text:
    475 A.2d 156
    In the Interest of J.L., a minor. Appeal of J.L.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1983.
    Decided May 4, 1984.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Dana S. Jones, Assistant District Attorney, Erie, for Com., participating party.
    Before ROWLEY, WIEAND and HESTER, JJ.
   WIEAND, Judge:

Joyce Lindsey, age 16, was found guilty of assault and adjudicated delinquent because she used her elbow to hit and push from her the two year old son of her brother while the youngster was seated next to her on the living room couch of the home in which they resided. We reverse.

On April 14, 1982, Joyce Lindsey was living in the home of her older brother, Harry Lindsey, who had been appointed to act as Joyce’s legal guardian. At or about 2:30 p.m. on that day, Joyce became angry because her guardian had physically restrained her from leaving home in Union City to visit her boyfriend in Erie. She retreated to her bedroom, where she petulantly engaged in loud conduct calculated to make known her displeasure. She returned in a little while to the living room with a bag of candy. As she sat on the sofa eating candy, her two year old nephew sat by her side and rested his head on her arm. At least one witness speculated that the child was begging for a piece of candy. Although the evidence of what happened next is conflicting, the hearing court could have found that the juvenile used her elbow to strike the youngster and push him away from her. The young nephew was startled but did not cry or exhibit evidence of pain. He did not fall from the couch and was not injured in any way.

A juvenile cannot properly be adjudicated delinquent unless and until it has been proven beyond a reasonable doubt that the child committed a “delinquent act.” 42 Pa.C.S. § 6341(a), (b). A delinquent act has been defined to include an act constituting a crime under the Pennsylvania Crimes Code. 42 Pa.C.S. § 6302. In the instant case, appellant was accused of committing a simple assault under 18 Pa. C.S. § 2701(a)(1). This section of the Crimes Code provides that a person is guilty of assault if he or she “attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.” Bodily injury requires an “[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301.

Appellant’s nephew did not sustain bodily injury as a result of appellant’s conduct. He sustained no injury of any type and did not evidence pain. This is not alone controlling, however, for it is not essential to a conviction for assault that the victim sustain actual injury. It is enough if the actor attempted to inflict bodily injury. Commonwealth v. Griffin, 310 Pa.Super. 39, 48, 456 A.2d 171, 176 (1983), quoting Commonwealth v. Herriott, 265 Pa.Super. 143, 151, 401 A.2d 841, 845 (1979). See also: Commonwealth v. Hardwick, 299 Pa.Super. 362, 365, 445 A.2d 796, 797 (1982). To show an “attempt” to inflict bodily injury, it must be shown that the actor had a specific intent to cause bodily injury. See: Commonwealth v. Goosby, 251 Pa.Super. 326, 331, 380 A.2d 802, 805 (1977); 18 Pa.C.S. § 901(a); W. LaFave and A. Scott, Handbook on Criminal Law § 82 at 610 (1972); 2 Wharton’s Criminal Law § 179 at 298-299 (14th ed. 1979). Although this intent may be proved by circumstantial evidence, the circumstances must be such that an intent to cause bodily injury may reasonably be inferred therefrom. See generally: Commonwealth v. Moore, 261 Pa.Super. 92, 395 A.2d 1328 (1978).

The evidence in this case was insufficient to permit a reasonable inference that appellant’s act of pushing her nephew away with her elbow was intended to injure him or cause him substantial pain. Even after we view the evidence in the light most favorable to the Commonwealth, as we are required to do, Commonwealth v. Macolino, 503 Pa. 201, 205-06, 469 A.2d 132, 134 (1983); Commonwealth v. Baylor, 323 Pa.Super. 9, 12, 469 A.2d 1134, 1135 (1983), it is impossible to find therefrom an intent to inflict bodily injury upon appellant’s two year old nephew.

Within the confines of the family, it is difficult to attach criminality to the pushing, shoving, slapping, elbowing, hair-pulling, perhaps even punching and kicking, that not infrequently occur between siblings or other members of the same family. Altercations between juvenile members of the same family, even when they become less than civil, are usually too trivial to be a target of the Crimes Code. In the absence of a criminal or malicious intent, such intrafamily spats will not support criminal prosecution. For similar but not precisely the same reasons, the law has recognized the right of a parent or guardian to use corporal punishment when disciplining a child. See: Boland v. Leska, 308 Pa.Super. 169, 175, 454 A.2d 75, 78 (1982); Commonwealth v. Moore, supra 261 Pa.Super. at 97, 395 A.2d at 1330-1331; Commonwealth v. Kramer, 247 Pa.Super. 1, 7, 371 A.2d 1008, 1010 (1977). So long as there is no. malicious intent to abuse or injure the child, acts of corporal punishment are justifiable and not actionable criminally. 18 Pa.C.S. § 509(1).

The Commonwealth argues that a criminal intent can be inferred from the fact that appellant’s act was committed during a time of anger. That appellant acted in anger is probably true. Most intra-family altercations do involve momentary anger. Anger, however, cannot alone translate into an intent to commit bodily injury or substantial pain upon appellant’s two year old nephew. Although appellant’s act may have been inconsiderate, the intent necessary to sustain a conviction for assault was not proved and cannot reasonably be inferred from appellant’s use of her elbow to push a young nephew forcefully from her while she was eating candy.

The adjudication of delinquency is reversed and set aside.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    475 A.2d 744
    COMMONWEALTH of Pennsylvania v. Rosario TARASCHI, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1983.
    Filed April 13, 1984.

      John T. Salvucci, Media, for appellant.
    Dennis C. McAndrews, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   CAVANAUGH, Judge:

In this case, the appellant, Rosario Taraschi, was tried without a jury before Kelly, J. He was convicted of corrupt organizations, conspiracy to commit corrupt organizations, obstructing the administration of the law, conspiracy to commit bribery and to obstruct the administration of the law. His motions for new trial and in arrest of judgment were denied and he was sentenced to six months to twenty-three months imprisonment for corrupt organizations, the other offenses were deemed to have merged for purposes of sentencing. The appellant has appealed to this Court from the judgment of sentence.

The appellant raises several issues on appeal and the first is that the evidence was insufficient to sustain the convictions. We must view the evidence in the light most favorable to the Commonwealth as verdict winner, and accept as true all evidence and reasonable inferences therefrom, upon which, if believed, the fact finder could properly have based its verdict. Commonwealth v. Helm, 485 Pa. 315, 402 A.2d 500 (1979). Applying this test, the following facts were established at trial. The appellant and one Frank Carmolingo leased a property in Clifton Heights, Pennsylvania, and in 1978 operated a business known as the Deli Social Club. A large number of automobiles were parked at the club in the early hours of the morning and sometimes they remained there until 6:00 a.m. Since the property was zoned commercial the presence of cars in the early morning hours attracted the attention of the police. Appellant sought to operate the premises as a social club and petitioned for a variance to the zoning ordinance. A hearing was held in June, 1978, and testimony established that the conduct of the club constituted a nuisance with excessive noise and parking problems. Frank Carmolingo testified for the petitioners and stated that the appellant was his partner. The appellant, Rosario Taraschi, did not testify although he was present at the hearing together with his brother, Pietro Taraschi, and Salvatore Soli. A special exception was granted by the zoning board. However, the club was not permitted to operate between the hours of 1:00 a.m. and 10:00 a.m. Nevertheless, the club continued to operate in violation of the restrictions and as a result several citations were issued by the police.

Officer Mathis of the Clifton Heights Police met Carmolingo at a bar on July 27, 1978 and Carmolingo asked why the police were having problems with the “boys on the corner” and stated that he wanted to get together with Mathis and Berry, another local police officer. Carmolingo also stated that there was enough in it for everybody and “everybody liked to live good.”

The local police then contacted the FBI and were instructed by them to set a further meeting with Carmolingo. Officers Berry and Mathis arranged a meeting for August 2, 1978 between themselves, Carmolingo and appellant. However, the appellant did not attend the meeting but Salvatore Soli and Camolingo attended as well as Officers Berry and Mathis. They discussed the problems of parking, noise and rowdiness at the club. Carmolingo asked how they could “settle” the problem. Berry asked what he meant by “settle.” At this point Carmolingo and Soli offered Mathis and Berry two hundred dollars per month and Soli gave two one hundred bills to Mathis.

The testimony also established that in 1978 one Christopher Bartzoka had been hired by the appellant as a card dealer for the Deli Social Club. Bartzoka took five percent of each pot and paid the money over to Soli, Carmolingo or the appellant.

On August 30, 1978, when Soli gave Mathis and Berry their monthly payment of two hundred dollars the police officers told Soli that they felt they should be getting more money. Soli said that he would discuss the matter with the appellant. On October 20, 1978, Mathis and Berry again met with Soli who gave them the monthly two hundred dollars. They asked Soli what the appellant had said about more money and he said the appellant knew nothing about it, and that only he and Carmolingo were involved. Nevertheless, on November 3, 1978, when the next payment was made, Soli, Carmolingo and the appellant all arrived in the same car. The appellant stayed in the car some fifteen to twenty feet away but had a clear view of the pay-off which took place between Soli and Carmolingo who made payment to Mathis.

The next meeting between Soli and the police officers occurred on January 9, 1979, and Soli advised them that new owners were going to take over and that they would be responsible for payments in the future. Soli promised Mathis and Berry that the new owners would give them more money. He also discussed with the police a rumor that Mathis and Berry might be working for the FBI and that appellant had some question as to the trustworthiness of Mathis and Berry. Soli told the officers that he assured the appellant that the local police and the FBI would not be working together.

