author: BECK, Judge:

text:
    564 A.2d 1299
    TANDY COMPUTER LEASING, A DIVISION OF TANDY ELECTRONICS, INC., f/k/a A & A Financial Corporation Appellant, v. John DEMARCO, d/b/a Furguson Vending Co. Appellee.
    Superior Court of Pennsylvania.
    Argued April 13, 1989.
    Filed Oct. 4, 1989.

      Charles O. Zebley, Jr., Uniontown, for appellant.
    Jeffrey T. Olup, Charleroi, for appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   BECK, Judge:

Appellant, Tandy Computer Leasing (“Tandy”) and appellee John DeMarco (“DeMarco”) entered into an agreement dated September 15, 1981 for the lease of certain computer equipment and accessories. Tandy maintains a place of business in Texas and the lease by its own terms was deemed made there. The equipment was shipped from Texas to DeMarco, who is a Pennsylvania resident and who conducts no business in Texas. After mailing several payments on the lease to Tandy in Texas, DeMarco returned the equipment to Tandy and failed to make further payments.

Tandy sued DeMarco in Texas for amounts allegedly due under the lease and obtained a default judgment. Tandy then filed the judgment in Fayette County, Pennsylvania, where DeMarco resided, in accordance with the Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S.A. § 4306 (1981), and proceeded to attempt to execute on the judgment.

DeMarco initially filed a petition to open the judgment, but later filed an amended petition to open or strike. The petition to strike was exclusively based on DeMarco’s contention that the Texas judgment was void for lack of personal jurisdiction. DeMarco alleged that he is a non-resident of Texas, maintains no regular place of business there, has not designated an agent for receipt of service in Texas, and has committed no act nor consummated any transaction in Texas sufficient to confer personal jurisdiction over him on the courts of Texas. Thus, DeMarco sought to have the court of common pleas deny the Texas judgment full faith and credit and strike it in Pennsylvania.

Tandy filed an answer in response to the petition to strike, alleging that the Texas court did have personal jurisdiction over DeMarco on two grounds. First, Tandy pointed to paragraph 18 of the lease, which states:

This lease ... shall be governed and construed in accordance with Texas law and shall have been deemed to be made in Fort Worth, Texas.

Tandy argued that this constituted a consent to personal jurisdiction in Texas by DeMarco. Tandy further argued that DeMarco had sufficient minimum contacts with the state of Texas to confer personal jurisdiction. These contacts were alleged to be the fact that the lease arose in Texas and provided that Texas law would apply, and that the leased equipment was shipped to DeMarco from Texas.

DeMarco elected to proceed on the petition and answer, without any further development of the factual record. On September 8, 1988, the trial court granted the Petition to Strike, finding that the Texas judgment had been entered without personal jurisdiction. The court found as a matter of law that the choice of governing law provision of the lease did not constitute a consent to jurisdiction and that DeMarco did not have sufficient contact with Texas to give its courts jurisdiction over him. This timely appeal followed.

Tandy states the issues on appeal as follows:

1. Is a foreign judgment enforceable in Pennsylvania when:
a. The defendant has consented in advance to the jurisdiction of the foreign court in his contract with the plaintiff; or
b. The foreign jurisdiction had sufficient minimum contacts with the defendant under that jurisdiction’s law to permit its exercise of personal jurisdiction over him?
2. When the lower court decides that a foreign judgment is unenforceable because of lack of jurisdiction by considering evidence outside the record, did the lower court err in striking the judgment instead of opening it?

Our review of the trial court’s decision to strike is limited to ascertaining whether the trial court manifestly abused its discretion or committed an error of law. Bittenbender v. Southeastern Pennsylvania Transportation Authority, 362 Pa.Super. 243, 523 A.2d 1173, allocatur denied, 517 Pa. 602, 536 A.2d 1327 (1987).

Consideration of the issues posed must begin with a brief reference to the legal context in which they arise. This context is the Pennsylvania Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S.A. § 4306 (1981) (the “Act”). The Act is grounded in the constitutional obligation of each state to give full faith and credit to the judgments of other states. U.S. Const. art. IV, § l. The Act provides a simple procedure for the transfer of money judgments rendered by the courts of other states to Pennsylvania. It permits the filing of such a judgment in the courts of common pleas, and provides:

(b) ... A judgment so filed shall be a lien as of the date of filing and shall have the same effect and be subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of any court of common pleas of this Commonwealth and may be enforced or satisfied in like manner.

Id. 4306(b).

The Act also requires that any judgment so filed be accompanied by an affidavit attesting, inter alia, that the foreign judgment “is valid, enforceable and unsatisfied.” Id. § 4306(c).

These provisions have been interpreted to mean that any foreign judgment properly filed in Pennsylvania must be accorded full faith and credit unless there is “... some particular overriding reason ... which would require us to deny full faith and credit to the judgment.... A lack of personal jurisdiction on the part of the court which originally awarded the judgment or a lack of due process on the part of that court are reasons why the principle of full faith and credit would be denied and the subsequent Pennsylvania judgment stricken.” Everson v. Everson, 264 Pa.Super. 563, 400 A.2d 887, 891-92 (1979), aff'd and order modified on oth. grds., 494 Pa. 348, 431 A.2d 889 (1981). See also Barnes v. Buck, 464 Pa. 357, 346 A.2d 778 (1975); Morris Lapidus Associates v. Airportels, Inc., 240 Pa.Super. 80, 361 A.2d 660 (1976).

On the other hand, such a transferred judgment cannot be stricken or opened simply because the party seeking to open or strike can demonstrate that he/she would have a valid defense to the action if brought in Pennsylvania. Only those defenses, like a lack of personal jurisdiction by the rendering court, which destroy the full faith and credit obligation may form the ground for refusing that judgment full faith and credit. Morris Lapidus, 240 Pa.Super. at 85-87, 361 A.2d at 664.

The petition to strike in the instant case falls squarely within the permissible grounds for denying a transferred foreign judgment full faith and credit. The petition asserts a lack of personal jurisdiction by the rendering court which, if proven, destroys the full faith and credit obligation.

We now turn to an analysis of the specific allegations of error raised by Tandy. The first focuses on DeMarco’s alleged contractual consent to personal jurisdiction in Texas. The gravaman of this argument is paragraph 18 of the lease, set forth above. Tandy urges us to find as a matter of law that this paragraph unambiguously constitutes a consent by DeMarco to personal jurisdiction. Alternatively, Tandy urges that paragraph 18 is ambiguous and presents a question of fact as to its proper meaning, which Tandy argues must be resolved in its favor on the present record. We reject both arguments and find that paragraph 18 unambiguously and as a matter of law does not constitute a consent by DeMarco to personal jurisdiction in Texas.

Tandy refers to a single precedent of the Supreme Court of the United States, National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964), to support its argument that a choice of law provision in an agreement is, as a matter of law, a consent to personal jurisdiction in the jurisdiction whose law is to govern. Even a cursory review of National Equipment reveals that it is not supportive of Tandy’s position.

The sole issue presented for decision in National Equipment was the proper interpretation of Federal Rule of Civil Procedure 4(d), which authorizes service of process on an individual through service on an agent he has authorized to receive process. The issue arose out of a lease between a New York corporation and Michigan farmers. The lease provided that the farmers appointed a Mrs. Weinberg, a resident of New York and wife of an officer of the New York corporation, as the farmers’ agent for service of process in New York. The lease did not provide that Mrs. Weinberg had to notify the farmers if she was served as their agent. Some time later, the New York corporation sued the farmers for alleged defaults under the lease in federal district court in New York and made service on Mrs. Weinberg. Mrs. Weinberg immediately notified the farmers that she had accepted service on their behalf.

The farmers contended that the New York court had no jurisdiction over them in that Mrs. Weinberg should not be considered their authorized agent under Federal Rule 4(d). The Supreme Court disagreed, finding the contractual appointment of Mrs. Weinberg to be valid. The Court buttressed its conclusion by construing the lease as a whole to indicate a clear intent by all parties that New York would be the jurisdiction to adjudicate disputes arising under the lease. In doing so, the Court noted that the agreement contained a choice of law provision that made New York law controlling.

This reference to the choice of law provision clearly does not constitute a decision that such a provision, without more, is a consent to personal juridiction. National Equipment, even broadly construed, establishes only that where a party to a contract appoints a person as their agent to receive process, even though that person has no other relation to the principal, is related to the other party, and has no duty to notify the principal that service has been made, the agent is nevertheless authorized to receive service of process under Federal Rule 4(d).

In contrast to National Equipment, which is not on point, we have located ample Supreme Court authority directly relating to the effect of a choice of law provision on personal jurisdiction analysis and finding that such a provision does not determine the personal jurisdiction of the forum state. For example, in the leading case of Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), the Supreme Court analyzed the effect of just such a provision and stated, without equivocation:

.... choice of law analysis — which focuses on all elements of a transaction, and not simply on the defendant’s conduct — is distinct from minimum contacts jurisdictional analysis — which focuses at the threshold solely on the defendant’s purposeful connection to the forum..... such a provision standing alone would be insufficient to confer jurisdiction____

Id. at 482, 105 S.Ct. at 2187 (citing, inter alia, Hanson v. Denckla, 357 U.S. 235, 253-54, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958); Shaffer v. Heitner, 433 U.S. 186, 215, 97 S.Ct. 2569, 2585, 53 L.Ed.2d 683 (1977)). See also Hydrokinetics, Inc. v. Alaska Mechanical, Inc., 700 F.2d 1026, 1029 (5th Cir.1983), cert. denied. 466 U.S. 962, 104 S.Ct. 2180, 80 L.Ed.2d 561 (1984) (choice of law provision is not voluntary submission of defendant to jurisdiction of forum in absence of express understanding to that effect); Stuart v. Spademan, 772 F.2d 1185, 1189 (5th Cir.1985) (choice of law provision must be distinguished from choice of forum provision which specifically designates forum wherein actions relating to agreement are to be brought); 3-D Electric Company, Inc. v. Barnett Construction Co., 706 S.W.2d 135 (Tex.Ct.App.1986), writ ref. n.r.e.

