motion to consolidate. Neither Pennsylvania case law nor the Pennsylvania Rules of Criminal Procedure have imposed such a requirement on the Commonwealth and we will not do so now.

Appellant also argues that the lower court erred by admitting certain Commonwealth exhibits into evidence over appellant’s objection. The items in question are two pairs of overalls, black gloves, two green ski masks, two “Giant” supermarket bags, one of which contained money, and a blue bank bag. Appellant’s objection to admission of the items on the ground that a chain of custody had not been established was overruled.

The police officer who seized the items in question from the maroon and silver Cougar involved in the robbery testified that he personally turned the items over to the officer in charge of the evidence locker and watched as the items were marked and placed in the locker. There is no question that the Commonwealth established the chain of custody up until this point. The appellant’s objection to admission of the items is based on the fact that there was no testimony indicating how the items were transferred from the evidence locker to the courtroom for trial.

The admission of demonstrative evidence is a matter committed to the discretion of the trial court. Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856 (1973); Commonwealth v. Pedano, 266 Pa.Super. 461, 405 A.2d 525 (1979). Furthermore, there is no requirement that the Commonwealth establish the sanctity of its exhibits beyond a moral certainty. Commonwealth v. Pedano, supra; Commonwealth v. Proctor, 253 Pa.Super. 369, 385 A.2d 383 (1978). Every hypothetical possibility of tampering need not be eliminated; it is sufficient that the evidence, direct or circumstantial, establishes a reasonable inference that the identity and condition of the exhibit remained unimpaired until it was surrendered to the trial court. Commonwealth v. Pedano, supra; Commonwealth v. Proctor, supra; Commonwealth v. Miller, 234 Pa.Super. 146, 339 A.2d 573 (1975), aff'd, 469 Pa. 24, 364 A.2d 886 (1976). Finally, physical evidence may be properly admitted despite gaps in testimony regarding its custody. Commonwealth v. Bolden, 486 Pa. 383, 406 A.2d 333 (1979).

Commonwealth v. Hudson, 489 Pa. 620, 631-32, 414 A.2d 1381, 1387 (1980).

The circumstances in the instant case certainly support a reasonable inference that the identity and condition of the exhibits remained unimpaired, in spite of the gap in testimony regarding custody of the exhibits. This is especially true in view of the fact that the officer who seized the items from the car positively identified each of them at trial. The lower court did not, therefore, abuse its discretion in admitting the items into evidence.

Appellant next claims that the evidence was insufficient to support the verdict of the jury on the charge of simple assault. Specifically, he claims that there is insufficient evidence to prove that he caused bodily injury to Katherine Hess, the alleged victim of the assault. Mrs. Hess testified at trial that appellant kicked her, but, as appellant points out, she did not testify that she suffered any pain or discomfort as a result of this action. As we stated in Commonwealth v. Herriott, 265 Pa.Super. 143, 151, 401 A.2d 841, 845 (1979), “The wording of the statute expressly provides that the crime of assault includes an attempt to inflict bodily injury. Therefore, it is not essential to prove that the victim of an assault sustained actual injury.” In the instant case, the court charged the jury that in order to find appellant guilty, they had to find beyond a reasonable doubt: “One, that the defendant caused bodily injury to Katherine Hess. Two, that the defendant’s conduct in this regard was intentional, knowing or reckless.” (N.T. 207). The court neglected, in this portion of its charge, to state that an attempt to inflict bodily injury was sufficient to support a conviction. Appellant reasons, therefore, that the jury could not have convicted him without finding that he actually inflicted bodily injury, and that since the evidence does not support such a finding, the verdict of the jury must be overturned.

We note, however, that early in its charge, the court informed the jury that count one of Information No. 1925 of 1979 averred that appellant “did unlawfully attempt to cause bodily injury or did intentionally, knowingly, or recklessly cause bodily injury to [Katherine Hess]” (N.T. 190) (emphasis added), and that the court later defined the crime of simple assault by stating: “[a] person is guilty of assault if he attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.” (N.T. 191-92) (emphasis added). Reading the charge as a whole, as we must, Commonwealth v. Brown, 467 Pa. 512, 359 A.2d 393 (1976), we find that the jury was adequately informed as to the elements of the simple assault charge. The evidence presented at trial was sufficient to sustain a conviction on the charge.

Appellant also claims that the lower court erred by affirming, but not reading, certain of appellant’s points for charge and by refusing certain other points for charge. We have reviewed the lower court’s rulings and, with the exception of two points relating to the attempted murder charge which we will address below, we detect no reversible error. The requested points for charge were either adequately and correctly covered elsewhere in the court’s charge or were not relevant to the issues presented by this case. See, Commonwealth v. Strong, 484 Pa. 303, 312, 399 A.2d 88, 92 (1979); Commonwealth v. Newsome, 462 Pa. 106, 110, 337 A.2d 904, 907 (1975).

Appellant also contends that the lower court erred in instructing the jury that they could find him guilty of attempted murder if they found that he attempted to commit murder of the second or third degree. We agree.

In its instructions to the jury on the charge of attempted murder, the court first defined criminal attempt, and then proceeded to define the three degrees of murder. It defined murder of the first degree as murder committed by an intentional killing; murder of the second degree as a killing committed while the defendant was engaged as a principal or an accomplice in the perpetration of a felony; and murder of the third degree as all other kinds of murder. The court further explained that third degree murder included “any unlawful killing under circumstances or depravity of heart and a disposition of mind regardless of social duty where no intention to kill exists or can reasonably and fully be inferred.” (N.T. 200) (emphasis added). The court specifically instructed the jury that “the Commonwealth need not prove an attempt to commit first degree murder. It need only prove beyond a reasonable doubt an intention to commit murder of any degree.” (N.T. 198). At the conclusion of the charge, appellant’s counsel took specific exception to the court’s charge insofar as it related to murder of the second and third degree. He argued that criminal attempt to commit murder of the second or third degree was logically improper and he requested that the court give a curative instruction to the effect that a specific intention to kill was necessary for a conviction of attempted murder. The court refused to do so.

The question squarely presented to us is whether someone can attempt to commit murder of the second or third degree. We think not. A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. 18 Pa.C.S.A. § 901. Murder of the second or third degree occurs where the killing of the victim is the unintentional result of a criminal act. Thus, an attempt to commit second or third degree murder would seem to require proof that a defendant intended to perpetrate an unintentional killing—which is logically impossible. While a person who only intends to commit a felony may be guilty of second degree murder if a killing results, and a person who only intends to inflict bodily harm may be guilty of third degree murder if a killing results; it does not follow that those persons would be guilty of attempted murder if a killing did not occur. They would not be guilty of attempted murder because they did not intend to commit murder—they only intended to commit a felony or to commit bodily harm.

