author: BECK, Judge: TAMILIA, Judge,

text:
    598 A.2d 543
    COMMONWEALTH of Pennsylvania, Appellant, v. Stephen W. MALONEY.
    Superior Court of Pennsylvania.
    Argued April 16, 1991.
    Filed Sept. 10, 1991.
    Reargument Denied Nov. 7, 1991.

      Ann A. Aschauer, Asst. Dist. Atty., Media, for Com.
    John J. Duffy, West Chester, for appellee.
    Before MONTEMURO, BECK and TAMILIA, JJ.
   BECK, Judge:

The Commonwealth appeals from the trial court’s order granting appellee Stephen Maloney a new trial after a jury convicted him of involuntary deviate sexual intercourse and indecent assault. Since we find that the trial court’s grant of a new trial constituted an abuse of discretion, we reverse the order and remand for the imposition of sentence.

The evidence which formed the basis for the convictions of involuntary deviate sexual intercourse and indecent assault was as follows. Both the defendant, Maloney, and the complainant, Katherine Lehmann, were students at Villanova University. At the time the offenses occurred, Maloney was a junior and Lehmann was a freshman. Both were members of the swim team and it was through participation on the team that they were acquainted.

On homecoming weekend, October 28-29, 1989, both Maloney and Lehmann attended a swim team party at a private home in Bryn Mawr. They did not arrive at the party together. Lehmann had been driven to the party by a friend after leaving her own car parked at the Villanova campus. Because Lehmann knew she eventually had to drive herself home from campus to her aunt and uncle’s house where she was residing, she did not have anything to drink at the party. At approximately midnight, Lehmann was ready to leave the party and she got a ride back to campus from a young woman, Mary Mayfield. Maloney was also in the car and during the ride to campus, he displayed a flask to Lehmann and remarked that it was grain alcohol and that he had been drinking it all night. Lehmann remembered seeing Maloney with the flask in his hands at the party.

When they arrived at Villanova, Lehmann and Maloney got out of Mayfield’s car and Lehmann headed toward her car to drive herself home. Maloney followed her and persuaded her to drive him to his dormitory, explaining that, even though the building was nearby, he was drunk and tired and needed the ride. Lehmann complied. When they arrived at his dormitory, Lehmann got out of the driver’s seat in order to let Maloney out of the car since the passenger’s door was broken. Maloney slid into the driver’s seat. Alone in the car he then began acting foolishly, at first driving Lehmann’s car around the parking lot and then running into the dorm with her car keys. Lehmann followed him, and Maloney convinced her to accompany him to his room on the pretext that she could say hello to other members of the swim team. When she arrived there was nobody else there. Maloney continued to insist that the others had “just run into the bathroom, they will be right back.” After Lehmann stepped into the room, Maloney, in order to keep the room dark, pushed the only lamp in the room onto the floor and Lehmann heard him locking the handle of the door.

Thereafter, Maloney began a sexual assault on Lehmann which lasted about two hours. At first, Lehmann was more disgusted and astonished than frightened. She continually attempted to push Maloney away and both physically and verbally refused Maloney’s advances. The episode culminated in Maloney forcing Lehmann to perform oral intercourse, during which he caused himself to ejaculate all over Lehmann’s hair and face. Then, claiming that he had “a big [swim] meet” the next day, Maloney climbed into his bed and appeared to either fall asleep or pass out. Lehmann left.

As soon as Lehmann left the room she began to search for her friend, Dave Wohlsifer, whom Lehmann described as her best friend on campus. She found him and another student, Mike Lobiondo, in the lounge of the dorm. Her appearance alarmed Wohlsifer who repeatedly asked her what was wrong. Lehmann’s eyes were red, her makeup was smeared and' she was crying. Wohlsifer gave her tissues to clean the semen from her hair and made her some tea because she complained of a bad taste in her mouth.

Mike Lobiondo also attested that Lehmann was “a wreck” when she entered the lounge. She was crying, fidgeting and upset almost to the point of making no sense. She referred to herself as having been humiliated and victimized. However, since Lehmann did not know Lobiondo nearly as well as she knew Wohlsifer, she hesitated to reveal the details of the assault while Lobiondo was still in the room. She waited instead until she was alone with her friend.

Despite her ordeal in October, Lehmann did not report the assault to police until the following March. She was afraid of the publicity which might surround the disclosure and she feared that confronting a trial could be worse than the episode itself. Further, she felt that publicizing the assault might reflect negatively on the swim team and make her membership on the team difficult. She wanted to avoid further humiliation and pain. However, Lehmann changed her mind in March when she read a newspaper article about another girl on the swim team being sexually assaulted in her dorm room at Villanova. Lehmann felt guilty and reproached herself that her silence had somehow contributed to the assault on the second girl. As a result, she told the police what had happened to her the prior October. It must be noted that, in fact, Stephen Maloney was the accused in the March incident as well, and following his arrest for both assaults, the Commonwealth initially sought to consolidate the two cases for trial.- However, the trial court granted the defense motion to sever the trials and further imposed a limitation on the prosecution to prohibit reference to the other charges against Maloney. Thus, when Lehmann referred to the March incident, she alluded only to the victim of the crime and not at all to the alleged perpetrator.

Maloney’s defense was that he was the almost unwitting recipient of sexual favors from a freshman girl who was nearly a stranger to him until the night of the swim team party. Maloney testified that Lehmann offered to accompany him to his room and that she initiated and escalated the sexual advances. In fact, it was Maloney’s testimony that he intended to terminate the encounter but that Lehmann unexpectedly unbuckled his pants and “started giving [him] oral sex”. The incident ended with Maloney ejaculating in Lehmann’s hair which embarrassed him and allegedly angered Lehmann. According to Maloney, he and Lehmann saw each other regularly after that, but only in the capacity of teammates and “friends.” He testified that after the initial embarrassment of seeing her again after that night, relations between them were “calm and friendly.” Finally, Maloney testified that the following morning he told some friends, most of whom were male members of the swim team, that a freshman girl had accompanied him home after the party and performed oral sex on him. This testimony was the basis of the defense’s theory that Lehmann’s accusations regarding the sexual assault were occasioned by her resentment of Maloney’s “bragging” to his friends of their sexual encounter.

The jury convicted Maloney of indecent assault and involuntary deviate sexual intercourse. Post-verdict motions were filed and, in arguing for a new trial, defense counsel raised the two issues upon which the trial court has granted defendant a new trial. First, he argued that reversible error occurred when Katherine Lehmann testified on direct examination that the reason she came forward in March to report the assault after months of delay was because she had learned of another sexual assault on campus and that she was motivated by guilt. Defendant argued that her testimony tacitly implicated Maloney, thereby offending the trial court’s ruling excluding reference to Maloney’s other charges and irreparably prejudicing the jury. Defendant also sought a new trial because, during deliberations, the jury was allegedly exposed to and prejudiced by a newspaper article which disclosed the existence of the other charges against Maloney. The trial court found merit in both arguments and granted defendant a new trial. The Commonwealth appealed. We reverse.

As noted above and as stated by the trial court in its opinion, prior to trial the court instructed the prosecutor that “it would not permit any reference to other charges against the Defendant in this case.” During direct examination of Katherine Lehmann, the following occurred:

[Prosecutor]. Speaking of the police, did you report this to the police in November or December?
[Witness]. No.
[Prosecutor]. Did you report it to the police in January or February?
[Witness]. No.
[Prosecutor]. How about in March?
[Witness]. Yes.
[Prosecutor], What happened in March to prompt you to go to the police with this incident?
[Witness]. In late March, I read in the newspaper about another girl on the swim team being assaulted in her bedroom — on her dorm room in her bed.
[Prosecutor]. At Villanova this is?
[Witness]. On the campus. Yes.
[Prosecutor]. All right.
[Witness]. And I started to feel really guilty about not initially coming forward, so being that maybe somehow reporting my incident might have, I mean, somehow, prevented this girl from having to go through something similar to what I had to go through.
[Prosecutor]. And as a result of that, did you, in fact, go to the police?
[Witness]. Yes.

Lehmann then went on to testify about her reasons for failing to report the assault until March. At no point during the above-transcribed testimony did defense counsel object, seek a mistrial or request cautionary instructions. The Commonwealth argues that the trial court erred in granting a new trial on this belated claim of error. The Commonwealth contends that the trial court abused its discretion because Lehmann’s testimony made no reference to defendant and therefore did not prejudice him nor breach the trial court’s limitations. We agree.

Our reading of the entire record convinces us that the prosecutor’s direct examination and the answers given thereto by Lehmann remained within the bounds of the trial court’s directive not to refer to the other charges pending against this defendant. In the first instance, the prosecutor foretold precisely this aspect of Lehmann’s testimony in his opening statement to the jury. He stated:

She made a decision not to proceed with reporting this to anyone else that night, I specifically mean the police. The months passed and then in March of 1989, she saw an article in the newspaper where another Villanova student was assaulted in her room and she thought this is not right. “I cannot ignore what happened to me. It’s time for me to come forward.”
And ladies and gentlemen, that’s the reason you are here today. Because she made the decision, albeit five months later, through this article in the newspaper she saw, that she cannot remain silent when she saw this other thing happen in her university and she came forward and she is going to tell you the story that I just conveyed to you.

