author: TAMILIA, Judge: CERCONE, Judge,

text:
    514 A.2d 140
    In re Involuntary Termination of Kenneth Lee STICKLER, Jr., Bradley Lynn Stickler and Kim Louise Stickler. Appeal of Kenneth L. STICKLER, Sr.
    Superior Court of Pennsylvania.
    Submitted Feb. 27, 1986.
    Filed Aug. 11, 1986.

      Michael H. Small, Palmyra, for appellant.
    Pamela A. Weiss, Lebanon, for appellees.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

This case is before us on appeal from the trial court’s Decree of May 29, 1985, terminating the parental rights of appellant, Kenneth Lee Stickler, Sr., to his three minor children.

As stated by the trial court, the sole issue before us is whether the respondent, by his conduct for a period of at least six months, has either evidenced a settled purpose of relinquishing parental claim to these children or has refused to perform parental duties.

The appropriate standard of review in cases involving the termination of parental rights is limited to a determination of whether the decision to terminate parental rights is supported by competent evidence. If review of the record does not reveal an abuse of discretion, an error of law or insufficient evidentiary support for the lower court’s findings, the Order must stand. Lookabill v. Moreland, 336 Pa.Super. 520, 485 A.2d 1204 (1984), Matter of Adoption of Baby Boy Allen, 337 Pa.Super. 133, 486 A.2d 517 (1984); see also In re Adoption of B.K.W., 348 Pa.Super. 333, 502 A.2d 235 (1985).

In this case, the facts found by the court and supported by the record are as follows.

The natural parents of these children were married in 1975 and divorced in October of 1982. The three children subject of the termination proceedings are Kenneth, born September 19, 1976, Bradley, born February 15, 1979 and Kim, bom August 23, 1980. The children have been with the appellee/mother since birth and she has been the primary custodian since the date of separation in July 1982 and following the divorce of the parents in October 1982. Prior to the divorce, the father failed to support his children for a period of at least nine months by gambling his weekly paycheck on horse races at the Penn National Race Track. The sole exception to that pattern of non-support, to the date of divorce was a single months contribution resulting from court attachment of appellant’s wages. In addition to his failure to pay support, appellant failed to regularly exercise his visitation rights with the minor children. Appellee, Brenda, married Dennis Echternach in May 1984, and she and her husband planned for him to adopt the children. In February of 1983, appellant, after a plea of guilty, was sentenced to serve a term of imprisonment of not less than five nor more than, ten years for arson and related offenses. While in prison, appellant receives $25 per month and money from his family but has failed to write or send cards or presents to his children. During the marriage he was an inveterate and compulsive gambler and failed to provide the basic care required for his family, borrowing money and selling items of his personal property to support the gambling habit.

The lower court concluded from this evidence that the appellant has failed to perform parental duties as required by law for a period in excess of six months.

As we said in In re Adoption of Baby Boy J., 512 A.2d 689, (Opinion by Tamilia, J., 1986):

Parental rights may be terminated if a parent, by conduct continuing for a period of at least six months, either has evidenced a settled purpose of relinquishing his parental claim to his child or has refused or failed to perform parental duties (23 Pa.C.S.A. § 2511(a)). The performance of parental duties is an affirmative obligation to love, protect, support and maintain communication and association with the child. Consequently, being a parent is more than a passive state of mind, it is an active occupation, calling for a constant affirmative demonstration of parental love, protection and concern. A parent must exert himself to take and maintain a place of importance in the child’s life. In re Adoption of 348 Pa.Super. 65, 501 A.2d 648 (1985). The proof required in terminating parental rights is by evidence that is clear and convincing. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)

Id. at 691.

Whether a parent has evidenced a settled purpose of relinquishing his parental claim to a child, or has refused or failed to perform parental duties for a period of at least six months, must be analyzed in light of any explanation offered by the parent. Lookabill v. Moreland, 336 Pa.Super. 520, 485 A.2d 1204 (1984); In re Adoption of Ostrowski, 324 Pa.Super. 216, 471 A.2d 541 (1984); see also In Re T.L.G., 351 Pa.Super. 256, 505 A.2d 628 (1986).

Id. at 692.

In this case, the only explanation given by the appellant is that he has the “disease” of gambling. Nowhere is it indicated that he sought rehabilitation or placed his income beyond the reach of his affliction by way of wage assignments or attachments, or despite the compulsion attempted to maintain a parental relationship with the children so they would receive emotional and physical support from him. Even from prison, some relationship could have been maintained in preparation for release, but it appears any plans are on hold until, at the earliest, 1988 (barring credit for time already served) when the oldest child will be twelve years of age.

With a prison sentence of five to ten years, appellant will be without any meaningful and significant contact with the children, and as Judge Gates aptly pointed out, the prior lapse, which in itself was legally sufficient to warrant termination, should not be tolled by the appellant’s incarceration. We may not reverse the lower court, absent an abuse of discretion, which is not present here. These children will not be left in limbo by termination, as the mother and her new husband plan to have them adopted by him, thus giving the children an intact and secure foundation for their proper development.