In February, 1979, Richard Stratton became interested in taking over the club and discussed this with appellant and his brother Pietro. Ultimately, Stratton agreed with the appellant to buy the club on a trial basis and the appellant advised Stratton that he would have to pay “the cops $200.00 a month for the zoning violation.” If the operation proved reasonably profitable Stratton was to complete purchase of the club. After taking over the club on a trial basis Stratton continued to pay the $200.00 per month on an irregular basis and Mathis went to the appellant and his brother to complain. On April 4, 1979 Mathis obtained $200.00 from Pietro Taraschi. At that time Stratton was not present but he stated that he later reimbursed Pietro. Stratton missed more pay-off appointments, and in May, 1979, Mathis again went to complain to the Taraschis. Pietro Taraschi advised Mathis that Stratton had “pulled out” and owed them a large sum of money. He also told Mathis that they were looking for someone new to cake over.

Subsequently the appellant offered money to Stratton, and asked him not to get anyone in trouble. Stratton said that he wasn’t trying to get anyone in trouble and advised the appellant that he didn’t want any money. However, appellant sent someone to Stratton with a package and Stratton was told that the package contained $2,000.00. Stratton refused to accept the package.

Appellant contends that there was insufficient evidence to sustain the conviction of the offense of corrupt organizations under the Pennsylvania Corrupt Organizations Act. The Act of December 6, 1972, 18 Pa.C.S. § 911(b)(3) provides in pertinent part:

(3) It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.

The Act further defines “racketeering activity” in 18 Pa.C.S. § 911(h) as follows:

(h) Definitions. — As used in this section:
(1) “Racketeering activity” means:
(i) any act which is indictable under any of the following provisions of this title:
Chapter 47 (relating to bribery and corrupt influence)
(iii) any conspiracy to commit any of the offenses set forth in subparagraphs (i) and (ii) of this paragraph; or

The Act defines a “pattern” of racketeering activities as “a course of conduct requiring two or more acts of racketeering activity ...” 18 P.S. § 911(h)(4). Appellant argues that the evidence was insufficient because the underlying racketeering activity in this case was bribery and that he was not charged with or convicted of bribery. The Act, however, has no requirement that a defendant be convicted of the predicate crimes constituting the pattern of racketeering. Further, the Act provides at 18 Pa.C.S. § 911(h)(l)(iii) that racketeering activity means “any conspiracy to commit any of the offenses set forth in subparagraphs (i) and (ii)...” The appellant contends that “the defendant was neither charged nor convicted of even one substantive offense of bribery.” He overlooks the fact that he was charged and convicted with conspiracy to commit bribery, and under the Act racketeering activities include a conspiracy to commit bribery.

In addition, the appellant’s contention that he must be charged and convicted with the underlying offense is not supported by Pennsylvania law. Although there are no cases in Pennsylvania dealing directly on this point with respect to corrupt organizations, in an analogous situation Pennsylvania law has not been construed to require that a defendant be charged and convicted of an underlying substantive offense. In Commonwealth v. Wilkinson, 278 Pa.Super. 490, 420 A.2d 647 (1980), this contention of appellant was specifically answered. The defendant was charged with driving under the influence and homicide by vehicle. The district attorney dismissed the charge of driving under the influence. This Court held that the lower court erroneously quashed the transcript. We stated at 278 Pa.Super. 495, 496, 420 A.2d 650:

As an initial matter, we must reject the lower court’s conclusion that a charge of homicide by vehicle may be prosecuted only if a second, supporting, charge is brought charging the defendant with another motor vehicle code violation. A person is guilty of homicide by vehicle if she unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic ... when the violation is the cause of death. 75 C.P.S.A. § 3732 (1977).
In order to secure a conviction under this statute, the Commonwealth must prove beyond a reasonable doubt that the defendant “engaged in the violation of any law ... or ... ordinance applying to the operation or use of a vehicle or to the regulation of traffic____” Nothing in the statute indicates a legislative intent that in order to establish this element of the offense, the Commonwealth must bring a separate charge for such violation. (Emphasis added).

The court further stated at 278 Pa.Super. 496, 420 A.2d 650:

As long as the Commonwealth gives the defendant adequate notice of the particular vehicle or traffic law or ordinance allegedly violated in causing the death, whether or not the Commonwealth brings a separate charge for such violation is immaterial.

In the instant case the appellant was given adequate notice of the acts which constituted the pattern of racketeering in the information. The grand jury presentment was incorporated by reference in the criminal complaint affidavit and set forth with specificity the basis for the charges against the appellant. In addition, indictments and informations are sufficient where the crimes charged are substantially in the language of the statute. 19 P.S. § 261; Pa.R. Crim.P. 213, 225.

There was sufficient evidence to sustain the conviction of conspiracy to commit bribery and to obstruct the administration of law. Appellant’s co-conspirators were Soli, Stratton, Carmolingo and Pietro Taraschi. The heart of the offense of conspiracy is an agreement to do an unlawful act. Commonwealth v. Anderson, 265 Pa.Super. 494, 402 A.2d 546 (1979). The agreement required for conspiracy can seldom be directly proved, nor need it be. Commonwealth v. Stephens, 231 Pa.Super. 481, 331 A.2d 719 (1974). A conspiracy may be inferentially established by showing the relationship, conduct or circumstances of the confederacy which demonstrates a unity of purpose to accomplish an unlawful act. Commonwealth v. Weaver, 309 Pa.Super. 509, 455 A.2d 1199 (1982).

The offense of obstructing the administration of law is set forth at 18 Pa.C.S. § 5101. Without again summarizing the evidence, we are convinced that it was sufficient to sustain the convictions for conspiracy to commit bribery and to obstruct the administration of law as well as conspiracy to commit corrupt organizations. Appellant was an integral part of the scheme to bribe local police officers to permit illegal gambling and zoning violations in a business in which he had an interest. He participated in the hiring of the card dealer and shared in the distribution of money illegally obtained in operating the poker games. The direct and circumstantial evidence was sufficient to show that he conspired to bribe the police officers to overlook the various and continuous zoning violations.

With respect to the charge of obstruction of the administration of law, the appellant contends that there was no money paid to the police officers in return for “a violation of a known legal duty” as required by 18 Pa.C.S.A. § 4701. This contention is patently without merit. The evidence established a continuing pattern of payments to the police of substantial sums of money so that they would not enforce the laws which they were sworn to uphold.

The appellant’s contention that the two year statute of limitations was not complied with as to the offense of obstruction of the administration of law is also without merit. The offense allegedly was committed on April 4, 1979. On April 1, 1981, a criminal complaint was filed which charged the appellant with corrupt organizations and conspiracy. On May 18, 1981, the Commonwealth was granted permission to add the offense of obstructing the administration of law. We agree with the Commonwealth’s contention that the prosecution for the offense of the obstruction of the administration of law began on April 1, 1981, although the criminal complaint filed .on that day specifically named only the crimes of corrupt organizations and conspiracy. The affidavit attached to the complaint was eleven pages long and set forth in great detail the alleged acts constituting the obstruction of the administration of law. In fact, the affidavit is almost a summary of the testimony given at trial. “[W]hile a complaint used to institute a criminal proceeding must state the offense committed by the accused, and the general nature and time and place of the offense, it need not set forth the charges with the particularity of an indictment.” Commonwealth v. Wilkinson, 278 Pa.Super. 490, 497, 420 A.2d 647, 651 (1980). The only question to be considered in determining the sufficiency of the complaint is whether the accused was sufficiently informed that he might be put on trial for the crime charged in the indictment. Commonwealth v. Grego, 116 Pa.Super. 295, 176 A. 550 (1935). Pa.R.Crim.P. 132 sets forth the requirement for the contents of the complaint and provides in Rule 132(6)(a):

(6)(a) In a court case, a summary of the facts sufficient to advise the defendant of the nature of the offense charged, but neither the evidence nor the statute allegedly violated need be cited in the complaint, nor shall a citation of the statute allegedly violated, by itself, be a sufficient compliance with this subsection; (Emphasis added).

The complaint contained a sufficient summary of the facts to alert the appellant that he might be tried for obstruction of the administration of law and the prosecution commenced on April 1, 1981, when the complaint was issued.

The appellant next contends that the complaint filed on April 1, 1981, and the arrest warrant were issued without probable cause. The sole basis for this argument is that the complaint was based on a presentment issued by a grand jury that was illegally impaneled on February 4, 1981. The grand jury was convened by the President Judge of Delaware County pursuant to the provision of the Act of November 22, 1978, P.L. 1148, 19 P.S. § 265 et seq., as amended. The Act erroneously referred to by the court in convening the grand jury had been repealed and reenacted into the Pennsylvania Statutes by the Act of October 5, 1980, P.L. 693, No. 142, § 216, 42 P.S. § 20010, et seq., the “JARA Continuation Act of 1980.” The effect of this Act was to transfer 19 P.S. §§ 265-276 to 42 Pa.C.S. § 4541-4553. The Act of October 5, 1980, stated that it took effect in sixty days. Therefore, on December 4, 1980, 19 P.S. §§ 265-276 became effective at 42 Pa.C.S. §§ 4541-4543. On February 4, 1981, an incorrect citation was used by the court below in convening the grand jury. Merely using an outdated citation did not mean that the grand jury was improperly convened and that its actions were without any legal effect. See 1 Pa.C.S. § 1962 which provides:

§ 1962. Repeal and reenactment
Whenever a statute is repealed and its provisions are at the same time reenacted in the same or substantially the same terms by the repealing statute, the earlier statute shall be construed as continued in active operation. All rights and liabilities incurred under such earlier statute are preserved and may be enforced.