We agree that a provision in an agreement that the laws of a particular forum are to govern disputes arising under the agreement is not the equivalent of a consent to personal jurisdiction. The language of paragraph 18 of the subject lease determines only that the lease is deemed made in Texas and governed by Texas law. It unambiguously and as a matter of law says nothing else.

This resolution also provides our answer to Tandy’s second argument concerning the significance of the choice of law provision, i.e. that it is ambiguous and, therefore, its meaning must be determined from an examination of the evidence concerning the parties’ intent in so agreeing, which is a question of fact. We disagree. As Tandy concedes, whether an agreement is ambiguous is a question of law. Metzger v. Clifford Realty Corp., 327 Pa.Super. 377, 476 A.2d 1 (1984). Since we have determined, as did the trial court, that the choice of law provision in this lease is not ambiguous, we find that there is no question of fact to be resolved.

Having found that DeMarco did not contractually consent to personal jurisdiction in Texas, we now must proceed to determine the more difficult question of whether he had sufficient minimum contacts with the state of Texas to warrant the exercise of personal jurisdiction over him by the courts of Texas.

Texas has enacted a long-arm statute that authorizes service of process on a non-resident defendant who is “doing business” in Texas. Texas Civil Practice & Remedies Code § 17.042 (Vernon 1986). “Doing business” is defined as including making a contract with a Texas resident under which either party is to perform the contract in whole or in part in Texas. Id. This statute has uniformly been construed to intend to reach to the limits of the due process clause of the fourteenth amendment to the United States Constitution in allowing Texas courts to exercise personal jurisdiction over non-residents. Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir.1973).

Service was made on DeMarco pursuant to the Texas long-arm statute. There is no question as to the amenability of DeMarco to service of process under the statute as he was unquestionably “doing business” as defined above. However, the amenability of a non-resident to service of process under the Texas long-arm is not conclusive of jurisdiction. Once it is determined that the law of a forum permits service on the non-resident defendant, a further inquiry must be made as to whether the exercise of jurisdiction comports with due process. Siskind v. Villa Foundation for Education, Inc., 624 S.W.2d 803 (Tex.Ct.App.1981), aff'd in part, rev’d in part on oth. grds., 642 S.W.2d 434 (TX 1982). That is the issue raised in this case.

The due process clause limits the power of a state to assert its jurisdiction over a non-resident defendant. Helicopteros Nacionales Columbia v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 1871-72, 80 L.Ed.2d 404 (1984). The purpose of this limitation is to “protect an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties or relations.’ ” Burger King, 471 U.S. at 471-72, 105 S.Ct. at 2181-82 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 159, 90 L.Ed. 95 (1949)).

In determining whether the Texas court’s exercise of jurisdiction over DeMarco was within the mandate of the due process clause, Tandy argues that we must look to the law of Texas. There is authority for this proposition in Pennsylvania. In Bartholomew Associates, Inc. v. Townhome, Inc., 270 Pa.Super. 95, 410 A.2d 1266 (1979), a panel of this court stated that in determining whether to accord full faith and credit to a judgment of a sister state where the judgment is challenged for lack of personal jurisdiction, we must determine the jurisdiction of the rendering court by reference to the law of the state in which the rendering court sits. Id., 270 Pa.Superior Ct. at 99, 410 A.2d at 1268. Thus, we appear to be bound to consider the view of the Texas courts regarding their own jurisdiction. However, since the question of personal jurisdiction arises under the due process clause of the United States Constitution and is, therefore, a question of federal law, Stuart v. Spademan, 772 F.2d at 1189, we must be guided in the first instance by the decisions of the Supreme Court of the United States regarding the constitutional limits of the power of the Texas courts. In any event, our research of the law of Texas reveals a faithful application by the Texas courts of the decisions of the Supreme Court pertinent to this issue.

The general principles applicable to a personal jurisdiction analysis are well settled. First, we must focus on whether an individual has had a minimum level of contacts with the forum, such that he/she had fair warning that the activities may subject him/her to the jurisdiction of the forum. Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); Shaffer v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 2587, 53 L.Ed.2d 683 (1977) (Stevens, J., concurring in the judgment). Further, if we are satisfied that such minimum contacts exist, then we must determine whether an assertion of jurisdiction by the forum would comport with “fair play and substantial justice.” In doing so, we must consider such factors as “ ‘the burden on the defendant,’ ‘the forum State’s interest in adjudicating the dispute,’ ‘the plaintiff’s interest in obtaining convenient and effective relief,’ ‘the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,’ and the ‘shared interest of the several States in furthering fundamental substantive social policies.’ ” Burger King, 471 U.S. at 476-77, 105 S.Ct. at 2184-85 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980)).

The minimum contacts or fair warning analysis is not resolved simply by counting the number of a non-resident’s contacts with the forum state, nor does it turn upon “ ‘conceptualistic ... theories of the place of contracting or of performance.’ ” Burger King, 471 U.S. at 478, 105 S.Ct. at 2185 (quoting Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 316, 63 S.Ct. 602, 604, 87 L.Ed. 777 (1943)). Rather, in a case such as this, where the forum state seeks to assert jurisdiction over a non-resident in an action that arises from the non-resident’s activities in the forum, the fair warning requirement is satisfied if the nonresident has “purposefully directed” his activities at residents of the forum state and the litigation arises from or is related to those activities. Id. at 472, 105 S.Ct. at 2181-82. Facts such as those present in the case sub judice, i.e. that the non-resident has entered into a contract with a resident of the forum and that the contract is deemed made there, are not determinative in assessing whether the defendant has purposefully directed his activities at the forum. As the Burger King Court stated:

If the question is whether an individual’s contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s home forum, we believe the answer clearly is that it cannot____ Instead, we have emphasized the need for a ‘highly realistic’ approach that recognizes that a ‘contract’ is ‘ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.’ ... It is these factors — prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing — that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.

Id. at 478-79, 105 S.Ct. at 2185 (quoting Hoopeston Canning Co., 318 U.S. at 316-17, 63 S.Ct. at 604-05).

The decisions of the courts of Texas regarding their jurisdiction over non-resident defendants closely follow these Supreme Court directives. In U-Anchor Advertising, Inc. v. N.H. Burt, 553 S.W.2d 760 (TX 1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1235, 55 L.Ed.2d 763 (1978), the Supreme Court of Texas reiterated the formula for personal jurisdiction analysis traditionally applied by Texas courts, as follows:

(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state;
(2) the cause of action must arise from, or be connected with, such act or transaction; and
(3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.

Id. at 762.

The U-Anchor court applied this standard to find no personal jurisdiction over a non-resident defendant who had entered into a contract with a Texas resident for the construction and installation of certain signs. The only contacts of the nonresident with Texas were the execution of the contract with the Texas resident and the mailing of several payments on the contract to Texas. The court held these contacts to be minimal and fortuitous and the assertion of jurisdiction offensive to traditional notions of fair play and substantial justice. The court summarized its analysis of the non-resident’s contacts by characterizing the non-resident as simply “... a passive customer of a Texas corporation who neither sought, initiated, nor profited from his single, fortuitous contact with Texas.” Id. at 762-63. The court also specifically noted that the fact that the contract was performed by the Texas resident in Texas, where the signs were constructed, was irrelevant in that the Supreme Court had previously held that the unilateral activity of the resident in the forum does not constitute a contact of the non-resident with the forum. Id. (citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958)).

The Court of Appeals of Texas has applied U-Anchor to support a finding of no personal jurisdiction in a case strikingly similar to the instant case. In TM Productions, Inc. v. Blue Mountain Broadcasting Co., 623 S.W.2d 427 (Tex.Ct.App.1981), writ ref. n.r.e., the non-resident defendant executed a contract with a Texas resident whereby the resident would license the use of its products to the non-resident. The contract stated that it was deemed made in Texas, governed by the law of Texas, and that jurisdiction over disputes arising under it would be in Texas. Since the court found that the plaintiff had waived reliance on the consent to jurisdiction provision, it proceeded to engage in minimum contacts analysis. The court opined:

According to U-Anchor, the plaintiff’s unilateral performance of the contract in Texas is not enough, even when coupled with the defendant’s payments in Texas pursuant to a contract requiring such payments; defendant must also have purposely done some act or consummated some transaction in Texas. In this case, the evidence establishes that defendant did nothing in Texas. Neither defendant’s telephone calls to plaintiff in Texas ... nor defendant’s possible mailing of the contract from Oregon to Texas ... constitutes purposeful activity of defendant in Texas, even though the contract provides that it is not effective until accepted and executed by plaintiff in Texas. The only other circumstance relied on is the provisión that the contract shall be deemed entered into in Texas and shall be interpreted under the laws of Texas. The applicability of the laws of the forum to a particular dispute does not in itself give the court jurisdiction over the parties to that dispute.

Id. at 433. See also 3-D Elec. Co., Inc. v. Barnett Const. Co., 706 S.W.2d 135 (Tex.Ct.App.1986), writ ref. n.r.e. (nonresident’s making of payments pursuant to contract in Texas coupled with activities of plaintiff in Texas insufficient to constitute minimum contacts).