In his opening remarks the prosecutor thus evinced his understanding of the trial court’s admonition to keep evidence of the other charges against the defendant out of the case. Apparently, this understanding was shared by defense counsel and the trial court because at no point thereafter, during opening statements or at any other stage of the proceedings, did defense counsel object to the anticipated and elicited testimony by Lehmann. Furthermore, the trial court did not at any time interrupt or warn the prosecutor that the testimony he planned to bring out would breach the court’s earlier ruling. Finally, during direct examination, when the complained-of testimony was introduced, no objection was made by defense counsel. If the testimony was the “flagrant” violation of the prior ruling by the court on “other crimes,” surely the prosecutor’s augering of the testimony and the testimony itself would have precipitated appropriate objections and motions by defense counsel. However, they did not.

In addition, and more importantly, we do not think that Lehmann’s testimony, either expressly or implicitly, gave rise to an inference of prior criminal activity by this defendant. The rule by which such allegations are resolved is as follows: “Purported references to a defendant’s prior criminal activity will not be deemed prejudicial unless the remarks convey to the jury, either expressly or by implication, the fact that the defendant committed a prior criminal offense”. Commonwealth v. Hamm, 325 Pa.Super 401, 412, 473 A.2d 128, 134 (1984). Clearly, Lehmann’s testimony did not expressly convey to the jury that Maloney was the alleged attacker in the March incident. Nor, in our view, could the jury reasonably infer this from the testimony given. The witness’ testimony was singularly vague and sketchy. Lehmann’s testimony was designed to and did communicate only the notion that her eventual disclosures to the police were motivated by the dismaying suspicion an earlier report “maybe somehow” “might have” spared the other girl. In fact, the defendant used this testimony to his advantage by intimating that the newspaper article provided Lehmann with an “excuse” to seek revenge on Maloney, under the guise of jumping on the rape “bandwagon.” We conclude that the jury could not reasonably have inferred that this defendant was connected to the March incident which precipitated Lehmann’s delayed revelations. It was an abuse of discretion to grant a new trial on this basis.

Similarly, we find that the trial court erred in granting defendant a new trial on the ground that “a portion of the jury had breached its duty by exposing itself to [prejudicial] information” in a local newspaper. The conclusion that the jurors were “tainted” by media exposure is wholly unsupported by the record.

During the jury’s deliberations it came to the attention of the court that the Delaware County Daily Times had, in that morning’s edition, published an article concerning the charges facing the defendant. The article appeared on page 28 of the paper and was five columns long. The headline read “Ex-’Nova student denies charges.” The article recapitulated defendant’s theory of the case which was to paint the victim as a seductress who fabricated the charges when she learned that the exploits she allegedly initiated with Maloney were being publicized about campus by him. The article also summed up closing arguments.

Toward the end of the fourth column of the article, the following sentence occurred: “Maloney is also scheduled to stand trial next week on charges he indecently assaulted a 19-year-old student in her dormitory room on March 20, 1989.” If there was any reasonable way to conclude on this record that a juror or jurors had seen the aforementioned sentence, we would agree with the trial court that defendant is entitled to a new trial. However, the record affirmatively establishes otherwise.

The trial court, having been made aware of the article, took the appropriate, indeed necessary, step of interviewing each juror to determine the extent, if any, of the juror’s exposure to the article and its contents. Juror Number One, whose exposure to the article was potentially the most troublesome, told the court that he glanced through the paper, saw the headlines and “threw the newspaper down.” He unequivocally stated “I didn’t read it.” When pressed by the court further, the juror reiterated that he didn’t read it at all. He noted that no other juror even knew about the article until he mentioned its existence, but that no further discussion about it occurred. Juror Number Two stated that he didn’t hear anything about the article but that he knew one juror had a paper which was confiscated. Juror Number Three had the newspaper when she arrived in court that morning but the paper was taken from her. She told the court that she did not even see the article, much less read it. Juror Number Eight stated that he heard that “there was an article” from Juror Number One but that nothing more was said about it. Juror Number Nine similarly heard of the existence of the article and that it contained “[Maloney’s] side of the story. That’s all.”

The foregoing constituted the sum total of the jury’s “exposure” to prejudicial information. The rest of the jury had no knowledge about the article or of its existence. Defense counsel moved for a mistrial which the trial court denied. Subsequently, however, following post-verdict motions and argument thereon, the trial court reversed itself and found that “at least a portion of the jury had breached its duty by exposing itself to the information.”

We note that the trial court did not find the jurors’ representations regarding their familiarity with the contents of the article to be incredible or false. On the contrary, at the conclusion of post-trial argument, the trial court stated that he was “not finding that 12 people lied or that anyone lied.” He concluded merely that defendant had not received “a fair trial.” This conclusion is without record support and therefore constitutes an abuse of discretion.

Unless the trial court specifically disbelieved the testimony of one or more of the jurors, and had articulable reasons for so concluding, the record is altogether clear that not one of the jurors had any exposure to the prejudicial information in the article at issue. Not only had the jury not read the article but the little it did know was unexceptional. The most that any juror learned from the fleeting realization that an article on the case even existed was that Maloney denied the charges against him. Obviously, this was neither prejudicial nor new to the jury.

Moreover, we reject the conclusion that the members of the jury “breached” their duty to avoid media coverage of the case. Based on this record, we find instead that the jurors scrupulously attempted to avoid undue exposure. The only juror who actually saw the article only glimpsed at the headline which prompted his immediate discarding of the newspaper. Furthermore, the jury was instructed repeatedly to base its decision solely on the evidence it heard at trial and was pointedly cautioned following the news article incident to “completely forget” it and to continue with deliberations based on the evidence alone. Such precautionary instructions should suffice, particularly in a case where no actual prejudicial material was unearthed. See Commonwealth v. Jermyn, 516 Pa. 460, 483, 533 A.2d 74, 85 (1987); see also United States v. Polizzi, 500 F.2d 856 (9th Cir.1974); Adjmi v. United States, 346 F.2d 654 (5th Cir.1965).

We cannot conclude that the grant of a new trial is warranted on grounds as speculative as those found here. Mr. Justice Holmes long ago noted that: “If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day.” Holt v. United States, 218 U.S. 245, 251, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910). We agree.

We find nothing in the record to taint the integrity of the jury’s verdict. Therefore, we reverse the trial court’s grant of a new trial and remand for the imposition of sentencing. Jurisdiction is relinquished.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting.

I dissent and would affirm the trial court’s May 31, 1990 Order granting appellee, Stephen W. Maloney, a new trial after a jury convicted him of involuntary deviate sexual intercourse and indecent assault.

The relevant alleged facts are the victim was a freshman at Villanova University and a member of the women’s swim team. On October 28, 1988, appellee, a junior and member of the men’s swim team, and the victim arrived separately at a team party at a private home in Bryn Mawr, Pennsylvania. At approximately 12:00 a.m., the victim asked fellow party-goer Mary Mayfield to drive her to the victim’s car which was parked on campus. Appellee also rode back to campus with the two. On the drive back, appellee appeared intoxicated and bragged to the women he had been drinking grain alcohol all evening. The victim and appellee got out of Mayfield’s car at the Villanova campus. After a series of childish pranks, appellee coaxed the victim to join him in his dorm room, under the auspices she could meet other swim team members who were also in his room. The victim then followed appellee to his room and, to her surprise, no one else was present. Thereafter, appellee proceeded to lock the victim in the room and turn out the lights. An ordeal lasting approximately two hours ensued. During the course of the following two hours, appellee made sexual advances toward the victim, forcibly constrained her from leaving and violently forced her to perform acts of oral copulation. The victim did not come forward and tell her story to police until March 23, 1989, approximately five months after the incident, when appellee was charged with similar crimes allegedly committed against another Villanova University co-ed.

The Commonwealth initially asserts the trial court erred in granting a new trial on the basis the appellee was prejudiced by an alleged violation of the court’s directive prohibiting the Commonwealth from making any reference to the appellee’s pending charges arising out of the March incident with a different Villanova co-ed. The portion of the direct examination which the trial court found violative of its Order and prejudicial to appellant is as follows:

Q. Speaking of the police, did you report this to the police in November or December?
A. No.
Q. Did you report it to the police in January or February?
A. No.
Q. How about in March?
A. Yes.
Q. What happened in March to prompt you to go to the police with this incident?
A. In late March, I read in the newspaper about another girl on the swim team being sexually assaulted in her bedroom — or her dorm room in her bed.
Q. At Villanova this is?
A. On the campus. Yes.
Q. All right.
A. And I started to feel really guilty about not initially coming forward, so being that maybe somehow reporting my incident might have, I mean, somehow, prevented this girl from having to go through something similar to what I had to go through.
Q. And as a result of that, did you, in fact, go to the police?
A. Yes.
Q. Did you give them a narrative written statement as to what happened to you?
A. Yes.
Q. It was like seven or eight pages long?
A. It was ten pages long.
Q. Ten pages. Okay.
A. Well, actually eleven.
Q. Katie, why didn’t you go to the police after this happened?
A. There were several reasons____

(T.T., 3/20/90, pp. 113-14, emphasis added.)