1972, Dec. 6, P.L. 1339, No. 290, § 3, imd. effective.

Appellant also contends that Pa.R.Crim.P. 1100 was violated as the Rule 1100 time clock should have commenced running on February 24, 1980 when an original complaint was filed rather than on April 1, 1981, when a second complaint was filed. All charges in the original complaint were dismissed at a preliminary hearing on April 11, 1980, due to the Commonwealth’s failure to establish a prima facie case. Trial was commenced within one hundred and eighty days of the filing of the second complaint. Appellant’s contention is without merit as the Rule 1100 period runs from the filing of the second complaint, where all charges against the defendant in the first complaint are dismissed at the preliminary hearing. Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981). There was in this case no attempt to evade Rule 1100 by having the original complaint dismissed. See Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979); Commonwealth v. Leatherbury, 499 Pa. 450, 453 A.2d 957 (1982).

Appellant further contends that the court below erred in denying the motion to suppress evidence resulting from allegedly unlawful wiretaps and recorded conversations. A full suppression hearing was held after trial, which was without a jury, and the motion was dismissed by the court below.

Appellant argues that the wiretaps and conversations recorded prior to December 4, 1978, were in violation of statutory law in effect prior to December 4, 1972 which prohibited surreptitious listening to, or recording of conversations without approval of the person speaking. The earlier statute was replaced by the “Wiretapping and Electronic Surveillance Control Act,” 18 Pa.C.S. § 5701 et seq. The suppression hearing delved into the question of whether the pre-December 4, 1978, tapes were used at the trial for any purpose and the court properly determined that they were not. The pre-December 4, 1978, tapes themselves were not introduced at trial and the failure to suppress them subsequent to trial, if error at all, was harmless beyond a reasonable doubt.

Appellant also contends that post-December 4, 1978, interceptions and recordings of oral communications should have been suppressed as “the Commonwealth failed to establish authorization through the proper channels for the use of tapes at the county level.” Appellant overlooks the fact that the investigation in this case was not simply a state investigation, but was at least a joint investigation with the federal authorities. At the suppression hearing, two federal agents testified as to their participation in the investigation, particularly with respect to the recording devices uses by Officers Berry and Mathis. The police officers consented to interceptions of the communications, which interceptions were valid under federal law. 18 U.S.C. § 2511 provides:

(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

The wiretaps were performed under the auspices of the federal agents, and the police officers were acting under “color of law.” The Pennsylvania “Wiretapping and Electronics Surveillance Control Act” provides at 18 Pa.C.S. § 5717(c):

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

1978, Oct. 4, P.L. 831, No. 164, § 2, effective in 60 days.

We believe that there was sufficient compliance with the law to admit the post-December 4, 1978 tapes.

Finally, appellant argues that even assuming “that the Commonwealth followed and complied with state procedural guidelines in securing authorization to record the conversations used at trial; nevertheless, this evidence should have been suppressed.” The reason propounded by appellant to support this contention is that the accuracy of the tapes was not established by the Commonwealth. At the non-jury trial counsel for the appellant raised the same objections to the admissibility of the tapes. Agent Values, a special agent of the F.B.I. testified that he was involved in the investigation and also testified to his maintenance of the electronic recording equipment used. Counsel for the appellant stipulated to the agent’s qualifications to use the equipment in question. The agent testified that he participated in making the recordings and that federal guidelines were followed. There was also testimony concerning the safeguarding of the tapes and the chain of custody. The court was satisfied that the recordings were authentic and properly exercised its discretion in admitting them into evidence. Tape recordings are admissible when they are properly identified as a reproduction of what has been said and the voices are properly identified. Commonwealth v. Starks, 304 Pa.Super. 527, 450 A.2d 1363 (1982). We are satisfied that the court did not err in admitting the tapes.

Appellant next contends that there was a material and prejudicial variance between the allegation of the information and the proof at trial with respect to the charge of conspiracy. Basically, he contends that he was only charged with one conspiracy and that if any conspiracies existed at all there were two conspiracies. The first was the criminal conspiracy between Carmolingo, Soli, Pietro Taraschi and appellant when they originally operated the club and this operation ceased in November, 1978. Under the Commonwealth’s evidence when Stratton took over after February, 1979, there was a new conspiracy, according to the appellant. We are not impressed with this argument as the evidence supported the conclusion of the court below that only one conspiracy existed. Under the Crimes Code, 18 Pa.C.S. § 903(g)(1), a conspiracy “terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired.” There was no abandonment of the illegal activity of the appellant and his cohorts. Stratton took over the club on a trial basis only and the appellant’s interest and participation, and that of his other co-conspirators, in the illegal activities continued after Stratton became involved. Even when Stratton pulled out of the deal, the appellant and his associates tried to sell the operation and continued their relationship with the police officers.

Appellant next contends that the court below erred in permitting the introduction of hearsay statements of alleged co-conspirators when there was insufficient independent evidence to establish a conspiracy. To support his contention, the appellant relies on Commonwealth v. Weit kamp, 255 Pa.Super. 305, 324, 386 A.2d 1014, 1024 (1978), which states:

To lay a foundation for the co-conspirator exception to the hearsay rule, the Commonwealth must prove that: (1) a conspiracy did exist between the declarant and the person against whom the evidence is offered9 and (2) that the statement sought to be admitted was made during the course of the conspiracy.

Appellant’s contention that there was not sufficient independent evidence of the conspiracy between the declarants and the appellant is simply not supported by the record. The independent testimony of Mr. Stratton, Mr. Bartzoka and Officer Mathis was sufficient evidence of the conspiracy, and a proper foundation was laid for the admission of hearsay testimony.

Finally, the appellant contends that he is entitled to a new trial because the court below erred in not compelling the Commonwealth to provide him with incident reports prepared by Officer Mathis. Prior to trial appellant filed a discovery motion. The Commonwealth turned over the evidence that it had which was requested prior to trial. However, at trial Officer Mathis testified that he had filed some incident reports prior to the zoning hearing which was held in June, 1978. The reports pertained to cars parked at the Deli Social Club and the times he saw people going in and out of the club. This was the only time he had made an incident report. The prosecutor told the trial judge that he was unable to locate the incident reports and there was a possibility that they were fed into a computer. The officer testified that the information on the reports had been fed into the police computer and the reports themselves were destroyed. The assistant district attorney stated that the computer would be made available to defense counsel so that he could attempt to locate the incident reports but the offer was not accepted. The failure of the court below to require the Commonwealth to furnish information from the computer under the circumstances of this case, was not error. Even if we determine that it was error, a new trial will not be granted if the error is harmless. Commonwealth v. Todt, 318 Pa.Super. 55, 464 A.2d 1226 (1983). To be harmless the error must not have contributed to the verdict. Commonwealth v. Hart, 272 Pa.Super. 189, 414 A.2d 1071 (1979). We are convinced that if any error occurred, and we do not believe that it did, it was harmless.

Judgment of sentence affirmed.

      . It is somewhat jarring to lawyers steeped in the common law to encounter the crime of "corrupt organizations.” Lawyers are familiar with the crimes of robbery, theft, assault, murder and kindred offenses but are taken aback when confronted with the charge of "corrupt organizations." Nevertheless, the terminology of the law changes and in keeping with the times a statutory crime of fairly recent origin has appeared in our legal galaxy so that today one may be convicted of "corrupt organizations.”

      . The appellant contends that federal cases interpreting the Federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C.A. § 1961 et seq., require a reversal in this case. However, cases interpreting a federal statute are not controlling in the matter before us. Moreover, a comparison of the Pennsylvania Corrupt Organizations Act and RICO reveals dissimilarities in the acts although both are directed at curbing illegal racketeering activities. Among the federal cases on which the appellant relies is United States v. Guiliano, 644 F.2d 85 (2d Cir.1981) in which the jury was instructed that two crimes of bankruptcy fraud constituted the two predicate acts of racketeering essential to convict on the RICO count. The Court of Appéals held that its reversal of one of the convictions of bankruptcy fraud undermined the RICO conviction. In United States v. Pray, 452 F.Supp. 788 (M.D.Pa.1978), the district court stated at 801:
      The Court does not believe that the Government can charge someone with a series of crimes which would constitute a pattern of racketeering activity but not with engaging in such activity or, conversely, only with engaging in racketeering activity without being able to convict with respect to the underlying crimes.
      Appellant also relies on United States v. Brown, 583 F.2d 659 (3rd Cir.1978), which reversed a conviction under RICO as the conviction of two of the four underlying crimes was reversed. In contrast to the above cases there is a recent decision of the United States Court of Appeals for the Third Circuit which upheld a conviction for violations of RICO where the defendant was not charged with the underlying or predicate act. In United States v. Davis, 576 F.2d 1065 (3rd Cir.1978), the defendant was charged and convicted of a violation of the Racketeer Influenced and Corrupt Organization Act (RICO). The predicate acts forming the basis of the racketeering activity were bribery or extortion and the defendant was not charged with either of these offenses. The Court of Appeals affirmed the conviction.

      . The offense of obstructing administration of law or other government functions is defined at 18 Pa.C.S.A. § 5101 as follows:
      § 5101. Obstructing administration of law or other governmental function
      A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, except that this section docs not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.
      1972, Dec. 6, P.L. 1482, No. 334, § 1, eff. June 6, 1973.