LaFave and Scott have explained in their treatise on criminal law why it is necessary to prove an intent to kill in order to sustain a charge of attempted murder:

Some crimes, such as murder, are defined in terms of acts causing a particular result plus some mental state which need not be an intent to bring about that result. Thus, if A, B, and C have each taken the life of another, A acting with intent to kill, B with an intent to do serious bodily injury, and C with a reckless disregard of human life, all three are guilty of murder because the crime of murder is defined in such a way that any one of these mental states will suffice. However, if the victims do not die from their injuries, then only A is guilty of attempted murder; on a charge of attempted murder it is not sufficient to show that the defendant intended to do serious bodily harm or that he acted in reckless disregard for human life. Again, this is because intent is needed for the crime of attempt, so that attempted murder requires an intent to bring about that result described by the crime of murder {i.e., the death of another).

LaFave and Scott, Handbook on Criminal Law, § 59 at 428-29 (1972) (footnotes omitted).

Numerous other jurisdictions have also held that an attempt to commit murder requires an intent to kill. See, e.g., People v. Harris, 72 Ill.2d 16, 17 Ill.Dec. 838, 377 N.E.2d 28 (1978); People v. Hassin, 48 App.Div.2d 705, 368 N.Y.S.2d 253 (1975); Nobles v. Commonwealth, 218 Va. 548, 238 S.E.2d 808 (1977); Ramos v. Nevada, 95 Nev. 251, 592 P.2d 950 (1979); People v. Belton, 105 Cal.App.3d 376, 164 Cal.Rptr. 340 (1980). State v. Carter, 44 Wis.2d 151, 170 N.W.2d 681 (1969); Merritt v. Commonwealth, 164 Va. 653, 180 S.E. 395 (1935). Cf. State v. Smith, 21 Or.App. 270, 534 P.2d 1180 (1975); People v. Hernandez, 44 Colo.App. 161, 614 P.2d 900 (1980); Crear v. State, Ala.Cr.App., 376 So.2d 778 (1979), cert den. Ala., 376 So.2d 788 (1979); People v. Van Broussard, 76 Cal.App.3d 193, 142 Cal.Rptr. 664 (1977); Rhode v. State, Ind.App., 391 N.E.2d 666 (1979); State v. Dahlstrom, 276 Minn. 301, 150 N.W.2d 53 (1967). But see, Fleming v. State, Fla., 374 So.2d 954 (1979); White v. State, 266 Ark. 499, 585 S.W.2d 952 (1979).

Furthermore, we note that a Subcommittee Note to the Pennsylvania Suggested Standard Criminal Jury Instructions suggests that an intent to kill is necessary to support a charge of attempted murder. The Subcommittee Note following the suggested jury instruction on the crime of criminal attempt states that in defining the crime which was attempted, the court should limit its definition to those aspects of the crime which are relevant to an attempt. “For example, if the charge were attempted murder, a definition of murder limited to murder by intentional killing should suffice.” Pennsylvania Suggested Standard Jury Instructions (Criminal), 12.901 A—Criminal Attempt (1979).

We hold that in order to convict a person of attempted murder, an intent to kill must be shown, and that a defendant charged with attempted murder is entitled to a jury instruction to that effect. Because we can not say that the court’s refusal to give such an instruction in the instant case was harmless error, the appellant is entitled to a new trial on the charge of attempted murder.

Appellant also claims that the lower court erred in refusing to instruct the jury concerning the crime of recklessly endangering another person. The instruction requested by appellant was to the effect that if, instead of finding that appellant intended to kill Officer Savage, they found that he recklessly engaged in conduct which placed Officer Savage in danger of death or serious bodily injury, then they should find him guilty of recklessly endangering another person.

“It is well settled that upon an indictment for a particular crime, the defendant may be convicted of a lesser offense included within it.” Commonwealth v. Nace, 222 Pa.Super. 329, 330, 295 A.2d 87, 88 (1972). Recklessly endangering another is a lesser included offense of the crime of murder, Commonwealth v. Musselman, 483 Pa. 245, 396 A.2d 625 (1979), and it follows logically that it is also a lesser included offense of attempted murder.

It is not error, however, for a judge to refuse to instruct the jury on the lesser-included offense unless the evidence could support a conviction on the lesser offense. “There is no duty on a trial judge to charge upon law which has no applicability to presented facts. Commonwealth v. Jordan, 407 Pa. 575, 181 A.2d 310 (1962).” Commonwealth v. Dessus, 214 Pa.Superior Ct. 347, 364, 257 A.2d 867, 875, allocatur refused, 214 Pa.Superior Ct. XI (1969). If under the evidence at trial, the jury must either convict the accused of the greater offense or acquit him it is not error to refuse an instruction on a lesser-included offense. Commonwealth v. Melnyczenko, 238 Pa.Super. 203, 358 A.2d 98 (1976); Commonwealth v. Dessus, supra. Conversely, if it is rational for the jury to render a verdict of not guilty of the greater offense but guilty of the lesser, it is incumbent upon the judge to instruct the jury on the law related to the constituent offense if so requested by counsel. See Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973); Commonwealth v. Moore, 463 Pa. 317, 323, 344 A.2d 850, 853 (1975) (Concurring opinion by ROBERTS, J.) Commonwealth v. Melnyczenko, supra; Commonwealth v. Dessus, supra. “It should be emphasized, however, that before a charge on ... [a lesser-included offense] is required, there thus must be some evidence, from whatever source, which would permit the jury to return such a verdict.” Commonwealth v. Moore, supra [463 Pa.] 317, at 338, 344 A.2d 850, at 861 (Concurring opinion by POMEROY, J.). See also Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); 23A C.J.S. Criminal Law § 1288 (1961).

Commonwealth v. Wilds, 240 Pa.Super. 278, 287-88, 362 A.2d 273, 278 (1976) (emphasis added).

A person is guilty of recklessly endangering another person “if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705. The evidence in the instant case established that appellant fired bullets at Officer Savage as he sat in a police car. If the jury found that the Commonwealth failed to prove an intent to kill, the evidence would certainly support a finding that appellant recklessly engaged in conduct which placed Officer Savage in danger of death or serious bodily injury. Thus, the lower court erred in refusing to instruct the jury on the crime of recklessly endangering another. We have already held that appellant is entitled to a new trial on the charge of attempted murder. At that trial, the court shall instruct the jury on the crime of recklessly endangering another person, if appellant requests such an instruction.

Finally, appellant claims that the sentence imposed by the lower court was manifestly excessive and an abuse of discretion. He bases this claim primarily on the fact that he received a heavier sentence than his co-conspirator did. We note, however, that appellant’s co-conspirator was not tried with appellant,- but rather pled guilty to the charges at a separate hearing. We recently held that the rule that a trial judge should give an explanation if he imposes different sentences on co-defendants did not apply where the co-conspirator pled guilty at a separate hearing and was sentenced by a different judge. Commonwealth v. Craft, 304 Pa.Super. 494, 450 A.2d 1021 (1982). See also, Commonwealth v. Hollerbush, 298 Pa.Super. 397, 444 A.2d 1235 (1982); Commonwealth v. Jezorwski, 280 Pa.Super. 178, 421 A.2d 464 (1980).