In contrast, in the more recent case of Zac Smith & Co., Inc. v. Otis Elevator Co., 734 S.W.2d 662 (TX 1987), cert. denied, 484 U.S. 1063, 108 S.Ct. 1022, 98 L.Ed.2d 986 (1988), the Supreme Court of Texas found the defendant’s contacts sufficient to exercise jurisdiction where the defendant, a Florida bonding agent, had been involved over a period of years in continuing negotiations and contractual relationships aimed at the construction of a hotel in Texas. Although the hotel was never built, the defendant had entered into a joint venture for its construction which was wholly performable in Texas and from which the parties anticipated a profit in Texas. In sum, all future consequences of defendant’s activity were to occur in Texas. Thus, the court found that the defendant had purposefully directed its activities toward Texas. Id. at 665-66.

In reaching this conclusion, the Zac Smith court relied heavily on the decision of the Supreme Court in Burger King and found a strong analogy between the two cases. In Burger King, the Supreme Court found constitutional the assertion of jurisdiction by the State of Florida over a non-resident defendant who had entered into franchise agreements with Burger King, a resident of Florida. There, the Court found that the non-resident had entered into “a carefully structured 20-year relationship that envisioned continuing and wide-reaching contacts with Burger King in Florida.” Id. 471 U.S. at 480, 105 S.Ct. at 2186-87. The Court examined the franchise documents and course of dealing between the parties and found ample evidence that the non-resident was aware that they were becoming involved in a long-term and close relationship with a Florida concern, particularly given Burger King’s practice of closely regulating and monitoring all aspects of a franchisee’s business from Burger King’s main offices in Florida. Finally, the Court noted that the choice of law provision in the franchise agreement, which made Florida law governing, added further weight to its conclusion that the non-resident had deliberately affiliated himself with a Florida resident. Id. at 481-82, 105 S.Ct. at 2186-87.

On the basis of these authorities, we conclude that DeMarco had insufficient contacts with Texas to warrant its assertion of jurisdiction over him. The record as developed in the trial court reveals only that the parties entered into a form lease agreement for the rental of computer equipment, that the form lease provides that it is deemed made in Texas and will be governed by that state’s laws, and that DeMarco made some payments under the lease by mail to Texas. Both U-Anchor and TM Productions establish that these activities alone do not constitute activity by DeMarco purposefully directed at Texas.

Nor does this case present any of the circumstances present in either Zac Smith or Burger King which led those courts to find that the exercise of personal jurisdiction by the forum state was warranted. There is no record evidence that DeMarco engaged in any direct negotiations with residents of Texas leading up to the execution of the lease or went to Texas for that purpose. Nor were the relevant future consequences of the lease to occur in Texas. DeMarco leased the equipment to use in his business in Pennsylvania and it was in fact used there. Thus, the only anticipated future consequence of the lease that would occur in Texas was the mailing of some rental payments there. These contacts alone are simply insufficient.

Our conclusion is not affected by the presence of a choice of law provision in the lease which designates Texas law as governing. Although we recognize that such a provision may, under some circumstances, suggest that a non-resident defendant intended to and did invoke the benefits and protections of the law of the forum, we accord such a provision very little weight when it appears in fine print on the back of a form contract, as it does here, and therefore does not bespeak a purposeful decision by DeMarco to avail himself of any particular protection offered by the law of Texas. See Stuart v. Spademan, 772 F.2d at 1194-96; 3-D Electric Company, Inc., 706 S.W.2d at 144-45.

We find no error in the trial court’s conclusion that the Texas court lacked personal jurisdiction over DeMarco and that the Texas judgment is not, therefore, entitled to full faith and credit in Pennsylvania.

Finally, Tandy raises a third and more technical allegation of error regarding the propriety of the trial court’s order. Tandy argues that the trial court violated a cardinal principle of law in relying on evidence “outside the record” to strike this judgment. Thus, Tandy argues that even if the Texas court was without jurisdiction, the order must be reversed and the case remanded so that the trial court can “open” the judgment and allow “the parties [to] proceed with the case.”

We recognize the oft-stated general principle that a judgment may only be stricken for reasons appearing from the face of the record. Bittenbender, supra. However, to reverse the trial court decision in this case on this ground would be an exercise in futility for the obvious reason, that there is no “case” presently pending in Pennsylvania for these parties to proceed with. There is only a filed foreign judgment which we have determined not to be entitled to full faith and credit in that it was entered without personal jurisdiction. Such a judgment is void. In re Patterson’s Estate, 341 Pa. 177, 19 A.2d 165 (1941). Thus, it must be vacated, not opened. As President Judge Cirillo stated in his concurrence in Holden v. Holden, 374 Pa.Super. 184, 542 A.2d 557 (1988) (en banc) (plurality), allocatur denied, 520 Pa. 617, 554 A.2d 509 (1989), where it is determined that a judgment is void because entered without personal jurisdiction, the proper disposition is not to open the judgment, but to vacate it because to do otherwise would be to permit the trial court to proceed further in an action against a defendant over whom personal jurisdiction had not been obtained. Id., 374 Pa.Superior Ct. at 192-94, 542 A.2d at 562 (Cirillo, P.J., concurring, with three judges joining concurrence). See also DeFay v. McMeekin, 352 Pa.Super. 409, 508 A.2d 324 (1986) (judgment void for lack of personal jurisdiction must be vacated, not opened). Although in this case the Pennsylvania trial court may well assert personal jurisdiction over DeMarco on Tandy’s substantive claims, it has not yet done so because Tandy has not yet sued DeMarco on those claims in Pennsylvania. It has only attempted to execute a void foreign judgment against him.

Thus, although DeMarco captioned his petition in this case as a petition to strike, it would have been preferable for him to have sought to have the foreign judgment vacated on the ground that it was not entitled to full faith and credit because it was entered by a court that did not have personal jurisdiction over DeMarco. We note that the Uniform Enforcement of Foreign Judgments Act itself states that a foreign judgment filed in Pennsylvania is subject to being reopened, vacated or stayed. 42 Pa.C.S.A. § 4306(b). The Act does not refer to the striking of such a judgment. Since it would be inappropriate to open a judgment that is void for lack of personal jurisdiction, vacation appears to be the proper disposition. By striking the judgment as the trial court did, the judgment was effectively vacated and rendered a nullity. In re Higbee’s Estate, 372 Pa. 233, 93 A.2d 467 (1953); Metropolitan Federal Savings and Loan Ass’n. v. Bailey, 244 Pa.Super. 452, 368 A.2d 808 (1976). Thus, we must affirm the trial court as having properly adjudicated this judgment to be void and not subject to opening.

The order of the trial court is affirmed.

      . The order of the Pennsylvania Common Pleas Court did not sustain the jurisdiction of the Texas court because that court did not have personal jurisdiction over the appellee. As such it is a final order pursuant to Pa.R.A.P. 341. See comment to Pa.R.A.P. 311(b)(1).

      . Article IV, Section 1 of the Constitution, the full faith and credit clause, provides, in pertinent part:
      Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.

      . The Burger King Court did indicate that the presence of a choice of law provision was relevant to an analysis of whether the defendant had sufficient minimum contacts with the forum state to justify its exercise of personal jurisdiction over him. We will, therefore, consider the relevance of the choice of law provision in the instant agreement in the course of our analysis of DeMarco’s contacts with Texas hereinbelow.

      . This type of exercise of jurisdiction is referred to as "specific jurisdiction.” Burger King, 471 U.S. at 473 n. 15, 105 S.Ct. at 2182 n. 15.

      . We note that some of the payments made by DeMarco do not appear to have been made to Tandy in Texas. One of the checks is made payable to "Radio Shack” with no address designated and one is made payable to Tandy at a Chicago, Illinois address.


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    564 A.2d 1308
    COMMONWEALTH of Pennsylvania v. Clifford T. NEWMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 9, 1989.
    Filed Oct. 12, 1989.

      Jeffrey W. Stover, State College, for appellant.
    Ray F. Gricar, Dist. Atty., Bellefonte, for Com., appellee.
    Before McEWEN, OLSZEWSKI and POPOVICH, JJ.
   McEWEN, Judge:

This direct appeal has been taken from the judgment of sentence to two consecutive terms of imprisonment of from ten years to twenty years each, imposed after a jury determined appellant was guilty of the offenses arising from two separate occurrences of rape, separated by an eighteen month interval, upon patients at the hospital where appellant was employed as an x-ray technician. We are constrained to reverse and remand.

Appellant asserts that he was irretrievably prejudiced because he was compelled to undergo, in one proceeding, trial upon two distinct charges of rape. An analysis of this argument must commence with an examination of Rule 1127 of the Pennsylvania Rules of Criminal Procedure, which provides, in relevant part:

RULE 1127. JOINDER — TRIAL OF SEPARATE INDICTMENTS OR INFORMATIONS A. Standards
(1) Offenses charged in separate indictments or informations may be tried together if:
(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or transaction.
* * * * * *

Pa.R.Crim.P. 1127.

While we share the view of the prosecution that the evidence of the two offenses is so distinct as to preclude danger of confusion on the part of the jury, we are unable to agree that the evidence of each of the offenses would be admissible in a separate trial for the other offense. This particular clash between proof and prejudice has so troubled the appellate tribunals of this Commonwealth that the question has been the subject of careful study and intense expression in both decision as well as in dissent.