The legislature has, in recent years, severely restricted the ability of parents to rely on their natural ties to the children to defeat any attempt to bring order, stability, affection and care due them when the parents are guilty of gross neglect or de facto abandonment. The life of a child is unique and priceless and its best interest must supersede that of parental whim to retain a possessory interest based on the act of procreation, when parenting has failed, producing a vacuum where love and care are vital.

Decree terminating parental rights is affirmed.

CERCONE, J., dissents with opinion.

CERCONE, Judge,

dissenting:

I respectfully dissent from the lead opinion on the grounds that the majority’s decision to terminate appellant’s parental rights is not supported by clear and convincing evidence. See, Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

The majority correctly states that prior to his divorce from appellee appellant failed to adequately support his children as much of his income was squandered on gambling. However, the evidence adduced at appellant’s termination hearing does not conclusively support the majority’s statements that appellant failed to regularly exercise his visitation rights with his minor children subsequent to his divorce or that appellant has failed to write or send cards or presents to his children during his term of incarceration. Appellee testified that from the time the parties separated until appellant’s incarceration, approximately fifteen months, appellant exercised his visitation privileges twelve to fifteen times. Appellant stated that during visitation periods he took the children to visit his mother and sister, played games with them, and went fishing with his son. However, since being incarcerated appellant’s contact with the children has diminished. Appellant, at the termination hearing, gave as the reason for less contact with his children that since he was jailed, appellee has thwarted his efforts to communicate with the children by refusing his phone calls and not acknowledging the cards he sent to the children on various occasions. This testimony was corroborated by appellant’s mother and sister who stated that when they asked to take the children to visit their father appellee told them that the children had other plans. Appellee also stated that she did not feel, that it was her responsibility to take the children to see their father. Appellant’s witnesses further stated that they sent cards to the children at appellant’s request and that he inquired about the children within a six month period prior to this proceeding. Appellee acknowledges that she would not accept appellant’s phone calls as they were made collect, a prison requirement, and that it was appellant’s mother, not appellant, who sent the children cards and money, on appellant’s behalf at Christmas, 1984 and a birthday card to one of his sons in February, 1985. Appellee’s testimony was substantiated by that of her husband.

The majority places too great an emphasis on the length of appellant’s sentence, which we note could expire in two years, concluding that it precludes any meaningful and significant contact with the children. It is settled law in this Commonwealth that appellant’s parental rights cannot be terminated solely on the fact that appellant is incarcerated. In Re Adoption of M.T.T., 467 Pa. 88, 259 A.2d 564 (1976). This is especially true when, despite incarceration, the prisoner strives to maintain an affirmative relationship with his children. See, In Re Adoption of Sabrina, 325 Pa.Superior Ct. 17, 472 A.2d 624 (1984). The record discloses that while in prison appellant has no resources to care for or support his children. This circumstance alone cannot justify a finding of abandonment of parental duties. Adoption of M.T.T., supra. Appellant and his witnesses set forth evidence of appellant’s repeated attempt to remain in contact with his children; appellant tried to call, send cards and seek permission from appellee to have his mother bring the children to visit him, all within six months of the instant proceeding herein. Appellee by her own admission, has discouraged these attempts and maintains that it is not her responsibility to take the children to see their father.

Our law recognizes there may be situations where the parent who has custody of the minor may create such barriers as to impede communications between the absent parent and the child. Where the absence of communication results from the deliberate conduct of the opposing parent, it may not be used as a basis for termination of parental rights, even when the lack of contact may have extended significantly beyond the statutory period ... A parent’s efforts in maintaining a relationship with the child must always be evaluated in light of the obstacles confronting that parent.

In Re Adoption of Jr., 492 Pa. 313, 317, 424 A.2d 878, 880 (1981).

The burden of proof is upon the party seeking termination to establish by “clear and convincing” evidence the existence of the grounds for termination. In Re: T.R., 502 Pa. 165, 465 A.2d 642 (1983). We have carefully examined the record in the case before us, and while we find that appellant is not an exemplary father, considering the totality of the circumstances, the record does not support a determination that appellee has proven by clear and convincing evidence that appellant has exhibited such failure to perform parental duties as would justify the involuntary termination of his parental rights. The fundamental liberty interest of natural parents in the care, custody and management of their child does not evaporate simply because they have not been model parents. Santosky v. Kramer, supra.

The majority opines that the legislature, in recent years, severely restricted the ability of parents to rely on their natural ties to the children to defeat any attempt to bring order, stability, affection and care due them when parents are guilty of gross neglect or de facto abandonment. But, I believe that to deprive a parent of parental rights, even one who falls below the standard of conduct depicted from a law abiding citizen and who as a result finds incarceration as part of the penalty, in face of evidence which demonstrates a degree of concern, affection and love that ineffably exists between a natural parent and his or her child is contrary to the intent of the law having to do with the legally pronounced termination of parenthood. The law does not presume drastic results in every case based on an isolated period of lack of support, financial or emotional, six months in duration.

Accordingly, I would reverse the order of the trial court terminating appellant’s parental rights.