The restrictions on the testimony presented had been imposed by the trial court pursuant to motions in limine, which were granted by the trial court when he instructed the district attorney that he would not permit reference to the other case either by the victim or the district attorney. For the purpose of post-verdict motions, pursuant to Pa.R.Crim.P. 1123, this served to preserve the motion and need not have been raised again prior to the time post-trial motions were filed. See Commonwealth v. Burchard, 349 Pa.Super. 456, 503 A.2d 936 (1986). The court, in his Opinion, stated as follows:

Prior to the trial of this matter, the Defense filed a Motion in Limine to exclude any evidence of the existence of the other charges into this case. The Defense anticipated that the alleged victim in this case might reveal the existence of the other charges against the Defendant when she was questioned by the District Attorney upon direct examination.
In an in camera proceeding, the Court instructed the District Attorney that the Court would permit no reference to the other charges from Incident Number 2 in the testimony of this case. The District Attorney offered to have the alleged victim to respond only that she has heard of another incident in March of 1989 which compelled her to report what had allegedly happened to her in October of 1988. Again, the Court indicated that it would not permit any reference to other charges against the Defendant in this case.
In her actual direct testimony and in response to the questions from the District Attorney, the alleged victim testified that she reported the Defendant’s attack upon her because she had read in the campus newspaper in March of 1989 that another member of the Varsity Swim Team had been attacked in her dormitory room. She further stated that she felt guilty for not having reported the attack upon her by the Defendant for, had she done so, she might have prevented the subsequent attack. This clearly went beyond the ruling in the in camera proceedure [sic].

(Slip Op., Labrum, J., 11/16/90, pp. 2-4.)

In light of the above discussion and holding by the trial court, I would find a new trial was properly granted. The testimony presented by the victim upon examination by the district attorney, in addition to violating the instruction by the court, substantially defeated the purpose for granting the motion of severance of the two cases. When the informations were prepared, the Commonwealth gave notice it intended to join the two charges. It was following the grant of the motion to sever, in anticipation of the likelihood that the Commonwealth might introduce testimony by the victim revealing the existence of the other charges against the defendant/appellee, that the motion in limine was filed. To now hold that a violation of the trial court’s rulings is not grounds for a new trial is to totally nullify the court’s ability to control the conduct of the trial and the ability to correct substantial and prejudicial error that occurred thereby.

In addition to the above failure to limit testimony regarding the alleged victim’s reasons for coming forward five months after the incident, I believe the trial court did not err in granting a new trial as a result of finding potential prejudice created by jurors discussing the contents of prejudicial newspaper publicity. The two situations, coupled together, served to shift the weight unfavorably for appellee and call into question his ability to receive a fair trial.

At the commencement of proceedings, the trial court instructed the jury against reading or listening to outside sources which could influence or effect their deliberations. In the Thursday, March 22, 1990, edition of the Delaware County Daily Times, at page 28, an article appeared entitled Ex-Nova Student denies charges. In column four of the five column article, it stated:

Maloney is also scheduled to stand trial next week on charges he indecently assaulted a 19 yr. old student in her dormitory room on March 20, 1989.

Some question arose during the deliberations as to whether jurors read the article. The trial court conducted voir dire examinations wherein:

Juror number one (1) indicated that he has seen the headline of the story but had not read the article. Juror number three (3), who had been in possession of the newspaper, denied reading the article. Juror number two (2) saw juror number three (3) with a newspaper and saw it taken from her when she reached the deliberation room. Juror number eight (8) admitted hearing about the article from juror number one (1). Juror number nine (9) told the Court that he had heard of two newspaper articles. One had apparently appeared on March 21 and the other was the article in question. This juror indicated that he had been told by someone on the jury that the Times article reported the Defendant’s version on the incident.
The remaining seven jurors indicated no knowledge of the newspaper article.

(Slip Op. at 4-5.) The trial court is in the best position to assess the credibility and demeanor of the jurors during voir dire examination. Thus, it is within the discretionary province of the trial judge to determine whether or not jurors have been influenced. Commonwealth v. Werts, 483 Pa. 222, 395 A.2d 1316 (1978); Commonwealth v. Craig, 471 Pa. 310, 370 A.2d 317 (1977). Jurors’ misconduct by failing to heed the court’s ban on reading newspaper accounts of the trial requires a new trial. Commonwealth v. Williams, 494 Pa. 496, 431 A.2d 964 (1981).

The trial court made a finding of fact a portion of the jury had breached its duty by exposing itself to the information contained in the article. Based on the jury’s exposure to the article as well as conflicting answers given during voir dire examination, the trial court was persuaded the jury had been tainted by the improper information, despite attempted curative instructions. Unlike the majority, I do not believe it is for this Court to substitute its judgment on a factual finding for that of the trial judge. It is hornbook law that the trial judge is in a unique position in determining the credibility of witnesses, including jurors on voir dire, and the weight to be given their testimony and any inferences to be drawn therefrom. Only in the clearest of cases where the judgment of the trial court is totally unsupported by the evidence should we find an abuse of discretion on a fact finding matter.

The Commonwealth responds the error, if any, was harmless because the jury may receive information concerning appellee’s alleged involvement in the second incident. The basis for the Commonwealth’s argument is the evidence of the second alleged crime is admissible not to show appellee’s bad character or propensity for committing criminal acts, but rather, to show intent or motive. The Commonwealth reasons, since appellee asserted the defense of consent, appellee essentially argued he lacked criminal motive or intent. Accordingly, an attack by him on another victim under similar circumstances months later is relevant to show motive and intent in t' case. I disagree with the Commonwealth’s reasoning.

The flaw in the Commom th’s argument begins with its premise the appellee is ini. - d guilty of the second act. The second unadjudicated act is merely an allegation of guilt. Appellee remains cloaked in the presumption of innocence as to the second charge until a jury’s final verdict is rendered. To allow the jury to infer guilt in another incident before such an adjudication is made runs counter to the concepts óf fairness which the rules of evidence are designed to promote. Here, the Commonwealth attempted to persuade the jury to believe because appellee is charged with another crime, he is indeed guilty of the initial crime. Based on this presumption of guilt, the Commonwealth attempted to suggest to the jury appellee had the motive and intent to commit the instant offense. While bad acts may be admissible in certain limited circumstances, such is clearly not the case here. To allow the jury to make an inference of guilt as to an unadjudicated offense allows for the very tipping of the scales we so ardently strive to balance.

In some cases the evidence is so overwhelming that the error, although prejudicial, still may not require a new trial as we recognize the fact there are few, if any, perfect trials. Despite our increased awareness and sensitivity to campus sexual assaults, we must not be blinded by the publicity and media type to the need for steady and appropriate application of legal principles in deciding these cases, as in any other criminal proceeding. While unquestionably a jury could have found appellant guilty on the evidence presented, it is also conceivable, on that same evidence, to have determined a reasonable doubt existed. Evidence favoring the victim included her own testimony and testimony of persons to whom she spoke immediately after the incident to corroborate her story. Evidence favoring defendant included his testimony, the long delay in reporting the incident and possible motive on the part of the victim because of appellee’s description of her character in his comments following the incident. In addition, a great number of reputable and important witnesses testified to his good character and reputation for truth. Under these circumstances, even a slight shifting of the weight of the evidence could result in reversible prejudice to appellee.

The most recent and perhaps definitive statement on the issue of abuse of discretion by the trial judge in granting a new trial is Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240 (1991). There, the Supreme Court was asked to review an Order by this Court, quashing an appeal by the Commonwealth, when the trial court granted a new trial “in the interest of justice” to support his decision. The Supreme Court, in effect, adopted Fed.R.Crim.P. 33, which provides: “[T]he court on motion of a defendant may grant a new trial to him if required in the interest of justice.” The application of this discretionary provision has been held to apply broadly and its use may only be reviewed if there is evidence of manifest abuse. A trial court has an “immemorial right to grant a new trial, whenever, in its opinion, the justice of the particular case so requires.” (Slip Op., Nix, C.J., 5/1/91, p. 6.) Where it will result in the attainment of justice, a trial court may grant a new trial without the initiation of the defendant.

In Commonwealth v. Myma, 278 Pa. 505, 123 A. 486 (1924), we [the Pennsylvania Supreme Court] stated:
[T]he judge occupies an exalted and dignified position; he is the one person ... from whom the litigants expect absolute impartiality. An expression indicative of favor or condemnation is quickly reflected in the jury box and at counsel table. To depart from the clear line of duty through questions, expressions or conduct, contravenes, the orderly administration of justice. It has a tendency to take from one of the parties the right to a fair and impartial trial, as guaranteed under our system of jurisprudence.
Id., 278 Pa. at 508, 123 A. 486.
It is the trial judge’s review of the conditions and activity surrounding the trial which leaves him or her in the best position to make determinations regarding the fairness of the process and its outcome. It is apparent, therefore, if a trial court determines that the process has been unfair or prejudicial, even where the prejudice arises from actions of the court, it may, in the exercise of its discretionary powers, grant a new trial “in the interest of justice.”

(Slip Op. at 7-8.)

Accordingly, I would find there was no abuse of discretion and would affirm the trial court’s decision granting appellee a new trial.

      . The Commonwealth alternatively argues that even if the jury could have inferred that defendant was the accused perpetrator in the second incident, the error was nevertheless harmless because the evidence of defendant’s involvement in the second attack was independently admissible. We do not reach this issue because we are convinced that the jury could not have reasonably so inferred based on the testimony and the record in this case.

