author: CERCONE, Judge:

text:
    546 A.2d 1236
    COMMONWEALTH of Pennsylvania v. Joyce EARLY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 16, 1988.
    Filed Aug. 19, 1988.

      Francis M. Socha, Harrisburg, for appellant.
    Deborah S. Essis, Assistant District Attorney, Harrisburg, for Com., appellee.
    Before OLSZEWSKI, WATKINS and CERCONE, JJ.
   CERCONE, Judge:

This appeal is from the denial by the Court of Common Pleas of Dauphin County of appellant’s petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C. S.A. § 9541 et seq. The lower court denied appellant’s PCHA petition without a hearing on January 6, 1988.

On February 13, 1986, appellant was found guilty following a jury trial of a single count of robbery. Appellant did not file post-trial motions, and she was sentenced on March 12, 1986 to a term of imprisonment of not less than five nor more than ten years. The sentence imposed represented a mandatory minimum because of the visible possession of a firearm during the robbery. See 42 Pa.C.S.A. § 9712. Thus, a motion to modify sentence was not filed; nor was there an appeal therefrom.

The facts upon which this action arose were stated by the PCHA court below as follows:

On the morning of September 23,1986, the Paxton Pub, located at 1619 Paxton Street in the City of Harrisburg, was robbed by a woman wielding a handgun. The victim, Karen Arnold, testified that she reported to work as a bartender at approximately quarter of eleven and saw a girl sitting at the bar. Mrs. Arnold was engaged in conversation with the girl about two minutes when the girl pulled out a gun and demanded all the money. One hundred and fifty dollars ($150) in paper currency was taken. Mrs. Arnold was able to recount a detailed physical description of the assailant (N.T. 11-12) and was able to select petitioner’s photograph out of 16 different pictures (N.T. 14, 25). She identified petitioner, at the photo array and at trial, without hesitation. (N.T. 15, 25). The next Commonwealth witness, Gary Lanke, testified that he was the manager of the Paxton Pub on the day of the robbery. He indicated that a woman came in the bar and asked to use the restroom. She then ordered a draft beer from him at the bar across from the cash register. At this time, Mrs. Arnold reported for work and Mr. Lanke returned to the kitchen, where he remained until after the robbery. Mr. Lanke also identified petitioner at the photo array and at trial. (N.T. 20-21).

On appeal, appellant makes several allegations of ineffective assistance of counsel. She also contends that the lower court erred in not granting an evidentiary hearing on the allegations of ineffectiveness contained in the PCHA petition. We will address each of appellant’s arguments.

Appellant’s first contention is that trial counsel was ineffective for failing to call a known alibi witness in her defense at trial. The lower court addressed this argument in its opinion and noted that the witness to whom appellant refers, Mary Bellamy, was subpoenaed as a witness, but failed to appear. In addition, the lower court observed that appellant had testified that she had talked to Mrs. Bellamy “about something to ten when I started talking to her and didn’t finish talking until after ten____” The lower court reasoned that since the robbery did not occur until approximately eleven a.m., Mrs. Bellamy could not have testified as to appellant’s whereabouts at the time of the robbery. Thus, the lower court found no ineffective assistance of counsel in the failure to call Mrs. Bellamy.

Appellant argues that the lower court’s reasoning is erroneous because the times referred to in the proposed alibi notice and in the testimony of the Commonwealth witness are approximate times. In addition, Commonwealth witness Karen Arnold indicated that when she reported to work at approximately 10:45 a.m., she saw a woman whom she identified as appellant already at the bar. Thus, appellant contends, the testimony of Mrs. Bellamy would have been relevant to establishing her whereabouts at the time of the robbery.

We note first that claims of ineffectiveness of counsel are examined under a well-established standard.

When reviewing the effectiveness of counsel, we determine first whether the underlying claim has merit. If it does, we then ask whether counsel’s handling of the matter had some reasonable basis designed to effectuate his client’s interests. Counsel is not ineffective unless there was no reasonable basis for the action, and counsel may not be faulted for failing to take baseless or merit-less action. Finally, a finding of ineffectiveness requires a showing that the course of action pursued by counsel was prejudicial to the defendant.

Commonwealth v. Blagman, 350 Pa.Super. 367, 371, 504 A.2d 883, 885 (1986) (citations omitted); see also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Appellant carries the burden of proving his counsel’s ineffectiveness. Commonwealth v. Durah-el, 344 Pa.Super. 511, 496 A.2d 1222 (1985).

Appellant cites Commonwealth v. Polk, 347 Pa.Super. 265, 500 A.2d 825 (1985), in support of her first allegation of ineffectiveness of trial counsel. In Polk, the court set forth the standard for determining the ineffectiveness of counsel for failure to call or investigate witnesses. Under that standard, appellant must show (1) the identity of the witnesses, (2) that counsel knew of the existence of the witnesses, (3) the material evidence that the witnesses would have provided, and (4) the manner in which the witnesses would have been helpful to his cause. Id., 347 Pa.Superior Ct. at 273, 500 A.2d at 829.

In our opinion, appellant’s argument does not satisfy the requirements of this standard. Although she has demonstrated the first three requirements, appellant has not shown the manner in which Mrs. Bellamy’s testimony would have been helpful to her cause. Appellant has not argued that Mrs. Bellamy would have testified that appellant was with her at approximately 10:45 a.m. on the date of the robbery when a woman identified as appellant was observed at the robbery site. Nor has she argued that it would have been impossible for her to have traveled from the place where she spoke with Mrs. Bellamy to the robbery site in the time between when appellant spoke with her and the time of the robbery. It has been held that failure to call an alibi witness is not ineffective assistance of counsel where it is not determined that the witness is able to say unequivocally that the alleged perpetrator was with the witness at the precise time of the crime. Commonwealth v. Wallace, 347 Pa.Super. 248, 500 A.2d 816 (1985). In addition, appellant has the burden of proving allegations of ineffective assistance of counsel. Commonwealth v. Durah-el, supra. We find appellant has not sustained her burden on this allegation of ineffectiveness of counsel.

Appellant next argues that trial counsel was ineffective for failing to object to references made by two Commonwealth witnesses to prior photographic identifications of her. At the trial, Commonwealth witness Dennis Woodring, a police officer in the criminal investigation division of the Harrisburg police department, testified that he was assigned to the investigation of the instant robbery. As part of his investigation, he assembled a photo array of sixteen photographs, including appellant’s. He then had Karen Arnold, the bartender at the Paxton Pub, view the photographs. Mr. Woodring testified at trial that Ms. Arnold selected appellant’s photograph “without hesitation” as the robber of the Paxton Pub. Ms. Arnold also testified at trial that she viewed a photographic array of suspects and identified appellant as the perpetrator of the robbery.

It is well established that with limited exceptions, “the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge.” Commonwealth v. Reiss, 301 Pa.Super. 96, 447 A.2d 259 (1982) (quoting Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972)). Appellant contends that the jury could have inferred that she had engaged in prior criminal activity on the basis of the testimony concerning the photographic array. Therefore, she contends, counsel was ineffective in failing to object to the testimony at trial relative to the photographs.

The standard for reviewing trial testimony of this type was well stated in Commonwealth v. Krasner, 285 Pa.Super. 389, 427 A.2d 1169 (1981):

Although it is well-settled that testimonial reference to a photograph may constitute reversible error if a jury could reasonably infer therefrom prior criminal activity on the part of the accused, Commonwealth v. Carlos, 462 Pa. 262, 341 A.2d 71 (1975); Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972), it is equally well-established that not every reference to a photograph necessarily requires reversal. Id.
[T]he controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity. A mere passing reference to photographs from which a reasonable inference of prior criminal activity cannot properly be drawn does not invalidate the proceedings since there has been no prejudice as a result of the reference____ Id. 448 Pa. at 181, 292 A.2d at 375.