      . Bribery in official and political matters is defined at 18 Pa.C.S. § 4701 as follows:

        § 4701. Bribery in official and political matters
      (a) Offenses defined. — A person is guilty of bribery, a felony of the third degree, if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another:
      (1) any pecuniary benefit as consideration for the decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter by the recipient;
      (2) any benefit as consideration for the decision, vote, recommendation or other exercise of official discretion by the recipient in a judicial, administrative or legislative proceeding; or
      (3) any benefit as consideration for a violation of a known legal duty as public servant or party official.
      (b) Defenses prohibited. — It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way whether because he had not yet assumed office, had left office, or lacked jurisdiction, or for any other reason.
      1972, Dec. 6, P.L. 1482, No. 334, § 1, eff. June 6, 1973.

      . The Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S. § 5552 deals with the commencement of prosecution in criminal cases and provides:
      (e) Commencement of prosecution. — Except as otherwise provided by general rule adopted pursuant to section 5503 (relating to commencement of matters), a prosecution is commenced either when an indictment is found or an information under section 8931(b) (relating to indictment and information) is issued, or when a warrant, summons or citation is issued, if such warrant, summons or citation is executed without unreasonable delay.

      . With respect to the incident reports Officer Mathis testified:
      The only things that were contained on these incident reports were a date, a code number and on the incident report itself all it said was that at such and such a time there were so many cars in front of the Deli Social Club. Okay? At such and such a time one person, two persons, three persons were seen leaving the Deli Social Club.
      The only reason these reports were made was on behalf of the Borough of Clifton Heights, to give them information for their zoning hearing stating that there were numerous cars there at different hours of the night and there were people coming and going at different hours of the night. That was the sole component of those incident reports.


author: BROSKY, Judge:

text:
    475 A.2d 754
    COMMONWEALTH of Pennsylvania v. Michael FREDERICK, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1983.
    Filed April 13, 1984.

      Lawrence Pauker, Norristown, for appellant.
    J. William Ditter, III, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence after a jury verdict of guilty of murder in the third degree. Appellant raises the following fourteen issues in this appeal:

I. DID THE LOWER COURT ERR IN FINDING THAT THERE WAS PROBABLE CAUSE TO ARREST THE APPELLANT?
II. DID THE LOWER COURT ERR IN FAILING TO SUPPRESS EVIDENCE OF THE APPELLANT’S ORAL STATEMENTS TO THE POLICE, AND CONCLUDING THAT SAID STATEMENTS WERE VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY MADE?
III. DID THE LOWER COURT ERR IN FAILING TO GRANT APPELLANT’S MOTION TO SUPPRESS THE TESTIMONY AND ORAL STATEMENT OF BELTON LIVINGSTON?
IV. WAS THE VERDICT CONTRARY TO THE , WEIGHT OF THE EVIDENCE AND AGAINST THE LAW?
V. DID THE LOWER COURT ERR IN ADMITTING CERTAIN COMMONWEALTH EXHIBITS INTO EVIDENCE AND ALLOWING SAME TO GO OUT WITH THE JURY DURING DELIBERATIONS?
VI. DID THE LOWER COURT ERR IN ALLOWING LEWIS BRENNER, A FORENSIC CHEMIST TO GIVE AN EXPERT OPINION ON THE MUZZLE-TO-TARGET DISTANCE?
VII. DID THE LOWER COURT ERR IN ALLOWING THE APPELLANT TO BE CROSS-EXAMINED CONCERNING HIS PRIOR USE AND PURCHASE OF THE WEAPON USED BY THE APPELLANT?
VIII. DID THE LOWER COURT ERR IN INSTRUCTING THE JURY THE TRIVIAL BLOWS WERE INSUFFICIENT TO CONSTITUTE PROVOCATION SUFFICIENT TO FIND VOLUNTARY MANSLAUGHTER?
IX. DID THE LOWER COURT ERR IN INSTRUCTING THE JURY THAT MALICE MAY BE IMPLIED FROM THE USE OF A WEAPON ON A VITAL PART OF THE HUMAN BODY?
X. DID THE LOWER COURT ERR IN GIVING ADDITIONAL INSTRUCTIONS TO THE JURY A SECOND TIME OF THE ELEMENTS OF MURDER IN THE THIRD DEGREE AND VOLUNTARY MANSLAUGHTER ONLY?
XI. DID THE LOWER COURT ERR IN REFUSING CERTAIN OF THE APPELLANT’S POINTS FOR CHARGE?
XII. WAS APPELLANT’S COUNSEL INEFFECTIVE FOR FAILING TO RAISE THE ISSUE OF THE BILL OF INFORMATION NOT HAVING BEEN PROPERLY SIGNED BY THE DISTRICT ATTORNEY?
XIII. DID THE LOWER COURT ERR IN ITS FAILING TO RAISE THE ISSUE OF THE BILL OF INFORMATION NOT HAVING BEEN PROPERLY SIGNED BY THE DISTRICT ATTORNEY?
XIV. WAS THE LOWER COURT’S SENTENCE UNDULY HARSH AND EXCESSIVE?

We find that thirteen of appellant’s issues do not merit relief, but because we are unable to determine from the record before us whether the sentence was excessive, we vacate the judgment of sentence and remand for resentencing.

This case arose from the shooting death, on October 5, 1979, of one Robert Matson. On October 8, 1979, appellant was arrested in connection with the crime and charged, inter alia, with murder. After disposition of pre-trial motions, including a motion to suppress evidence, trial began on April 8, 1980. The jury found appellant guilty of third degree murder on April 15, 1980. Post-verdict motions were filed and denied and appellant was sentenced to a term of ten to twenty years imprisonment. This appeal followed.

Issues 7-7/7

Appellant contends that the court below erred in finding that probable cause existed to arrest appellant and in not suppressing a statement of a witness and statements of his own obtained as a result of this arrest as “fruits of the poisonous tree.” He also argues that his own statements should also have been suppressed because they were not voluntarily, knowingly, and intelligently made.

Initially, we note that in reviewing the rulings of a suppression court, we may not disturb factual findings supported by the record or legitimate inferences and conclusions based on those findings of fact. Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977). Our assessment of support in the record is to be made considering only the evidence of the prosecution’s witnesses and so much of the defense evidence as fairly read in the context of the record as a whole remains uncontradicted. Commonwealth v. Hunt, 280 Pa.Super. 205, 421 A.2d 684 (1980).

Viewed thusly the record supports the following:

On October 5, 1979, Robert Matson was found lying on a street corner with a single bullet wound to the chest. The police were told by a witness that he had earlier observed a car at this corner and that a man had been leaning into the passenger window. This man then had dropped a paper bag, extended his hands into the air and backed away from the window as the driver extended his hands in the man’s direction. The witness had heard a shot and then had circled the block. When he returned, the victim was lying in the street. Another witness to the shooting described the car as a Javelin, although other descriptions of it were also given to the police. Witnesses also reported that the occupant of the car was a white male with neck length hair and a large build.

On October 7, 1979, the police were informed by one Coleen Sullivan that at 3:00 a.m. on October 5, 1979 she had received a phone call from appellant who had stated: “Wake up. It’s very important because I shot someone and I want you to say that my car was parked outside all evening, if anyone comes around.”

She also told the police that appellant operated a Javelin and that he always carried an automatic gun. The police had previously learned that the victim had been shot with a .32 caliber automatic pistol. The police also obtained a photograph of appellant showing him to be a white male with dark, neck-length hair.

On November 8, 1979, five police officers approached appellant as he was walking down a street. Two officers who had their guns drawn identified themselves and patted appellant down for weapons. He was then told he was under arrest and placed in a police vehicle where he was advised of his Miranda rights. After arriving at the County Detective’s Office, appellant was asked if he wanted to make a statement and proceeded to answer questions for approximately twenty-one minutes. The questions ceased when appellant indicated that he wanted to speak to a friend of his, Belton Livingston. While awaiting the arrival of Belton Livingston, a police officer reduced the questions and answers to a writing. During the questions, appellant was not under the influence of drugs or alcohol and appeared relieved and relaxed once he began making his statement. However, he did refuse later to give the police a written statement.

Probable Cause

In Commonwealth v. Jones, 271 Pa.Super. 528, 532, 414 A.2d 379, 381 (1979), we stated the following standard for probable cause to arrest:

Probable cause to arrest existed if, at the time appellant was detained by the police, the facts and circumstances known to them and of which they had reasonably trustworthy information, were sufficient to warrant a prudent man in believing that appellant had committed the shooting. Commonwealth v. Powers, 484 Pa. 198, 201, 398 A.2d 1013, 1014 (1979). The test is not one of certainties but one of probabilities dealing with considerations of everyday life. Commonwealth v. Dickerson, 468 Pa. 599, 605, 364 A.2d 677, 681 (1976). The facts known must be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training. Commonwealth v. Tolbert, 235 Pa.Super. 227, 230, 341 A.2d 198, 200 (1975).

Appellant argues that there was no probable cause because the police were given various descriptions of the car driven by the suspect; the description of the suspect was equally applicable to large numbers of people; the telephone call to Colleen Sullivan did not name the time, date and location that the suspect had “shot someone”; and the police never asked appellant his identity before arresting him and the police did not testify that they believed the person they saw on the street matched appellant’s description.

The weakness in appellant’s argument is that he considers each factor in isolation and concludes that each would not support a finding of probable cause. However, “[i]n determining whether probable cause for an arrest exists, we must not focus on isolated factors, but must, rather, look at the totality of the circumstances surrounding the arrest.” Commonwealth v. Kinnon, 308 Pa.Super. 28, 30, 453 A.2d 1051, 1052 (1982).