As a general rule,

Sentencing is a matter within the sound discretion of the sentencing judge, to be exercised within the statutory guidelines and considerations. When so exercised, the sentence will not be disturbed by an appellate court unless it is so clearly excessive as to constitute an abuse of discretion.

Commonwealth v. Hollerbush, supra, 298 Pa.Super. at 406-407, 444 A.2d at 1240. The sentences imposed in the instant case were within the statutory limits. The record demonstrates that the sentencing court considered the guidelines of the Sentencing Code, the statements of counsel, the circumstances of the crime, the particular characteristics of appellant, and appellant’s prior criminal record, which includes another robbery conviction. We conclude that the sentences imposed were neither excessive nor an abuse of discretion.

For the reasons discussed above, judgment of sentence on the charge of attempted murder is reversed and remanded for a new trial. Judgment of sentence on the remaining charges is affirmed.

      . The Commonwealth cites Commonwealth v. Reese, 237 Pa.Super. 326, 352 A.2d 143 (1975) in support of its claim that the charge in the instant case was proper. Reese, however, is factually distinguishable from the present case. In Reese, defense counsel had requested a jury instruction as to the various degrees of homicide in connection with an attempted murder charge. We held that an instruction as to the degrees of homicide would be improper. We also stated, however, that:

        Murder in this Commonwealth is still governed by the Common Law definition; i.e., the unlawful killing of another with malice aforethought, express or implied, Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973). Although murder is delineated into murder of the first and second degrees, the Common Law definition still governs and murder, whether it be of the first or second degree, is nevertheless murder. Therefore, the Commonwealth in the instant case was required only to prove intent to commit murder.
      237 Pa.Super. at 333-34, 352 A.2d at 147. (footnote omitted). This language is dicta and, to the extent that it implies that the malice shown by an intent to inflict bodily injury is sufficient to support a charge of attempted murder, we feel that it is incorrect.


author: WIEAND, Judge: HOFFMAN, Judge,

text:
    456 A.2d 179
    COMMONWEALTH of Pennsylvania v. Michael PINDER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 2, 1982.
    Filed Jan. 28, 1983.
    Order of Remand Vacated Nov. 16, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

Michael Pinder was convicted by a jury of burglary, four counts of robbery, aggravated assault, terroristic threats and unlawful restraint, three counts of rape and involuntary deviate sexual intercourse, and one count of possessing an instrument of crime. After post-verdict motions had been denied, Pinder was sentenced to a lengthy term of imprisonment. On direct appeal, he contends that numerous trial errors combined with prosecutorial misconduct to deprive him of a fair trial. He also contends that he was sentenced in violation of double jeopardy considerations. We will consider these issues seriatim.

During the early morning hours of June 28, 1978, Augusta Monroe, age 62, was awakened by her daughter, Louella, who discovered that a window in their apartment had been opened by a person unknown. When she went outside to investigate, Mrs. Monroe encountered her neighbor, Margarita Hamlin. When both entered the Monroe home, they found a black man holding a gun on Louella and Cheryl Walson, a guest in the Monroe home. He ordered the women into a bedroom, demanded money, emptied several bureaus. Unable to find more than fifteen dollars, he raped three of the women and forced them to engage in deviate sexual acts. Two of the women were forced to engage in deviate sexual acts with one another, and one was injured so badly as to require a hysterectomy because the rapist forcefully pushed his hand into her vagina. During the hour long ordeal only the elderly Mrs. Monroe was spared from the intruder’s vicious sexual assaults.

All victims gave a detailed description of their attacker to the police. He was approximately 5' 11" in height, weighed 200 pounds, was in his 20’s, wore a mustache and closely cropped hair, and had a broken tooth. His clothes included a red and white striped shirt, black knee length, cut-off trousers, a black zippered jacket, sneakers and sunglasses. From the victims’ description, a composite sketch was drawn. Appellant, Michael Pinder, was subsequently identified and arrested. When arrested, appellant was at home, clad only in a bathrobe. Police escorted him to his bedroom to dress, where he selected a red and white striped shirt, black knee length cut-off trousers, sneakers, and a black jacket. All four victims identified appellant at a subsequent line-up.

Appellant’s first argument is that he was prejudiced by remarks made during trial by the trial judge. We examine only two. The remainder of the remarks complained of by appellant were made at side-bar and were not communicated to the jury. Such remarks cannot be said to be prejudicial. Commonwealth v. Whitson, 461 Pa. 101, 107, 334 A.2d 653, 655-56 (1975); Commonwealth v. Krasner, 285 Pa.Super. 389, 413 n. 13, 427 A.2d 1169, 1181 n. 13 (1981).

The first comment made in the presence of the jury came after defense counsel, in the words of the trial judge, had “petulantly demanded” that he be provided with a transcribed copy of a witness’s earlier testimony for purposes of cross-examination. After it had been determined that counsel had previously been given a copy of the notes, the following occurred:

THE COURT: Was the defendant provided notes of all these?
[DEFENSE COUNSEL]: Yes, Your Honor. It’s my fault. I didn’t bring my copy over.
THE COURT: You can’t make a grandstand in the presence of the jury, then. You were provided with notes

The second instance occurred after defense counsel had reacted to a witness’s response by dramatically throwing up his hands and exclaiming, “Oh!” The court struck the comment and instructed counsel to refrain from making gestures and comments.

These two judicial remarks by the trial judge were isolated incidents in a lengthy trial. See, e.g., Common wealth v. Ferguson, 289 Pa.Super. 163, 170-71, 432 A.2d 1103, 1106 (1981); Commonwealth v. Mayo, 272 Pa.Super. 115, 120, 414 A.2d 696, 699 (1979). Contrary to appellant’s allegation, the record does not show that the court ever displayed a hostile attitude toward the defense. Indeed, the trial judge demonstrated commendable restraint during a trial in which he was required to deal constantly with hostile and defiant tactics by defense counsel. The few mild reprimands given by the court, if possibly they evidenced annoyance with counsel, did not demonstrate hostility toward the defendant. See: Commonwealth v. Humphreys, 267 Pa.Super. 318, 331, 406 A.2d 1060, 1066-67 (1979); Commonwealth v. Frank, 263 Pa.Super. 452, 473, 398 A.2d 663, 673 (1979). “Counsel may properly be admonished on such occasions without nullifying the entire trial as long as the trial judge does not display partiality or prejudice by his conduct, manner of speech, or choice of language.” Commonwealth v. Frank, supra, 263 Pa.Super. at 473, 398 A.2d at 674, citing Commonwealth v. Phillips, 183 Pa.Super. 377, 384-85, 132 A.2d 733, 737 (1957). Moreover, it is axiomatic that:

‘[ejvery unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.’ (citations omitted)

Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973). The record shows that appellant was not prejudiced, was not deprived of a fair trial, and is not entitled to another trial.