285 Pa.Super. at 408-09, 427 A.2d at 1178-79.

In Krasner, the prosecution had twice elicited testimony which revealed that a Commonwealth witness had identified the defendant in that case from a photographic array of six or seven photographs shown her by a state trooper. The court, in an en banc opinion, held that

the challenged testimony did not link appellant to any specific prior criminal activity. The photographs mentioned by the two witnesses were never displayed, marked, admitted or otherwise referred to at trial, nor were they characterized as “mug shots” or as “photographs from a police file.” See Commonwealth v. Smith, 454 Pa. 515, 314 A.2d 224 (1973). “In other words, aside from the fact that a police detective displayed the photograph, there was nothing else linking it to the police. It is highly unlikely that a juror would conclude from this alone that [appellant] had engaged in criminal conduct.” Commonwealth v. Carlos, 462 Pa. at 266, 341 A.2d at 73. In such circumstances, “there was nothing that should reasonably suggest to a jury that the photographs were obtained by police officials as a result of the defendant’s prior criminal activity.” Commonwealth v. Allen, 448 Pa. at 182, 292 A.2d at 376.

285 Pa.Super. at 409, 427 A.2d at 1179.

Appellant has cited Commonwealth v. Reiss, 301 Pa.Super. 96, 447 A.2d 259 (1982), in support of her position. In Reiss, supra, the Superior Court held, distinguishing Krasner, that two references in testimony and one by the court in summation to the photographic identification of the appellant constituted reversible error. However, the Pennsylvania Supreme Court reversed the Superior Court’s decision in this case, Commonwealth v. Reiss, 503 Pa. 45, 468 A.2d 451 (1983), holding that the references at trial in that case to photographs did not constitute reversible error, following Krasner. The Supreme Court concluded that the jury could have inferred that the photographs came from a neutral source, or may not even have questioned the source of the photographs. In addition, the court found that there was no basis for concluding that the jury would infer prior criminal conduct on the defendant’s part based on the number of photographs shown.

On the basis of Krasner and Reiss, we must conclude that there was no error present here in the testimony concerning appellant’s photographic identification. Consequently, trial counsel was not ineffective for failing to object to the disputed testimony.

Appellant also contends on appeal that trial counsel was ineffective for failing to object to the trial court’s charge to the jury. Specifically, appellant argues that the trial court failed to adequately instruct the jury regarding the Commonwealth’s burden of proof and the definition of robbery.

The relevant portion of the trial court’s charge to the jury is as follows:

The Defendant is charged with robbery. Robbery is to take property from someone by force or threat of force. What occurred is a classic robbery. A holdup with the gun is a robbery. You don’t have to say I’ll kill you if you don’t give me the money. If somebody pulls a gun on you and says give me the money, why the threat is implied that they have a gun in their hand. If you don’t give it to them, you don’t know what might happen.
So that is a robbery. The Defense doesn’t deny that a robbery occurred.
The issue, of course, is whether the Defendant is the one who committed the robbery.
[This] is a case of identification. No one suggests that the victim or the proprietor or [sic] are lying, but it is suggested that they could be mistaken. Well, of course, they could be. It is for you to decide. You will have to determine how they impressed you on the stand, how certain they were of their identification, what was the basis of their identification, how much time do they have to observe the Defendant ... It all depends on how you size them up, whether you believe them or not and all the things that I have just mentioned.
The burden, of course, is on the Commonwealth to prove the Defendant’s guilt, beyond a reasonable doubt. Now I didn’t say beyond all doubt. There are some jurors who would never convict anyone of anything. You have to keep the standard of reasonable doubt in its proper perspective.
Be realistic and practical as you evaluate the evidence. What is a reasonable doubt? I think it is a rather subjective thing. The Supreme Court favors a definition to the effect that it is the kind of doubt that would cause a careful, prudent person to hesitate in a matter of importance.
If you have a reasonable doubt, you must acquit the Defendant. If you do not, it is your duty to convict her.

While appellant has alleged that the charge to the jury is deficient, she has failed to provide any specific allegations of that deficiency. The trial court’s charge to the jury in a criminal prosecution will be upheld if it adequately and accurately reflects the law and is sufficient to guide the jury properly in its deliberations. Commonwealth v. Person, 345 Pa.Super. 341, 498 A.2d 432 (1985). The charge to the jury herein fully complied with this standard. Therefore, trial counsel was not ineffective for failing to object to this charge.

Appellant also claims on appeal that trial counsel was ineffective for failing to request a line-up for identification purposes subsequent to her arrest. Appellant argues that she was clearly prejudiced by trial counsel’s ineffectiveness in that, she was not identified by at least one of the Commonwealth witnesses through a photographic array until the date of the preliminary hearing. She contends that trial counsel “should have taken all reasonable steps necessary to ameliorate the suggestiveness of the pre-hearing confrontation and implication by seeking a [sic] objective line-up prior to the preliminary hearing.”

In Pennsylvania, a defendant does not have a right to a pre-trial line-up. Commonwealth v. Walker, 275 Pa.Super. 311, 418 A.2d 737 (1980). Although appellant cites Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979), in support of her position, that case holds only that where the identification of the perpetrator of a crime is legitimately at issue, a timely request for a pre-trial or pre-hearing identification procedure should be granted. Id., 485 Pa. at 25, 400 A.2d at 1293. No such motion was made in the instant case. Nor was there any requirement that counsel make such a request. See Commonwealth v. Walker, supra. Accordingly, appellant’s claim of ineffectiveness lacks even arguable merit.

Appellant’s final claim on appeal is that the lower court erred in failing to grant an evidentiary hearing on her allegations of ineffective assistance of counsel. The right to an evidentiary hearing on a PCHA appeal is provided for by statute. A hearing on a petition is required if a petition “alleges facts that, if proven, would entitle the petitioner to relief____” 42 Pa.C.S.A. § 9549(a). Although the right to an evidentiary hearing is not absolute, a hearing should be held on any issue which the PCHA court is not certain lacks merit. Commonwealth v. Heck, 321 Pa.Super. 66, 467 A.2d 896 (1983). As the above discussion indicates, we have found all of appellant’s claims of ineffectiveness of counsel to be lacking in merit. Thus, the lower court did not err in failing to grant an evidentiary hearing.

Having addressed all of appellant’s contentions, we affirm the order of the lower court dismissing appellant’s PCHA petition.

ORDER AFFIRMED.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    546 A.2d 1241
    COMMONWEALTH of Pennsylvania v. Gregory Brent HARNER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 14, 1988.
    Filed Aug. 15, 1988.

      Elizabeth J. Maitland and Edward J. McCormick, III, Littlestown, for appellant.
    Roy A. Keefer, Assistant District Attorney, Gettysburg, for Com., appellee.
    Before CIRILLO, President Judge, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

Craig Rice, a student at Gettysburg High School, disappeared after school on November 12, 1985. His body, in various stages of decomposition, was found in a wooded area, near a stream, on March 28, 1986. Gregory Brent Harner, a classmate, was subsequently arrested and charged in separate counts of the same information with first degree murder, third degree murder, voluntary manslaughter committed in the heat of passion, voluntary manslaughter committed in the unreasonable belief that killing was justifiable, and involuntary manslaughter. The jury which heard the evidence found Harner guilty of voluntary manslaughter in the unreasonable belief that the killing was justifiable. Post-trial motions were denied, and Harner was sentenced to serve a term of imprisonment for not less than five years nor more than ten years. On direct appeal, Hamer contends that the evidence was insufficient to sustain the jury’s verdict, that the trial court committed error in several evidentiary rulings, and that trial counsel rendered ineffective assistance. We find no merit in these arguments and affirm the judgment of sentence.

Appellant’s principal argument is that there was no evidence that he had killed Rice in the unreasonable belief that killing was justified. The Commonwealth agrees that there was no such evidence but argues that there was sufficient evidence to show murder of the first or third degree and that the jury’s verdict, therefore, was proper as an exercise of its mercy dispensing power. Appellant counters that recent decisions of the Supreme Court have deprived juries in homicide cases of any mercy dispensing power. He argues that in the absence of evidence to support the jury’s verdict he is entitled to be discharged. We reject this argument.