It is a principle of long standing in this Commonwealth that evidence of a distinct crime, except under special circumstances, is inadmissible against a defendant who is being tried for another crime because the commission of one crime is not proof of the commission of another, and the effect of such evidence is to create prejudice against the defendant in the jury’s mind.
$ # * * # *
Similar safeguards are necessary where a defendant is tried for two or more offenses in one trial, for the prejudice to the defendant maybe just as insidious and the temptation on the part of the prosecution to cumulate the crimes may be just as great.

Commonwealth v. Morris, 493 Pa. 164, 175-176, 425 A.2d 715, 720 (1981).

The Supreme Court in Morris thereby ruled that the question of the consolidation of two or more offenses for trial is to be governed by and subject to the same principles and limitations as are applicable to the admissibility of evidence of a distinct crime.

Since this issue has already been so thoroughly addressed in the appellate courts, it here better serves to simply state the clear and certain principles to be sifted from those pronouncements:

Evidence of a distinct crime is inadmissible against a defendant who is being tried for another crime.
The reluctance of the courts to discard evidence which may have probative value has caused the judicial creation of a number of exceptions to this principle.
Evidence which falls within an exception does not, however, thereby become per se admissible. Rather, it is only deemed of sufficient probative value as to merit a balancing by the trial court to determine whether its probative value exceeds its prejudicial impact.

The Commonwealth correctly recounts the five most frequently cited exceptions to the general principle which excludes evidence of a distinct crime, when it states that evidence of a distinct crime may be admissible to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial. The prosecution strenuously argues that the “common scheme, plan or design” exception is applicable because “both rapes were part of a common scheme, plan or design of appellant and are so related to each other that proof of one tends to prove the other.”

The “common design” exception contemplates that both crimes share such similar characteristics of commission that evidence of the peculiar facts of one crime tends to establish that the accused committed the other, unrelated crime. The shared similarities which produce the conclusion of “common design” may only be found, however, in the acts which compose the crime and which are performed by the perpetrator. The two cases we here examine share considerable commonality, namely, the situs of the attack, the required presence of the accused at the situs, and the necessary presence of both victims at the situs. These similarities, however, while representing identical factors of both criminal episodes, are not elements of the acts which compose the commission of the crime by the perpetrator. See and compare: Commonwealth v. Bradley, 243 Pa.Super. 208, 364 A.2d 944 (1976).

The Commonwealth argues that the consolidation of the cases for trial was proper by reason of the decisions of this Court in Commonwealth v. King, 290 Pa.Super. 563, 434 A.2d 1294 (1981), and Commonwealth v. Booth, 291 Pa.Super. 278, 435 A.2d 1220 (1981). The facts of the instant appeal differ quite considerably, however, from the factual situations presented in those appeals.

This Court found that the two cases of rape consolidated for trial in Commonwealth v. King, supra, were properly tried together since the accused had employed the same ruse to lure the victims into the introduction and association, however, brief, which preceded each of the rapes. The procedure employed in each case was so similar that the characteristic of commonality dominated both episodes and, therefore, the common scheme exception was properly applied.

The factual distinction between the instant case and Booth is not as readily discernible but is, nonetheless, certain. Booth found the Sheriff of Susquehanna County accused of sexual and official misconduct arising out of asserted illicit sexual behavior with several inmates confined to the jail where the sheriff, who also served as warden of the county prison, maintained his residence. The offenses there, as the offenses here, shared a commonality of situs, the required presence of the accused at the situs, and the necessary presence of the complainants at the situs. However, the sexual encounters between the accused and the complainants in Booth were preceded by a pattern of seduction during which the accused sheriff plied the prisoners with special treatment and favors. In fact, as the esteemed Judge John P. Hester there relates: “The pattern repeated in each of the encounters carried a mark of distinction absent from other sex-related crimes.” Commonwealth v. Booth, supra, 291 Pa.Super. at 289, 435 A.2d at 1226. There is in the present case, however, no such pattern, or similar fundamental characteristic of the commission of the crimes by the perpetrator.

The essential elements of the act of rape, as well as other sexual crimes, will necessarily produce any number of similar characteristics when two acts of rape are scrutinized for shared features, particularly where, as we have here seen, there is commonality of roles and situs attendant the criminal episodes.

The plain fact is that once our scrutiny and comparison of the instant offenses for shared similarities goes beyond the situs and the status of the participants, and we proceed to a scrutiny of the acts of the perpetrator during commission of the crimes, the characteristic of commonality all but vanishes. We are, therefore, compelled to the conclusion that the similarities necessary to effect application of the “common design” exception are simply not present.

Since a scrutiny of the details of the two crimes does not reveal sufficient shared similarities as to permit application of the “common design” exception, neither rape would be admissible at a trial of the other. Thus, the condition precedent, established by Rule 1127, to the consolidation of the separate informations for trial was not met, and appellant was entitled to a separate trial upon each of the two separate offenses. We are, therefore, compelled to vacate the judgments of sentence and remand the cases to the Common Pleas Court so as to afford appellant a separate trial upon each charge of rape.

Judgment of sentence reversed. Case remanded. Jurisdiction relinquished.

      . The jury specifically found appellant guilty, after the cases were, over objection, consolidated for trial, of rape, indecent assault, and indecent exposure in connection with an assault upon a thirty year old victim, as well as rape, indecent assault and corruption of the morals of a minor as a result of an attack upon a fourteen year old victim.

      . See e.g.: Commonwealth v. Donahue, 519 Pa. 532, 549 A.2d 121 (1988); Commonwealth v. Lark, 518 Pa. 290, 301-302, 543 A.2d 491, 496-497 (1988); Commonwealth v. Thomas, 518 Pa. 121, 541 A.2d 739 (1988) (Dissenting Opinion by McDermott, J.); Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987); Commonwealth v. Banks, 513 Pa. 318, 351, 521 A.2d 1, 17-18 (1987), cert. denied, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987); Commonwealth v. Morris, 493 Pa. 164, 170-172, 425 A.2d 715 (1981); Commonwealth v. Shively, 492 Pa. 411, 424 A.2d 1257 (1981); Commonwealth v. Ulatoski, 472 Pa. 53, 63 n. 11, 371 A.2d 186, 191 n. 11 (1977); Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975); Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955); Commonwealth v. Burdell, 380 Pa. 43, 110 A.2d 193 (1955); Commonwealth v. Booth, 291 Pa.Super. 278, 435 A.2d 1220 (1981); Commonwealth v. Wright, 259 Pa.Super. 293, 393 A.2d 833 (1978); Commonwealth v. Bradley, 243 Pa.Super. 208, 364 A.2d 944 (1976); Commonwealth v. Boulden, 179 Pa.Super. 328, 116 A.2d 867 (1955). See also: McCormick, Evidence § 190 (1984 3d ed.).

      . McCormick, in his discussion of the federal rule restricting admissibility of other crimes, itemizes ten exceptions to the principle which excludes evidence of a distinct crime:
      (1) To complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings.
      (2) To prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part.
      (3) To prove other crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused.
      (4) To show a passion or propensity for unusual and abnormal sexual relations.
      (5) To show, by similar acts or incidents, that the act in question was not performed inadvertently, accidentally, involuntarily, or without guilty knowledge.
      (6) To establish motive.
      (7) To establish opportunity, in the sense of access to or presence at the scene of the crime or in the sense of possessing distinctive or unusual skills or abilities employed in the commission of the crime charged.
      (8) To show, without considering motive, that defendant acted with malice, deliberation, or the requisite specific intent.
      (9) To prove identity.
      (10) To impeach an accused who takes the witness stand by introducing past convictions.

        See: McCormick, Evidence, § 190, pp. 558-564 (3d ed., 1984).

      . While offenses arising from several episodes were consolidated for trial in Booth, the analysis and expression of this Court was confined to the claim that the court erred in admitting evidence of crimes not charged in the indictment.

      . The lack of shared similarities makes it unnecessary to proceed to the further step of balancing the probative value and prejudicial impact of the other crimes evidence. See Commonwealth v. Lark, supra, 518 Pa. at 302, 543 A.2d at 497; Commonwealth v. Ulatoski, supra, 472 Pa. at 63 n. 11, 371 A.2d at 191 n. 11; McCormick, Evidence, § 190. Nor, by reason of the conclusion that the "common design” exception is not applicable, need we determine whether consolidation was improper by reason of the eighteen month lapse between the crimes. See: Commonwealth v. Shively, supra, 492 Pa. at 415, 424 A.2d at 1259; Commonwealth v. Bradley, supra, 243 Pa.Super. at 214-216, 364 A.2d at 947-948; Commonwealth v. Boulden, supra, 179 Pa.Super. at 340-348, 116 A.2d at 873-876. And, we finally and parenthetically note, the lack of shared similarities would preclude application of the "identification modus operandi” exception, had identification of the perpetrator been the issue for the jury to decide. See: Commonwealth v. Thomas, supra, 518 Pa. at 125-126, 541 A.2d at 741-742 (Dissenting Opinion of McDermott, J.); Commonwealth v. Shively, supra.