Appellant’s next argument is novel. Barbara Kauffman, a third year law student certified as a legal intern pursuant to Pennsylvania Bar Admission Rules 321 and 322, had assisted the Philadelphia Defenders’ Association in the preparation of appellant’s case for trial. During the first four days of trial she had been permitted by the court to sit in the gallery from where she took notes. She was also permitted to attend side-bar conferences and confer freely with defense counsel. On the fifth day of trial the court denied a defense request that Ms. Kauffman be permitted to sit at counsel table. Appellant contends that he was thereby deprived of his right to be represented by effective counsel.

His contention must fail; he was not denied representation by counsel. Appellant was represented by counsel during the entire trial, and he does not contend that counsel was ineffective. Ms. Kauffman had not been admitted to the bar, and her participation in the trial was circumscribed by limitations contained in Pa.B.A.R. 322. The extent of her active participation in the trial, moreover, was subject to the rule that the general conduct of a trial is committed to the broad discretion of the trial judge. Commonwealth v. Warner, 209 Pa.Super. 215, 225 A.2d 98 (1966), cert. denied, 389 U.S. 986, 88 S.Ct. 477, 19 L.Ed.2d 479 (1967). The placing of reasonable limitations on the participation of persons other than primary counsel is not an abuse of the trial court’s discretion. Thus, in Commonwealth v. Bachert, 271 Pa.Super. 72, 412 A.2d 580 (1979), rev’d on other grounds, 499 Pa. 398, 453 A.2d 931 (1982), we held that it was not an abuse of discretion to limit the right to examine witnesses and make objections to chief counsel for each side. Moreover, in the instant case, appellant has not identified any prejudice resulting from the trial court’s refusal to allow the legal intern to sit at counsel table.

During cross-examination of the victims, defense counsel attempted to use police summaries to show alleged inconsistencies in the victims’ trial testimony regarding appellant’s appearance on the night of the rape. Where the witness was able to recall and verify the descriptive statement in the police report, counsel was permitted to cross-examine the witness concerning inconsistencies appearing therein. However, where the witness could not recall making a statement to police or was otherwise unable to verify the accuracy of the police summary, counsel was not permitted to use the police summary as a prior inconsistent statement. There was no error in these rulings.

The police reports were not “statements” of the witnesses. They were summaries prepared by investigating police officers. They were not shown to be verbatim recordings of the victims’ accounts and descriptions, and, except where a witness adopted and verified the reported statement during trial, there was no evidence that the victims had read, signed or approved the accuracy of the police summaries. “It would have been unfair to permit impeachment of the witnesses through use of an officer’s interpretation of what they had said, not their own earlier recollections.” Commonwealth v. Hill, 267 Pa.Super. 264, 270, 406 A.2d 796, 799 (1979). At no time did appellant’s counsel attempt to prove by proper means that the witnesses had made prior inconsistent statements or lay the groundwork for the admission of statements made to the police.

The scope and manner of cross-examination are within the discretion of the trial judge. Commonwealth v. Sisco, 484 Pa. 85, 88, 398 A.2d 955, 957 (1979). This is true also regarding the procedure employed for impeaching a witness by confronting him with prior inconsistent statements. Commonwealth v. Thomas, 284 Pa.Super. 375, 384, 425 A.2d 1151, 1155 (1981). We have examined carefully the record in this case but find no abuse of discretion in the trial judge’s rulings on defense counsel’s attempts to discredit the testimony of the victims.

Appellant also contends that the fairness of his trial was destroyed by the trial court’s ruling which disallowed the recording of side-bar conferences. However, side-bar conferences, like opening statements and closing arguments, need not be recorded. It is only necessary that counsel be permitted to place on the record all objections and the court’s rulings thereon. Lengthy arguments on objections need not be recorded or transcribed. Commonwealth v. Russell, 459 Pa. 1, 11, 326 A.2d 303, 307-08 (1974); Commonwealth v. Musser, 172 Pa.Super. 44, 47-48, 92 A.2d 270, 271 (1952). Appellant was not harmed by the court’s refusal to allow the recording of full arguments delivered during side-bar conferences. He was permitted in all instances to place on the record his objections, the reasons in support of such objections and the factual basis, if any, necessary to preserve for post-verdict and appellate review the rulings of the court.

Appellant also contends that the Commonwealth’s attorney committed prosecutorial misconduct by injecting her personal opinion into closing argument, by suggesting that a defense witness was lying, and by appealing to the sympathies of the jurors. The first instance occurred while counsel was discussing the composite sketch prepared by a police artist. She said:

MRS. CLARK [ASSISTANT DISTRICT ATTORNEY]: Ladies and Gentlemen: I submit to you that this doesn’t just look like the defendant. It doesn’t just have a resemblance to the defendant. Ladies and gentlemen, I submit to you that that is the defendant.
MR. GLOVIN [DEFENSE COUNSEL]: Objection.
THE COURT: All right. Please do not strike the table. MRS. CLARK: Yes, Your Honor.
Ladies and Gentlemen: I submit to you that Officer Pulcinella couldn’t have drawn this any better if he had traced the defendant’s photograph. Officer Pulcinella couldn’t have done any better if the defendant was sitting right in front of him posing.
MR. GLOVIN: Objection.
THE COURT: All right. Ladies and gentlemen: it is for you to make that determination. You must not take the opinion of the district attorney.

In reviewing the testimony of defense alibi witnesses, in particular that of appellant’s girlfriend who testified as to appellant’s whereabouts on the morning of the incident, the District Attorney said:

MRS. CLARK: Now, ladies and gentlemen, in light of all this, the defense presented three witnesses in an attempt to establish an alibi....
Well, ladies and gentlemen, it appears that when [appellant’s girlfriend] later discovered, from whatever source, that maybe that 7:30 time might not help her beloved and might even hurt her beloved, what did she do? Ladies and gentlemen, she nonchalantly, without regard to her oath, she took that stand—
MR. GLOVIN: Objection, sir.
THE COURT: All right. The jury is requested to disregard that last remark. ■
MRS. CLARK: Ladies. and Gentlemen, why would she deliberately change her story?
MR. GLOVIN: Objection.
THE COURT: I think it’s a rhetorical question.
MRS. CLARK: I submit, ladies and gentlemen, it’s because she’s in love. I urge you to dismiss her testimony as untruthful. But forgive her, ladies and gentlemen— MR. GLOVIN: Objection, Your Honor.
THE COURT: All right. Well, the jury has a function, and I will explain the function to the jury. That will be the sole function.
MRS. CLARK: I submit that she knows not what, she does in the name of love.