Instantly, the police were given a relatively limited number of descriptions of the suspect’s car, one of which corresponded to the type of car driven by a man who phoned in his call to Sullivan on the evening of the shooting, admitted he had shot a man and clearly implied that he had done it that evening. Furthermore, appellant fit the admittedly general description of the suspect and carried the same type of weapon used in the shooting. Lastly, the police testified that they obtained a photograph of appellant béfore his arrest took place. It is certainly a reasonable inference from testimony that they relied on this description when they arrested appellant on the street even though such was not expressly stated in their suppression court testimony. We conclude that these facts were more than sufficient to establish probable cause to arrest appellant.

Statements

Initially, we note that, having concluded that the arrest was supported by probable cause, the statements of Belton Livingston, his testimony at trial, and appellant’s statements were properly not suppressed as fruits of an illegal arrest.

Nevertheless, appellant also contends that his statements should have been suppressed as not voluntarily, knowingly and intelligently made. Although the lower court found that appellant was fully advised of his rights and the finding is supported by the record, appellant argues that due to the circumstances of his arrest he was in a condition of shock and nervousness such as to preclude a voluntary, intelligent, and knowing waiver of these rights. While we agree that the suppression court found that appellant was naturally shocked and nervous, it also found that there was no evidence to indicate that he was distraught or unbalanced. This finding is supported by the testimony of the police officers.

We therefore believe, as stated in Commonwealth v. Tuck, 322 Pa.Super. 328, 336, 469 A.2d 644, 648 (1983), that:

The mere fact that appellant was excited and emotional... does not compel us to conclude that appellant did not know what he was doing; quite the contrary, since the record establishes that he was alert, rational, responsive and sufficiently composed to enable him to validly waive his constitutional rights prior to making the statements.
* £ # * *
Accordingly, we affirm the suppression court’s denial of the motion to suppress since its determination that appellant intelligently and voluntarily waived his Miranda rights is amply supported by the record.

Issue IV

Appellant argues that the evidence was insufficient to support the verdict. We note initially that:

To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978).

Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979) (emphasis added).

At trial, appellant attempted to establish that he had been acting in self-defense. He testified that: On the evening of October 5, 1979, he was approached in a bar by the deceased who made homosexual advances toward him; that the deceased told him that he had previously been confined in a mental institution in connection with a murder; that the deceased accosted appellant in the bar’s men’s room; that when appellant was driving home he was stopped by the deceased who made further advances upon him; that the deceased pulled a knife, attempted to force his way into the car, and appellant was in fear of the deceased. There was also testimony that the deceased had a drinking problem and had been drinking that night.

However, the Commonwealth introduced evidence that no knife was ever found at the scene or on the deceased. The Commonwealth also introduced evidence that: the deceased was more than three feet away from the gun when it was fired; it was fired in the direction of the victim’s chest; and that there was no assault upon appellant.

Appellant makes two arguments as to the sufficiency of the evidence. First, he contends that the evidence was insufficient to refute his claim of self-defense. While there was certainly a conflict in the testimony as to the self-defense claim, “[t]he jury resolved this conflict in testimony ... in the Commonwealth’s favor. This was an appropriate jury function and appellant will not be heard to complain.” Commonwealth v. Gardner, 490 Pa. 421, 426, 416 A.2d 1007, 1009 (1980).

Appellant’s second argument is that the Commonwealth did not prove that appellant had a specific intent to kill. The flaw in this argument is that appellant was convicted of third degree murder which does not require a specific intent to take life. See Commonwealth v. Carter, 481 Pa. 495, 393 A.2d 13 (1978). Only malice is required and that can be implied when a deadly weapon is directed to a vital part of the body. Id. Therefore, we find no merit to appellant’s fourth issue.

Issue V

Appellant argues that various items of the victim’s clothing which had bloodstains on them and a photograph of the deceased showing the bullet wound should not have been admitted at trial and allowed to go out with the jury during deliberations.

The question of the admissibility of photographs of a corpse in homicide cases is a matter within the discretion of the trial judge, and only an abuse of that discretion will constitute reversible error. To determine whether such photographs are admissible, we have utilized a two-tiered analysis. The trial judge must initially decide whether the photographs possess inflammatory characteristics. If they do not, the photographs are admissible as are any evidentiary items, subject to the qualification of relevance. If the photographs are deemed inflammatory, then the trial judge must decide whether the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of their inflaming the passions of the jurors. Commonwealth v. Batty, supra [482 Pa. 173, 393 A.2d 435 (1978) ].

Commonwealth v. Hudson, 489 Pa. 620, 630, 414 A.2d 1381, 1386 (1980).

The fact that a photograph depicts the corpse of a victim does not render it inflammatory per se. “Rather the depiction must be of such a gruesome nature or be cast in such an unfair light that it would tend to cloud an objective assessment of the guilt or innocence of the defendant.” Commonwealth v. Hubbard, 472 Pa. 259, 281, 372 A.2d 687, 697 (1977).

Instantly, appellant has made no argument whatsoever that the photograph was inflammatory; he has merely proceeded to the second tier of the analysis and argued that it did not serve any useful evidentiary purpose. Moreover, there is nothing of record to indicate that it was of a shocking or gruesome nature and it was certainly relevant to support the testimony of the Commonwealth’s pathologist, especially as to the trajectory and point of entry of the bullet. Under these circumstances, we cannot find that the trial court abused its discretion in admitting the photograph.

As to the bloodstained clothing, the test for admissibility of such demonstrative evidence is the same as that for photographs. Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747 (1977); see Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). Appellant’s argument on this point suffers from the same weakness as his argument concerning the photograph. Also, the clothing was relevant for the same reasons as was the photograph. Thus, appellant’s fifth issue merits no relief.

Issue VI

At trial, the Commonwealth called one Lewis Brenner to testify as an expert in forensic chemistry. He testified that he tested the victim’s clothing for the presence of nitrites and found that they were not present. It was his expert opinion that since nitrites were not present, the muzzle to target distance was at least three feet.

Defense counsel objected, stating:

Your Honor, I object to it based on the fact that he has testified that he found nothing on the jacket, and that being so I don’t believe he is entitled to express an opinion as to exact muzzle to target distance.

The trial court overruled the objection because the witness would only testify that the distance exceed three feet. We perceive no error in this ruling. However, appellant now advances several other arguments as to the inadmissibility of the expert’s opinion which essentially amount to a claim that there was not a proper foundation for the testimony. We find that this ground for objection has been waived. If a ground upon which an objection to testimony is based is specifically stated, all other reasons for exclusion are waived. Commonwealth v. Ridall, 280 Pa.Super. 316, 421 A.2d 740 (1980). Thus, we find no merit to this issue.

Issue VII

Appellant argues that the Commonwealth’s cross-examination was improper on the basis that it was irrelevant in light of his admission to the shooting and claim of self-defense. We disagree. Appellant had stated earlier that he was only vaguely familiar with how to operate a gun and had intimated that it had discharged accidentally. The testimony the Commonwealth sought to elicit concerning appellant’s prior use and purchase of the weapon .was certainly relevant to show his familiarity with it and thus rebut his claims of self-defense and accident. Therefore, we find no error in the trial court’s ruling.

Issues VIII-X

Appellant next asserts several errors in the trial court’s instructions to the jury. The controlling law was set out in Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978). There the Supreme Court stated the following:

This Court has consistently held that, in reviewing jury instructions for prejudicial and reversible error, the charge must be read and considered as a whole. Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977). Error cannot be predicated on isolated excerpts of the charge. It is the general effect of the charge that controls. See Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972).

Id., 483 Pa. at 4, 394 A.2d at 510.

Appellant first argues that the lower court erred in instructing the jury that trivial blows were insufficient to constitute provocation which would reduce murder to manslaughter because such a charge was contrary to the evidence. We disagree. We note first that the court charged only that a trivial battery may constitute insufficient provocation. The Commonwealth clearly raised a question as to the extent of the deceased’s assault, if any, upon appellant, particularly as to whether the deceased possessed a knife. Voluntary manslaughter requires serious provocation, Commonwealth v. Miller, 473 Pa. 398, 374 A.2d 1273 (1977), and it was certainly within the province of the jury to determine the extent of any assault and whether it was sufficient to constitute serious provocation. Thus, we find no error in this portion of the charge.

Appellant next claims the court erred in its instruction that malice may be implied from the use of a deadly weapon on a vital part of the human body because the evidence did not indicate that the gun was so used, but that the bullet struck the victim’s arm. We find this contention to be utterly meritless. The Commonwealth’s pathologist testified that the bullet grazed the deceased’s arm which was held across his chest before it entered the chest cavity. As stated by our Supreme Court in Commonwealth v. Padgett, 465 Pa. 1, 5, 348 A.2d 87, 88 (1975):

We are not persuaded that it must be shown that the bullet fired from a revolver, a deadly weapon, initially entered a vital organ before the inference of specific intent to kill can arise. The firing of a bullet in the general area in which vital organs are located can in and of itself be sufficient to prove specific intent to kill beyond a reasonable doubt.

The next issue raised by appellant is that the lower court erred in giving additional instructions for a second time only in regard to murder of the third degree and voluntary manslaughter. During the jury’s deliberations, it twice requested a clarification of the court’s instructions on third degree murder and manslaughter. Defense counsel objected to a third charge on these offenses and, after the objection was overruled and the instructions given, requested that they also be instructed on the element of intent as it relates to third degree murder.

Appellant cites no authority for his proposition that the simple fact itself of a third instruction pursuant to the jury’s request on these charges constituted error and we see no reason why such would be the case. It is the duty of the court to clarify issues for the jury, Commonwealth v. Litman, 276 Pa.Super. 114, 419 A.2d 121 (1980), and we certainly perceive no prejudice to appellant in its having done so.