The law in this Commonwealth has always been that a conviction for voluntary manslaughter will be upheld as long as the evidence is sufficient to show that the elements of murder were present. Thus, in Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726 (1970), the Supreme Court said:

New propositions are better established in the criminal law than the doctrine that where the evidence would be sufficient to support a conviction of murder, the return of a verdict of voluntary manslaughter is strictly within the jury’s prerogative even in the absence of provocation and passion.
As the cases enunciating the doctrine make clear, all that is required before a conviction of voluntary manslaughter in the absence of passion and provocation will be allowed to stand is that the evidence be such that the jury could have found present every element of murder.
In short, the rationale of the doctrine under discussion is found in a combination of two factors: a realistic appreciation of the humanity of those who sit on our juries, and the legal concept that voluntary manslaughter is by definition a lesser offense than murder but one included within a murder indictment.

Id., 439 Pa. at 356-359, 266 A.2d at 731-732. See also: Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977); Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142, cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974); Commonwealth v. Hill, 444 Pa. 323, 281 A.2d 859 (1971); Commonwealth v. Frazier, 420 Pa. 209, 216 A.2d 337 (1966). There is no reason why the rule should be different when voluntary manslaughter occurs because there is an unreasonable belief that killing is justified.

In Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978), the Supreme Court held that a defendant in a murder trial was entitled, upon request, to an instruction on unreasonable belief voluntary manslaughter. This rule, however, was short-lived. In Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983), the Supreme Court overruled Manning and held that a defendant was entitled' to an unreasonable belief voluntary manslaughter charge only upon request “where the offense has been made an issue in the case, and the trial evidence reasonably would support such a verdict.” Id., 502 Pa. at 443, 466 A.2d at 1332-1333 (footnote omitted). The Court reasoned:

Simply because unreasonable belief voluntary manslaughter sometimes may arguably be a lesser-included offense of murder is not a valid reason upon which to base a requirement that a trial judge must instruct a jury on an offense extraneous to the proof at trial. Such requirement only serves to confuse juries and invite them to base their verdicts on whim and caprice. Whatever the merits, or current vitality of the theory that due process requires an instruction on common law voluntary manslaughter in every murder case, we see no reason to extend that theory to require instruction on imperfect self-defense where there is no evidence to support it. Further, invitations to jury confusion or irrationality are unnecessary. Such invitations would be offered here if the jury had been instructed on “unreasonable belief” voluntary manslaughter when the proof at trial did not rationally support a verdict on it.

Commonwealth v. Carter, supra, 502 Pa. at 442-443, 466 A.2d at 1332 (footnote omitted).

Appellant argues that with its decision in Carter, the Supreme Court overruled the line of cases holding that a jury has a mercy dispensing power which allows it to reduce a proven murder to voluntary manslaughter. It follows, he suggests, that a conviction for unreasonable belief voluntary manslaughter which is unsupported by the evidence cannot be sustained by evidence of murder. We do not so interpret Carter.

In the instant case, the prosecuting attorney had specifically charged appellant, inter alia, with “unreasonable belief” voluntary manslaughter. At trial, after all evidence had been received, the trial court inquired of both counsel whether any charges were to be withdrawn. Defense counsel took the position, as he had done earlier in the trial, that the charge of “unreasonable belief” voluntary manslaughter should not be withdrawn and that the jury should be instructed thereon. Consequently, the jurors were so instructed. They were told that guilty of “unreasonable belief” voluntary manslaughter was a possible verdict which they could return. Appellant cannot complain that the trial court instructed the jury as requested or that the jury returned a verdict which, according to the court’s instructions, was a permissible verdict.

The decision in Carter does not require a different result. That decision held only that a defendant is not entitled to an instruction on “unreasonable belief” voluntary manslaughter unless such a verdict would find support in the evidence. In the instant case, however, appellant had been charged specifically with “unreasonable belief” voluntary manslaughter, did not want the charge withdrawn, and requested the trial court to instruct the jury thereon. Carter did not hold, at least under these circumstances, that a jury could not return a verdict finding the defendant guilty of voluntary manslaughter so long as the evidence was such that the jury could have found the defendant guilty of murder. If the elements of murder were present, a verdict of guilty of voluntary manslaughter was neither arbitrary nor unsupported. See: Commonwealth v. Hill, supra, 444 Pa. at 326, 281 A.2d at 860.

Therefore, we must examine the evidence to determine whether it was sufficient to support a finding of murder. In making this examination, we determine whether, “viewing all of the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[] [of murder] was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). Moreover, “[w]hen conflicts and discrepancies arise, it is within the province of the jury to determine the weight to be given each testimony and to believe all, part, or none of the evidence as [it] deem[s] appropriate.” Commonwealth v. Verdekal, 351 Pa.Super. 412, 419-420, 506 A.2d 415, 419 (1986).

When Rice’s body was found, police conducted an upstream search on the theory that the body may have been carried downstream during the winter. In a shed on land adjoining the Harner residence, where appellant was shown to have played, police found a white garbage bag containing bloodstained clothing. A similar bag, sans clothing, was later found in the trunk of a Harner vehicle. Analysis of the bloodstains on the clothing established that the blood was human and had come from a type A secreter. Rice had been a blood type A secreter. Hair found on the clothing was similar to hair samples taken from appellant. Partially concealing the clothing had been a cardboard box which, by virtue of its markings, was traced to the Harner residence, where it had served as a container for Mustang automobile parts. The cardboard box contained bulletholes, and there was evidence that it had been used for target practice by members of the Harner family prior to Rice’s disappearance. Although the clothing could not be specifically traced to Hamer, the trousers were shown to be the same size, style, and lot number as other trousers worn by appellant. There was also testimony that the shirt was similar to a shirt which had been worn by appellant.

Rice’s death had been caused by a gunshot wound to the head. The bullet had been fired from a Colt .22 caliber revolver registered to Harner’s father. This gun was available to Greg Hamer. Indeed, appellant, himself, conceded that he had had the gun in his car several days before Rice’s disappearance. Ballistic tests demonstrated unequivocally that the revolver had been the murder weapon.

On November 20, 1985, Rice’s wallet had been found in a trash receptacle in an area where appellant regularly attended class.

Appellant had been the last person to see Rice alive. After school on the day of his disappearance, Rice had been a passenger in appellant’s car. Appellant’s initial version of the incident was that he and Rice had been followed by another car, which had pulled in behind him when Harner left Rice at a Honda shop.

Shortly before trial, appellant gave the representatives of the Commonwealth a different statement. In this statement he said that he had loaned his father’s gun to a friend who wanted to teach Rice a lesson. He also said that he had been present when Rice was killed. On the farm where Rice’s body was subsequently discovered, he had observed Rice, naked on the ground, being punished by a group of persons for being a “snitch.” A member of the group, whom appellant identified, had allegedly shot Rice in the back of the head, had castrated him on the left side, and had thrown a bag containing clothing and the gun at appellant’s feet. Appellant had retrieved the gun and discarded the bag of clothing. He had not gone to the police, he said, because he didn’t think they would believe his story. When Rice’s body was found, the left side of his body was so badly deteriorated that appellant’s description of partial castration could not be verified or contradicted. Other parts of appellant’s version, however, were rebutted by Commonwealth witnesses.

The Commonwealth’s evidence, although circumstantial, was sufficient to support a finding that Rice had been murdered by appellant. The Commonwealth’s evidence, if believed, showed that Rice had been killed by a bullet to the back of the head, which had been fired from appellant’s gun, at a place and under circumstances with which appellant had been familiar. The evidence of appellant’s conduct thereafter was sufficient to permit an inference of guilty knowledge on the part of appellant. Because the evidence was sufficient to support a finding that Rice had been murdered by appellant, the trial court properly refused to arrest judgment on the jury’s verdict finding appellant guilty of voluntary manslaughter.

We reject appellant’s' contention that trial counsel was ineffective for allowing the “unreasonable belief” voluntary manslaughter charge to be given to the jury. This was a matter of trial strategy, and was designed to serve appellant’s interests by establishing a “safety net.” In view of our finding that sufficient evidence was presented to convict appellant of murder, trial counsel was not ineffective when he asked the trial court to instruct the jury regarding a possible finding that appellant had committed the lesser offense of voluntary manslaughter.