Finally, the prosecutor summarized her argument as follows:

MRS. CLARK: Ladies and gentlemen, I urge you to harken to what I submit is overwhelming evidence, not just sufficient, but overwhelming evidence. And I urge you, ladies and gentlemen, to do that, because I submit that if you do, you will reach the inescapable conclusion that Michael Pinder is guilty. You will reach the inescapable conclusion, I submit, that justice demands a guilty verdict.
MR. GLOVIN: Objection.
THE COURT: All right. The demands of justice is the process of the jury.
MRS. CLARK: Ladies and gentlemen, the only way, I submit, that you can find this man not guilty is to close your eyes, close your ears, and turn your back to the testimony of these four women and to the abundance of evidence that we have presented.
MR. GLOVIN: Objection. Respectfully, an objection, sir. THE COURT: Overruled. It’s within the purview. The opinions expressed by counsel, as I will tell the jury, are not binding upon the jurors.
MRS. CLARK: In closing, ladies and gentlemen, let me remind you of a tragic irony in this case. As the victims prematurely sighed with relief in the kitchen, as they were replacing the items on the windowsill, do you recall what Louella Monroe said? She said, “Thank God we escaped something horrible here today.” Well, ladies and gentlemen, I urge you to let these women in spite of it all—let them now stand up and say, “Well, thank God justice has been done.”
MR. GLOVIN: Objection.
THE COURT: I think justice has been done regardless of the jury’s verdict.

When we review the closing arguments of prosecutors, we are guided by the ABA Standards Relating to the Prosecution Function. Those standards include the following guidelines: “(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw, (b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant, (c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury, (d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.” ABA Standards Relating to the Prosecution Function, Section 5.8. See generally: Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978); Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976); Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975); Commonwealth v. Baranyai, 296 Pa.Super. 342, 442 A.2d 800 (1982). Not every intemperate or improper remark by a prosecutor requires a new trial. Commonwealth v. Jarvis, 482 Pa. 598, 605, 394 A.2d 483, 487 (1978); Commonwealth v. Perkins, 473 Pa. 116, 133-34, 373 A.2d 1076, 1085 (1977); Commonwealth v. Baranyai, supra 296 Pa.Super. at 348, 442 A.2d at 803. Only when the remarks are such that their “unavoidable effect ... would be to prejudice the jury, forming in their minds fixed bias and hostility that they could not weigh the evidence and render a true verdict is a new trial required.” Commonwealth v. Baranyai, supra, 296 Pa.Super. at 347, 442 A.2d at 802, citing Commonwealth v. Mikesell, 475 Pa. 589, 595, 381 A.2d 430, 433 (1977); Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975); Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968); Commonwealth v. Youngkin, 285 Pa.Super. 417, 430, 427 A.2d 1356, 1362 (1981).

In the instant case, the remarks of the assistant district attorney did not have such an unavoidably prejudicial effect. Usually, the cited remarks were prefaced with the words “I submit.” This was merely an argument, an invitation to the jury to so find. See: Commonwealth v. Woods, 275 Pa.Super. 392, 405, 418 A.2d 1346, 1352-53 (1980); Commonwealth v. Martin, 273 Pa.Super. 88, 92, 416 A.2d 1102, 1104 (1979). Comment may properly be made upon the motive of an alibi witness for testifying. See: Commonwealth v. Van Cliff, 483 Pa. 576, 586, 397 A.2d 1173, 1178 (1979); Commonwealth v. Gunderman, 268 Pa.Super. 142, 148, 407 A.2d 870, 873 (1979). Moreover, a prosecutor is free to argue that the facts and reasonable inferences to be drawn therefrom are sufficient evidence to support a guilty verdict. See: Commonwealth v. Smith, 490 Pa. 380, 388, 416 A.2d 986, 989 (1980); Commonwealth v. Stevens, 276 Pa.Super. 428, 432-33, 419 A.2d 533, 535 (1980) ; Commonwealth v. Smith, 273 Pa.Super. 441, 445, 417 A.2d 729, 731-32 (1979); Commonwealth v. Gunderman, supra 268 Pa.Super. at 148, 407 A.2d at 873. The prosecutor may also argue, according to the facts presented, that a guilty verdict would be a fair and just result. See: Commonwealth v. Burton, 491 Pa. 13, 23, 417 A.2d 611, 615 (1980); Commonwealth v. Smith, supra 490 Pa. at 388, 416 A.2d at 990; Commonwealth v. Parente, 294 Pa.Super. 446, 452, 440 A.2d 549, 553 (1982); Commonwealth v. Bullock, 284 Pa.Super. 601, 611, 426 A.2d 657, 662 (1981).

The remarks of the prosecutor in the instant case were not only proper, but the slightest danger of prejudice was overcome by the repeated cautionary remarks of the trial judge. Repeatedly, he cautioned that the jury was not to be guided by the opinions of counsel, if any, and that it was the function of the jury to determine the facts. See: Commonwealth v. Taliaferro, 273 Pa.Super. 151, 156, 417 A.2d 213, 215-16 (1979); Commonwealth v. Middleton, 269 Pa.Super. 17, 24, 409 A.2d 41, 44 (1979); Commonwealth v. Johnston, 258 Pa.Super. 429, 438, 392 A.2d 869, 873 (1978).

Clearly in the instant case there was nothing in the prosecutor’s closing argument that unfairly prejudiced the defendant so as to require that his convictions be overturned.

Finally, appellant argues for the first time on appeal that principles of double jeopardy and the alleged rule that a recorded judgment of sentence controls where there is a discrepancy between the recorded sentence and the sentence orally pronounced require this Court to remove a discrepancy appearing in this case by directing prison authorities to record appellant’s sentences as they appear in the written judgments of sentence. Prison authorities have recorded appellant’s sentences as being for not less than 38 nor more than 82 years. Appellant concedes that this is consistent with sentences imposed in open court and contained in the official record for the 24 convictions. The record reflects that the sentencing judge, in order that there be no mistake about his intent, told appellant and all who were present at the sentencing on four separate occasions that he intended to impose a total sentence of 38 to 82 years. However, the sentences recorded by the clerk and signed by the sentencing judge failed in several instances to contain the judge’s intent, concerning the consecutive nature thereof. Thus, when the sentences recorded on the several informations are totalled in accordance with the mandate of Pa.R.Crim.P. 1406, the total time to be served is not less than 20 nor more than 40 years.

Whether the recorded lesser total sentence was a clerical error, as it appears to be, or whether the sentencing judge intended to modify appellant’s sentences after they had been* imposed has never been considered or clarified by the trial court. Appellant has not moved in accordance with Pa.R.Crim.P. 1410 to modify the sentence, and there has never been a request for clarification in the court which imposed the sentence.