      . Appellant earns approximately $25.00 per month at his prison job and from this income he must supply his own sundries and his share of the T.V. cable.


source: Caselaw Access Project

author: OLSZEWSKI, Judge: KELLY, Judge,

license: Public Domain

text:
    514 A.2d 144
    COMMONWEALTH of Pennsylvania, Appellee, v. Harold T. McKENDRICK, Appellant.
    Superior Court of Pennsylvania.
    Argued April 1, 1986.
    Filed Aug. 18, 1986.

      Jack M. Myers, Philadelphia, for appellant.
    Elizabeth J. Chambers, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before McEWEN, OLSZEWSKI and KELLY, JJ.
   OLSZEWSKI, Judge:

This appeal comes before us as a result of a first degree murder conviction returned by a jury against Harold T. McKendrick, appellant. After post-verdict motions were denied, appellant was sentenced to a term of life imprisonment. In the appeal sub judice, appellant raised numerous issues for our consideration. Most, however, deal with trial counsel’s ineffectiveness. Although we find each claim meritless, we shall undertake a discussion of them all seriatim. First, a thorough recitation of the facts and procedure is necessary.

According to witnesses’ testimony, on October 23, 1976, William Cheeseborough, the victim, and his girlfriend had a violent argument, resulting in Cheeseborough being ejected from the residence. This, however, did not stop Cheeseborough from yelling. Appellant entered the scene and knocked at the door to offer his assistance. Allan Holman told appellant that there was no trouble and “to leave the boy (meaning Cheeseborough) alone.” At this time, appellant announced that he was going to shoot the victim. A shot was fired at Cheeseborough’s feet. He jumped back asking what that was for and was immediately shot at again. The second bullet was in the chest, piercing his heart and killing him. There were three potential eyewitnesses: Louisa Bennett, Annette Johnson, and Allan Holman. Neither woman knew appellant before the incident but both were able to identify him.

A warrant was issued on October 24 for the arrest of Harold McKendrick. He was not arrested, however, until 234 days later when he turned himself in. He was questioned by the police and denied knowledge of the shooting. At trial, his defense consisted of an alibi that he was present at a different location and that several other people had reason and motive to kill Cheeseborough.

Appellant’s pre-trial counsel was Jack M. Myers, Esquire, at that time court-appointed, and now privately retained appellate counsel. Trial counsel was Benjamin Joseph, Esquire. After a decision on post-trial motions, he was permitted to withdraw and was replaced by David Sorin, Esquire. Mr. Sorin withdrew and Michael von Moschzisker, Esquire, was appointed to represent the appellant. A motion for a new trial and/or arrest of judgment was ultimately denied. Subsequently, Mr. von Moschzisker withdrew because of a change in employment and Michael McAlister, Esquire, was appointed to perfect an appeal to the Superior Court. He withdrew when Jack M. Myers, Esquire, once again took over.

I.

We shall deal with appellant’s last issue first. Appellant was sentenced on January 9, 1981 and filed a timely appeal on January 14, 1981. Oral argument was heard on April 1, 1986. As of this time, no lower court opinion had been filed. One was filed, however, on April 7, 1986, approximately five years and three months after sentencing.

Appellant cites the recent Pennsylvania Supreme Court case of Commonwealth v. Hammer, 508 Pa. 88, 494 A.2d 1054 (1985) which involved a similar incident with the same judge. Like the Supreme Court, we strongly condemn the failure of the trial judge to file an opinion within a reasonable time. Despite the lack of a prompt filing, this is not in itself sufficient grounds for a new trial. In addition, we note that the completeness of the lower court opinion was a great aid in our disposition of the issues.

II.

Appellant argues that trial counsel’s failure to object to comments made by the judge during his instructions to the jury did not result in a waiver of that issue.

This situation is covered by Rule 1119(b) of the Criminal Rules of Procedure which states:

(b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury-

Numerous cases have found issues waived if not objected to by relying on this rule. See, Commonwealth v. Hilton, 461 Pa. 93, 334 A.2d 648 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Waters, 334 Pa.Super. 513, 483 A.2d 855 (1984). Appellant cites Commonwealth v. Hammer, supra, as an exception to the rule that no objection at trial does not preserve the issue on appeal. The specific exception raised in Hammer deals with instances of judicial intemperance. This exception, however, is not absolute.

We turn now to the merits of appellant’s claim. In finding no error by the trial judge, we rely on Commonwealth v. Cole, 274 Pa.Super. 106, 417 A.2d 1276 (1979). This Court stated:

When a defendant charged with murder requests a charge on voluntary manslaughter, the trial court may give its opinion on whether the facts show that the defendant committed voluntary manslaughter if the evidence supports the court’s opinion, the court fully informs the jury of its power to return a verdict of guilty of voluntary manslaughter, regardless of whether the facts support that verdict, and if the court instructs that the jury is the finder of facts and is not bound to follow the court's opinion. Commonwealth v. Scaramuzzino, 485 Pa. 513, 403 A.2d 82 (1979) (plurality opinion) (citing cases).

Here, the trial judge had sufficient reasons to justify his comment. In addition, he informed the jury of its power to ignore his opinion and bring back a verdict of guilty to either voluntary or involuntary manslaughter. Because of this, there was no error in the instruction. See also, Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976).