      . Given the posture of the instant case, i.e., that the Commonwealth is appellant, the issue of whether counsel’s failure to object to Lehmann’s testimony waived the issue is not technically before us. However, were the case in a different procedural posture and, for instance, post-verdict motions had been denied and defendant was appealing on the ground that he was prejudiced by the admission of Lehmann’s now-contested testimony, the failure to object would certainly have constituted waiver and been fatal to his claim.

      . In light of the above-quoted remarks by the prosecutor regarding Lehmann’s expected testimony, appellee cannot claim that the testimony "could not be anticipated by counsel.”

      . See Commonwealth v. Bruno, 466 Pa. 245, 267, 352 A.2d 40, 52 (1976) ("The preferred procedure when highly prejudicial material is publicized during the trial and the jury is not sequestered is to question the jurors individually, out of the presence of other juror's.”)

      . 18 PA.C.S. § 3101.

      . Id., § 3126.

      . Evidence of another crime is to be introduced in order to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing the commission of two or more crimes which are 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 under circumstances where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. See Commonwealth v. Slyman, 334 Pa.Super. 415, 483 A.2d 519 (1984).


source: Caselaw Access Project

author:
CAVANAUGH, Judge:
      POPOVICH, Judge,

license: Public Domain

text:
    598 A.2d 553
    COMMONWEALTH of Pennsylvania, Appellee, v. Iran TIPPENS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 9, 1991.
    Filed Oct. 23, 1991.

      Christine M. Adair, Philadelphia, for appellant.
    Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com.
    Before ROWLEY, President Judge, and CAVANAUGH, CIRILLO, OLSZEWSKI, MONTEMURO, BECK, TAMILIA, POPOVICH and HUDOCK, JJ.
   CAVANAUGH, Judge:

This is an appeal from judgment of sentence entered in the Court of Common Pleas of Philadelphia County on December 7, 1989, following appellant’s convictions for aggravated assault and possession of an instrument of crime. Appellant was sentenced to five to ten years imprisonment.

In this direct appeal, appellant first alleges trial counsel was ineffective because he was unprepared and made numerous trial strategy decisions which were unreasonable. Second, appellant contends trial counsel and post-verdict motions counsel were ineffective for failing to insure that appellant received the benefit of a jury instruction on character evidence in accordance with Commonwealth v. Neely, 522 Pa. 236, 561 A.2d 1 (1989). Third, appellant asserts that trial counsel and post-verdict motions counsel were ineffective in failing to object to the prosecutor’s statement that the complaining witness/victim “came [into court] and told [the jury] the truth.” Having found merit in the first of appellant’s arguments, we vacate and remand for a new trial.

The record reveals the following facts. On December 13, 1987, a man entered a neighborhood grocery store owned by the victim, Jessie Batton, Jr., and purchased some milk. The man then departed but returned shortly thereafter to complain the the milk was sour. Batton credited the man for the returned milk and resumed cleaning out the ice cream freezer in the rear of the store. The man then approached Batton from behind, aimed a pistol at Batton’s head and stated, “Don’t make me blow you away.” Batton grabbed the gun, a struggle ensued, and the gun fired as the men tussled on the floor. One of Batton’s fingers was struck by the discharged bullet. Thereafter, Batton seized the gun, and the man fled. The police arrived shortly thereafter to investigate.

Approximately one month later, on January 17, 1988, Batton was working at another convenience store owned by his family, when the alleged perpetrator entered the store. Batton followed the man to his destination and telephoned the police. After the police arrived, Batton pointed out the man to the authorities, who arrested appellant and charged him with attempted robbery, aggravated assault and possession of an instrument of crime. Subsequently, the attempted robbery charge was dropped.

At trial, appellant proffered the defenses of misidentification and alibi. Evidence was presented that appellant possessed an abnormally large forehead as well as facial hair on the day of the crime. However, neither of these characteristics was mentioned in Batton’s description of the perpetrator to the police. Appellant also presented evidence that at the time of the crime, he was playing pinochle with some friends. Additionally, appellant called witnesses who testified concerning his good reputation in the community. Appellant’s defenses failed, and the jury convicted him of aggravated assault and possession of an instrument of crime.

Subsequently, appellant’s trial counsel filed post-verdict motions. Before the court addressed these motions, appellant retained new counsel and filed post-trial motions nunc pro tunc, alleging numerous instances of trial counsel’s ineffectiveness. A hearing was held as to the ineffectiveness claims on March 20, 1989. Finding counsel was not ineffective and that appellant’s post-verdict motions were lacking in merit, the lower court denied the motions on December 7, 1989 and reimposed sentence. This appeal followed and is pursued by new counsel, appellant's fourth attorney.

In alleging his trial counsel’s ineffective stewardship, appellant asserts, inter alia, that counsel was unprepared for trial and that counsel erred in calling eye-witness Barry Wright as a defense witness. These two inter-related allegations of ineffectiveness are meritorious, and it is clear from the record that counsel’s work was woefully lacking.

Barry Wright was working for the victim as a store clerk at the time of the shooting. Wright was described by the investigating police officer as “slow,” and the officer indicated he had a difficult time getting a coherent statement from Wright. At trial, the Commonwealth chose not to call Wright, even though he was an eye-witness. For reasons that trial counsel later could not remember, he chose to call Wright as a defense witness. (N.T., 3/29/89, pp. 32-33). Counsel called Wright in spite of the fact that he had neither reviewed any prior statements of Wright nor had he interviewed Wright. The trial court questioned counsel’s basis for calling Wright during the side-bar exchanges which occurred after Wright’s examination by defense counsel and before cross-examination by the Commonwealth:

The Court: What is this witness to testify to that you understand? I don’t want this guy down on cross-examination to prejudice your case in any way. What has he brought to the attention of the court that is important?
Defense Counsel: Well, the Commonwealth had indicated to the, through the witness that this gentleman was a little, I won’t say retarded or otherwise excitable.
The Court: Don’t say—
Defense Counsel: Well, that’s one thing.
The Court: What other?
Defense Counsel: He was [not] a Commonwealth witness for that reason. Also with regard to the weapon itself, what I was able to elicit, something is totally different as to where the weapons were and the bullets, that’s all I wanted, that’s all.
The Court: Does that help your case any?
Defense Counsel: Yes, I think?
The Court: The guy got shot, it was a—
Defense Counsel: I don’t know whether he shot himself or not, something is goofy about this whole thing, that’s my position.
The Court: This guy provided no evidence except this guy is going to be cross-examined, and he’s going to provide evidence that he may be prejudice and critical to you, may hurt you.
Defense Counsel: That’s all I wanted.
The Court: You wanted to contradict somebody?
Defense Counsel: I have contradicted the complainant.
The Court: Okay, it’s for the purpose, contradiction. At one time the gun was on the bench. When he saw it, it was on the bench, is that a contradiction? Okay.
The Court: I’m just concerned [defense counsel] was not permitted to cross-examine and ask leading questions. I know because he can’t do it but you can, you see, and you can lead him almost anywhere you want. I gather from this witness — I don’t know why [defense counsel] put him on the witness stand. I don’t want it later to be said that he made a boo boo here that inures to his client’s' detriment, prejudice, ineffectiveness of counsel, you know____ [The prosecution] is going to now cross-examine and lead him to what [it] want[s] him to do, and he’s so slow mentally that he’s going to be led into almost anything.

(N.T., 7-18-88, pp. 74-77).

On cross-examination, Wright identified appellant as Mr. Batton’s assailant.

Counsel is ineffective when there is merit to the underlying claim, the course chosen by counsel does not have a reasonable basis, and the defendant shows prejudice. Commonwealth v. Graham, 522 Pa. 115, 118, 560 A.2d 129, 130 (1989). We recognize that generally trial strategy is a matter best left to counsel and that a defendant is not entitled to relief simply because the strategy is unsuccessful. Commonwealth v. Davis, 381 Pa.Super. 483, 496, 554 A.2d 104, 111-112 (1989). However, instantly, trial counsel’s strategy was based upon nothing more than a “hunch” that Wright’s testimony would be unfavorable to the Commonwealth. Counsel had no reasonable basis to assume his testimony would be unfavorable. He had neither reviewed Wright’s pre-trial statements nor interviewed him personally. By calling Wright to the witness stand, trial counsel did get the minimal benefit of contradicting the complainant concerning where the gun and bullets were located when the police arrived. However, this issue was at best insignificant, especially in light of the fact that a Commonwealth witness had already contradicted the complainant as to the location of the gun.

Further, it was obvious that the Commonwealth chose not to call Wright due to his mental disabilities upon which a Commonwealth witness had already commented. By calling Wright, counsel placed another eyewitness on the stand who could, and did, identify appellant and corroborate the complainant’s identification. Considering Wright’s apparent mental disability, defense counsel’s decision to call him was obviously without justification since, by so doing, counsel gave the Commonwealth the significant advantage of cross-examination, thus, permitting the Commonwealth to lead Wright through his identification testimony.