Appellant urges on appeal that we direct his sentence to be recorded by the prison authorities as 20 to 40 years. In support of his request, he relies on decisions in Commonwealth v. Hosendorf, 437 Pa. 219, 263 A.2d 439 (1970) and Commonwealth ex rel. Woods v. Howard, 249 Pa.Super. 428, 378 A.2d 370 (1977), which held that in cases of conflict between the pronouncements of the court at sentencing and the signed sentencing order contained on the information, the signed sentencing order must prevail. In Hosendorf, however, the trial judge had died following the sentencing, and the Supreme Court was unable to know which of the two sentences the judge had intended to impose. See: Commonwealth v. Phillips, 273 Pa.Super. 321, 328-29, 417 A.2d 669, 673 (1979) (Opinion by Roberts, J., Specially Presiding). And in Woods, the conflict arose in separate habeas corpus proceedings and, as Judge Hoffman, the opinion writer, observed: “We may only consider the written order signed by the sentencing judge and may not review his oral pronouncements at the time of sentencing.”

In the instant case, the entire record is before us, including the pronouncements of the judge at the time of sentencing, and that record discloses a need to clarify the intent of the sentencing judge. Moreover, there is no impediment to such clarification. The sentencing judge continues to be an active trial judge in Philadelphia, and he, better than this court, can clarify the sentence which he imposed. So long as he does not impose a harsher sentence than that originally imposed, clarification is not precluded by double jeopardy considerations. Commonwealth v. Phillips, supra, 273 Pa.Super. at 328, 417 A.2d at 673.

Although our review discloses no trial error, the ambiguity existing in conflicting sentencing pronouncements requires that we remand for clarification of the sentences imposed. Jurisdiction will not be retained.

It is so ordered.

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

HOFFMAN, Judge,

I concur in the affirmance of appellant’s convictions, but must dissent from the remand to the lower court to reconsider and “clarify” the signed judgment of sentence.

The lower court in its oral colloquy pronounced a series of consecutive sentences totalling 38 to 82 years. It then signed a more lenient judgment of sentence omitting mention of the consecutive nature of certain sentences and thereby-totalling 20 to 40 years. See Pa.R.Crim.P. 1406. The prison authorities recorded appellant’s sentence on his “Initial Sentence Status Report,” as 38 to .82 years. Appellant challenges the prison authorities’ recording of his sentence.

This Court should not sua sponte attempt to resolve the discrepancy between the orally pronounced and the signed sentence. The lower court had the power in promulgating the signed judgment of sentence to impose without further explanation a sentence more lenient than that announced in open court. Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971), citing United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931) (inherent power to mitigate). See 42 Pa.C.S.A. § 5505, 9721; Pa.R.Crim.P. 1410; Commonwealth v. Evans, 299 Pa.Superior Ct. 529, 445 A.2d 1255 (1982). Generally, the signed sentencing order, if legal, controls over oral statements of the sentencing judge not incorporated into the signed judgment of sentence. E.g. Commonwealth v. Hodge, 246 Pa.Superior Ct. 71, 369 A.2d 815 (1977); Commonwealth v. Foster, 229 Pa.Superior Ct. 269, 324 A.2d 538 (1974). If the signed order is inaccurate, the party aggrieved may timely petition to modify it so that it may be corrected. See Pa.R.Crim.P. 1410; Commonwealth v. Anderson, 304 Pa.Superior Ct. 476, 450 A.2d 1011 (1982); Commonwealth ex rel. Woods v. Howard, 249 Pa.Superior Ct. 428, 378 A.2d 370 (1977), citing Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1936) (CARDOZO, J.). The lower court also has limited rights to sua sponte correct formal or substantial errors in the sentencing order. See 42 Pa.C.S.A. § 5505; Pa.R.A.P. 1701; Pa.R.Crim.P. 1410; Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970). Here, the lower court did not choose to change or correct its more lenient signed sentencing order, and the Commonwealth, aggrieved by that order, chose not to petition for its modification. We should not intervene where the lower court acted in a matter within its discretion and the aggrieved party has not complained.

Appellant’s challenge to the prison authorities’ recording of sentence does not place before this Court the issue, addressed by the majority, of the discrepancy between the signed judgment of sentence and the oral colloquy. Rather, appellant’s contention is essentially the same as that in Commonwealth ex rel. Woods v. Howard, supra. There a lower court announced a series of consecutive sentences at the oral colloquy, but signed a judgment of sentence omitting mention of their consecutive nature, thus reducing them to concurrent terms. The prison authorities, however, attempted to hold Woods beyond the concurrent terms. Woods challenged the prison authorities’ action by a habeas corpus petition and obtained relief in our Court. 249 Pa.Superior Ct. 428, 378 A.2d 370 (1977). Here, appellant challenges not the prison authorities attempt to hold him, but their recording of his sentence on the “Initial Sentence Status Report.” The bottom of that form declares in boldface type, “Please check this report carefully. If you have any questions or corrections, see your Records Officer.” We have no indication on this record that appellant contacted his records officer or otherwise pursued or exhausted his administrative remedies. To conserve judicial resources and to prevent the circumventing of appropriate lower authorities, an appellate court will not review matters that have not been addressed to those lower authorities. See, e.g., Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Accordingly, we should deny appellant’s request that we order correction of the prison authorities’ records, without prejudice to his right subsequently to pursue his contentions in the appropriate forum.

      . In several cases where certified law students have served as primary counsel for defendants, claims were made that representation by a student who was not a licensed attorney violated the defendant’s right to counsel. See: Annotation, Propriety and Effect of Law Students Acting as Counsel in Court Suit, 3 A.L.R. 4th 358 (1981) and cases cited therein.

      . Before imposing sentence, the court said:
      I will consider that each one of the crimes is separate and distinct. 1 will consider the others peripheral and ancillary crimes that go with the commission of a crime, such as terroristic threats and maybe assaults as ancillary to the principal crimes. The principal crimes here, though, are robberies, four robberies, three rapes, three involuntary deviate sexual intercourses, and one burglary, plus the use of a weapon, which I will also recognize in my sentence.
      For the four robberies—and before I impose them specifically on each Bill, it is the intention of the Court to sentence the defendant for the four robberies to 10 to 20 years on each one of them, and I will let those robberies run concurrently with one another. I will also impose a sentence on the three rapes, the maximum sentence I will impose on the three rapes, 10 to 20. The rape charges of rape sentences will run concurrently with one another but consecutive to the robbery charges.
      There are three involuntary deviate sexual intercourses. I will impose a sentence on each of those of 10 to 20, and they will run consecutive to the sentence that I have imposed on robbery and on the three rapes.
      I will impose a sentence on burglary of 7 to 20, and I will direct that that be served consecutively to the other sentence that I have imposed.
      On the use of the weapon I will sentence the defendant from 1 to 2 years, and that sentence also will run consecutively to the others.
      So I have in my computation 38 to 82. Is my computation correct?
      [ASSISTANT DISTRICT ATTORNEY]: Yes.
      [DEFENSE COUNSEL]: Yes. (Emphasis added.)