III.

Eight of appellant’s arguments allege ineffective assistance of counsel on the part of Benjamin Joseph, Esquire. While each instance shall be addressed individually, the law and standard that we apply remains the same.

Pennsylvania law regarding ineffective assistance of counsel is well documented. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), enunciated the process to be used as a two-pronged analysis consisting first of a determination of whether the issue underlying the ineffectiveness claim is of arguable merit, and second whether the course chosen by counsel had some reasonable basis aimed at promoting the appellant’s interests. Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985); Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984). Recently, an en banc Superior Court added another consideration. In addition to the above requirements, an appellant must establish that the ineffectiveness so prejudiced his case that he did not receive a fair trial. Commonwealth v. Pierce, supra. At all times through the process, the law presumes effective counsel and the burden of proving ineffectiveness of counsel rests with the appellant. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984).

A.

Appellant’s first allegation of ineffectiveness concerns the issue previously discussed, that is, trial counsel’s failure to object to the judge’s comments during jury instructions. Since we have just held that these comments did not constitute error on the part of the trial judge, we cannot find counsel ineffective for not raising an objection.

B.

The second claim of ineffectiveness states that counsel should have called certain witnesses to testify as to appellant’s reasons for fleeing to avoid arrest. We find no ineffectiveness for the following reasons. First, there is no arguable merit to this claim. Appellant himself was put on the stand and testified that his fear of the police led him to avoid arrest. While he was not able to testify as to what his family members told him, and his family members were not allowed to testify as to what they told him, the jury was well aware of appellant’s fear. (N.T. 487-492.) Any additional testimony would be cumulative. See Common wealth v. Lochman, 265 Pa.Super. 429, 402 A.2d 513 (1979). Second, trial counsel had good reason in not calling at least one of the witnesses since there was an extensive police record. This had been held to be a reasonable basis for failing to call a potential witness. Commonwealth v. Jones, 250 Pa.Super. 98, 378 A.2d 471 (1977). Lastly, there was no prejudice involved by not calling the witnesses. As stated previously, appellant’s fear of the police was sufficiently before the jury and cumulative testimony was unnecessary since it would not add anything to the record. Commonwealth v. Lochman, supra.

C.

We can easily dispose of the next ineffectiveness claim. Appellant argues that trial counsel should have moved for dismissal under Rule 1100(b). Present appellate counsel and trial counsel discussed this possibility before .trial and determined that such a course of action would be a waste of time. We agree.

Rule 1100 is tolled when there has been a showing of due diligence. Due diligence does not require perfect vigilance and punctilious care, but rather a showing by the Commonwealth that a reasonable effort has been made to secure the defendant’s attendance at trial. See Commonwealth v. Johnson, 305 Pa.Super. 310, 451 A.2d 546 (1982). The matters of availability and due diligence “must be judged by what was done by the authorities rather than (by) what was not done.” Commonwealth v. Williams, 284 Pa.Super. 125, at 132, 425 A.2d 451, at 455 (1981) (emphasis in original, citation omitted). In addition, the Commonwealth does not have to exhaust every conceivable avenue open to it. Commonwealth v. Fanelli, 292 Pa.Super. 100, 436 A.2d 1024 (1981).

There is ample evidence to support a finding of due diligence. A police detective went to appellant’s mother’s home twice and also to his brother’s home twice looking for him. All family members, as well as appellant himself, were aware that the police were searching for him. No one, however, was willing to cooperate. Police had limited information as to where appellant could be found. Their efforts included searching tax records in Philadelphia, entering background material into the Pennsylvania Crime Information Center and the NCIC; following leads on a possible sighting of appellant and information of a girlfriend; and putting a burglary team on alert. It is clear, then, that there is no merit to appellant’s claim of a Rule 1100 violation; trial counsel, therefore, cannot be ineffective.

D.

The next claim of ineffectiveness deals with the cross-examination of appellant. During this time, the Commonwealth questioned appellant as to whether or not he told police of his alibi at the time of arrest. Trial counsel did not object to these questions. Appellant contends he should have. Appellant alleges that these questions were in violation of his right to remain silent. Appellant, however, was not silent upon arrest but chose instead to give a full statement. (N.T. 486-487, 513-514.) This was brought out on direct examination by trial counsel. We therefore agree with the trial court that appellant opened the door and legitimately subjected himself to questions concerning his statement. Once again, since the underlying claim is of no arguable merit, counsel will not be found ineffective.

E.

Our next review of trial counsel’s possible ineffectiveness is two-fold. First, appellant contends an exception should have been taken to the judge’s failure to charge on self-defense voluntary manslaughter. The judge charged only on provocation. Second, there should have been an objection to the judge’s failure to charge on involuntary manslaughter.

We have no difficulty holding that the first claim does not amount to ineffectiveness. At the time of trial, appellant was not entitled to either voluntary manslaughter instruction unless he requested it. Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974). Therefore, trial counsel cannot be held ineffective for not objecting to the omission of an instruction he did not request. In addition, trial counsel’s basis for not requesting such an instruction was reasonable. A self-defense voluntary manslaughter charge is obviously inconsistent with appellant’s alibi that he did not kill Cheeseborough, someone else did. Commonwealth v. Gay, 489 Pa. 17, 413 A.2d 675 (1980).