As to appellant’s second ground for objecting, we note that as discussed earlier in this opinion, specific intent is not an element of third degree murder. See Carter, supra. Thus we find this issue to be without merit.

Issue XI

Appellant contends that the following points for charge should have been read to the jury:

5. In determining the defendant’s state of mind, you may take into account and consider the deceased’s past conduct and treatment of defendant. Commonwealth v. Boone, [467 Pa. 168] 354 A.2d 898 (1975); Commonwealth v. Darby, [473 Pa. 109] 373 A.2d 1073 (1977).
21. When, as in this case, there is evidence that the defendant did not intend to kill the deceased and that there was a struggle between defendant and the deceased when the gun went off, you must consider whether the defendant’s actions were so reckless or grossly negligent that they represent a departure from prudent conduct which evidences a clear disregard for human life and an indifference to the consequence.
34. The use of deadly force is justifiable where the defendant believes that such force is immediately necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat. Such use of deadly force is not justifiable where the defendant knows that he can avoid the necessity of using such force with complete safety by retreating.[]

We note initially that a trial court is not required to accept requested points for charge verbatim, even though they may be legally correct; the court may use its own language so long as the applicable law is clearly, adequately, and accurately explained to the jury. Commonwealth v. Sisco, 484 Pa. 85, 398 A.2d 955 (1979).

As to point 5, we find that the court adequately dealt with this state of mind issue in the portions of its charge dealing with voluntary manslaughter and self-defense. In particular, the court charged that “an accumulation of events, beginning in the recent past may create sufficient provocation.”

As to point 21, we find that jury was given a full and adequate charge on involuntary manslaughter and that there exists no requirement that the court deal with specific factual issues as requested by appellant.

As to point 34, although the use of deadly force is justifiable when a defendant believes that it is necessary to protect himself from kidnapping or sexual intercourse, 18 Pa.C.S.A. § 505(b)(2), we do not believe such a charge would have been supported by the evidence. “[A] trial court should not instruct the jury on legal principles which have no application to the facts presented at trial.” Commonwealth v. White, 490 Pa. 179, 182, 415 A.2d 399, 400 (1980).

Issue XII

Appellant argues that trial counsel was ineffective for failing to challenge the bills of information as being improperly “rubber-stamped.” However, we note that only the copies of these bills were rubber-stamped; the originals were manually signed by the District Attorney. In any event, the case of Commonwealth v. Emanuel, 285 Pa.Super. 594, 428 A.2d 204 (1981), rev. 501 Pa. 581, 462 A.2d 653 (1983) on which appellant relies, was not decided until after the trial of this case. Trial counsel cannot be held ineffective for failing to predict changes in the law. Commonwealth v. Turner, 309 Pa.Super. 330, 455 A.2d 185 (1983). Thus, this issue is meritless.

Issues XIII-XIV

Appellant contends that the sentencing court erred in failing to adequately state its reasons for the sentence on the record and that the sentence it imposed was excessive. We note first that although the sentencing judge did not announce his reasons on the record in compliance with Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), that failure has been waived as a separate issue. Appellant failed to raise it in his motion for modification of sentence and it has thus not been preserved for appeal. See Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984) (en banc).

However, we find that the excessiveness issue has been properly preserved. Furthermore, we are unable to decide that issue from the record before us. Thus, we will remand the case for resentencing in order for the lower court to place its reasons for the sentence upon the record. See Martin, supra.

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

      . Appellant would apparently have us believe that the police randomly arrested him on the street, but that he fortunately happened to be the individual for whom they were looking.

       We note that findings of a suppression court relating to the mental competency of a defendant to waive his Miranda rights, if supported by the evidence, have been affirmed despite the presence of purported disabilities more serious than those alleged here. Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1977) (drug withdrawal); Commonwealth v. Crosby, 464 Pa. 337, 346 A.2d 768 (1975) (low I.Q. and limited education); Commonwealth v. Cannon, 453 Pa. 389, 309 A.2d 384 (1973) (paranoid schizophrenic); Commonwealth v. McQuaid, 273 Pa.Super. 600, 417 A.2d 1210 (1980) (serious illness during hospitalization.

      . Appellant raises an additional argument, citing Commonwealth v. Cost, 238 Pa.Super. 591, 362 A.2d 1027 (1976), that appellant’s refusal to give a written statement after his oral admissions demonstrated that the initial statement was not voluntary. Although Cost involved a situation in which the defendant refused to sign a waiver form, even if we were to assume that Cost is relevant to the instant case, we note that it holds that such a refusal is not dispositive of the issue of voluntariness. As in Cost, our review of the entire record satisfies us that appellant "was aware of his rights and voluntarily gave the oral statements now challenged.” Cost, 238 Pa.Superior Ct. at 605, 362 A.2d at 1034.

      . Although appellant states this issue to be whether the verdict was contrary to the evidence, the weight of the evidence, and against the law, his argument solely concerns the sufficiency of the evidence.

      . It was stipulated at trial that the deceased had been arrested and charged with murder and arson on December 26, 1963 and had been committed to Fairview State Hospital until October 10, 1968 and from November 25, 1968 to July 8, 1971.

      . Appellant also testified that he had found the knife in his car the next day, but had thrown it into a river.

      . Bloodstains on clothing do not render it per se inflammatory. See Martinez, supra (Concurring Opinion).

      . Appellant also contends that the trial court erred in letting the items go out with the jury during deliberations. The items a jury may take with it upon retiring to deliberate are within the trial court’s discretion. Considering the above discussion, we can find no abuse of that discretion. See Commonwealth v. Nahodil, 462 Pa. 301, 341 A.2d 91 (1975).

      . Appellant also claims that the testimony should have been precluded because it implied prior criminal activity. This point is waived since it was not stated to be a ground for the objection below. See Ridall, supra. Even had it not been waived, our review of the testimony reveals nothing from which we believe a juror could reasonably infer that appellant had engaged in prior criminal activity. See Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972).

      . Appellant also argues that the additional charge should have been expanded to include murder generally and the defenses of self-defense and justification. He did not raise this ground for his objection below and, thus, it has been waived. See Ridall, supra.

      . Appellant also challenges the lower court’s denial of his point for charge No. 22. However, appellant did not object to the court’s refusal to read the instruction before the jury retired to deliberate and it has thus been waived. Commonwealth v. Rineer, 310 Pa.Super. 241, 456 A.2d 591 (1983); Pa.R.Crim.P. 1119(b).

      . We recognize that it is arguable that since under Martin, the Riggins issue has been waived, the proper remedy now would not be to vacate the sentence and remand for resentencing. Instead, we conceivably could simply remand while retaining jurisdiction in order for the sentencing judge to prepare a written statement of his reasons for the sentence for our use in determining the excessiveness issue. We believe that this would not be a sufficient remedy had the Riggins issue been preserved. See Commonwealth v. Mullen, 321 Pa.Super. 19, 467 A.2d 871 (1983).
      Instantly, however, the sentencing judge is no longer a member of the Montgomery County Court of Common Pleas. Therefore, we believe the appropriate remedy is to vacate the sentence and remand for resentencing.


author: WIEAND, Judge:

text:
    475 A.2d 765
    COMMONWEALTH of Pennsylvania v. Arthur GELORMO, Appellant. COMMONWEALTH of Pennsylvania v. Herbert THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 4, 1983.
    Filed April 13, 1984.
    Petition for Allowance of Appeal Denied Aug. 21, 1984.

      David Del Pizzo, Assistant Public Defender, Norristown, for appellants.
    Joseph Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

Herbert Thomas and Arthur Gelormo were tried jointly on charges arising from a robbery on April 21, 1979 at the residence of Richard Tarus in Upper Providence Township, Montgomery County. The jury which heard the evidence found Gelormo guilty of robbery, burglary, theft, recklessly endangering another person, terroristic threats and conspiracy. The same jury found Thomas guilty of criminal conspiracy. Post-verdict motions were denied, and sentences of imprisonment were imposed. Separate appeals were filed and consolidated for argument. We will consider the following arguments advanced by both appellants: (1) that the trial court should have quashed the informations because the District Justice denied a defense request to continue the preliminary hearing in order to allow defendants additional time within which to employ the services of a stenographer; (2) that the trial court erred in denying a defense request for the appointment of an independent, ballistics expert; and (3) that the trial court erred in refusing to order the prosecuting attorney to obtain during trial an amended plea agreement entered by a Commonwealth witness and the District Attorney of Chester County. Thomas argues separately that he was prejudiced by the trial court’s erroneous denial of his pre-trial motion for severance and by an excessive sentence. We will discuss these issues seriatim,

At or about 1:00 a.m. on April 21, 1979, according to the Commonwealth’s evidence, Gelormo entered the Tarus home wearing a stocking over his head and brandishing a pistol. He ordered Tarus’ house guest, Kevin Darula, to bind Tarus with the telephone cord; and, after this had been accomplished, he ordered Darula to remove a valuable ring and cash from Tarus’ person. When Tarus protested, Gelormo discharged the weapon. Darula thereupon took the ring and money from Tarus and handed it to Gelormo, following which Gelormo locked Darula in the cellar and fled. The robbery remained unsolved for almost two years until Richard Falasco, who had been arrested with Gelormo for numerous offenses in Chester County, gave a statement regarding the Tarus robbery. He said that Thomas had supplied the gun used by Gelormo in the Tarus robbery while he, Falasco, had driven Gelormo to Tarus’ home and waited with the car while Gelormo entered the home. After the robbery had been committed, Falasco and Gelormo returned to a bar operated by Thomas and gave him the ring. This was later sold for $1,250, which was divided among the men.