Appellant contends that the trial court erred by allowing the bloodstained clothing to be received in evidence. Prior to the start of trial, appellant made an oral motion in limine to exclude the clothing. The following occurred:

THE COURT: What about the in limine motion? Do you want to make what would amount to an offer?
MR. HARTMAN [The District Attorney]: I’ll make an offer, Your Honor. Commonwealth would indicate that first of all the items of clothing are blood stained and that the criminologist called I believe would be Donald Bloser, criminologist, who will indicate that the blood on the clothing was type A. It is anticipated at trial that there will be stipulations about some of this but if necessary Dr. Kaguyutan would indicate that the defendant’s blood is type A and Donald Bloser would testify that the decedent’s blood was type A because he was a type A secreter.
Further the search that produced the clothing then moved onto a search of the premises. There was a consensual search of Greg Harner’s personal clothing closet and Trooper Ackerman if called would testify that in that closet he — I am sorry I stand corrected. There was a warrant obtained for that search of the closet. It was a warrant obtained and in searching Greg Harner’s closet there were jeans that were the same size as the two pair of jeans that were in the bag.
Now keep in mind that the evidence would show that the bag contained one pair of jeans size 29 by 34 and one pair of jeans size 31 by 34. Ackerman would testify that in Greg Harner’s closet there were jeans 29 by 34 and 31 by 34. More importantly there was one pair of jeans in the bag that was the exact same make, style and lot number as a pair of pants hanging in Greg Harner’s closet.
Further that the type shirt is a plaid long sleeve, western style flannel shirt with pearl snaps and that there were more than one such plaid western style, long sleeve, flannel shirts hanging in Greg Harner’s closet with pearl snaps.
The evidence would also develop that if called the officials for United Parcel Service would indicate that the piece of cardboard that Mr. Haynes had described wedged between the bag and the flooring of the structure was in fact cardboard boxing that had been ordered by Greg Harner delivered to and signed for by Carol Harner containing an auto part for a Mustang. That there was a smear of blood on the cardboard which also proved positive for type A blood.
When questioned about these matters Greg Harner indicated that he had never hurt himself seriously in the area of this structure except once when he cut his finger and it bled moderately and that he had personally never shot any target in that area with any cardboard. He also personally admitted that the boxing material or cardboard material had been ordered by him and did contain a Mustang Ford product part. That would be our offer, Your Honor.
THE COURT: All right, Mr. Gerber.
MR. GERBER [Defense counsel]: With respect to the clothing, I think that the fact is that it was also the size of the deceased Craig Rice, that the jeans in question are the kind of jeans that can be bought at any store any time, that the shirt is equally common, so are the white socks, that a lot of people have type A blood and that when you look at the trousers, and we have got photographs of the pictures of the trousers, that it is our position that the probative value of introducing this clothing into evidence is far outweighed by the prejudice that it could cause to the Defendant.
THE COURT:, What is the prejudice? You’re not arguing that this is inflammatory?
MR. GERBER: I certainly am. When you look at the trousers, Judge Spicer—
THE COURT: Perhaps I ought to see the trousers. There’s a different test of admissibility with inflammatory material than with ordinary evidence. So what’s inflammatory about the trousers?
MR. GERBER: Judge, I respect there is a different test. I am responding simply by saying that, number one, the trousers involved, although the size of Greg Harner, which isn’t denied, they are also the size of Craig Rice and may be a multitude of other people that age when you look at a 29 by 34, 31 by 34 blue jeans. The mere fact that my client wore that size and the mere fact that the deceased wore that size in no way means that they are our client’s clothing, and I think it’s a pretty difficult leap to put those pants in my client’s closet just because they were found out on the Gebhart property.
Secondly, with regard to the shirt, although the shirt may be like shirts that my client has, they can’t say that that shirt is my clients [sic] and it’s a very common shirt that’s sold in all forms of clothing stores everywhere. The white socks the same way. Without going into the inflammatory issue, I respectfully submit that the commonality of the clothing and the fact that both boys have type A blood is such that this evidence with regard I am talking to the shirt and the trousers and the socks should be held inadmissible.
THE COURT: I think it important to distinguish between admissibility and sufficiency. Certainly these things are admissible and I so rule. Let’s take a ten minute recess.

“ ‘Evidence is relevant if it tends to make more or less probable the existence of some fact material to the case, it tends to establish facts in issue or when it in some degree advances the inquiry and thus has probative value.’ ” Commonwealth v. Delligatti, 371 Pa.Super. 315, 332, 538 A.2d 34, 42 (1988), quoting Commonwealth v. Shain, 324 Pa.Super. 456, 462-463, 471 A.2d 1246, 1249 (1984). “[I]t is not necessary that each piece of evidence be connected to the appellant beyond a reasonable doubt. It is enough that a combination of evidence implicates him in the crime beyond a reasonable doubt.” Commonwealth v. Mangus, 229 Pa. Super. 29, 33, 323 A.2d 398, 400 (1974). See also: Commonwealth v. McIntyre, 451 Pa. 42, 301 A.2d 832 (1973); Commonwealth v. Petrisko, 442 Pa. 575, 275 A.2d 46 (1971).

The bloodstained clothing in this case was found in a shed, which appellant was known to frequent, located in close proximity to land owned by appellant’s parents. It was partially covered by part of a cardboard box which had contained an automobile part previously delivered to appellant. The clothing was appellant’s size and was similar to other clothing which he owned. The bloodstains had been made by blood of the same type as that of the decedent. Under these circumstances the clothing was a relevant fact to be considered by the jury. The fact that the clothing could not be traced directly to appellant (or the decedent) was a factor to be considered by the jury in determining the weight to be accorded the evidence, but it did not render the evidence inadmissible. See: Commonwealth v. Costanzo, 269 Pa.Super. 413, 418-419, 410 A.2d 324, 326 (1979). See also: Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856 (1973); Commonwealth v. Simpson, 302 Pa.Super. 287, 448 A.2d 640 (1982); Commonwealth v. Mangus, supra. The trial court did not err when it allowed the jury to consider the evidence.

Appellant's argument that Michael Cooper's testimony was improper because it permitted an inference of homosexuality is simply not warranted. Its role was described by the trial court as follows:

Certainly, the bench discussion about [Cooper’s] testimony concerned homosexuality. The jury did not hear the discussion. The testimony fell far short of suggesting anything improper. One young man removed cockles or burrs (called “chiggers” by the witness) from running shorts of another. The reason was explained. Defendant did not want the cockles or burrs in his car.
Commonwealth was precluded from arguing sexual innuendoes.
Perhaps the testimony was worthless. It did not conform to the offer. However, its affect [sic], if any, was negligible. It was only one more detail in a veritable surfeit of facts.

(Trial Court Opinion at p. 14). If Cooper’s testimony was irrelevant, it was also so insignificant as to be harmless.

The testimony of Phillip Hill, which appellant now contends was irrelevant, was not the subject of a defense objection at trial. This issue, therefore, has been waived. See: Commonwealth v. Berrios, 495 Pa. 444, 434 A.2d 1173 (1981); Commonwealth v. Kuterbach, 458 Pa. 318, 326 A.2d 283 (1974); Commonwealth v. White, 366 Pa.Super. 538, 531 A.2d 806 (1987).

Appellant’s final version of Rice’s mishap was communicated to defense counsel shortly before trial. Defense counsel thereafter communicated this information to the police and allowed appellant to be questioned by the police. Appellant, represented post-trial by new counsel, argues that his trial counsel rendered ineffective assistance by communicating his defense to the police and by permitting the police to interrogate appellant with respect thereto. The trial court disagreed and concluded that trial counsel had not been constitutionally ineffective.

In evaluating claims of ineffective assistance of counsel we utilize the following approach:

Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant. Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986), allo. denied, 514 Pa. 629, 522 A.2d 558 (1987). To meet that burden, appellant must demonstrate that 1) the issue underlying his claim of ineffectiveness is of arguable merit; 2) the course chosen by counsel had no reasonable basis designed to serve his interests; and 3) he suffered prejudice as a result of counsel’s ineffectiveness. Commonwelth v. Pierce, 515 Pa. 153, [158-160], 527 A.2d 973, 975-76 (1987); Commonwealth v. Buehl, 510 Pa. 363, 378-79, 508 A.2d 1167, 1174-75 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-5 & n. 8, 235 A.2d 349, 352-53 & n. 8 (1967).

Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). Moreover,

“[b]efore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant’s interests. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Thus, counsel’s assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis designated to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349 (1967).

Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983). See also: Commonwealth v. Garcia, 370 Pa.Super. 132, 535 A.2d 1186 (1988); Commonwealth v. Nauman, 345 Pa.Super. 457, 498 A.2d 913 (1985).

At a post-trial hearing, appellant’s trial counsel explained his reasons for allowing appellant to be questioned by police as follows:

At that time I made a decision that with a trial date two weeks away, that I had to come to the Commonwealth for two purposes. One, to get that trial date postponed so that an investigation could commence with regard to what Gregory said. The second decision I had to make was how to come to the Commonwealth with the information.
I had three options. One, I could come in and make it to you and make a proffer as to what was said. By a proffer I mean simply sum up what I knew. Two, I could present to you a written statement. Three, I could present Gregory Harner. In a discussion with Gregory’s parents and it was my decision, I thought we should present Gregory Harner because Gregory Harner had made certain statements to Sergeant Straka and other police officers in the autumn of 1985. He made other statements to the police officers, Trooper Zeisloft, Officer Sease and others, in the spring of 1986 after Craig Rice’s body was found.
I had a decision to make as to whether or not I was not going to tell the Commonwealth anything and spring this statement as a surprise somewhere after January 12th of 1987 at trial. It was my opinion that a surprise statement at trial was subject to cross examination by you with regard to the autumn 1985 statements, the spring of 1986 statements and in my judgment I didn’t think that any jury was going to believe it and what we had to do was to come forward at the outset. Gregory Harner now free of the fear because the story was on the street, should come forward and boldly say go get the people who really did it. And that Gregory Harner should come in and demonstrate, as he did, that he wasn’t afraid to tell the truth. That was exactly what the plan was and [] that was my judgment on the 29th and again when I reviewed it with Gregory on the 31st and when I reviewed it on the phone.

The trial judge, who heard the testimony and observed counsel, assessed defense counsel’s strategy as follows:

Counsel’s strategy was obvious and we have to agree with trial counsel’s appraisal, voiced at the November 10, 1987, hearing, that it was successful. Not only did he create the impression that others were on trial, he appeared to zealously endeavor to expose the truth. Defendant complains that trial counsel was “tough” and assumed a prosecutorial stance. Trial counsel unswervingly has evidenced loyalty to his client, even after being accused of incompetence. Trial counsel’s strategy, at the very least, confused issues of responsibility and shifted sympathy away from the victim to Defendant, explained prior inconsistencies and reticence to divulge the truth. As the jury saw one prosecution witness after another compare unfavorably in appearance and background with Defendant and his family, sympathy obviously mounted for Defendant. The charges became enmeshed in murky stories of drugs, sodomy, and conspiracy. Trial counsel appeared, at times, to assume a prosecutorial role only to expose the “real” culprits.
A time honored defense strategy is to try anyone but the Defendant. As sympathetic as one might be to those whose reputations may have been tarnished forever, one also must acknowledge, that trial counsel’s strategy was both brilliantly conceived and exploited.
Thus we emphatically reject any argument that trial counsel was ineffective.

We have no reason to disagree with the trial court’s assessment of defense counsel’s strategy. That strategy was carefully calculated to minimize the effect of appellant’s earlier statements and his delay in coming forward promptly with the version on which he based his defense. By announcing that defense prior to trial and by thereby implicating others, appellant’s counsel was able to move to the offensive and focus attention on other potential killers. The strength thereof was enhanced by the fact that he had submitted to interrogation by the police. This strategy, being reasonably calculated to serve appellant’s interest, did not render counsel constitutionally ineffective.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 2502(a).

      . 18 Pa.C.S. § 2502(c).

      . 18 Pa.C.S. § 2503(a).

      . 18 Pa.C.S. § 2503(b).

      . 18 Pa.C.S. § 2504.

      . This offense is defined at 18 Pa.C.S. § 2503(b) as follows:
      (b) Unreasonable belief killing justifiable. — A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.


author: OLSZEWSKI, Judge:

text:
    546 A.2d 1249
    COMMONWEALTH of Pennsylvania v. Elbert FERGUSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1987.
    Filed Aug. 25, 1988.

      Lenora M. Smith, Philadelphia, for appellant.
    Theodore E. Hinckley, Assistant District Attorney, Chambersburg, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence entered after appellant was found guilty by jury of statutory rape, corruption of minors, and criminal conspiracy. Appellant claims that: (1) trial counsel was ineffective for failing to object to the Commonwealth’s improper impeachment of a defense witness, and appellant should be granted a new trial because of the improper impeachment; and (2) appellant should be awarded a new trial because the trial court permitted the Commonwealth’s expert witness to testify as to a matter within the exclusive province of the jury. For reasons discussed below, we vacate the judgment of sentence and remand for a new trial.

In July 1984, appellant moved in with Brenda Jones and her daughter, M.J. Within a few weeks, appellant began having sexual relations with the eleven-year-old girl. M.J. succumbed to appellant’s advances on a regular basis, sometimes at Ms. Jones’ request, for approximately two years. On December 16, 1985, appellant was arrested and charged with statutory rape, corruption of a minor, and conspiracy. Ms. Jones was also charged in the case; however, Ms. Jones subsequently chose to enter an A.R.D. program. After trial by jury, appellant was found guilty on all charges and sentenced to a total of three to twenty-five years’ imprisonment.

Appellant first alleges that he was denied effective assistance of counsel when trial counsel failed to object to the Commonwealth’s improper impeachment of Ms. Jones by questioning her as to her placement in A.R.D. When assessing ineffective assistance of counsel claims, we must first determine if the underlying claim is of arguable merit; and if so, it must be determined whether the course chosen by counsel had some reasonable basis designed to serve the interests of his client. Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986); Commonwealth v. Carroll, 355 Pa.Super. 569, 513 A.2d 1069 (1986). In addition to the foregoing, appellant has the burden of proving that he was prejudiced by counsel’s conduct such that the trial result would likely have been different but for the error. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Appellant claims that his trial counsel was ineffective for failing to object to the following cross-examination of Ms. Jones by the Commonwealth:

Q. Mrs. Ferguson, you were formally [sic] Brenda Jones, were you not?
A. Yes, sir.
Q. And as Brenda Jones, you were charged with your alleged complicity in these sexual crimes, were you not?
A. Yes, sir.
Q. And under that program you were given probation for two years for your charges that you were charged, with the sexual offenses involving [M.J.], were you not?
A. Yes, sir.
Q. And you were given a cost to pay, were you not?
A. Yes, sir.
Q. And you were ordered that you could not see your daughter except under supervision of Children and Youth Services limited momentary type visits for two years, were you not?
A. Yes, sir.
Q. And you expect us to believe that you accepted all that when nothing happened?
A. It’s the truth. Nothing happened.
Q. Do you love your daughter, Mrs. Jones?
A. Yes, I do.
Q. But yet you went into court and accepted a probation whereby you would not see her except for momentary visits with Children and Youth Society for two years and nothing happened?
A. That’s correct.

Trial transcript at 206-207. Appellant also highlights counsel’s failure to object to the Commonwealth’s mention during closing that Ms. Jones “just gave up all rights to this child and went on probation for two years and agreed to pay a fine____” Trial transcript at 340.

In compliance with the standard delineated supra, we must first determine if the underlying claim has arguable merit. Our inquiry focuses, then, on whether the Commonwealth’s cross-examination as to placement in A.R.D. was a proper subject for impeachment. We must conclude that it was not.