The second contention is equally as easy to dismiss. As pointed out by the trial court, the jury was instructed as to the elements of involuntary manslaughter. There was no reason, then, for an objection. It follows that there can be no finding of ineffectiveness.

F.

Appellant also alleges that counsel was ineffective for not objecting to remarks made by the prosecutor during his summation. This issue is four-pronged: (1) the reference to the murder as “a typical South Philadelphia job;” (2) that appellant had a motive because he was a friend of Allan Holman’s; (3) commenting on the witnesses’ heavy responsibility in identifying appellant; and (4) calling it “absurd” and “ridiculous” that the alibi witnesses remembered what they did so long ago.

Again, we find that these allegations have no arguable merit and cannot constitute ineffectiveness. The Commonwealth is allowed reasonable latitude in fairly presenting its version of the case to the jury. Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975). As such, the prosecutor can argue on both the trial evidence and any rational inferences. Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972). In addition, a prosecutor can respond to remarks made by defense counsel in his closing, Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975) and to the credibility of witnesses, Commonwealth v. Russell, 459 Pa. 1, 326 A.2d 303 (1974).

This law effectively takes care of most of appellant’s arguments. The appellant testified as to his relationship with Allan Holman; since trial counsel attacked the witnesses’ credibility in his closing, the prosecutor was able to build it up again and was able to comment on other witnesses’ credibility. In light of the latitude given a prosecutor, we find that he was within bounds. Trial counsel, therefore, can not be effective for not objecting.

The remarks about “a typical South Philadelphia job” will not be the basis of a finding of ineffectiveness since it was indeed objected to by trial counsel. (N.T. 746-760.) A decision to object at the end of the prosecutor’s closing rather than during it is within trial counsel’s discretion. His grounds for doing so cannot be attacked nor determined to be unreasonable.

G.

In his final ineffectiveness claim, appellant alleges that trial counsel was ineffective in failing to interview or call to testify witnesses who could have supported his alibi. At trial, appellant testified as to his alibi. This was corroborated by two other witnesses.

The law does not require trial counsel to call to the witness stand every witness mentioned by a defendant. Commonwealth v. Jones, 234 Pa.Super. 68, 334 A.2d 689 (1975). In addition, the testimony must add something to the defense. Commonwealth v. Charleston, 251 Pa.Super. 311, 380 A.2d 795 (1977). Since the appellant and two others testified about the alibi, additional witnesses would not add anything to the record and therefore would be cumulative. See Commonwealth v. Lochman, 265 Pa.Super. 429, 402 A.2d 513 (1979).

IV.

Appellant next argues that it was prejudicial error for the trial court to allow the Commonwealth to use its pre-emptory challenges to strike all black venire persons. As a result, appellant was tried in front of an all-white jury.

The United States Supreme Court in Batson v. Kentucky, — U.S. —, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), has recently enunciated a new test in this area. Batson held:

The defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen on account of their race.

Batson still requires a prima facie case but has enlarged a defendant’s rights. We have applied Batson and find appellant has not made a prima facie case. The Court confidently relies upon the trial judges to analyze the cireumstances of a prosecutor’s use of pre-emptory challenges. To that extent, we agree with the trial court’s observation that:

(A)s a practical matter, despite the fact that McKendrick was tried by an all-White jury, he instantly received a fair and impartial trial free of racial concerns. In truth, there were no racial issues in this case. Both the defendant and his victim were members of the Black race. The greatest portion of the witnesses for both sides were Black. In sum, this was not a case involving an interracial killing in which specific racial groups would be prone to take sides of prejudice.

(Tr.Ct.Op. page 11).

We, therefore, will affirm the decision.

y.

Lastly, we address appellant’s issue alleging reversible error by the trial court in prohibiting counsel from calling Allan Holman to testify and attempting to show his violent disposition through his past criminal record. In effect, appellant wanted to impeach his own witness in order to cast suspicion upon his credibility.

We acknowledge appellant’s argument that the Federal Rules allow any party to impeach any witness. That rule has not been adopted in Pennsylvania, however, and we decline to adopt it now. Pennsylvania law does give the trial judge discretion to decide whether defense counsel can cross-examine his own witnesses. Commonwealth v. Turner, 389 Pa. 239, 133 A.2d 187 (1957). The trial judge here utilized this discretion to deny counsel the right to impeach Allan Holman for the following reasons.

First, counsel wanted to admit evidence of Holman’s prior convictions for violent crimes to establish motive for the homicide. The crimes of rape, murder, and aggravated assault took place in 1961, 1964 and 1972. They had no causal connection with the crime being considered and were therefore inadmissible. See Commonwealth v. Chism, 480 Pa. 233, 389 A.2d 1041 (1978); Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976).

Second, the evidence would have been admitted to show the witness’s violent disposition. This theory assumes that a violent disposition in a person supports the conclusion that that person may be the killer in any homicide. The court cannot allow such an assumption.