      . Appellant also argues that he is entitled to a new trial by reason of the decision of the Pennsylvania Supreme Court, in Commonwealth v. Gallagher, 519 Pa. 291, 297, 547 A.2d 355 (1988), that expert testimony concerning Rape Trauma Syndrome (RTS) is inadmissible since it improperly impinges upon the role of the jury. Appellant asserts that the RTS testimony introduced at his trial was just such testimony as was proscribed by our Supreme Court in Gallagher. It must be emphasized that the instant trial was held prior to the decision of the Supreme Court, which reversed the holding of this Court in Gallagher that RTS testimony presented by the prosecution was admissible. The Commonwealth, in reliance upon the opinion of the Superior Court, proceeded to presentation of RTS testimony and counsel for appellant failed to express an objection on that precise basis to the testimony. However valid the assertion of appellant that the RTS testimony was such as was subsequently proscribed by our Supreme Court in Gallagher, it is unnecessary for this Court to decide that question, or, indeed, the threshold issue of waiver, since the decision of the Supreme Court in Gallagher will control the presentation of RTS testimony in the further proceedings made necessary by our decision on the issue of evidence of separate crimes.


author: OLSZEWSKI, Judge: KELLY, Judge,

text:
    565 A.2d 160
    COMMONWEALTH of Pennsylvania v. Terrance WILLIAMS, Appellant.
    Superior Court of Pennsylvania
    Argued May 25, 1989.
    Filed Sept. 25, 1989.

      Michael J. Healey, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com.
    Before OLSZEWSKI, MONTEMURO and KELLY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Allegheny County after conviction for delivery of a controlled substance and two counts each of perjury and false swearing. On appeal four issues are raised: first, whether the Commonwealth engaged in misconduct consisting of setting a perjury trap for an uncounseled target of a grand jury; second, whether the evidence was sufficient to sustain one of the counts of perjury; third, whether one of the Commonwealth’s witnesses voluntarily consented to allow his conversations with appellant to be tape recorded; and fourth, whether there was sufficient evidence to sustain the verdict as to possession of heroin with intent to deliver. For the following reasons, we affirm.

The facts of the crimes underlying the convictions in this case center around the demise of one Isaac “Toddy” Dunning. Mr. Dunning had been shot to death, presumably at the behest of one Alvin “Pons” Frazier, on June 14, 1985, in the Hill District section of Pittsburgh. A subsequent investigation by Detective Terrance O’Leary of the Pittsburgh Police Department led to a primary suspect, Melvin Kessler, a friend of appellant’s. Both Kessler and appellant allegedly sold heroin for Alvin Frazier. Upon questioning by Detective O’Leary, appellant claimed that he had not seen Dunning, nor Kessler, on the day of the killing, but that he had been at his mother’s home around the time Dunning was shot.

Dunning had been close friends with one Coty Young-blood. While Youngblood was serving a sentence in Allegheny County Jail, he had heard about Dunning’s death. On the premise of assisting the police in catching those responsible, Youngblood contacted the District Attorney’s Office to offer his help. In this regard, Youngblood, who was an acquaintance of appellant, agreed to set up a meeting with appellant at a hotel in the Oakland section of Pittsburgh and to have the conversation tape recorded.

On July 31, 1985, during one of these meetings between Youngblood and appellant, the conversation turned to drugs. Appellant stated that he was waiting to get some heroin. Later that same evening, appellant brought three balloons of the drug to Youngblood’s room and split these with the witness. After appellant had left the room, Youngblood gave the heroin to Detective O’Leary who then bagged, marked, and ultimately sent the drug to the Allegheny Crime Lab.

On August 29, 1985, appellant appeared under subpoena before the Allegheny County Investigation Grand Jury, which had been convened to investigate the death of Isaac Dunning. During that proceeding, appellant denied being in the presence of Dunning or Kessler on the day of the killing. He also denied being present at, or being involved in, the beating of one William “Deuce” Kerley.

At the close of the grand jury investigation, appellant was charged in an eight-count information filed November 8, 1985. Among the crimes were: one count of criminal conspiracy to commit homicide, 18 Pa.C.S.A. § 903(a)(1); one count of delivery of a controlled substance, 35 Pa.C.S.A. § 780-113(a)(30); three counts of perjury, 18 Pa.C.S.A. § 4902(a); and three counts of false swearing, 18 Pa.C.S.A. § 4903(a)(1).

Various motions to dismiss and/or suppress on grounds of prosecutorial misconduct, government overreaching, and entrapment were filed on all counts, as were petitions for writ of habeas corpus. After hearing and argument on the motions, the trial court, on November 18, 1986, dismissed the charge of criminal conspiracy. On December 4, 1986, the trial court dismissed one count each of perjury and false swearing. All other motions were denied.

On December 2, 1986, appellant was tried non-jury on the remaining two counts each of perjury and false swearing. He was convicted on December 9, 1986, on all counts. Appellant was then tried non-jury for the charge of delivery of a controlled substance, which had been severed at his request, on December 17, 1986. He was convicted of that charge on December 18, 1986. Timely post-trial motions were filed and denied with appellant receiving a sentence of three-to-seven years for the perjury conviction to run consecutive to a three-to-six year term on the heroin conviction. No penalty was imposed on the remaining counts. After a hearing on appellant’s motion for reconsideration, the sentence on the heroin charge was reduced to a term of two-to-six years. Appellant then filed the instant appeal.

Appellant first argues that the convictions for perjury and false swearing should be reversed because the Commonwealth engaged in misconduct by bringing the appellant before the grand jury with the primary purpose of extracting perjured testimony from him. In support of this argument, appellant contends that he had already been asked by Detective O’Leary the precise question of whether he had been with Dunning and Kessler on the day of the shooting and that he had responded in the negative. He alleges that as the Commonwealth knew what his answer would be in advance, and because the Commonwealth was prepared with witnesses which would testify that appellant had been with Kessler and the victim, the Commonwealth had therefore set a “perjury trap” for him. This being the case, appellant further contends that it was improper for the Commonwealth to allow him to testify uncounseled and non-immunized in a proceeding where he was a “target” and not merely a witness.

The Commonwealth responds by claiming that no government misconduct occurred. It argues that appellant has failed to show that he was a “target” or was misled as to his status before the grand jury. The Commonwealth points to the colloquy between appellant and the supervising judge of the grand jury prior to appellant’s testimony. It is stressed that at this proceeding appellant was fully informed as to his rights, and countenanced an understanding of these rights, as well as the penalty for perjured testimony before the grand jury. Accordingly, appellee contends that it did not subpoena appellant for the sole purpose of extracting perjured testimony as it had reason to expect the witness to testify truthfully regarding any information relevant to the investigation of the homicide of Isaac Dunning. As for its decision not to grant appellant immunity, the Commonwealth posits that immunity is not offered until a witness asserts his Fifth Amendment Rights. In this case, no request was made.

Initially, we note that appellant’s claim of a “perjury trap” is unique to this Court, having been addressed only during proceedings involving federal grand juries. Neither appellant nor the Commonwealth base their respective arguments as to this claim on state law, nor could they, for our research indicates a complete lack of case law regarding this issue as it relates to our Investigating Grand Jury Act. In light of this situation, we feel that this specific issue would be more appropriately addressed by examining federal law. Accordingly, we defer to the federal approach.

When addressing a claim of prosecutorial misconduct before a grand jury, our federal courts look first to see whether the alleged misconduct took place, and next, to whether any sanction, such as dismissal of the indictment or suppression of the evidence, is warranted. United States v. Martino, 825 F.2d 754 (3d Cir.1987). When dismissal is the requested relief, the federal courts take one of two approaches. The first approach finds dismissal proper where the defendant can show that the conduct of the prosecution caused him prejudice. The Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988). Prejudice will have occurred only “ ‘if it is established that the violation substantially influenced the grand jury’s decision to indict,’ or if there is ‘grave doubt’ that the decision to indict was free from the substantial influence of such violations.” Id. at 256, 108 S.Ct. at 2374, 101 L.Ed.2d at 238, quoting United States v. Mechanik, 475 U.S. 66, 78, 106 S.Ct. 938, 945, 89 L.Ed.2d 50, 61 (1986). Under the second approach, dismissal may be proper where no actual prejudice is shown “if there is evidence that the challenged activity was something other than an isolated incident unmotivated by sinister ends, or that the type of misconduct challenged has become ‘entrenched and flagrant’ in the circuit.” United States v. Rosenfield, 780 F.2d 10, 11 (3d Cir.1985), quoting United States v. Serubo, 604 F.2d 807, 817 (3d Cir.1979); see also The Bank of Nova Scotia, 487 U.S. at 259-260, 108 S.Ct. at 2376, 101 L.Ed.2d at 240. Under either approach, we must first determine whether any misconduct occurred. We therefore turn to that issue.

When conducting a grand jury investigation, the prosecution may not call a witness before the jury with the sole purpose of eliciting perjured testimony. United States v. Caputo, 633 F.Supp. 1479 (E.D.Pa.1986), rev’d on other grounds sub. nom. United States v. Martino, 825 F.2d 754 (3d Cir.1987). To do so would constitute a violation of a defendant’s Fifth Amendment right to due process, United States v. Simone, 627 F.Supp. 1264 (D.N.J.1986), as well as an abuse of the grand jury system. United States v. Crisconi, 520 F.Supp. 915 (D.Del.1981). Where, however, the prosecutor is aware that a witness may commit perjury, s/he need not refrain from questioning the witness so long as the purpose of the examination is for something other than securing a perjury indictment. United States v. Chevoor, 526 F.2d 178 (1st Cir.1976), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1975); United States v. Nickels, 502 F.2d 1173 (7th Cir.1974), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976). The question then becomes whether another such purpose existed in the present case.