Criminal complaints were filed before District Justice Dorine Sutch, who scheduled a preliminary hearing for March 12, 1981. On that day, the defendants appeared with counsel and requested a postponement so that they might obtain the presence of a stenographer. The request for a continuance was denied, and the preliminary hearing proceeded. After the case had been returned to court and informations filed, the defendants moved to quash the informations on grounds that the denial of their motion to continue the preliminary hearing had deprived them of the right to have the proceedings recorded stenographically. The trial court concluded that the District Justice’s denial of the defendants’ motion for a continuance had not been an abuse of discretion and had not violated the defendants’ rights to due process. Therefore, the motion to quash the information was denied.

Pa.R.Crim.P. 142 provides that a District Justice “may” grant a continuance of the preliminary hearing “for cause shown.” Whether to grant a motion for continuance is discretionary with the District Justice, and an order granting or refusing a continuance of a preliminary hearing will not be disturbed in the absence of an abuse of discretion.

Pa.R.Crim.P. 141 provides in relevant part as follows:

(c) The defendant ... may, if he desires:
(4) make written notes of the proceedings, or have his counsel do so, or make a stenographic, mechanical or electrical record of the proceedings.

If appellants had arranged to have a stenographer present, there can be no doubt that the stenographer would have been permitted to record the proceedings. See: Wilson v. Blake, 475 Pa. 627, 381 A.2d 450 (1977). In fact, however, appellants did not make the necessary arrangements, and a stenographer was not present to record the proceedings. Their failure to have a stenographer present was not explained. Indeed, it was not shown that they had made any effort whatsoever to obtain a stenographer. Moreover, they had made no pre-preliminary hearing request for a stenographer. Nor had they made an effort to record the testimony mechanically or electrically. Instead, appellants appeared at the preliminary hearing, where the Commonwealth was ready to proceed, and made a last minute request for a continuance. There was no abuse of discretion in denying such a request. The lack of a transcript of a preliminary hearing is not, per se, a denial of due process. Commonwealth v. Hampton, 462 Pa. 322, 329, 341 A.2d 101, 105 (1975), citing Commonwealth v. Minifield, 225 Pa.Super. 149, 310 A.2d 366 (1973); Commonwealth v. Walley, 262 Pa.Super. 496, 503, 396 A.2d 1280, 1284 (1978). In this case, appellants’ counsel were present and were permitted to take notes during the preliminary hearing. The denial of a continuance to provide additional time to arrange for the presence of a stenographer, therefore, was not a violation of due process.

Under the law of Pennsylvania, as in a majority of states, the appointment of an expert witness or an investigator to assist in the preparation of a defense is vested in the sound discretion of the trial court. See: United States ex rel. Dessus v. Commonwealth, 316 F.Supp. 411, 418 (E.D.Pa.1970), aff'd, 452 F.2d 557, 563 (1971), cert. denied, 409 U.S. 853, 93 S.Ct. 184, 34 L.Ed.2d 96 (1972); Commonwealth v. Box, 481 Pa. 62, 64-65, 391 A.2d 1316, 1317 (1978), aff'g Commonwealth v. Box, 98 Dauph. 446, 451 (1976); Commonwealth v. Scott, 469 Pa. 258, 263-264, 365 A.2d 140, 142-143 (1976); Commonwealth v. Phelan, 427 Pa. 265, 275-276, 234 A.2d 540, 546-547 (1967), cert. denied, 391 U.S. 920, 88 S.Ct. 1803, 20 L.Ed.2d 657 (1968), overruled on other grounds, Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976); Commonwealth v. Rochester, 305 Pa.Super. 364, 381, 451 A.2d 690, 699 (1982). See and compare: State v. Knapp, 114 Ariz. 531, 540, 562 P.2d 704, 713 (1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978); Pickens v. State, 279 Ark. 457, 458, 652 S.W.2d 626, 626 (1983); People v. Hunt, 133 Cal.App.3d 543, 554, 184 Cal.Rptr. 197, 202 (1982); Wilson v. State, 250 Ga. 630, 633, 300 S.E.2d 640, 645 (1983); State v. Olin, 103 Idaho 391, 395, 648 P.2d 203, 207 (1982); Griffin v. State, Ind., 415 N.E.2d 60, 63 (1981); State v. Reynolds, 230 Kan. 532, 534, 639 P.2d 461, 464 (1982); Commonwealth v. Dalton, 385 Mass. 190, 195, 431 N.E.2d 203, 207-208 (1982); State v. Suggett, 200 Neb. 693, 697, 264 N.W.2d 876, 879 (1978); State v. Alford, 298 N.C. 465, 469, 259 S.E.2d 242, 245 (1979); State v. Archambeau, 333 N.W.2d 807, 811 (S.D.1983); Quinones v. State, 592 S.W.2d 933, 942-943 (Tex.Cr.App.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980); Jackson v. State, 624 P.2d 751, 755-756 (Wyo.), cert. denied, 451 U.S. 989, 101 S.Ct. 2327, 68 L.Ed.2d 848 (1981). See generally: Anno., Right of Indigent Defendant in Criminal Case to Aid of State by Appointment of Investigator or Expert, 34 A.L.R.3d 1256 (1970). For the reasons hereinafter set forth, we conclude that the trial court did not abuse its discretion in denying appellants’ request for the appointment of an independent ballistics expert.

A spent .32 caliber bullet casing had been found at the Tarus home by police investigators following the robbery. At trial, a 7.65 mm. pistol was produced by the Commonwealth and identified by Falasco as the gun which Thomas had given to Gelormo for use in committing the robbery. However, there was no ballistics evidence connecting the .32 casing with the 7.65 mm. gun.

After the spent casing had been found, it was sent to the State Police Crime Lab for examination. It was there determined that the bullet had been fired from a 7.65 mm. pistol which had been used in two Chester County robberies allegedly perpetrated by appellants. Copies of these ballistics reports had been supplied to counsel for appellants in the Montgomery County action. It was these reports which had prompted defense counsels’ request for the appointment of an independent ballistics expert to make an additional test. Such an expert was needed, they represented to the court, to verify or contradict the findings of the Commonwealth’s experts. The prosecuting attorney argued that verification or contradiction would be unnecessary because the Commonwealth did not intend to use the ballistics evidence at trial. The trial court thereupon refused the request.

Appellants had been given copies of the Commonwealth’s ballistic reports and knew the results of the tests which had been conducted. It was not an abuse of discretion for the trial court to refuse to order an additional test. See: Commonwealth v. Phelan, supra. See also: Moore v. State, 240 Ga. 807, 813, 243 S.E.2d 1, 6-7, cert. denied, 439 U.S. 903, 99 S.Ct. 268, 58 L.Ed.2d 249 (1978) (appellant’s request for independent criminologist to perform ballistics testing, inter alia, duplicating tests done by state technicians, properly denied). Moreover, appellants’ purpose for requesting an independent ballistics test, i.e., to contradict the Commonwealth’s tests, became moot after the Commonwealth agreed not to use the evidence at trial.

Contrary to appellants’ contention, there is no constitutional mandate, either federal or state, that experts be appointed at public expense to assist in the preparation of a defense whenever requested by one accused of crime. See: United States ex rel. Smith v. Baldi, 344 U.S. 561, 568, 73 5. Ct. 391, 395, 97 L.Ed. 549, 556 (1953) (psychiatrist); Bradbury v. Wainwright, 658 F.2d 1083, 1086 (5th Cir. 1981), cert. denied, 456 U.S. 992, 102 S.Ct. 2275, 73 L.Ed.2d 1288 (1982) (psychiatrist); Payne v. Thompson, 622 F.2d 254, 255 (6th Cir.), cert. denied, 449 U.S. 1063, 101 S.Ct. 788, 66 L.Ed.2d 607 (1980) (expert witnesses and psychiatrist); Watson v. Patterson, 358 F.2d 297, 298 (10th Cir.), cert. denied, 385 U.S. 876, 87 S.Ct. 153, 17 L.Ed.2d 103 (1966) (expert witnesses); Commonwealth v. Rochester, supra 305 Pa.Super. at 381, 451 A.2d at 699 (forensic pathologist). See also: State v. Williams, 657 S.W.2d 405, 411 (Tenn.1983) (forensic pathologist).

Prior to trial the prosecution supplied the defense with a “Memorandum of Understanding” between Falasco and the District Attorney of Chester County. By the terms thereof, Falasco had agreed to cooperate with the authorities in Chester County and to give truthful testimony regarding crimes in which he had been involved in Chester County. In return therefor, the maximum sentence to be imposed against him was to be four to eight years in prison for four burglaries, to run concurrently with any sentences imposed by the courts of Montgomery County and also with any federal sentences imposed. During cross-examination of Falasco, it became apparent that the “Memorandum of Understanding” had been replaced by a new agreement in Chester County. This had been prompted by a decision of the federal government not to prosecute Falasco. The new agreement provided for sentencing in Chester County for a total term of imprisonment of not less than 23 months nor more than 59 months, to be followed by probation for twenty years. It is undisputed that this new agreement had not previously been known to the prosecuting attorney in Montgomery County and that he did not have a copy thereof. Defense counsel asked the court to direct the Commonwealth to obtain a copy of the Chester County agreement and provide the defense therewith in order to continue its cross-examination of Falasco. The trial court declined to do so.