We find no abuse of discretion on the part of the trial judge and therefore affirm his ruling.

Conclusion

The Pennsylvania Supreme Court, in Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680 (1974), has stated:

“Although a perfectly conducted trial is indeed the ideal objective of our judicial process, the defendant is not necessarily entitled to relief simply because of some imperfections in the trial, so long as he has been accorded a fair trial. A defendant is entitled to a fair trial but not a perfect one.” Commonwealth v. Hill, 450 Pa. 477, 480-481, 301 A.2d 587, 590 (1973) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953)).

Keeping this in mind, our review of the above claims and the record satisfies us that the lower court properly conducted appellant’s trial, thus allowing him to receive a fair one. As such, we are obligated to affirm the judgment of sentence.

Judgment of sentence affirmed.

KELLY, J., files a dissenting opinion.

KELLY, Judge,

dissenting:

I respectfully dissent from the majority opinion. Appellant’s tenth question for review raises the issue of whether the trial court committed prejudicial error in denying a defense motion to dismiss the jury panel from which all potential black jurors had been removed either by challenge for cause or by peremptory challenge. The majority finds no error. I, however, find error and accordingly dissent.

Although Pennsylvania courts adopted the rationale of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) in cases such as Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975) (then Justice Nix, now Chief Justice, dissenting) these holdings are no longer constitutionally valid in light of the very recent United States Supreme Court decision in Batson v. Kentucky, — U.S. -, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson, supra, specifically overruled Swain, supra, and therefore overruled all of Swain’s progeny throughout the states, including the Pennsylvania holding in Martin, supra. The Swain standard stated that in order for a defendant to establish a prima facie case of discrimination, systematic exclusion by the prosecution of black venirepersons in several cases within a jurisdiction must be shown. Batson set forth a new standard: a defendant must merely raise an inference of discrimination in his or her own particular jury selection process, thus establishing a lesser burden of proof.

The defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen on account of their race.

Batson, — U.S. at —, 106 S.Ct. at 1723, 90 L.Ed.2d at 87, 88 (Citations omitted).

There are three prongs to the newly enunciated standard of proof. We do note that defendant on appeal has raised several points which may satisfy this new standard. First, defendant as a black man is a member of a cognizable racial group. Moreover, the prosecutor exercised four peremptory challenges to remove all black venirepersons from the jury so that defendant was tried by an all-white jury. Second, appellant may “rely on the fact” that the peremptory challenges permitted “those to discriminate who are of a mind to discriminate.”

As to the third prong, among the possible “relevant circumstances” the U.S. Supreme Court suggests are the Swain type systematic exclusion of racial minorities, an underrepresentation of minorities in the venire, or prosecutorial conduct during voir dire, including a pattern of strikes against black jurors. Batson, supra — U.S. at —, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. This list is by no means intended to be exhaustive.

A review of the record in this case revealed that trial counsel attempted to suggest in the court below that there was an underrepresentation of minorities in the venire. In chambers, before voir dire, counsel for defense noted:

... I have seen the panel. There are 50 members of the panel. Only eight of these people are black.
My client is black. It is my feeling that, since approximately 45 percent of the population of the city is black, that there should be a greater percentage on this panel in order for my client to have what is constitutionally guaranteed to him, that is, a fair trial by his peers.
Clearly here is a situation where there are 50 on this panel and each individual has seven peremptory strikes, the District Attorney is in a position of getting either an all-white panel or virtually an all-white panel to try this case against my client. It is for that reason that I make this motion.

(N.T. 3/27/78, p. 46).

I would further suggest that an examination of the backgrounds of each of the black venirepersons struck from the jury panel, including their age, gender, education level and employment history, may provide further proof of discriminatory intent. The court on remand may be able to discern whether there were any common factors among the challenged venirepersons, other than their race, which fit any permissable “neutral” strategy on the Commonwealth’s part.

In addition to the determination of whether an underrepresentation of minorities in the venire occurred, and in addition to examination of the record with particular emphasis on voir dire, the entire record of the trial should be reviewed as it may be helpful in determining whether the Commonwealth harbored discriminatory intentions. The fruit of discriminatory preparations during voir dire may be harvested both during trial and at closing arguments. Thus, by the use of hindsight, the trial court on remand may also decide that the prosecutor’s closing remarks raise an inference of discrimination in the jury selection process. For instance, the prosecutor stated in his closing remarks:

Ladies and gentlemen, I submit to you that this case is about a murder that took place in South Philadelphia, in the projects. It is not the kind of a case which carries with it a complex motive. No, this is a typical South Philadelphia job, as the policemen say. It’s a job. It’s a typical South Philadelphia ghetto type job.

(Emphasis added). (N.T. 71a). Although this comment does not specifically enunciate the predominantly racial character of the South Philadelphia projects, the all white jury, having observed the black defendant and black neighborhood witnesses, could not fail to draw the correlation between “ghetto”, “projects” and “black”.

I express no opinion as to whether appellant has in fact raised an inference as to discrimination in jury selection. However, because I find that defendant has raised a meritorious issue I would grant him the same remedy afforded the appellant in the Batson case.