The prejudice to appellant is also obvious. Appellant’s defenses were misidentification and alibi. Defense counsel’s decision to call a second eyewitness to the stand who could potentially corroborate the complainant’s identification cannot be considered reasonable, especially in light of the facts that: 1) counsel had no articulable reason to believe Wright’s testimony would be unfavorable to the Commonwealth; 2) Wright was “slow” and “disorganized”; and 3) the Commonwealth would be permitted to lead Wright through his identification testimony. On the basis of the identification testimony of the victim, the Commonwealth may or may not have been able to pursuade the jury of appellant’s guilt. However, because of the ineffective performance by defense counsel, the guilty verdict rendered by the jury is constitutionally suspect and we are obliged to award a new trial.

We treat the second and third issues in light of our status as an intermediate appellate court. Because we are unable to predict the future course of this litigation, which may include supreme court review, we will consider the remaining two issues raised on reargument.

Appellant contends trial counsel and post-verdict motions counsel were ineffective for failing to insure that appellant received the benefit of a jury instruction on character evidence in accordance with Commonwealth v. Neely, 522 Pa. 236, 561 A.2d 1 (1989).

Appellant presented several witnesses who attested to appellant’s good reputation in the community. Trial counsel requested the lower court to instruct the jury that evidence of good character may, in and of itself, create a reasonable doubt. The trial court, relying upon this Court’s decision in Commonwealth v. Neely, 372 Pa.Super. 519, 539 A.2d 1317 (1988), reversed 522 Pa. 236, 561 A.2d 1 (1989), stated that the law on character evidence had been changed and refused the instruction. Trial counsel raised this issue in his post-verdict motions. However, appellant’s new counsel who filed post-verdict motions nunc pro tunc failed to raise the issue either directly or via an allegation of ineffectiveness.

At the time the charge was given this court’s decision represented the law of the Commonwealth which provided that evidence of good reputation should be considered as all other evidence and as on a par with other evidence.

Subsequent to the jury instruction, the Supreme Court reversed this court’s decision in Commonwealth v. Neely, 522 Pa. 236, 561 A.2d 1 (1989) and held that evidence of good character or reputation may in and of itself create a reasonable doubt of guilt and require a verdict of not guilty.

That the court below did not give the requested charge that evidence of good reputation in and of itself could be sufficient to require an acquittal and that this issue was not preserved for review, did not render counsel ineffective. Counsel is not ineffective for following the law in existence at the time in question or for failing to predict changes in the law. Commonwealth v. Mitchell, 391 Pa.Super. 100, 570 A.2d 532 (1990); Commonwealth v. Jones, 389 Pa.Super. 159, 566 A.2d 893 (1989).

The charge when given was a correct statement of the law. Counsel had no way of knowing that our decision in Commonwealth v. Neely would be overruled by the Supreme Court.

The lower court relying upon our Neely decision, instructed the jury:

By further defense, the defendant also asked you to consider his character. He presented witnesses to attest to his good character, he being a decent, law-abiding citizen. How do you deal with that evidence? It is important that you understand that evidence. From time immemorial, historically, a good reputation has been regarded as one of the principle assets of a person. If a person has lived awhile, earned a good reputation in the community amongst people who know him best, the law permits him to avail himself of that reputation in evidence in support of his innocence when he’s accused of a crime. Evidence of an accused[s] good reputation then is to be considered by you along with other evidence in the case. It may, in combination with other evidence create that reasonable doubt, and if you find that, the defendant is to be acquitted. But reputation evidence, like all other evidence must be assessed by you and evaluated by you. Reputation evidence then is substantive evidence which like any other testimony must be weighed and tested and considered by you with all of the other evidence in the case. You must decide for yourselves whether to accept that testimony, what weight to give to it, and whether it raises a reasonable doubt in your mind that a man enjoying that reputation would commit such a crime.
However, Ladies and gentlemen, if the Commonwealth has shown to you beyond a reasonable doubt that the defendant is guilty of these crimes, even though he has a good reputation, he is not go to free simply because of it. So the focus here is whether or not the Commonwealth has proven its case to you beyond a reasonable doubt. This instruction conveyed the holding of this court in

Neely. This Court’s unanimous en banc opinion in Neely did not intend to overrule the law in Pennsylvania concerning character evidence that had remained unchanged in Pennsylvania jurisprudence for almost one hundred years before our decision in Neely. We may not fault counsel for not discerning that we changed a one hundred year-old rule, when we ourselves stated in Neely, 372 Pa.Super. at 529, 539 A.2d at 1322 referring to the use of character evidence:

In doing this we do not change the law in Pennsylvania, but rather we reaffirm the law as set forth by our Supreme Court.

Since the instruction as given was in compliance with this court’s en banc holding in Neely, we find no ineffectiveness on counsel’s part in failing to seek to have the jury instructed otherwise.

Finally, we address appellant’s assertion that trial counsel and post-verdict motions counsel were ineffective in failing to preserve the issue of whether the prosecutor’s statement that the complaining witness “came [into court] and told [the jury] the truth” was reversible error. Here, we find appellant’s underlying issue to be without merit. We agree with appellant that “it is improper for a prosecutor to express a personal belief or opinion as to the truth or falsity of evidence of defendant’s guilt, including the credibility of a witness.” Commonwealth v. Young, 524 Pa. 373, 394, 572 A.2d 1217, 1227 (1989); Commonwealth v. Johnson, 516 Pa. 527, 533 A.2d 994 (1987); Commonwealth v. Anderson, 501 Pa. 275, 282, 461 A.2d 208, 211 (1983); but see Graham, supra (it is not reversible error for the prosecutor to comment that defendant lied in cases where the comment was a fair inference from the evidence, rather than a broad characterization). However, it is also true that reversible error occurs only when the unavoidable effect of the prosecutor’s comments is to prejudice the jury, forming in their minds a fixed bias so onerous that they could not weigh the evidence objectively and render a true verdict. Young, 572 A.2d at 1217; Johnson, 533 A.2d at 997; Anderson, 461 A.2d at 211. We must remember that “not every intemperate or improper remark by the prosecutor requires a new trial.” Johnson, 533 A.2d at 996.

Instantly, the prosecutor, ending his closing argument, stated: “I submit to you [Batton] is courageous, yes, lucky but very courageous businessman, and I believe he came in here and told you the truth.” (N.T., 7/18/88, p. 179). Although it is improper for a prosecutor to comment on the veracity of his own witness, we do not believe instantly, that the prosecutor’s comment so prejudiced the jurors that they were unable to render a true verdict.

The statement in question was a brief, isolated excerpt from the prosecutor’s summation which was not likely to draw undue attention. Cf., Commonwealth v. Davis, 363 Pa.Super. 562, 583, 526 A.2d 1205, 1216 (1987); Commonwealth v. Lacy, 324 Pa.Super. 379, 383, 471 A.2d 888, 891 (1984); compare, Commonwealth v. Collins, 462 Pa. 495, 499, 341 A.2d 492, 493 (1975) (“The record is replete with instances of prosecutorial misconduct ... ”) Also, adequate jury instructions to correct the problem in question, including instructions on assessing credibility and the jury’s function as the ultimate finder of fact, immediately followed the prosecutor’s closing remarks albeit no specific cautionary instruction was given. Cf., Lacy, 471 A.2d at 891. And fourth, this was not a case where the prosecutor’s comment was aimed at inflaming the passions of the jury. Compare, Anderson, supra (defendant characterized as an “executioner” carrying out an “assassination”); Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977) (defendant referred to as “judge, jury and ultimately executioner”). In sum, this is simply a case where the prosecutor explicitly told the jury that which the jury already knew, that the prosecution believed its witness. Thus, appellant was not prejudiced by the comment and counsel cannot be held ineffective for failing to preserve a meritless claim. Graham, supra.

Having found trial counsel was ineffective in the presentation of the witness Barry White, we regretfully vacate the judgment of sentence and remand for a new trial.

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

POPOVICH, J., filed a concurring and dissenting opinion in which ROWLEY, President Judge, joined.

POPOVICH, Judge,

concurring and dissenting:

While I join in the majority’s resolution of appellant’s first and third issues, I disagree with the majority’s determination that post-verdict motion counsel was not ineffective for failing to insure that appellant received the benefit of a jury instruction on character evidence in accordance with Commonwealth v. Neely, 522 Pa. 236, 561 A.2d 1 (1989). Rather, I would find that post-verdict motion counsel was ineffective in failing to preserve that issue for review.

Counsel is ineffective when there is merit to the underlying claim, the course chosen by counsel does not have a reasonable basis and the defendant shows prejudice. Commonwealth v. Graham, 522 Pa. 115, 117, 560 A.2d 129, 130 (1989). At trial, appellant presented several witnesses who attested to appellant’s good reputation in the community. Trial counsel requested the lower court to instruct the jury that evidence of good character may, in and of itself, create a reasonable doubt. However, the trial court, relying upon this Court’s decision in Commonwealth v. Neely, 372 Pa.Super. 519, 539 A.2d 1317 (1988), reversed 522 Pa. 236, 561 A.2d 1 (1989), stated that the law on character evidence had been changed and refused the instruction.