Instantly, it is clear that the Commonwealth anticipated that appellant might or would commit perjury. The statements made by appellant to police regarding his whereabouts shortly after the killing and his involvement in the beating of “Deuce” Kerley were in direct conflict with information already in the hands of the police. While the Commonwealth surely recognized the possibility that appellant might perjure himself, we are certain that the questions posed to appellant, though almost identical to those already asked of him by police, were designed to elicit information regarding the homicide of Isaac Dunning. Truthful answers to these questions could have disclosed information that would have been useful in the pending investigation: first, they would have established that appellant and Melvin Kessler were with Mr. Dunning on the morning of his death, and second, they would have established that appellant and Kessler were employed as “enforcers” for “Pons” Frazier, who had allegedly ordered Dunning killed. Because these questions were relevant to the murder investigation, we are unable to conclude that appellant was subpoenaed for the sole purpose of extracting perjured testimony. Cf. People v. Tyler, 46 N.Y.2d 251, 256-258, 413 N.Y.S.2d 295, 297-298, 385 N.E.2d 1224, 1227-1228 (1978) (under New York law, where perjury indictment based on questions irrelevant to underlying investigation, sole purpose of questioning was to extract perjured testimony). Thus, we find no misconduct on the part of the Commonwealth in the questioning of appellant.

Nor do we find support in appellant’s contention that it was improper for the Commonwealth to allow him to testify uncounseled and non-immunized in a proceeding where he was a “target” and not merely a witness. Prior to testifying, appellant was fully advised of his rights by the supervising judge of the grand jury, the Honorable Alan S. Penkower, as follows:

THE COURT: Each of you has the right to the advice and assistance of a lawyer. That means that you have the right to the services of a lawyer with whom you may consult concerning all matters pertaining to your appearance before the Grand Jury. You may confer with your attorney at any time either before, during or after your testimony. You may consult with your lawyer throughout your entire contact with the Grand Jury; and your lawyer may be present with you in the Grand Jury Room during the time that you are actually testifying and you may confer with your lawyer at that time.
If you cannot afford a lawyer, you are entitled to obtain the services of a lawyer appointed by the Court at no cost to you. If you are not eligible for Court appointed lawyer and you wish to retain a lawyer, I would then give you reasonable time to do so. If you have not consulted a lawyer, this does not mean that you are barred from seeking to obtain counsel. Should you change your mind at any time during your testimony, simply advise the District Attorney who is present in the Grand Jury Room that you wish to consult with or retain counsel. In such event, the District Attorney has been instructed by me that any further questioning of the witness shall cease; and the witness shall be excused and a recess declared until the witness has an opportunity to consult with or retain counsel.
You may at any time discuss your testimony with your lawyer and except for cause shown before this Court, you may disclose your testimony to whomever you choose, if you choose.
You have the right to refuse to answer any question pending a ruling by the Court directing you to respond if you honestly believe that there are proper legal grounds for your refusal. In particular, you have the right to refuse to answer any question which you honestly believe may tend to incriminate you.
If you answer some questions or begin to answer any particular question, this does not necessarily mean that you must thereafter continue to answer the questions or even to complete the answers that you have started. Please remember that any answers that you give to any question can and may be used against you either for the purpose of a Presentment by the Grand Jury or criminal prosecution or both.
In other words, if you are uncertain as to whether you may lawfully refuse to answer any question or if any other problem arises during the course of your appearance before the Grand Jury, you have the right to stop the questioning and appear before me either by yourself or with your lawyer and I will rule on the matter, whenever it may be. Do each of you understand these rights?
* * * * * *
MR. WILLIAMS: Yes.
THE COURT: The duties that you have are fairly simple and straightforward. As a witness before the County Investigating Grand Jury, you have the duty to give full, truthful, complete and .honest answers to all questions asked except where you appropriately refuse to answer on a proper legal ground; and hereby directing each of you to observe and obey this duty.
In this regard, I must caution you that if a witness answers untruthfully, he or she may be subjected to prosecution for perjury which is punishable by imprisonment under the Crimes Code of Pennsylvania. Do either of you have any questions in regard to your obligations before the Grand Jury?
* * * * * *
MR. WILLIAMS: No.

Swearing in of the Witnesses Transcript, August 29, 1985, at 5-8.

Appellant argues that despite this extensive colloquy, he was entitled to a warning by the Commonwealth that he was a specific “target” in the investigation of the murder of Isaac Dunning, and further, that he was entitled to counsel and a grant of immunity prior to testifying. We strenuously disagree. Whether appellant was an actual “target” prior to his testimony has not been established on the record in light of the fact that the witness who implicated him, David “Bus” Cunningham, did not testify before the grand jury until two months after appellant. Moreover, even if appellant were a “target”, we do not believe that it was required of the Commonwealth to advise him of this fact. As was noted by the Supreme Court in United States v. Washington, 431 U.S. 181, 189, 97 S.Ct. 1814, 1820, 52 L.Ed.2d 238, 246 (1977):

... we do not understand what constitutional disadvantage a failure to give potential defendant warnings could possibly inflict on a grand jury witness, whether or not he has received other warnings. It is firmly settled that the prospect of being indicted does not entitle a witness to commit perjury, and witnesses who are not grand jury targets are protected from compulsory self-incrimination to the same extent as those who are. Because target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination, potential defendant warnings add nothing of value to protection of Fifth Amendment rights.

Appellant was given the option to acquire the services of an attorney as well as refuse to answer any questions which might incriminate him. Instead he chose to offer perjured testimony. Because he alone made this decision, he cannot be heard to complain. Accordingly, we reject his initial assignments of error.

Next, appellant contends that his conviction for perjury as to his denial that he and Melvin Kessler had beaten William “Deuce” Kerley should be reversed because the Commonwealth failed to show that the statement was material to the homicide investigation. Appellant argues that the beating of Kerley could in no way have affected the outcome of the grand jury investigation as it was wholly unrelated to the homicide of Dunning. We disagree.

In order to constitute the crime of perjury, several elements must be established. One of these is the false testimony be material to the proceeding in which it was made. Commonwealth v. Lafferty, 276 Pa.Super. 400, 419 A.2d 518 (1980). On this point, we find guidance in the perjury provisions of our Crimes Code which provide in pertinent part:

§ 4902 Perjury
(b) Materiality. — Falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding. It is no defense that the declarant mistakenly believed the falsification to be immaterial. Whether a falsification is material in a given factual situation is a question of law.

18 Pa.C.S.A. § 4902 (emphasis supplied). The thrust of this standard is whether the misstatement can influence a factfinder, not whether it actually does. That it could have affected the outcome is sufficient. Commonwealth v. Lobel, 294 Pa.Super. 550, 440 A.2d 602 (1982); Commonwealth v. Lafferty, 276 Pa.Super. 400, 419 A.2d 518 (1980).

Utilizing the above standard, it is abundantly clear that appellant’s statements were material to the underlying investigation. The grand jury was in the process of investigating the murder of Isaac Dunning. At the time of appellant’s testimony, the Commonwealth had evidence that appellant and Melvin Kessler were with Dunning on the day he was killed. Moreover, the Commonwealth also had been made aware that Dunning was afraid of “Pons” Frazier due to a recent falling out between the two. Had appellant been truthful regarding his involvement in or presence at the beating of “Deuce” Kerley, it would have established that Kessler and appellant were enforcers for Frazier as well as provide a motive for the killing. At a minimum, it is certain that the investigation could have been hampered by appellant’s lies. We therefore conclude that the trial judge properly found these false statements to be material and we reject any argument to the contrary.

Third, appellant argues that the consent of Commonwealth witness Coty Youngblood to tape record his communications with appellant was not voluntary under the totality of the circumstances. Appellant bases his claim on an assertion that the Commonwealth induced Youngblood to submit to the wiretap by promising to help Youngblood get his sentence straightened out or reduced, and by allowing a female companion to visit and stay overnight while Young-blood was serving a prison sentence. Appellant thereby asserts that the tape recordings were not the product of voluntary consent, and the convictions gotten from their use should be reversed.

With regard to this assignment of error, the Commonwealth counters that the record clearly and unequivocally shows that the witness’s cooperation in the recordings was entirely voluntary. Appellee relies on the transcripts wherein the witness testified that the sole reason he consented to the wiretap was that he was a good friend of the victim and that he wanted those responsible caught. He emphatically denied that he was consenting only to receive favorable treatment on his sentence. Moreover, the Commonwealth stresses that use of the female was at the witness’s suggestion in order for the meetings to appear more natural, and not a gift to the witness in return for his assistance.

In addressing the consensual interception of communications under the Wiretapping and Electronic Surveillance Act, our Supreme Court has stated:

... for the purposes of 18 Pa.C.S.A. § 5704(2)(ii), one’s consent must be given voluntarily in order for the governmental actions to be lawful. Commonwealth v. Clark, 516 Pa. 599, 605, 533 A.2d 1376, 1379 (1987), citing Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Mamon, 449 Pa. 249, 297 A.2d 471.
The voluntariness of one’s consent must be the "product of an essentially free and unconstrained choice by its maker ... His will [must not have] been overborne and his capacity for self-determination critically impaired.” Commonwealth v. Clark, supra, 516 Pa. at 605, 533 A.2d at 1379. See also Commonwealth v. Smith, 470 Pa. 220, 368 A.2d 272 (1977); Commonwealth v. Alston, 456 Pa. 128, 317 A.2d 241 (1974). Each case must be determined “from the totality of the circumstances.” Clark, supra, 516 Pa. at 605, 533 A.2d at 1379.

Commonwealth v. Rodriguez, 519 Pa. 415, 419, 548 A.2d 1211, 1213 (1988).