        The court then rendered sentence, reading through each of 24 charges (charges of trespass, indecent assault, and firearms offenses had been nol prossed) and imposing sentence thereon, consistent with his statement of intent. Summarizing his sentence, the court repeated the aggregate three times:
      The aggregate sentence is repreated [sic]. That’s 38 minimum and 82 maximum.
      Our ultimate sentence here aggregates to 38 minimum, 82 maximum.
      I have just imposed a sentence upon you aggregating no less than 38 years, no more than 82.

      . Pa.R.Crim.P. 1406 provides as follows:
      (a) Whenever more than one sentence is imposed at the same time on a defendant, or whenever a sentence is imposed on a defendant who is incarcerated for another offense, such sentences shall be deemed to run concurrently unless the judge states otherwise. (Emphasis added.)


author: CIRILLO, Judge: HOFFMAN, Judge,

text:
    456 A.2d 188
    COMMONWEALTH of Pennsylvania v. Kenneth QUARLES, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 13, 1980.
    Filed Jan. 28, 1983.
    Petition for Allowance of Appeal Denied May 16, 1983.

      Paul Messing, Assistant Public Defender, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   CIRILLO, Judge:

In the instant case, testimony revealed that appellant met with Ivy Crossland, the victim, on April 18, 1979, to discuss an outstanding debt. An argument ensued, appellant walked away from Mr. Crossland, then turned and approached him with a knife, approximately 12 inches in length, and proceeded to slash Mr. Crossland’s neck. Mr. Crossland, wounded, came upon a police car and requested assistance, directing the officers to appellant’s residence. The officers came upon the appellant attempting to throw away the weapon. The officers thwarted appellant’s attempt, and took appellant and weapon into custody.

On September 7, 1979, appellant was found guilty in a nonjury trial of aggravated assault, recklessly endangering another person, and two counts of possessing an instrument of crime. Following the denial of post-trial motions and the imposition of sentence, appellant took this appeal. Because appellant challenged the effectiveness of trial counsel and was represented on the appeal by counsel from the same office, we remanded the matter for the appointment of new counsel. Commonwealth v. Quarles, 284 Pa.Super. 473, 426 A.2d 145 (1981). Counsel was appointed, and new briefs were filed. This case is now properly before us.

Appellant contends that trial counsel was ineffective in failing to challenge his jury waiver colloquy in post-trial motions. In reviewing allegations of ineffective assistance of counsel, “our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). However, “[i]t is only when the claim which was forgone was of arguable merit that we must make an' inquiry into the basis for post-trial counsel’s decision not to pursue the matter.” Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977). Thus, we must first determine whether appellant’s jury trial waiver was indeed defective.

Before a defendant may waive his right to a jury trial, Pa.R.Crim.P. 1101 requires the judge to ascertain in an on-the-record colloquy whether the waiver is knowing and intelligent. The instant colloquy was as follows:

[Public Defender]: You understand, do you not, [appellant], that under the Constitution and under the law you have an absolute right to a trial by jury? Do you understand that sir?
[Appellant]: I understand.
[Public Defender]: That, of course, means that you and your lawyer would have a right to select from a panel of Philadelphia voters, 12 people to sit on a jury who would be charged with determining whether you were guilty or not guilty. Do you understand that?
[Appellant]: Yes, sir.
[Public Defender]: Before the jury was seated, you would have the right to ask the Court to exclude any panel member because he was biased or prejudiced, and you would have the right to have seven panel members excluded simply because you didn’t want them to sit on your jury. Do you understand that?
[Appellant]: Yes.
[Public Defender]: If anyone of those 12 people decided you were not guilty, the case would result in a mistrial and the Commonwealth could try you again. Do you understand that?
[Appellant]: Yes.
[Public Defender]: Now, the Judge, of course, would have to apply the same standards that the jury would have to apply, and the same privileges, rights, regulations, and procedural safeguards that apply in a jury trial also apply in a trial before [the trial court]. Do you understand that?
[Appellant]: Yes.
[Public Defender]: Has anybody forced or threatened or coerced or compelled you in any way to give up your right to a jury trial and have your case submitted to [the trial court] on a waiver?
[Appellant]: No.
[Public Defender]: Are you satisfied with my representation as your lawyer?
[Appellant]: Yes.
[Public Defender]: We’ve discussed this case; had we not?
[Appellant]: Yes.

(N.T. September 7, 1979, at 4-6).

Appellant contends that the colloquy is defective because he was never informed that the jury must find him guilty beyond a reasonable doubt. Before a knowing and intelligent waiver can be made, a defendant must fully comprehend the significance of the right he is waiving. In a jury trial waiver, the defendant must be aware of the “essential protections inherent in a jury trial as well as the consequences attendant upon a relinquishment of those safeguards.” Commonwealth v. Morin, 477 Pa. 80, 85, 383 A.2d 832, 834 (1978).

In applying this ratio decidendi to the facts at bar, we fail to see the defect in the lower court’s colloquy. While we wholly agree with the proposition that in a jury waiver colloquy a defendant must be informed of the essential protections in a jury trial as well as the consequences attendant upon a relinquishment of those safeguards, Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978), we refuse to find the colloquy in the instant case defective for failing to inform appellant that the jury must find him guilty beyond a reasonable doubt. Therefore, we affirm the judgment of sentence.

By definition, a waiver is a relinquishment of a right or remedy. Under the instant fact pattern, the appellant never relinquished his right to have a factfinder determine his guilt beyond a reasonable doubt. Appellant merely relinquished his right to have a jury as a factfinder as opposed to a judge. The requirement that the Commonwealth convince the factfinder that a defendant is guilty beyond a reasonable doubt is not unique to a jury trial; this is the identical burden of proof that is applied in a bench trial.

In Commonwealth v. Pollard, 288 Pa.Super. 20, 430 A.2d 1192 (1981), this Court by Judge Brosky held that a trial court need not define the term beyond a reasonable doubt in a jury waiver colloquy. The court continued that the only essential ingredients which a defendant must be advised of are that the jury would be chosen from his community, that the verdict would have to be unanimous and that the defendant is allowed to participate in the selection of the jury panel.

Judge Brosky reasoned that the defendant has not waived any rights regarding the burden of proof and, further, that the judge as trier of fact is bound by the same legal principles that bind a jury concerning the burden of proof to be applied, citing Commonwealth v. Henderson, 450 Pa. 122, 298 A.2d 891 (1973). Contrary to the dissent’s position, we believe that this reasoning equally applies to the case at bar.