Trial counsel raised the issue of whether the court properly instructed the jury on character evidence in his post-verdict motions. However, appellant retained new counsel who filed post-verdict motions nunc pro tunc on December 9, 1988. Therein, counsel failed to raise the jury instruction issue. It is significant to note that our Supreme Court granted allocatur for Neely, supra, on August 23, 1988, over three months prior to the filing of the post-verdict motions nunc pro tunc. Allocatur granted in Commonwealth v. Neely, 519 Pa. 664, 548 A.2d 254 (Table, 1988). Further, our Supreme Court handed down its decision in Neely, supra, on June 28, 1989, over five months prior to the lower court’s final adjudication of appellant’s post-verdict motions on December 7, 1989.

In Neely, supra, our Supreme Court stated unequivocally that “[a] criminal defendant must receive a jury charge that evidence of good character (reputation) may, in and of itself, (by itself or alone) create a reasonable doubt of guilt and, thus, require a verdict of not guilty.” See also Commonwealth v. Scott, 496 Pa. 188, 195, 436 A.2d 607, 611 n. 1 (1981); Commonwealth v. Cleary, 135 Pa. 64, 80, 19 A. 1017, 1018 (1890). Instantly, the lower court, relying upon our Neely decision, instructed the jury:

By further defense, the defendant also asked you to consider his character. He presented witnesses to attest to his good character, he being a decent, law-abiding citizen. How do you deal with that evidence? It is important that you understand that evidence. From time immemorial, historically, a good reputation has been regarded as one of the principle assets of a person. If a person has lived awhile, earned a good reputation in the community amongst people who know him best, the law permits him to avail himself of that reputation in evidence in support of his innocence when he’s accused of a crime. Evidence of an accused[’sj good reputation then is to be considered by you along with other evidence in the case. It may, in combination with other evidence create that reasonable doubt, and if you find that, the defendant is to be acquitted. But reputation evidence, like all other evidence must be assessed by you and evaluated by you. Reputation evidence then is substantive evidence which like any other testimony must be weighed and tested and considered by you with all of the other evidence in the case. You must decide for yourselves whether to accept that testimony, what weight to give to it, and whether it raises a reasonable doubt in your mind that a man enjoying that reputation would commit such a crime.
However, Ladies and gentlemen, if the Commonwealth has shown to you beyond a reasonable doubt that the defendant is guilty of these crimes, even though he has a good reputation, he is not to go free simply because of it. So the focus here is whether or not the Commonwealth has proven its case to you beyond a reasonable doubt. (Emphasis added).

Clearly, the trial court’s instruction did not properly advise the jury on the use of character evidence. Neely, 561 A.2d at 3; Pa.S.S.Crim.J.I. 3.06. Thus, the claim underlying appellant’s assertion of post-verdict motion counsel’s ineffectiveness is meritorious. In other words, post-verdict motion counsel’s failure to preserve this issue was error.

Having found merit in appellant’s underlying claim, we turn to the issue of whether counsel’s actions were reasonable. In the case sub judice, I cannot imagine a reasonable explanation for counsel’s failure to insure that this issue was preserved for appellate review. Although counsel cannot be expected to foresee changes in the law, Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977), counsel must be expected to preserve an issue for appeal when the state of the law governing that issue is in an obvious state of flux. The law regarding character evidence remained unchanged in Pennsylvania jurisprudence for almost one hundred years before our decision in Neely, supra. Further, the Bar must remember that our court is the intermediate appellate court of this Commonwealth, and, therefore, our Neely decision could not serve to overrule a century of jurisprudence unless or until it was affirmed by the Supreme Court of Pennsylvania. Therefore, it was unreasonable for counsel to fail to preserve this issue. This is especially true given the fact that our Supreme Court filed its Neely decision over five months before the lower court rendered its decision on appellant’s nunc pro tunc post-verdict motions.

In Commonwealth v. Schultz, 335 Pa.Super. 306, 484 A.2d 146 (1984), we were faced with a similar situation to that presented herein. In Schultz, 484 A.2d at 148, we ruled there could be no reasonable basis for counsel’s failure to preserve this issue of an erroneous jury instruction. In so doing, we stated:

We have chosen to grant a new trial, rather than remand for an evidentiary hearing on counsel’s ineffectiveness because we ourselves feel that counsel's failure to object to the lower court’s instruction was totally unsubstantiated. In light of our strong sentiments, we believe that a remand for an evidentiary hearing would be a waste of precious judicial time.

Schultz, 484 A.2d at 148 n. 4.

Undoubtedly, appellant was prejudiced by the lack of a proper instruction since the jury was never informed that evidence of good character alone may be sufficient to raise a reasonable doubt. Therefore, I would also remand this case for a new trial based on the trial court’s erroneous jury instruction and post-verdict motion counsel’s failure to preserve that issue for review. See Commonwealth v. Bannerman, 525 Pa. 264, 579 A.2d 1295 (1990) (Per curiam order remanding case for new trial due to court’s failure to comply with Neely, 561 A.2d 1).

In sum, I join in the opinion of the majority, except as set forth herein. Accordingly, I would remand this case for a new trial not only for the reasons explained by the majority but also because of post-verdict motion counsel’s ineffectiveness.

ROWLEY, President Judge, joins this concurring and dissenting Opinion.

      . Appellant contended that he and several friends regularly played pinochle every Wednesday and occasionally Sunday.

      . Counsel’s error is readily apparent when one considers that allocatur was granted in Neely, supra, three months prior to the filing nunc pro tunc of post-verdict motions, and our high court rendered its Neely decision over five months before appellant’s post-verdict motions were denied. I believe effective counsel would have continued to preserve the character evidence issue given the fact that allocatur had been granted months before counsel filed the nunc pro tunc motions. Further, motions counsel certainly should have alerted the trial court to our Supreme Court’s Neely decision which reversed the very basis of the court’s jury instruction. Cf., Commonwealth v. Dunkle, 385 Pa.Super. 317, 323, 561 A.2d 5, 8 (1989) (changes in decisional law which occur during litigation will generally be applied to cases pending on appeal).

      . The majority correctly notes that in our Neely decision, we did not intend to change the then-existing law. However, the practical effect of our decision was to change the law, as evidenced by our expressly overruling Commonwealth v. Belmonte, 349 Pa.Super. 1, 502 A.2d 1241 (1985), alloc. granted 511 Pa. 368, 514 A.2d 1369 (1986), Commonwealth v. Vander Weele, 356 Pa.Super. 152, 514 A.2d 189 (1986), Commonwealth v. Schultz, 335 Pa.Super. 306, 484 A.2d 146 (1984) and Commonwealth v. Arenella, 306 Pa.Super. 119, 452 A.2d 243 (1982), to the extent that those cases held the “in and of itself” language was required. Further, the trial court sub judice believed the law regarding instructions on character evidence had been altered by our Neely decision.


author: DEL SOLE, Judge:

text:
    598 A.2d 561
    Thomas Jay LAMBERT, Appellee, v. Susan K. LAMBERT, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 29, 1991.
    Filed Oct. 28, 1991.

      Susan K. Lambert, pro se.
    Lynne Z. Gold-Bikin, Norristown, for appellee.
    Sinikka Lawless, Norristown, amicus curiae for appellant.
    Before DEL SOLE, TAMILIA and HOFFMAN, JJ.
   DEL SOLE, Judge:

Following a number of years of court proceedings relating to the custody of the parties’ children, the court, once again, entered an order regarding custody in response to a Petition to Modify Custody and a Petition for Contempt. The children’s mother, Appellant (Mother) filed this appeal from the order which “upon her having failed to appear” decreed that custody of the parties’ two daughters be transferred to Appellee (Father) “forthwith” and directed that the children be delivered immediately to the custody of law enforcement officials and/or their father. Mother’s later petition for reconsideration of this order was denied.

The tortuous history of the custody of the parties’ two minor children, Kerry born July 31, 1982 and Erin born June 22, 1984, has been gleaned from the record and the factual findings made in the thorough opinion authorized in 1989 by the Honorable Marjorie C. Lawrence. An examination of the past proceedings is vital to a review of this instant order.

Mother, an Australian citizen, filed the first request for court intervention in April of 1986 with a Petition for Special Relief. The Petition was filed in response to actions taken by Father, an American citizen, who without notice to mother, took the children from their home in West Germany where the parties resided to his parents’ home in Pottstown, Pennsylvania. In response to the Petition, the court ordered Father to turn the children over to Mother pending a custody determination. The court also ordered that the parties’ and the children’s passports be held in escrow by opposing counsel so as to prevent the “snatching” of the children by either parent. The parties agreed that Pennsylvania would have jurisdiction and a partial custody hearing was held in May of 1986. No further hearings were conducted because the parties entered an agreement on August 5, 1986 whereby Mother was to have primary physical custody and Father was to have partial custody. At this time both parents were living in Virginia. While their divorce was proceeding in Pennsylvania in late 1987, the parties also agreed to a provision regarding custody, numbered paragraph fourteen in their Property Settlement Agreement. It provided:

The parties shall have joint legal custody of both of the minor children, and shall have equal input into all major parenting decisions. The parties acknowledge the existence of a custody order dated August 5, 1986, to which they shall adhere.