Turning to the facts of the instant case, there can be no doubt that the witness, Coty Youngblood, voluntarily consented to record his conversations with appellant. The witness’s testimony at the suppression hearing of April 28, 1986 clearly evidences this. At that hearing the witness testified as follows:

[BY THE PROSECUTION]:
Q. At any rate, did you talk with Detective O’Leary? A. Yes, I did.
Q. And his partner, Harry Clowes?
A. Yes.
Q. Did you agree to do something specific in terms of helping them out in this investigation?
A. Yes, sir, get the conversation recorded.
Q. At any time in discussing with the Detective the possibility of recording conversations did they threaten you or promise you or coerce you with anything in order to secure your cooperation in taping conversations?
A. No, they didn’t.
Q. Did the District Attorney’s office, through myself, Mr. Nescott or anyone else, threaten you or coerce you in order to get you to consent to taped conversations?
A. No, you didn’t.
* * * * * *
Q. Mr. Youngblood, what was the reason why you agreed to do this, to have your conversation taped with Mr. Williams?
A. Because Toddy was a friend of mine, and they murdered him during Ramadan.
Q. Was this a voluntary action on your part?
A. Yes.

Motions Transcript, April 28, 1986 at 10, 13.

Regarding appellant’s contention that the witness was induced by the presence of a female, overnight, and the sexual inferences attached thereto, appellant had this to say:

[BY THE PROSECUTION]:
Q. After you asked them if you could have a lady friend of yours come to stay with you and they said what, that this would be possible?
A. That’s not exactly how it was.
Q. Well, tell me how it was.
A. She wasn’t there like continuously, you know. She was there so that it would look basically normal. It wouldn’t make sense for me to just be sitting in a hotel by myself. So, you know, she came and left, came and left.
She wasn’t there continuously, straight, just living there. Like we were there on the pretense of having some, or whatever; because it wasn’t like that.
Q. Whose idea was it that you have a female companion?
A. Mine.
Q. Your idea?
A. (Indicates yes.)
Q. Is that right?
A. Well, just about the whole way that I went about doing this, was my idea. They, you know, they said that they would let me do it however I figured I could get all the information and I asked them well, can I do it this way? Will you try to do it that way? Because I was the one risking my life, so I asked them to allow me to do it the way I wanted to do it. And they allowed me to do it like that.

Motions Transcript, April 28, 1986 at 44-45.

Finally, towards the end of his testimony, during cross-examination, the following took place:

[BY THE DEFENSE]:
Q. Well, is it fair to say that it must have been afterward, because you would not have discussed this with Mr. Skirtich about helping you get the sentence straightened out if you already had had the letter?
A. No, I was trying to help myself by contacting the parole commission to get my time straightened out.
The point that I feel like you are missing is like I done this because I wanted to do this, because I didn’t like what they done to Toddy. That’s why I done this. And that's it, point blank, what I done. That was the reason I done it.
Q. I know you are saying here—
A. So you can ask me a million times did they try to — if they wouldn’t have done nothing for me, if I would have had to do the whole ten years, I would have done it. Because I feel like he would have done that for me.

Motions Transcript, April 28, 1986 at 57-58.

From the foregoing, it is readily apparent that the witness’s consent had been freely obtained. Appellant’s contrary allegations are belied by the record and even if true, in light of the witness’s own testimony, we could not conclude that his consent was so tainted as to render his actions involuntary. See United States v. Acavino, 467 F.Supp. 284, 287 (E.D.Pa.1979); United States v. Osser, 483 F.2d 727, 730 (3d Cir.1973) (consent not rendered involuntary where cooperation obtained in return for lenient treatment, or because motivation altruistic or self-seeking). Accordingly, these claims are rejected.

Finally, appellant charges that the evidence was insufficient as a matter of law to sustain the verdict as to possession of heroin with intent to deliver. Appellant asserts that the Commonwealth failed to show that the heroin, alleged to have been delivered by appellant to Youngblood, did not come from either Youngblood’s female friend or another individual who met with Youngblood at the hotel. Appellant further asserts the Commonwealth never established a chain of custody regarding the heroin, and lastly, that the powder analyzed by the Commonwealth’s expert contained only 7/100 grams of heroin.

We begin our analysis of these claims by noting our standard of review in situations where the sufficiency of the evidence is challenged:

The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner and drawing all proper inferences favorable to the Commonwealth, the [finder of fact] could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.

Commonwealth v. Aulisio, 514 Pa. 84, 91, 522 A.2d 1075, 1079 (1987).

Applying this standard to the instant case, it is apparent that appellant’s initial attack on the evidence is without merit. His assertion that the heroin could have come from a source other than his person is belied by the testimony of Coty Youngblood and the tape recorded conversation between himself and the witness. This evidence, we believe, is sufficient to prove that appellant was in possession of heroin. As the trial judge was free to believe this testimony, we reject appellant's claim of error.

Similarly without merit is appellant’s assertion regarding the Commonwealth’s alleged failure to establish a chain of custody regarding the heroin. As the Commonwealth aptly noted, there is no requirement that the prosecution produce every person who came into contact with the evidence, nor must every possibility of tampering be eliminated; it is sufficient that the evidence, direct or circumstantial, establishes a reasonable inference that the identity and condition of the exhibit remained unimpaired until delivery to the court. Commonwealth v. Pedano, 266 Pa.Super. 461, 405 A.2d 525 (1979). Here, the record indicates that after receipt of the heroin from appellant, Youngblood immediately gave it to Detective O’Leary who bagged, marked, and placed it in his locked desk drawer. The next morning, O’Leary took the heroin to the evidence room where it remained until examination by the crime lab. Under these circumstances, we find that the trial judge could have drawn a reasonable inference that the evidence had not been tampered with.

Lastly, we find no support in appellant’s contention that the powder analyzed by the Commonwealth’s expert amounted “only” to 70 milligrams of heroin. In as much as the Controlled Substance, Drug, Device and Cosmetic Act does not designate the minimum amount of a controlled substance which must be delivered to constitute grounds for criminal liability, appellant’s claim is irrelevant. See 35 P.S. § 780-101, et seq.; Commonwealth v. Manley, 252 Pa.Super. 77, 380 A.2d 1290, vacated on other grounds, 491 Pa. 461, 421 A.2d 636 (1977). This fact, coupled with the testimony of the Commonwealth’s expert that the substance was indeed heroin, compels us to reject this claim as well.

Having found no basis upon which to grant the relief requested by appellant, we have no alternative but to uphold the judgment of sentence imposed by the trial court.

Judgment of sentence affirmed.

KELLY, J., concurs.

KELLY, Judge,

concurring.

I join the majority opinion. I note that I find nothing in this opinion materially inconsistent with the views expressed by this author regarding the sole or dominant purpose test and the propriety of exclusion in Commonwealth v. Melson, 383 Pa.Super. 139, 163-75, 556 A.2d 836, 848-53 (1989) (Kelly, J., dissenting). To the extent subtle differences may be felt to exist, I remain of the views expressed in Melson.

      . According to the record, Youngblood was serving both state and federal sentences while housed at the Allegheny County Jail. Apparently he was experiencing a problem with regard to the time remaining on each sentence before he would be eligible for parole. In the hopes of rectifying the situation, he first contacted the District Attorney’s Office sometime prior to the death of Dunning, then again shortly after. Appellant claims that the eventual sorting out of the sentencing problem was a favor in return for Youngblood’s assistance.

      . Present at the hotel room was a woman posing as the companion of Youngblood. Youngblood claims that it was his idea to bring a woman along to make the situation appear normal. Appellant claims that this was another gift in return for Youngblood’s assistance.

      . Kerley, a heroin addict, was allegedly robbing drug dealers working for "Pons” Frazier. In return, Frazier allegedly ordered appellant and Kessler, both of whom had recently begun selling drugs for Frazier, to take care of Kerley. Apparently, Frazier had originally wanted Kerley dead; however, because appellant was friends with Kerley, he was "merely” beaten instead.

      . Appellant was charged with this count based on the grand jury testimony of David “Bus” Cunningham. Cunningham, an alleged enforcer for "Pons” Frazier, testified that appellant and Melvin Kessler were involved in the killing of "Toddy” Dunning. He later recanted this testimony, resulting in the dismissal of the conspiracy charge.

      . These counts were in relation to appellant’s alleged denial at the grand jury that he delivered heroin to Coty Youngblood.

      . The Commonwealth’s brief in this matter was filed approximately two months late, resulting in the loss of oral argument pursuant to Pa.R.A.P., Rule 2188, 42 Pa.C.S.A. After petitioning this Court for leave to make oral argument, however, the Commonwealth was granted permission to argue its case by order dated May 25, 1989.

      . 42 Pa.C.S.A. § 4541, et seq.

      . In fact, it should be noted that Melvin Kessler was tried and convicted of the killing of Dunning as the result of the information gathered during the grand jury investigation.

      . 18 Pa.C.S.A. § 5701, et seq.


author: TAMILIA, Judge: POPOVICH, Judge,

text:
    565 A.2d 170
    COMMONWEALTH of Pennsylvania v. Phillip APPENZELLER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 5, 1989.
    Filed Oct. 16, 1989.

      Regina B. Guerin, Philadelphia, for appellant.
    Deborah Fleisher, Asst. Dist. Atty., Philadelphia, for Com.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, McEWEN, OLSZEWSKI, TAMILIA, POPOVICH, JOHNSON and MELINSON, JJ.
   TAMILIA, Judge:

Appellant, Phillip Appenzeller, appeals judgment of sentence of five to ten years imprisonment imposed following jury convictions on October 10, 1985 of rape, criminal conspiracy, statutory rape and indecent assault. A direct appeal filed by trial counsel was dismissed by this Court for failure to file a brief, however, pursuant to the Post Conviction Hearing Act defendant’s right to appeal was reinstated nunc pro tunc by the trial court. The relevant facts as derived from the trial transcripts follow.