The remedy afforded appellant in Batson was to remand the case for further proceedings to determine first if the facts made out a prima facie showing of purposeful discrimination and second if the prosecutor was able to come forward with a “neutral explanation” for his peremptory challenges.

The lower court would then decide the credibility of the prosecutor’s explanation, and the constitutional permissibility of the prosecutor’s actions. If the prosecutor fails to provide an adequate “neutral explanation,” the Supreme Court holding is clear: “our precedents require that petitioner’s conviction be reversed.” Batson, — U.S. at —, 106 S.Ct. at 1725, 90 L.Ed.2d at 90.

The Supreme Court’s decision marks an important change in the law of jury selection and it is our constitutional duty to comply with this pronouncement. We cannot “sit supinely by” and “flaunt justice”, (U.S. Justice Marshall, concurring opinion in Batson, quoting Chief Justice Nix in Martin, supra, 461 Pa. at 299, 336 A.2d 290, Nix, J., dissenting). Accordingly, I dissent.

      . In giving the voluntary and involuntary manslaughter instructions, the judge commented:
      I again address myself to the record, that the Court has expressed an opinion at this juncture due to the following things: number one, it is an absurdity — under the present state of Pennsylvania law, jurors have the power to return verdicts of either voluntary or involuntary manslaughter notwithstanding the absence of such evidence in the record ... But, on the other hand, this Court has expressed an opinion because it wants to avoid — its own personal opinion — one of two things: it is an absurdity under the law for a judge to instruct a jury on the law without telling them that, number one, that there is no evidence relevant to a particular crime in the case, even though they have every right to return those verdicts; ...

        . Trial counsel did not call Constance McKendrick, appellant’s sister, and Riccardo McKendrick, appellant’s brother. The testimony not heard consisted of statements allegedly made to the two by police that they would shoot defendant on sight. They would also have testified to appellant’s fear of police brutality.

      . Rule 1100(d)(1) provides:
      (d) In determining the period of commencement of trial, there shall be excluded therefrom:
      (1) the period of time between the filing of the written complaint and the defendant’s arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence; ■

      . When questioned at the evidentiary hearing, trial counsel stated: I just did it that way because that’s the way I normally do things. Perhaps I was wrong, I don’t know—
      (F)rankly, I’m very annoyed with people interrupting when I’m talking, and I think that it’s annoying to jurors, too. Just as a matter of practice, I don’t like to do it. And I think I annoy people when I do it. And I felt that the way this went, what with the remarks being made and my objection being taken and the judge instructing the jury, I thought that that was going to have a good effect.

      . The Commonwealth asked that one black juror be stricken for cause and three others were excused because of pre-emptory challenges. In addition, the Commonwealth used one of its pre-emptory challenges to strike a white venire person.

      . Fed.R.Evid. 607.

      . One black venireperson was excluded for cause; the remaining four black potential jurors were peremptorily struck by the Commonwealth. Only one white venireperson was peremptorily challenged by the Commonwealth.

      . Batson, supra, was decided on 14th Amendment Equal Protection grounds.

      . From our examination of the record the prosecutor, in chambers, did not address or even refute the defense counsel’s concerns but merely cited Swain, supra as permitting him to practice any peremptory challenges he desired. (N.T. 3/27/78 at 47). In fact, the Commonwealth behaved exactly as the defense had predicted, exercising its peremptory challenge to exclude each otherwise acceptable black venireperson to be called forward for voir dire. The result was an all-white jury.

      . The 4 jurors excised by peremptory challenges were:
      Juror 54 — a 24 year old single female social worker with a graduate degree;
      Juror 298 — a 26 year old married female postal employee and high school graduate;
      Juror 360 — a married 57 year old male unemployed welder (18 months unemployed);
      Juror 213 — a 48 year old married woman who did not graduate from high school — unemployed.
      (N.T. p. 278, 317, 328, 412).

      . As our eminent Chief Justice Nix wrote in his dissent in Martin, supra 461 Pa. at 299, 336 A.2d 290:
      In northern communities systematic exclusion of an entire racial group from juries is rarely seen. More frequently, the problem arises in cases where the facts give rise to racial overtones and where an objective and unbiased jury is most needed.

      . Batson specifically affords retroactive relief to similarly situated defendants. Four justices, Justices Brennan, Marshall, Stevens and Blackmun joined Justice Powell in holding the Batson decision should have retroactive application, thus constituting the five Justices required for a majority. Justices White and O’Connor, the sixth and seventh votes, joined the court in its holding but would not apply the precedent retroactively.


author: KELLY, Judge:

text:
    514 A.2d 154
    COMMONWEALTH of Pennsylvania v. Reginald STINNETT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1986.
    Filed Aug. 19, 1986.

      Joseph N. Bongiovanni, III, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before KELLY, MONTGOMERY and HESTER, JJ.
   KELLY, Judge:

This case involves a direct appeal from judgment of sentence imposed upon the appellant, Reginald Stinnett, following a conviction in a jury trial for robbery. We find no merit in the appeal and accordingly affirm the judgment of sentence.