It is well settled that the veracity of a witness may not be impeached by prior criminal conduct which has not led to a conviction. Commonwealth v. Jackson, 475 Pa. 604, 381 A.2d 438 (1977); Commonwealth v. Fuller, 336 Pa.Super. 507, 485 A.2d 1197 (1984). We have determined that a defendant’s admission into an A.R.D. program does not constitute a conviction for purposes of impeachment. Commonwealth v. Knepp, 307 Pa.Super 535, 453 A.2d 1016 (1982); Commonwealth v. Krall, 290 Pa.Super. 1, 434 A.2d 99 (1982).

In Krall, a case factually analogous to the one at bar, we held that the trial court erred in permitting questions by the prosecution pertaining to a defense witness’s admission into an A.R.D. program and remanded the case for a new trial. We declared that, in this circumstance, the burden was on the Commonwealth to prove harmless error beyond a reasonable doubt. Id,., 290 Pa.Superior Ct. at 6, 434 A.2d at 101. We further opined therein:

If the evidence is substantial and a witness’s testimony, even if believed did not exonerate the defendant, an error in inquiring about prior criminal activity may be harmless. See United States v. Trowery, 471 F.Supp. 23 (W.D.Pa.1978). In this case, the principal evidence concerning appellant’s guilt was from [one witness], and apart from his testimony it was not overwhelming.

Krall, supra, 290 Pa.Superior Ct. at 5, 434 A.2d at 101.

Our Supreme Court has mandated that in deciding whether an error is harmless because there is properly admitted overwhelming evidence of guilt, the untainted evidence relied upon must be uncontradicted. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978) citing Schneble v. Florida, 405 U.S. 427, 431, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972). We are required, therefore, to determine if the evidence is uncontradicted prior to finding harmless error on the basis of overwhelming evidence. Story, supra, 476 Pa. at 415, 383 A.2d at 167.

We do not believe that the Commonwealth has met its burden of establishing harmless error beyond a reasonable doubt. Examination of the record reveals that the defense presented several witnesses whose testimony contradicted the evidence presented by the Commonwealth. Further, we note that the Commonwealth established its case primarily through the testimony of one witness, the victim. We are compelled to decide that the error was not harmless and, therefore, that appellant’s underlying claim has arguable merit.

Even though appellant’s claim is of arguable merit, if trial counsel’s failure to object had some reasonable basis designed to effectuate his client’s interests, counsel’s assistance is deemed constitutionally effective. Christy, supra, citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-353 (1967). When a claim of ineffective assistance has arguable merit and there has been no evidentiary hearing below to determine if there was reasonable basis for counsel’s actions, then an appellate court must remand for an evidentiary hearing. Commonwealth v. Shablin, 362 Pa.Super. 289, 524 A.2d 511 (1987). Under normal circumstances, therefore, we would remand for an evidentiary hearing to give trial counsel the opportunity to explain his failure to object. 42 Pa.C.S.A. § 706; Commonwealth v. Glaze, 366 Pa.Super. 517, 531 A.2d 796 (1987). Because of our disposition of appellant’s second issue, however, which results in the grant of a new trial, we will not remand for an evidentiary hearing. See Commonwealth v. Stockard, 346 Pa.Super. 263, 272, 499 A.2d 598, 603 (1985) (“As we have already vacated judgment of sentence and remanded for a new trial, it is doubly unnecessary for us to remand for an evidentiary hearing”).

Appellant urges that the trial court committed reversible error by allowing the Commonwealth’s expert witness, Dr. Robert E. Johns, to testify in essence that the victim was sexually abused by someone in the position of the appellant thereby permitting the witness to invade the province of the jury. Scrutiny of the record indicates that Dr. Johns was initially called to testify concerning the psychological dynamics of incest. Later, after the victim took the stand, the Commonwealth questioned Dr. Johns about an interview with the victim prior to trial and what conclusions the expert had reached regarding the case. The expert testified in pertinent part:

Mr. Antoun: Doctor, in your interview and your testimony and what you’ve seen and heard in court today, have you obtained enough evidence or information, enough information, on what you can base or form an opinion relative to any similarities or consistencies between this case and the classic situations you described in your earlier educational presentation?
Doctor: I did have an opinion on that matter.
* * * * * *
Mr. Antoun: Could you tell us if there are any consistencies relative to the opportunity phase?
Doctor: Yes, I do believe in my clinical interview and observing the witness’s statements that there were consistencies with the opportunity phase in that she described, in my opinion, how there was access and opportunity towards her being sexualfly] abused in a variety of circumstances.
Mr. Antoun: Now, you indicated that part of that phase had to do with an adult with some power or control. Did you have any consistency there?
Doctor: Yes, she described experiencing allegations of sexual abuse in which she was under the control of significant adults in her life.

Trial transcript at 173-175.

In Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988), our Supreme Court recently clarified the standard to be applied when the admission of expert testimony in a child sexual abuse case is challenged. In Davis, a clinical child psychologist and expert in treatment of child sexual abuse testified that although he had never examined the victim, “children who have not been involved in sexual experiences typically do not fantasize about sexual experiences.” Id., 518 Pa. at 80, 541 A.2d at 316. On cross-examination, the expert elaborated: “My experience with children who have had some type of sexual experiences when they report about it, typically it is based upon some event that actually occurred and not some fantasized or fabricated experience.” Id.

In finding this testimony impermissible, the Davis Court reasoned:

[Our decision in Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986),] unequivocally prohibited testimony such as that rendered by [the expert] in this case. The expert in Seese testified as follows:
It is very unusual that a child would lie about sexual abuse____ [P]repubertal children usually do not lie about matters of sexual abuse no matter how chaotic or uncomfortable their home situation is, one, because they don’t know how to lie about it. They don’t know what to say. It’s not part of the life experience, so everything they say is something they have seen or experienced. It would be very unusual for them to lie.

Id., 512 Pa. at 441-42, 517 A.2d at 921.... We noted that the veracity of a particular witness is a question which must be answered in reliance on the ordinary experiences of life, common knowledge of natural tendencies of human nature, and observations of the character and demeanor of the witness. As the phenomenon of lying is within the ordinary capacity of jurors to assess, the question of a witness’s credibility is reserved exclusively for the jury____ The quoted testimony in Seese was condemned as “an invitation for the trier of fact to abdicate its responsibility to ascertain the facts relying upon the questionable premise that the expert is in a better position to make such a judgment,” quoting [Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976)]. Seese, 512 Pa. at 443-44, 517 A.2d at 922. We concluded:

Such testimony, admitted as evidence, would encourage jurors to shift their focus from determining the credibility of the particular witness who testified at trial, allowing them instead to defer to the so-called “expert” assessment of the truthfulness of the class of people of which the particular witness is a member.
Id.
There is no question that the prohibition of Seese applies squarely to the testimony given by the Commonwealth expert in this case. It, too, was an “ ‘expert’ assessment of the truthfulness of the class of people of which the particular witness is a member”____

Davis, supra, 518 Pa. at 81, 541 A.2d at 317 (citations omitted) (emphasis in original).

In the instant case, the testimony of Dr. Johns went beyond a discussion of the general dynamics of child sexual abuse. Dr. Johns testified that the complainant’s behavior and testimony were closely aligned with that of a child sexual abuse victim. Moreover, the Doctor offered that “she described, in my opinion, how there was access and opportunity towards her being sexual[ly] abused in a variety of circumstances.” Trial transcript at 174. We must conclude that Dr. Johns’ testimony amounted to an “expert assessment of the truthfulness” of the victim’s testimony, and therefore, invaded the province of the jury by presuming to pass upon the veracity of the child witness. As such, the opinion testimony of the expert was inadmissible and the trial court erred in permitting its introduction.

In reaching this conclusion, we emphasize the Seese court’s reasoning that adherence to a rule excluding such testimony is warranted in view of the consequences that would ensue if such testimony were to be admitted. See Seese, supra, 512 Pa. at 444, 517 A.2d at 922. To elaborate, the Seese court opined:

For example, if testimony as to the veracity of various classes of people on particular subjects were to be permitted as evidence, one could imagine “experts” testifying as to the veracity of the elderly, of various ethnic groups, of members of different religious faiths, of persons employed in various trades and professions, etc. Such testimony, admitted as evidence, would encourage jurors to shift their focus from determining the credibility of the particular witness who testified at trial, allowing them instead to defer to the so-called “expert” assessment of the truthfulness of the class of people of which the particular witness is a member. In addition, such testimony would imbue the opinions of “experts” with an unwarranted appearance of reliability upon a subject, veracity, which is not beyond the facility of the ordinary juror to assess.