Father signed the agreement in December 1987 and returned to live in Pennsylvania in March 1988. Mother signed the agreement that May. A divorce was entered in Pennsylvania on July 25th incorporating the Property Settlement Agreement as an Order of Court. The next day Father filed a Petition to Modify Custody seeking to alter his weekend and holiday visitations in view of his move to Pennsylvania and the distance between the parties. Father’s petition was scheduled to be heard in September, but before the hearing Father filed an Emergency Petition on August 24,1988 which averred that during Father’s current visitation with the children he learned that Mother “is selling her property and is in the process of moving to West Germany, and ultimately to Australia with the minor children.” He also alleged that Mother had procured new passports for herself and the children. The court acted quickly in response to this Emergency Petition and entered a temporary order awarding Father primary physical custody and enjoining Mother from removing the children from the United States. Three days later, on August 29, 1988 the court held a hearing after which it returned custody to Mother under the provisions of the August 1986 agreement. The court also required the parties to give fourteen days notice before removing the children from the United States. A decision on the issue of jurisdiction, raised by Mother, was deferred by the court to allow counsel to file memoranda of law.

Since Father’s Petition to Modify custody regarding the extended weekend and holiday time remained outstanding, the court scheduled yet another hearing to resolve the matter. At this November 28, 1988 hearing the court denied Mother’s jurisdictional objections and permitted Father to testify concerning a new request for emergency relief. He stated that Mother informed him on November 22, that she planned to leave with the children for Australia to visit her dying father on November 30, 1988, which violated the 14 day notice requirement. He further testified that on Sunday the 27th “there was no furniture at all in the living room and everything was boxed up, that Mother sold the car she was driving, and that she had given up her apartment at the end of the month.” Mother was not present at the hearing in Pennsylvania because, according to her attorney who was present, they were not aware of this new development in the case prior to the hearing. At the close of the hearing Judge Lawrence ordered that the children be immediately turned over to the temporary custody of their father. Father presented this signed order to Mother at her home in Virginia but did not register it with the Virginia courts. On the advice of counsel Mother ignored the order and flew with the children to Los Angeles on the first leg of her intended trip. Father meanwhile registered the order in Virginia. As a result of this registered order Mother was removed from the airplane in Los Angles and the children were taken into custody of the authorities to be later turned over to their father.

On December 13,1988 Father filed yet another Petition to Modify Custody. Six days of hearings were held in late January and early February at the close of which the court issued a temporary order transferring physical custody back to Mother. Prior to the Opinion and Final Order being issued, Father filed an Amended Petition for Hearing based upon after discovered evidence. Another three days of testimony was heard by the court and on August 1, 1989 the court entered an order granting both parents joint legal custody with each to have equal input into all major parenting decisions. Mother was to retain primary physical custody and Father was granted certain times of partial physical custody during weekends, holidays and the entire summer. During Father’s period of physical custody during the summer, Mother was to have partial custody for two uninterrupted weeks. The order also added restrictions on travel outside the country. It provided that Mother give Father forty-five (45) days written notice when planning on taking the girls out of the United States. In the case of an emergency or Father’s written objection to the planned trip the court made further provisions.

Accompanying the court’s order was an exhaustive, well reasoned 57 page opinion. Therein the court cast doubt on Father’s credibility citing examples which included the fact that Father informed the court that Mother sold her car, intentionally giving the court the impression that Mother was disposing of this property in preparation for a permanent stay in Australia. (In fact Mother had more than one car and Father was informed months before that she intended to sell the BMW which she was receiving as part of the property settlement.) While the court was sympathetic to Father’s concerns and fears that Mother may move with their daughters to Australia, the court remarked that if Mother should violate the notice requirements of its order and abscond with the children, “she may well forfeit primary custody of them forever.”

Litigation regarding custody ceased for approximately one year until August of 1990. On the 16th of that month Father filed another Petition for Emergency Relief wherein he alleged that he delivered the children to Mother for a two week uninterrupted summer vacation and was scheduled to pick them up on August 10 for the remainder of the summer. However on August 8, Father learned that Mother had terminated her lease and vacated her premises. Appellant alleged that he “still has not heard anything from [Mother] and ha[d] no idea as to the whereabouts of his children.” Referring to the opinion issued by Judge Lawrence, Father stated in his petition that Mother was advised that should she violate the notice requirements of the court’s order she may forfeit custody forever.

In response to this Petition the Honorable Albert R. Subers issued an order dated August 20 directing that the children be immediately turned over to the custody of law enforcement officials and/or Father and granted Father temporary primary physical custody. A hearing on the Petition for Emergency Relief was set for September 5, 1990. The children were promptly turned over to Father by officials in Colorado after the order was executed. However, at the hearing scheduled on September 5th, which was attended by both parents, husband acknowledged that he first learned of the whereabouts of Mother and children on Friday, August 17, three days before the court entered its emergency order. Father testified that Mother telephoned him to inform him that she and the children had moved to Colorado and bought a home. The next day, Saturday, father received a letter informing him of the move, the new address and the following suggestions regarding custody:

Concerning visitation with the girls, your monthly weekend with them will of course no longer be possible but holidays and summer vacation shouldn’t be a problem. I’m sure we can work something out. I’m willing to share some of the travel expenses if necessary. As you have only taken them for 2 weeks so far this summer you will have to let me know soon if you want to see them again before school starts. School starts here in 3 weeks on the 4th of September.

Upon hearing this testimony Judge Subers indicated that he believed he had been “mislead” concerning the unknown whereabouts of the children when, in fact, Father was informed by Mother of their location before entry of the court’s August 20th emergency order. While Father’s counsel contested this fact, Judge Subers judged the subject to be inappropriate for an emergency petition. The following portion of the transcript is illustrative:

THE COURT: That’s not the subject of an emergency petition where you send somebody out to Colorado, take these children, and put them on an airplane and bring them back.
MS. GOLD-BIKIN [COUNSEL FOR FATHER]: But Your Honor, how was he to get his children for the rest of the summer?
THE COURT: He doesn’t do it that way.
MS. GOLD-BIKIN: Well, how would you suggest—
THE COURT: He files a petition for contempt, he files something else ... N.T. 9/4/90 at 23.

The court ordered the children to be returned immediately to their mother so that she could return them to Colorado and directed Father to pay the air fare. At the hearing, Father’s counsel asked the court to also order that Mother be directed to return for the custody hearing which was scheduled for October 17th. To this request the court responded: “I’m not going to order her to return____ We’ll see what happens on the 17th. If she doesn’t show up, that’s another problem, you can take it from there.”

Prior to the hearing which was rescheduled until November 14th, Father filed a Petition for Contempt. Mother received notice that the hearing on both Petitions was scheduled for the 14th. Mother did not appear at the hearing. The court noted that it was in receipt of a FAX communication from Mother delivered to the court the day before. The court indicated that it did not read the FAX since opposing counsel was not sent a copy. Father’s counsel was presented with a copy at the hearing and she quoted a portion of it into the record, which read: “ ‘I do not have the funds to pay for the trip to Pennsylvania, or for legal representation. Also, I would lose my job, if I was to leave at this time. I have purchased a house here. I have a good job. I provide very well for my family, and I cannot risk losing it all.” Judge Subers also remarked on the record that the court was in receipt of a phone call from mother that morning in which she suggested the possibility of a conference call. The court refused to comply with that request and continued with the hearing, listening to the testimony of Father. Father relayed to the court the circumstances of his learning that his children had moved to Colorado and gave testimony about his current circumstance, his relationship with his children and the provisions he could make for the children. The entire hearing lasted 35 minutes. Two days later, November 16, 1990, the court issued an order finding Mother in contempt of Judge Lawrence’s August 1, 1989 order, and, noting that Mother “failed to appear,” the court, once again, transferred primary physical custody of these children to Father. No provisions for partial custody or visitation by Mother were contained in the order.

Mother filed a timely appeal from the order of custody and also filed an Answer to the Petition for Contempt, an Emergency Petition to Modify Visitation, which alleged that Mother had been denied visitation with her children, and a Petition to . Reconsider the November 16th custody order. After hearing arguments, the court denied Mother’s petitions on December 13, 1990. Following the Concise Statement of Matters Complained of on Appeal filed by Mother, the court on January 29, 1991 issued an opinion.

The court initially acknowledged that its paramount concern was the best interest and permanent welfare of the children. It also analyzed the three prong test announced in Gruber v. Gruber, 400 Pa.Super. 174, 583 A.2d 434 (1990) to be considered in custody matters which involve relocation. Regarding the advantages of the move by the custodial parent and its impact on the quality of her life, the court found that “mother’s reasons for the move to Colorado were solely because real estate was cheaper and she could purchase a house.” The court scrutinized Mother’s motives for the move, the second prong of the test, and found that “Mother was considering her best interests and not those of the children.” The court further found that Mother’s “motivation clearly indicates a lack of concern for the visitation rights of father.” With regard to the Gruber court’s recommendation that a court consider a visitation schedule which will foster an on going relationship between the children and the non-custodial parent, the court remarked: “Mother has shown that she cannot and will not comply with present visitation arrangements nor can it be said that she would cooperate with any alternate visitation arrangements. Mother simply announces by letter marked P-2 that father’s visitation will no longer be possible.” The court went on to comment that Father “has shown his sincere desire to continue and deepen his relationship with his children” and “has demonstrated his ability to assume the role of primary caretaker during his times of partial physical custody.” Based upon these conclusions, the court justified its November 1990 decision awarding Father primary physical custody. The court acknowledged that it failed to award Mother any partial custody or visitation and, in this regard, it stated:

We readily recognize that we did not set forth any visitation schedule. We had no input from Mother who chose not to appear at the Hearing to determine custody. We readily recognize that such a schedule should be established and we will do so upon remand from the Superior Court and after a hearing which will give this Court the desires of Mother which we can then balance against the best interests of the children.