Appellants argue on appeal that the Commonwealth violated the mandatory discovery requirements of Pa.R. Crim.P. 305 B(l) or, in the alternative, that the trial court abused its discretion in refusing to compel the production of the document under the discretionary provisions of Rule 305 B(2). We disagree with both contentions.

“Discoverable evidence in the Commonwealth’s possession may be discoverable either by mandate of [rule 305 B(1) ] or in the discretion of the trial court ([rule] 305 B(2)), depending on the type of evidence sought.” Commonwealth v. Thiel, 323 Pa.Super. 92, 97, 470 A.2d 145, 148 (1983) (emphasis added). In some circumstances, evidence tending to impeach the credibility of a witness, if possessed by the Commonwealth, may be material and subject to discovery under Rule 305 B(1). See generally: Commonwealth v. Jenkins, 476 Pa. 467, 383 A.2d 195 (1978) (former Rule 310). This rule, however, is inapplicable instantly, for the Commonwealth was completely unaware of the second memorandum until Falasco revealed it during cross-examination on the third day of trial.

“[T]he prosecution does not violate discovery rules when it fails to provide the defense with evidence that it does not possess and of which it is unaware during pre-trial discovery, even if the evidence is in police custody.” Commonwealth v. Bonacurso, 500 Pa. 247, 251 n. 3, 455 A.2d 1175, 1177 n. 3, cert. denied, — U.S. —, 103 S.Ct. 3090, 77 L.Ed.2d 1350 (1983), citing Commonwealth v. Starks, 304 Pa.Super. 527, 450 A.2d 1363 (1982) (emphasis in original). Rule 305 B(1) is not a tool to be used by defense counsel to compel the Commonwealth to obtain evidence to which the defense has equal access.

The trial court did not abuse the discretion vested in it by Rule 305 B(2) when it refused to direct the Commonwealth to produce evidence during trial which was then in the possession of the District Attorney of another county. This is particularly clear where, as here, the witness conceded the existence of such an agreement during cross-examination and where it was the existence of the agreement and not the précise terms thereof which were relevant to attack the credibility of the witness. Defense counsel was aware of the agreement between the witness and the District Attorney in Chester County and knew of the leniency which had been promised in exchange for the witness’ testimony. Defense counsel, during cross-examination of the witness, had copies of the transcripts of the sentencing hearings which had been held following the entry of Falasco’s pleas of guilty to four burglaries in Chester County. Cross-examination was lengthy and included every conceivable basis for bias that would affect the witness’ credibility. Appellants’ fair trial rights were not impaired by the court’s refusal to order the Commonwealth to obtain a copy of a plea agreement in another county which was not then in the prosecution’s possession.

Thomas argues that the trial court erred when it denied his request for a separate trial. We disagree. Whether defendants should be tried jointly or separately is committed to the sound discretion of the trial judge, whose rulings on such matters will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Hamm, 325 Pa.Super. 401, 409, 473 A.2d 128, 132 (1984), quoting Commonwealth v. Tolassi, 258 Pa.Super. 194, 199, 392 A.2d 750, 753 (1978), aff'd, 489 Pa. 41, 413 A.2d 1003 (1980); Commonwealth v. Middleton, 320 Pa.Super. 533, 551, 467 A.2d 841, 850 (1983). “[W]here a conspiracy to commit crime is alleged, the defendants should be tried together, ‘unless it can be shown that one or more of the defendants will be actually prejudiced by doing so.’ ” Commonwealth v. Hamm, supra 325 Pa.Super. at 410, 473 A.2d at 133, quoting Commonwealth v. Johnson, 291 Pa.Super. 566, 582, 436 A.2d 645, 653 (1981). See: Commonwealth v. Katsafanas, 318 Pa.Super. 143, 158, 464 A.2d 1270, 1278 (1983); Commonwealth v. Tolassi, supra 258 Pa.Super. at 200, 392 A.2d at 753. Here, a conspiracy was charged. Thomas was accused of planning the robbery which Gelormo committed. He was also charged with supplying the gun and with fencing and sharing the fruits of the crime. Falasco’s testimony was an essential part of the Commonwealth’s case against both men. Under these circumstances, a consolidated trial was proper. See: Commonwealth v. Hamm, supra 325 Pa.Super. at 408-409, 473 A.2d at 132; Commonwealth v. Fields, 317 Pa.Super. 387, 398, 464 A.2d 375, 381 (1983); Commonwealth v. Norman, 272 Pa.Super. 300, 306, 415 A.2d 898, 901 (1979).

Finally, Thomas contends that a sentence of four to ten years was excessive. However, “[i]t is well settled that Pennsylvania trial judges are vested with broad sentencing discretion with which the appellate courts will not interfere absent manifest abuse. . . . In order to constitute an abuse of discretion, a sentence must either exceed statutory limits or be manifestly excessive.” Commonwealth v. Black, 321 Pa.Super. 44, 45, 467 A.2d 884, 885 (1983) (citations omitted). See: Commonwealth v. Smillie, 316 Pa.Super. 83, 88, 462 A.2d 804, 806 (1983). Thomas’ sentence was neither outside the prescribed statutory range nor manifestly excessive. The sentencing court’s statement of reasons for the sentence included Thomas’ role in the instant offense and prior convictions for a robbery and two drug offenses. Contrary to Thomas’ assertion, the fact that Gelormo received a sentence of not less than three nor more than ten years does not indicate an abuse of discretion. Divergent sentences for co-defendants are permissible and will be upheld where, as here, there was an adequate statement of reasons. See: Commonwealth v. Sinwell, 311 Pa.Super. 419, 427, 457 A.2d 957, 960 (1983); Commonwealth v. Parry, 306 Pa.Super. 390, 394, 452 A.2d 781, 783 (1982); Commonwealth v. Landi, 280 Pa.Super. 134, 140, 421 A.2d 442, 444 (1980).

We find no merit in Thomas’ additional contention that the sentence imposed was “illegal” because it was made to run consecutively to sentences then being served. This is not a case in which. the sentencing court was unaware of prior sentences. On the contrary, the court was fully aware of Thomas’ other sentences. These included backtime for a parole violation which was due to expire on April 30, 1984, and a consecutive term of six to fifteen years imposed in June, 1979, on a Chester County conviction. The court, although aware of these sentences, did not refer to them specifically and did not compute the date upon which its sentence would commence. It noted merely that its sentence was to be consecutive to earlier sentences. This did not render the sentence illegal.

The judgments of sentence are affirmed.

      . Appellants have also raised the following issues:
      1) Did the trial court err in denying appellants’ motion to quash and dismiss due to the unreasonable delay prior to appellants’ arrest?
      2) Did the trial court err in denying a mistrial because of a statement by a Commonwealth witness that he had been threatened and/or because of an allegedly improper reference by the prosecutor during summation to that witness’ right not to testify?
      After a careful review of the record, we are persuaded that these issues have been thoroughly reviewed and correctly decided by the trial judge in a comprehensive opinion. There is no need to add thereto.

      . Although there is no record of the proceedings had before the District Justice, counsel have stipulated that such a request was made.

      . At the time of appellants’ hearing, Rule 142 provided: "The issuing authority may, for cause shown, grant a continuance and shall note every continuance together with the reasons therefor on his docket.” Rule 142 has been amended since the time of appellants’ trial and now requires a recording of the grounds for the continuance, the identity of the requesting party, and the new date of the hearing, as well as the reasons for setting that date.

      . The predecessor to Rule 141(c)(4), Rule 120(b)(4), specified that if a defendant wanted to have a stenographer present, he had to do so "at his own expense.” Upon amendment and renumbering of Rule 120(b), this language was deleted. It is an open question whether, and to what extent, an indigent defendant is entitled to the services of a stenographer, at public expense, to record a preliminary hearing. This issue is not before us at the present time.

      . Pursuant to the Act of March 22, 1907, P.L. 31, § 1, 19 P.S. § 784 (as amended) (repealed), an indigent defendant accused of murder was entitled to an appointed investigator or expert under certain circumstances. This statute was repealed by the Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202, No. 53, § 2a[895], 42 Pa.C.S. § 20002(a)[895] and replaced in part by 42 Pa.C.S. § 1722(a)(1) and 42 Pa.C.S. § 3722. Neither of these statutory provisions expressly addresses the question of when and under what circumstances an indigent defendant is entitled to the services of a court appointed expert at public expense. See: Commonwealth v. Rochester, 305 Pa.Super. 364, 381, 451 A.2d 690, 699 (1982).

      . The decision of the Supreme Court of Georgia in Moore was subsequently modified in Sabel v. State, 248 Ga. 10, 282 S.E.2d 61, cert. denied, 454 U.S. 973, 102 S.Ct. 524, 70 L.Ed.2d 393 (1981) as stated in Payne v. State, 249 Ga. 354, 291 S.E.2d 226 (1982).

      . Pa.R.Crim.P. 305 B provides in pertinent parts:
      B. Disclosure by the Commonwealth
      (1) Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items
      (f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence;
      (2) Discretionary with the Court: In all court cases, except as otherwise provided in Rule 263 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant's attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:

        (c) all written or recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co-conspirators or accomplices, whether such individuals have been charged or not;
      (d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.

      . Thomas was sentenced on February 3, 1982. His motion for reconsideration of sentence was filed on February 19, 1982. This was six days late. Pa.R.Crim.P. 1410. The late filing was not raised by the Commonwealth nor by the sentencing court. This procedural irregularity also has not been raised on appeal. Therefore, we do not now consider the effect of a late filing of a motion to modify sentence. But see and compare: Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210 (1983).