Id.

In conclusion, it is apparent that the expert testimony in the instant case was improper in light of Davis and Seese. Because the testimony was necessarily prejudicial to appellant due to the fact that the Commonwealth relied primarily upon the perceived veracity of the victim to establish its case, appellant must be awarded a new trial. See Seese, supra.

Judgment of sentence vacated and case remanded for new trial. Jurisdiction relinquished.

      . . Appellant and Ms. Jones were married after his arrest but prior to trial.

      . We note, parenthetically, that the testimony would not have been competent for any other purpose. Although appellant was charged with conspiracy and Ms. Jones was the alleged co-conspirator, our Supreme Court has determined that when two persons are jointly indicted on the same offense but are tried separately, the disposition regarding one co-conspirator is inadmissible as against the other when the evidence is sufficiently prejudicial. See Commonwealth v. Thomas, 443 Pa. 234, 279 A.2d 20 (1971); see infra.

      . In Krall, as in the instant case, the witness was the paramour and the co-conspirator of the defendant. Further, in both cases, the witness was called by the defendant, attempted to exonerate the defendant, and was consequently cross-examined about her complicity in the crime. Each woman’s credibility, therefore, was essential to the defendants’ defense. Cf. Commonwealth v. Kelliher, 325 Pa.Super. 228, 472 A.2d 1091 (1984).

      . We note that in Kelliher, supra, we held that the court did not err in permitting cross-examination as to placement in A.R.D. The facts of Kelliher, however, render it factually distinguishable from the instant case. In Kelliher the witness in question was not called by the defense, nor was the credibility of the witness essential to defendant’s case. In other words, the remarks may have been "marginally improvident” but were not such as to warrant a new trial. Id. 325 Pa.Super. at 240, 472 A.2d at 1098.


author: BROSKY, Judge:

text:
    546 A.2d 1254
    COMMONWEALTH of Pennsylvania v. Joan D. ZANKOWSKI, Appellant.
    Superior Court of Pennsylvania.
    Argued June 28, 1988.
    Filed Aug. 24, 1988.

      John F. Hooper, III, Pittsburgh, for appellant.
    Debra B. Barnisin, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before BROSKY, JOHNSON and MELINSON, JJ.
   BROSKY, Judge:

This appeal is taken from the judgment of sentence imposed after a trial de novo for violation of 75 Pa.C.S.A. § 3445(a) (meeting or overtaking a school bus).

Appellant’s challenge to the sufficiency of the evidence is dual-pronged: First, she alleges that the evidence does not support a finding that the red signal lights viewed from her lane of traffic were activated at the time she passed the school bus; secondly, she argues that the evidence fails to show that her position in the lane of traffic in which she was traveling did not permit her to observe whether the red signal lights of the school bus were flashing as she passed the bus. We affirm.

The factual scenario giving rise to this matter now before us is brief and uncomplicated: Officer Herron of the City of Pittsburgh Police Department testified at the de novo proceeding that as he was traveling in the southbound lane of Brownsville Road in Pittsburgh, he first observed a school bus parked on the northbound side of the road signalling front red flashing lights. Only moments later, he saw appellant pass the school bus on the northbound side of the road. The Officer’s testimony related that the red signal lights were still flashing when appellant passed the bus without first stopping or slackening her speed.

Appellant, on the other hand, testified that as she headed down the northbound lane of Brownsville Road,, her view of the school bus, insofar as her ability to observe any flashing lights thereon, was impeded by a van parked to the rear of the bus. She further testified that she first checked to determine whether the rear signal lights were flashing but, when she did not see any, she drove past the bus, whereupon she was stopped by Officer Herron and charged with the subject violation.

Thus, appellant’s argument is two-fold: First, she asserts that the lights on the bus were not activated at all or, alternatively, that the driver chose to activate only the front lights which she could not see. Secondly, she claims that from her vantage point on the road, her view of the bus where the rear signal lights are located was obstructed by a van parked to the rear of the school bus. She contends that the Commonwealth has not succeeded in carrying its burden of proof that the rear signal lights were flashing red and that she passed the school bus while the subject rear lights were activated.

The test employed by the courts of this Commonwealth for determining the sufficiency of the evidence is whether, considering all the evidence admitted at trial and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, the trier of fact, here the de novo court, could have found that each element of the particular offense was supported by the evidence adduced and the inferences drawn beyond a reasonable doubt. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984); Commonwealth v. Brown, 336 Pa.Super. 628, 486 A.2d 441 (1984). Applying this standard to the facts of the case at bar, we conclude that the evidence adduced here, together with all reasonable inferences flowing therefrom, was sufficient to sustain the Commonwealth’s burden of proof beyond a reasonable doubt.

Officer Herron testified that he saw the school bus display red flashing lights. On cross-examination, he stated that he did not see any van parked behind the school bus, as asserted by appellant. He admitted that he did not see the rear lights of the bus flashing. Contrary to this testimony, appellant offered that the aforementioned van impeded her view of the rear of the bus and, moreover, that she checked for, but did not see any, red flashing lights from the rear and so proceeded to pass the school bus.

Section 3345(a) of the Motor Vehicle Code, 75 Pa.C.S.A. § 3345(a), provides:

§ 3345. Meeting or overtaking school bus

(a) Duty of approaching driver when red signals are flashing. — Except as provided in subsection (g), the driver of a vehicle meeting or overtaking any school bus stopped on the highway shall stop at least ten feet before reaching the school bus when the red signal lights of the school bus are flashing. The driver shall not proceed until the flashing red signal lights are no longer actuated. In no event shall a driver of a vehicle resume motion of the vehicle until the school children who may have alighted from the school bus have reached a place of safety.

Unfortunately for appellant, the provision of the Motor Vehicle Code here in question does not distinguish between front and rear flashing red lights in order to permit one so charged to negate his/her guilt on the basis that the angle of view impeded observation of any part of the school bus. The language of the statute does not excuse an operator who, as here, approaches the bus from the rear and seeks to escape liability because the rear lights were either inoperable or obstructed from the driver’s view, especially in the face of testimony indicating that the front red lights were activated. Section 3345(a) merely requires an operator to stop no less than ten feet before approaching the school bus when its red signal lights are flashing. Officer Herron observed not only the school bus flashing red lights but also that appellant “fail[ed] to stop or [even] slow [ ] her speed” before she approached the bus (N.T.6) as required by Section 3345(a). This omission on the part of appellant, coupled with the officer’s testimony that he saw red flashing lights on the bus, sufficiently evinces appellant’s violation of the statute beyond a reasonable doubt.

We reject appellant’s argument as sophistical. It belies the language of the statute. Courts cannot engraft meaning onto or supply words to a statute that are unsupported by its tenor. To do otherwise is tantamount to engaging in a judicial rewrite of Section 3345(a). Instead, our state Constitution has delegated the function of legislative drafting to the General Assembly. Any change forthcoming with regard to Section 3345(a) or any other statutory provision constitutionally vests in that body.

Officer Herron testified that he observed red flashing lights at the time when appellant passed the bus; appellant claims that the lights were not operating, or, alternatively, that her vantage point on the roadway made her observation of any flashing lights impossible. What the instant case reduces to, then, is a question of credibility which the de novo court, in its role as trier of fact, resolved in favor of the police officer. See Commonwealth v. Brown, supra. It is within the sole province of the trier of fact sitting without a jury to pass upon the credibility of witnesses. He/she is free to believe all, part or none of a witness’ testimony in determining the weight to be accorded to it. Commonwealth v. Jackson, supra. The de novo court here believed the testimony of Officer Herron and rejected appellant’s testimony. It is also well settled that even the uncorroborated testimony of a prosecution witness may be sufficient to convict despite contrary evidence from the defense, if the trier of fact, based on the evidence before it, chooses to lend credibility to the former. Commonwealth v. Wienckowski, 371 Pa.Super. 153, 537 A.2d 866 (1988); Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985). Hence, we perceive no error on the part of the trial court in choosing to lend credibility to the police officer rather than to appellant. We are not permitted to substitute our assessment for that of the factfinder, here the de novo court, based upon the record before us. Commonwealth v. Jackson, supra. Thus, perceiving no error in the judgment of the de novo court, we affirm.