The victim, Katherine L., was three years old when appellant and his girlfriend, Rosemary Nolan, sexually assaulted her. Katherine lived around the corner from the home appellant shared with Nolan and her four children and played with Nolan’s children, frequently visiting appellant’s home.

One day in April, 1984, during daylight hours, appellant and Nolan saw Katherine playing outside and asked her to come inside their home. Once inside, appellant dragged her into his upstairs bedroom, where he and Nolan sexually assaulted her. Although Katherine did not immediately tell her mother about the attack because she was afraid her mother would be angry, her mother noticed that the victim’s vagina was red and swollen while giving her a bath. She asked Katherine what was the matter, but Katherine backed away and said nothing. Also in April, the victim began wetting herself and crying at night, which her mother testified was unusual for her.

In May, 1984, the victim’s mother asked her whether anyone in the neighborhood had touched her. Again, the victim backed away, but then told her mother that appellant had put his penis in her vagina. The assault was reported and appellant was arrested in July, 1984.

Appellant was tried on May 1-3, 1985 before a jury and found guilty of rape, statutory rape, indecent assault and conspiracy even though appellant denied ever having had contact with the victim. Appellant now argues he should have been allowed to cross examine the victim and her mother regarding a sexual assault upon the victim by another male which allegedly occurred prior to appellant’s sexual assault. Appellant contends cross examination in this area was relevant to show a source for the victim’s rudimentary knowledge of sexual activity.

This case is presented to the Court en banc, upon grant of petition for reargument, on the sole issue of whether evidence of a prior assault is admissible to show knowledge by a child of sexual techniques or nomenclature. We hold it is not. In Commonwealth v. Berry, 355 Pa.Super. 243, 513 A.2d 410 (1986), this Court held that proffered cross-examination of the victim concerning sexual involvement prior to trial but after the assault, to undermine her alleged lack of sexual knowledge, which could only be accounted for by the present assault, was barred by the Rape Shield Law, 18 Pa.C.S. § 3104. The only basis for admission of evidence concerning a prior assault would have to do with an assault so proximate in time that it would directly contradict the act or occurrence at issue and in some fashion would be exculpatory as to the charges being prosecuted. Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983). The facts in that case involved proffered evidence of intercourse within hours of the assault which provided an alternative explanation for the presence of semen and sperm in the victim’s body. The same rationale can apply to evidence of physical trauma. Such is not the case here.

The child’s credibility was never under attack as to the identification of the persons who assaulted her nor was there any foundation laid that her knowledge of sexual techniques and nomenclature was derived from the contact with, appellant and his co-conspirator. It is not uncommon in child sexual abuse cases to introduce expert testimony on what is called the child sexual accommodation syndrome, which helps to account for secrecy, delayed, conflicted and unconvincing disclosure, and retraction and helps to account for the child’s knowledge of sexual behavior that is age inappropriate. Here, no expert testimony was offered except in the form of testimony by Dr. Paradise, a pediatrician specializing in child gynecology, who explained, based on her experience in over 200 child sexual abuse cases, that rarely is there injury to the child in such assaults.

Appellant’s only basis for attempting to introduce testimony concerning a prior alleged assault on this child, to account for her knowledge of sexual terms, is irrelevant to the case before the court. A reading of the record establishes the child victim in this case was very poorly supervised and had largely unsupervised activity on the street and in homes of other children, some older than her. Under these circumstances, it is highly likely she learned of sexual terms and anatomy in her play as well as with the contacts with appellant. The best that appellant’s presentation would show is that the child may also have been molested by other persons.

This issue is clearly identical to the one reviewed recently by the Supreme Court in Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989). In that case, appellant sought to introduce evidence concerning prior sexual contacts with other persons. In reversing the Superior Court (Commonwealth v. Durst, 370 Pa.Super. 645, 533 A.2d 1073 (1987)), in which the majority held such testimony was admissible, the Supreme Court stated:

Inasmuch as Appellee’s offer of proof tends only to show that others in addition to Appellee had sexual contact with the victim rather than showing how this testimony would exonerate him, Appellee has not satisfied his burden of showing that the absent testimony would have been helpful in establishing his innocence.

522 Pa. at -, 559 A.2d at 506.

Since the proffered testimony was irrelevant to appellant’s defense, the trial court was correct in holding that the Rape Shield Law, 18 Pa.C.S. § 3104 was applicable. A child no less than an adult is protected from having her prior sexual history paraded in public and having unfair inferences drawn by a jury therefrom. This is particularly true where, as here, the prior history involved another assault. See Commonwealth v. Johnson, — Pa.Super. -, 566 A.2d 1197 (1989).

Judgment of sentence affirmed.

MELINSON, J., concurs in the result of TAMILIA, J.

POPOVICH, J., filed a concurring and dissenting statement in which JOHNSON, J., joined.

POPOVICH, Judge,

concurring and dissenting:

Although I concur in the result reached by the majority, I respectfully dissent from the opinion of the majority because I am convinced that the Rape Shield Law, 18 Pa.C.S.A. § 3104, does not serve as a bar to evidence of prior sexual assaults against a victim.

The Rape Shield Law, 18 Pa.C.S.A. § 3104(a), specifically states: “Evidence of specific instances of the alleged victim’s past sexual conduct, ... shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.” (Emphasis added).

I, unlike the majority, do not believe that a prior sexual assault qualifies as “past sexual conduct.” Inherent in “conduct” is a volitional component which is obviously absent from an “assault.” Black’s Law Dictionary, 268 (5th ed., 1979), defines “conduct” as “Personal behavior; deportment; mode of action; any positive or negative act.” It further notes the Model Penal Code definition of “conduct”: “An action or omission and its accompanying state of mind or where relevant, a series of acts and omissions. Model Penal Code, § 1.13.”

“The Rape Shield Law was enacted primarily to prevent establishment of an unwarranted nexus between the victim’s reputation for chastity and her veracity.” Commonwealth v. Johnson, — Pa.Super. at -, 566 A.2d at 1199. The fact that a victim was sexually assaulted previously does not, in any manner, reflect upon her “chastity or veracity.” Accordingly, I do not believe that the rule applies when a defendant seeks to introduce evidence of a prior sexual assault upon the alleged victim. Compare Miller v. Nevada, — Nev. -, 779 P.2d 87 (1989) (prior false accusations of sexual abuse or sexual assault by complaining witnesses do not constitute “previous sexual conduct” for rape shield purposes). See also Clinebell v. Com., 235 Va. 319, 368 S.E.2d 263, 264 (1988).

Rather than apply the Rape Shield Law, I am convinced that the question of whether evidence of a past sexual assault of an alleged victim is admissible is controlled by the rules of evidence. Simply put, the evidence proffered by the defendant must be relevant. Evidence is relevant if it logically tends to prove or disprove a material fact at issue, or if it tends to make such a fact more or less probable, or if it affords the basis for a reasonable inference or presumption as to the existence of a material fact in issue. Commonwealth v. Haight, 332 Pa.Super. 269, 481 A.2d 357 (1984), affirmed 514 Pa. 438, 525 A.2d 1199 (1987).

Instantly, I believe that the evidence of a prior sexual assault inflicted upon the victim offered to explain the victim’s knowledge of sexual activity is not relevant. The fact that the victim possessed a rudimentary knowledge of sexual activity does not exculpate appellant, regardless of how the knowledge was acquired. Under the present facts, I am convinced that the proffered evidence was not relevant, and, therefore, I find that the trial court did not abuse its discretion in excluding the evidence of a prior sexual assault upon the victim.

Accordingly, I concur in the result.

JOHNSON, J., joins in the concurring and dissenting statement by POPOVICH, J.

      . Ms. Nolan, a co-defendant in this case, pled guilty to sexually assaulting the victim, as well as to conspiracy.

      . While the Court en banc has focused on the implications of the Rape Shield Law, we are not thereby ignoring the two other issues raised by appellant, the first being that the Commonwealth has failed to establish the date and time for commission of the alleged crime, thereby making an alibi defense impossible, and secondly that the Commonwealth failed to prove the charge of rape where the complaining witness of five years of age is unable to present evidence to support the verdict of rape.
      As to the first, we find that the court is permitted reasonable leeway in proving the time of the commission of the crime which will vary with the nature of the crime and the age and condition of the victim, balanced against the rights of the accused. Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975). The requirements were adequately met by competent testimony of Ms. Nolan, co-defendant, who testified against appellant. Applying the balancing test, we find the Commonwealth satisfied the balancing test provided by Devlin and the Commonwealth allegation at the time of the offense satisfied the requirements of due process. See Commonwealth v. Groff, 378 Pa.Super. 353, 548 A.2d 1237 (1988); Commonwealth v. Fanelli, 377 Pa.Super. 555, 547 A.2d 1201 (1988).
      As to the remaining issue that the evidence was insufficient to support the verdict, it is without merit. The evidence was comprised of the testimony of the child victim, the child’s mother and the co-defendant. Viewing the evidence in the light most favorable to the verdict winner, the Commonwealth, Commonwealth v. Pearsall, 368 Pa.Super. 327, 534 A.2d 106 (1988), we find the evidence establishes beyond a reasonable doubt the guilt of appellant. Appellant’s assertion is directed essentially to the weight of the evidence and the credibility of the witnesses, which is a prerogative of the finder of fact. Pearsall, supra. We find no basis upon which the jury’s verdict could be set aside.