This proposition was unequivocally expressed to the appellant in his colloquy, wherein it said:

Now, the judge, of course, would apply the same standards that the jury would have to apply, the same privileges, rights, regulations and procedural safeguards that apply in a jury trial apply in a trial before the court. Do you understand that?
Yes. (Appellant).

The dissent relies upon the holding in Morin, in which it was stated that a defendant in a jury waiver colloquy must be informed that every member of the jury must be convinced, beyond a reasonable doubt, of the accused’s guilt. I believe that this reliance is misplaced.

The Supreme Court of Pennsylvania in Commonwealth v. Greene, 483 Pa. 195, 394 A.2d 978 (1978), decided subsequently to Morin, held as follows:

The essential ingredients basic to the concept of a jury trial are the requirements that the jury be chosen from members of the community (the defendant’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.

Id., 483 Pa. at 196, 394 A.2d at 918.

. It seems obvious that had the Supreme Court felt that the burden of proof was germane to the defendant’s understanding of a jury trial waiver they certainly would have included such in the Greene Opinion. A thorough reading of Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), the case which Morin cites for its authority, lends credence to our belief that the language in Morin, concerning burden of proof, is surplusage with respect to the elements which Williams considered essential to an effective jury trial waiver colloquy. Nowhere in the original Williams Opinion does the Supreme Court state that a defendant must be advised in a jury waiver colloquy that the jury must find him guilty beyond a reasonable doubt.

We are unwilling to find that the trial court’s failure to include this surplusage warrants a reversal of an otherwise valid conviction. We refuse to acquiesce in the expansion of criminal rights which culminate in unsound excesses, which impinge upon our citizenry’s rights to effective law enforcement and speedy disposition of criminal cases.

In Commonwealth v. Sanders, 299 Pa.Super. 410, 445 A.2d 820 (1982), this court stated:

Nothing in the Williams decision indicates that the precise language used in Williams must be read to the accused as long as the essential ingredients of a jury trial are explained to him ...

Moreover, the instant case is factually distinguishable from Morin in which the defendant was not advised in his colloquy of any of the rights he would be relinquishing by electing to be tried by a judge. See also, Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978) (defendant was not advised that the jury verdict must be unanimous).

Since the burden of proof remains the same regardless of whether one is tried by a judge or a jury, trial counsel should not be deemed ineffective for failing to raise this meritless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Additionally, the appellant asserts that the trial court erred in refusing to admit into evidence a prior conviction of the victim Ivy Crossland, which occurred some 22 years before the incident in question. We find this contention wholly frivolous and without merit.

In Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971), the Supreme Court by Justice Barbieri cogently expressed the law on the relevancy of prior convictions in holding that whenever a defendant raises the issue of self-defense, he may enter evidence of previous arrests, convictions or violent acts of the victim if they are of the same nature, not too distant in time, and the accused establishes prior knowledge of the victim’s acts. This is deemed relevant as it tends to show that the victim’s prior aggressiveness created a reasonable fear in the defendant’s mind for his own safety. The decision to admit that character evidence, however, rests in the sound discretion of the trial judge, and may not be reversed except for an abuse of this discretion.

We believe that this conviction was too attenuated. We are unable to find any appellate decision in Pennsylvania which has ever upheld the admissibility of a conviction which was more than three years removed. Commonwealth v. Beck, 485 Pa. 475, 402 A.2d 1371 (1979). Moreover, the appellant has not alleged knowledge of this conviction. Commonwealth v. Horne, 479 Pa. 496, 388 A.2d 1040 (1978); Commonwealth v. Morris, 273 Pa.Super. 477, 417 A.2d 748 (1979). See also, Federal Rules of Evidence, No. 609(b), 28 U.S.C.A., which statutorily limits evidence of prior convictions to ten years.

Having found each of the appellant’s contentions without merit, we are unable to find trial counsel ineffective. Accordingly, we affirm the judgment of sentence.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge,

dissenting:

Because I cannot agree with the majority that informing a defendant that he must be found guilty beyond a reasonable doubt amounts to mere “surplusage,” I dissent.

Pa.R.Crim.P. 1101 requires the lower court to ascertain from the defendant upon the record whether he is knowingly and intelligently waiving his right to a jury trial. The majority “wholly agree[s] with the proposition that in a jury trial waiver colloquy a defendant must be informed of the essential protections in a jury trial as well as the consequences attendant upon a relinquishment of those safeguards.” Majority Op. at 191. Those safeguards are “the requirements that the jury be chosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.” Commonwealth v. Greene, 483 Pa. 195, 196, 394 A.2d 978 (1978). In reviewing the jury waiver colloquy held below, the majority appears more concerned that certain words are mentioned rather than their concepts understood. Such a mechanistic approach misperceives the purpose of the Rule 1101 colloquy. I fail to see how a defendant can fully understand the essential protections afforded by the unanimity requirement when he is not informed of the standard upon which the jury must agree. The most fundamental protection of our jury system is that each juror must be convinced beyond a reasonable doubt that an accused is guilty of the crime charged. Yet the majority finds such information “surplus-age.” I believe that the concepts of unanimity and reasonable doubt are so intrinsically intertwined and basic to an understanding of a jury trial that a lower court cannot possible ascertain whether a waiver was knowing and intelligent without first informing the defendant of both concepts. This basic interdependence was acknowledged by our Supreme Court when it enumerated the essential protections of a jury trial as

that the jury be composed of one’s peers chosen from members of the accused’s community, that the accused has the right to participate in the selection of the jury, and that every member of the jury must be convinced, beyond a reasonable doubt, of the accused’s guilt.

Commonwealth v. Morin, 477 Pa. 80, 85, 383 A.2d 832, 834 (1978) (emphasis added). The failure of the lower court to inform appellant of the reasonable doubt standard precluded it from ascertaining whether appellant’s waiver was knowing and intelligent, and thus, mandates, reversal.

Moreover, the failure to inform appellant of the reasonable doubt standard is particularly critical in this case because the unanimity requirement was explained to appellant as:

If anyone of those 12 people decided you were not guilty, the case would result in a mistrial and the Commonwealth could try you again. Do you understand that?

(N.T. September 7, 1979 at 5) (emphasis added). This language misrepresents the burden of proof in a criminal case by implying that the burden was upon appellant to prove to at least one of the jurors that he was not guilty. Appellant had no obligation to prove his innocence or to make the jury “decide” that he was not guilty. The Commonwealth was required to prove his guilt beyond a reasonable doubt to each and every juror. A juror need only have a reasonable doubt as to appellant’s guilt to preclude conviction. He need not be convinced that appellant was not guilty of the offense charged. Thus, as a result of the court’s failure to inform appellant of the reasonable doubt standard, and the misleading colloquy concerning unanimity, appellant was left without a proper understanding of a jury’s role in a jury trial. Accordingly, I would hold that his waiver was not knowing and intelligent and that counsel was ineffective in failing to raise the issue.