The trial court was correct in acknowledging that the ultimate objective in resolving this matter remains the best interest of the children. Because these interests are allied with the custodial parent’s quality of life, the court also appropriately examined the factors set forth in the Gruber decision in an effort to achieve this stated objective. See Lee v. Fontine, 406 Pa.Super. 487, 594 A.2d 724 (1991). The trial court erred, however, in concluding that it could determine the children’s best interest on the record before it.

As stated, in August of 1989 Judge Lawrence entered an order granting Mother primary physical custody after consideration of nine days of testimony and as thoroughly explained in her 57 page opinion. This custody determination arose necessarily due to an Emergency Petition filed by Father. Judge Lawrence considered Father’s testimony regarding this petition, and upon which the court initially acted to award him temporary custody, not to be entirely forthright. The custody determination currently upon review again followed an emergency petition filed by Father. On the basis of this Petition Judge Subers granted Father temporary physical custody. At the hearing which followed, Judge Subers returned custody to mother after concluding that Father had “misled” the court by obtaining the emergency order on the basis that the whereabouts of Mother and the children were unknown, when in fact Father learned of their location prior to entry of the order. Despite these facts and an exhaustive inquiry one year earlier to determine which parent would best serve these children by being their primary caretaker, the court again disturbed the custody of these two children on the basis of Father’s testimony in a 35 minute hearing.

Father notes in his Brief on appeal, as he did before Judge Subers, that Judge Lawrence in her opinion stated that “Mother could forfeit custody if she absconded with the children.” Father again neglects to add all the relevant facts. Judge Lawrence’s comments related directly to Father’s fear that Mother would leave the country with the children and do not apply to the situation which occurred here.

In the instant matter Mother left her present home with the children and relocated to another state. Mother’s relocation of the children away from their surroundings and schools was, without question, in violation of Judge Lawrence’s custody order because she undertook such action without consulting Father. Further, according to Judge Lawrence’s order, Father was to have custody during the summer. Mother violated this provision by wrongly extending her two weeks of temporary summer custody as a result of the move. It was not necessary for Father to have made arrangements for the remainder of the summer if he wished to have the children, as Mother suggests. It was Mother’s obligation to return the children to Father’s custody. The fact that Mother violated the custody order issued by Judge Lawrence is, as noted by the trial court, an appropriate foundation for a finding of contempt, however, it cannot be the basis for an award of custody. Rosenberg v. Rosenberg, 350 Pa.Super. 268, 504 A.2d 350 (1986). “A change of custody is just as important to the child and to others as an original award of custody, and the parties should be afforded the same type of hearing on the subsequent application as they are entitled to on an original award.” Id., 350 Pa.Superior Ct. at 274, 504 A.2d at 353. We do not mean to suggest by this comment that the trial court awarded custody to Father automatically based upon Mother’s violation of the previous custody order. The court noted Mother’s violations and went on in an attempt to examine the reasons for the move and it’s effect on the relationship between the children and Father. However, in our view, a thorough examination as is necessary was rendered impossible absent Mother’s testimony.

It cannot be disputed that Mother had notice of the hearing in this matter, yet did not attend. However, Mother did not show blatant disrespect for the court and its system. Mother notified the court of her inability to attend prior to the hearing. She informally requested a continuance and a “conference call” to resolve the matter, which the court rejected. Further, the court itself impliedly sanctioned Mother’s non-attendance when at the previous hearing on the Emergency Petition, which Mother attended, Father’s counsel requested the court to order Mother to appear at the custody hearing and the court responded that it would not order her to return.

In Fatemi v. Fatemi, 371 Pa.Super. 101, 537 A.2d 840 (1988), this court affirmed a decision which changed court ordered legal custody to the mother after conducting a hearing at which the father failed to appear. Unlike the instant case, in Fatemi, the father neglected to attend the hearing because he had fled the jurisdiction with the children for his native country, Iran. The father in Fatemi made no effort to attend the hearing or inform the court of his absence other than to have his counsel appear and notify the court that he had fled. This court found adequate support for the trial court’s conclusions that the father’s action indicated a “total disregard for the welfare of the children,” “a personal and selfish motive” and “a desire to have the children deprived of the care, comfort, love and affection of their mother.” Id., 371 Pa.Superior Ct. at 116-117, 537 A.2d at 847.

These same conclusions cannot be made in this case. Here the trial court found that Mother was considering her own best interest for the move, and not the children. It also scrutinized her motives for moving and concluded that “Mother has shown that she cannot and will not comply with present visitation arrangements, nor can it be said that she would cooperate with any alternate visitation arrangements.” Judgment on Mother’s motives for her move and her desire to alter Father’s visitation arrangement with the children was made, as in Fatemi, without the presence of the party who was outside the jurisdiction. However, here Mother did not flee the country, she simply moved. Her move itself did not violate the previous custody arrangement, it was the manner in which the move was accomplished, without notice to Father who was to have equal input into all major parenting decisions, which was violative of the previous order. As pointed out, Mother informed the court that she would be unable to attend the hearing, she informally requested a continuance and she was left with the impression at the previous hearing that her presence at the latter hearing would not be ordered. Further, contrary to the court’s characterization of Mother’s motives based upon the letter Father submitted into evidence, Mother did not simply “announce” that Father’s visitations would no longer be possible. By letter Mother advised Father that the current arrangement would no longer be possible, however, she also suggested alternatives and offered to share travel expenses. We cannot view this communication as an indication that Mother’s move was motivated by a desire to restrict Father’s relationship with his daughters. Speculation in a matter critical as this is clearly inappropriate.

We conclude based upon the record presented before the court in this matter that the trial court’s findings regarding Mother’s motives for her move with the children were made without an adequate basis, and on the facts of this case, a change of custody based on such findings was not in the children’s best interest. The lives of these children have been repeatedly disrupted by the parties and the courts. This disruption should not continue based upon continuously filed motions to modify custody which do not contain the entire facts of the case and history of the parties. In this situation where the custodial parent’s absence from the hearing can be justified, it was an abuse of discretion for the court to again take these children away from their primary caretaker, who was granted custody after an extensive hearing only a year earlier before another judge who issued an exhaustive opinion, based solely upon the testimony of the petitioning parent. It is important for these children that they have “a stable relationship with an established parental figure and a known physical environment.” Gerber v. Gerber, 337 Pa.Super. 580, 586, 487 A.2d 413, 416 (1985). For a court to have again disrupted their lives based upon the record before us, could not have been in their best interest.

The lack of concern for these children is compounded by the fact that that custody order makes no provisions for temporary custody or even visitation by Mother. It was acknowledged in Judge Lawrence’s opinion that Mother has been the childrens’ primary caretaker since their birth. To abruptly transfer their custody to Father without any provisions for them to continue a meaningful relationship with Mother is insensitive to their well being. The trial court’s comments that it would establish a visitation schedule upon remand from this court since it was without Mother’s input, was clearly unresponsive to the children’s immediate need to maintain some semblance of stability in their lives.

We have determined that the trial court in this case, which was not the court which made the original award of custody, issued its order directing a change in custody without the benefit of a full hearing on the matter. For these reasons it is in the children’s best interest to conduct a custody hearing anew. This hearing should provide the judge with information regarding the past history of the parties, their present circumstances, their abilities to care for their children as their primary caretaker and the children’s desires, if any are made known. At such hearing Mother may explain before the court her reasons for the move and the benefit that it would offer to her and her daughters. The court upon considering this information along with the entire previous history of the parties and the court’s previous recommendation and evaluation of both parents and their abilities to care for the children, must determine in which parent’s care the children’s best interest remains. If the court determines that it would not be in the girls’ best interest to move with Mother to Colorado but that Mother’s actions were not any indication that she could not resume her custodial responsibilities, the court should consider whether Mother should be given the opportunity to reconsider her move.

Pending the outcome of this hearing, which in an effort to resolve this matter quickly, we order to be held within 30 days, the children are to remain in their Father’s custody. Further disruption for this short period of time and in the middle of the school year we deem unwise. Immediately upon remand from this court and pending the custody hearing, the trial court is to enter an order scheduling Mother substantial unsupervised visitation or partial custody. We find nothing in the record to justify the absence of such an order.

Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Each party would like to blame the other and the court system for the disruption involved here. Each has invited this disruption. Mother has failed to acknowledge Father’s role as joint legal custodian of the children and has failed to comply with court orders requiring timely notification of trips. Mother moved the children without prior notice to Father causing him great concern when their whereabouts were unknown to him. Mother has shown disregard for the court order acknowledging that Father was an equal partner in their daughter’s lives. Father, likewise, has prompted the children to be moved from parent to parent. He has filed numerous Emergency Petitions from which he was awarded custody only later to be reversed when the full facts were divulged. If these children are to grow up with any type of stable environment, both parties must work together providing the children with access to both parents and abide by the court’s decision in the matter.

      . Where at all possible, it is best for all concerned to have modification of custody petitions heard by the same judge who heard the previous matters and is most familiar with the case. This is particularly important in a case such as this which has a complicated legal history.