Judgment of sentence affirmed.

MELINSON, J., concurs in the result.


author: TAMILIA, Judge:

text:
    546 A.2d 1256
    Anthony MAY, Appellant, v. Claudia Creo SHARON and Sharon & Sharon, P.C.
    Superior Court of Pennsylvania.
    Submitted July 11, 1988.
    Filed Aug. 25, 1988.

      Anthony May, appellant, in propria persona.
    Thomas R. Ceraso, Greensburg, for appellees.
    Before TAMILIA, MONTGOMERY and HOFFMAN, JJ.
   TAMILIA, Judge:

Appellant Anthony May brings this pro se appeal from an Order dated January 25, 1988 which denied his request for appointment of counsel. The facts and procedural history surrounding the appeal are as follows.

On August 8, 1985, appellant, who had been incarcerated on a criminal conviction, brought a civil action against counsel who represented him at trial, alleging she had been negligent and had committed legal malpractice in handling his case; consequently, he sought monetary damages from her. By an October 4, 1985 Order, he was permitted to proceed in his case without payment of costs or fees, and his complaint was reinstated and served on appellee-attorney. Default judgment was taken by appellant on December 3, 1985, when the attorney had failed to file an answer to the complaint. The appellee-attorney did, however, file an answer and new matter on July 20, 1987. This pleading was later stricken as untimely filed by an October 5, 1987 Order. On January 5, 1988, appellant filed a motion seeking appointment of counsel, based upon the interests of justice, and due to the extraordinary circumstances and posture of this case. The trial court then entered the Order in question which denied the request for appointment of counsel.

On appeal, appellant urges the court abused its discretion in refusing to appoint counsel, in light of the exceptional circumstances of this case. He argues there exists, under 42 Pa.C.S. § 2501(b), a “right to be heard” in court, and his right to have counsel appointed is relative to that section.

Appellant states, “the proper presentation of evidence, the equitable realities as coupled with the lower courts [sic] obviously strained legal resources, and any prejudice to the Appellant would better be served and avoided with experienced and able counsel assisting in having this three (3) year old action properly adjudicated.” Appellant’s brief at p. 3. Moreover, he contends the court denied appellant due process of law by its “failure to appoint counsel to allow for the adjudication of the assessment at trial of damages.” Appellant’s brief at p. 4.

We have reviewed appellant’s claims; however, we find them to be without merit. The sixth amendment of the United States Constitution guarantees the accused in all criminal prosecutions the assistance of counsel for his defense. U.S.Const. Amend. VI. “The triggering event for sixth amendment rights to attach is the commencement of adversary judicial proceedings against the defendant.” Commonwealth v. Karash, 513 Pa. 6, 12-13, 518 A.2d 537, 541 (1986); see cases cited therein. The sixth amendment does not afford such assistance of counsel to a plaintiff in a civil action, such as the appellant’s action, where no loss of liberty is involved.

While it is true that in some instances counsel will be appointed for a plaintiff in a civil action, generally it is a situation involving broad policy considerations implicating a state interest of a civil rights nature such as a fair housing violation, sexual or other job discrimination or where liberty interests are implicated. The state has reasonably adjusted to these necessities by providing legal agencies to fulfill due process requirements, which will assist indigent persons who are wronged, or the courts have called upon pro bono services of the bar associations absent public resources. Each class of case and in some respects each case is scrutinized to determine if the right to counsel is required under the due process provisions of federal and state constitutions. The requirements are more clearly stated and more generally applicable when a party is a defendant in certain civil actions, rather than a plaintiff. It is also clear that classification of a case as civil as opposed to criminal will not be determinative, but rather, whether the action will be perceived as ultimately depriving a person of a higher liberty interests. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (juvenile defendant in a delinquency hearing entitled to counsel). In Commonwealth ex rel. Finken v. Roop, 234 Pa.Super. 155, 339 A.2d 764 (1975) cert. denied and appeal dismissed, 424 U.S. 960, 96 S.Ct. 1452, 47 L.Ed.2d 728 (1976) counsel was required in civil commitment hearing, and in Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982), counsel was required for an indigent defendant in a paternity proceeding. However, in Lassiter v. Dept. of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), it was held that every indigent parent in a termination proceeding is not entitled to counsel. By statute in Pennsylvania, our legislature has deemed it necessary to have indigent parents represented by counsel (as well as the child) in dependency proceedings. 42 Pa.C.S. § 6337 Right to counsel. In Interest of S.N. W., 362 Pa.Super. 295, 524 A.2d 514 (1987). However, in termination and custody proceedings, indigent parents are not provided the right to counsel as it is assumed the court will act in the best interest of the child. Children, however, will be provided counsel in a custody action when it appears to the court that the child’s interests are distinct from those of the other parties. Pa.R.C.P. 1915.11. The rule, however, provides that the cost may be assessed upon the parties by the court. In divorce actions, the Supreme Court has promulgated a requirement which requires the state courts to provide means of entry into the system for indigents by eliminating filing fees, court costs, process service fees and other costs related to the proceeding. Boddie v. Connecticut Supreme Court, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). This ruling did not go so far as to require assignment of counsel. In In Re Smiley, 36 N.Y.2d 433, 369 N.Y.S.2d 87, 330 N.E.2d 53 (1975), where the issue presented on appeal was whether anindigent wife and husband were entitled to appointment of counsel as a matter of constitutional right, in denying the appointments, the appeals court stated that while there is a constitutional right to appointment of counsel for indigent criminal defendants, no similar constitutional or statutory provision applies to private litigation. The court listed an array of causes, including matrimonial cases, such as evictions from homes, revocation of licenses, mortgage foreclosures and repossession of important assets, which could seriously and adversely effect indigents where right to appointed counsel is equally at issue. It went on to hold that since much indigent litigation is handled by the bar, pro bono, it is a limited resource which must be judiciously engaged or it will be overwhelmed. Widespread application of such an approach would increase litigation and suggests policy and fiscal impact which the courts should not venture to decide.

In holding appellant is not entitled to appointed counsel, we look to the balancing test and the three due process factors enunciated in the case of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976).

[F]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Measured by this standard, appellant cannot establish that he was denied due process, but it is clear the government’s interests would be adversely affected by requiring representation.

It is unique to the criminal justice system that great protective forces are present, such as appeal rights and Post Conviction Relief and Habeas Corpus actions, to correct errors caused by counsel and/or the court, thereby drastically limiting the need of corrections on the civil side. These are the provisions in law and under the constitution which provide for the protection of the appellant’s liberty interests. To provide right to counsel to convicted defendants to pursue civil actions, when liberty is not at stake, would lead to such a torrent of civil actions that the already overwhelmed civil side of the court would most surely go under, not to mention the added burden to the appellate process. Additionally, the strained resources of government in providing constitutionally mandated services to criminal defendants would further be diluted, placing the criminal justice system in crisis. Neither the constitution nor public policy demands the assistance requested by appellant. Such a claim is better met by the mechanisms established in civil law, for representation on a contingent fee basis. There, in electing to represent a client, the meritorious cases would be screened from the large number which were frivolous.

We accordingly do not find any error on the part of the trial court and affirm its decision.

Order affirmed.

      . § 2501. Appearance in person or by counsel
      (b) Criminal matters. — In all criminal prosecutions the accused has a right to be heard by himself and his counsel.
      At the outset we note this section applies to criminal prosecutions, whereas the present action is a civil action sounding in tort. We will consider the claim and appeal as having been filed under section (a) Civil matters.

      . The right to counsel under the sixth amendment right to counsel is made applicable to the states under the fourteenth amendment. See Commonwealth v. Karash, 513 Pa. 6, 11, 518 A.2d 537, 540.