On the evening of February 5, 1981, Officer Edward Cottrell and three other officers of the Philadelphia Police Department were assigned to conduct a decoy operation in the area of Broad and Tasker Streets in South Philadelphia. Officer Cottrell acted as the decoy and was dressed as a semi-derelict. Three police officers dressed in street clothes acted as a surveillance and back-up unit.

At the west side corner of Broad and Tasker, Officer Cottrell reached into his pocket, removed a roll of bills, counted, and then returned the roll to his pocket. He then proceeded down the steps into the subway. The appellant, Reginald Stinnett, followed Officer Cottrell down the steps. At the first landing, the appellant threw Officer Cottrell against the wall, threw him to the ground, and took from his pockets four dollars ($4.00) and a roll of theatrical money. The appellant then fled up the steps to effectuate his escape. He was apprehended, however, by Officer Cottrell’s back-up team.

On January 29, 1982, a jury convicted the defendant of robbery. Post-trial motions were filed and denied. On June 17, 1982, the Honorable Louis G. Hill sentenced the appellant to serve a term of imprisonment of not less than four (4) years nor more than eight (8) years. A timely notice of appeal was filed.

On appeal, the appellant contends that: 1) trial counsel was ineffective for failing to investigate sufficiently; 2) the trial court wrongly ruled that the Commonwealth could introduce the appellant’s prior convictions for impeachment purposes; 3) inclusion in the career criminal program denied the appellant equal protection of laws; 4) the court improperly restricted cross-examination of the Commonwealth’s witnesses; 5) the court erred in failing to declare a mistrial after a Commonwealth witness violated the trial court’s sequestration order; and 6) trial counsel was ineffective for failing to preserve these issues in post-verdict motions. We shall consider the allegations seriatim.

I

The appellant first contends that trial counsel was ineffective for failing to adequately investigate the background of arresting officers and that of their unit to determine their predisposition for making false arrests. We cannot agree.

“It is undoubtedly true that a defense attorney’s failure to investigate potentially meritorious defenses ... can constitute ineffective assistance of counsel if no reasonable basis exists for counsel’s failure.” Commonwealth v. McNeil, 506 Pa. 607, 616, 487 A.2d 802, 806 (1985); accord Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976). However, counsel’s stewardship of the trial is presumed to be effective, and the burden of establishing counsel’s ineffectiveness rests upon the defendant. McNeil, 487 A.2d at 806; Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233, 235 (1981); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 608, 235 A.2d 349, 352-53 (1967).

It is only when the claim which has been foregone is of arguable merit that further inquiry must be made into the basis for counsel’s decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977). Trial counsel’s failure to gather and marshal evidence on appellant’s behalf could constitute ineffectiveness only if such evidence existed. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981).

In the instant case, the appellant has not disclosed what evidence counsel failed to discover and how it would have aided his cause. Such an omission is fatal to the appellant’s claim. Accord Commonwealth v. Silo, 509 Pa. 406, 502 A.2d 173 (1985) (failure to raise unspecified supplemental post-trial motions); Commonwealth v. Blagman, 350 Pa.Super. 367, 504 A.2d 883 (1986) (failure to disclose testimony or even name of omitted “crucial” witness); Commonwealth v. Polk, 347 Pa.Super. 265, 500 A.2d 825 (1985) (failure to make offer of proof as to substance of omitted witnesses’ testimony); Commonwealth v. Scott, 345 Pa.Super. 86, 497 A.2d 656 (1985) (failure to establish a sufficient factual predicate to support the ineffectiveness claim).

II

The appellant next contends that “the trial judge abused his discretion by permitting defendant’s prior convictions [to] be used, if he testified, to impeach his credibility____” (Appellant’s Brief at 8). However, our review of the record reveals no such ruling by the trial court.

Prior to commencement of trial, defense counsel inquired as to whether any of the appellant’s prior convictions would be admissible for impeachment purposes if the appellant decided to testify at trial. After a brief discussion, the trial judge concluded that a Bighum hearing would be required. (N.T. at 55-59). After the jury selection process was concluded, the trial judge conducted a Bighum hearing. The trial court proceeded to weigh the facts in terms of the balancing test announced in Bighum, supra, and refined in Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978).

The court heard argument with respect to the first three factors (N.T. at 238-47), then turned to the fourth prong of the Roots test. A lengthy discussion of this factor appears in the record. (N.T. at 248-261). The Commonwealth cited our decision in Commonwealth v. Dombrauskas, 274 Pa. Super. 452, 418 A.2d 493 (1980), and argued that because the Commonwealth had only the one witness their need for the prior conviction evidence was great. (N.T. at 250). The Commonwealth contended that only Officer Cottrell could testify regarding the robbery itself. (N.T. at 247-249).

Defense counsel countered that the Commonwealth had not one, but four eyewitnesses. (N.T. at 250-252). The trial judge indicated to defense counsel that in order to properly balance the factors he would have to know the defendant’s version of the events. (N.T. at 255). Defense counsel then informed the court that the defendant would claim that: he did not rob Officer Cottrell; he was walking down to catch a bus at Broad and Tasker; the police officers arrested him without cause; he had not been down the subway steps at all; and the officers knew him and had set him up. (N.T. at 255-259).

The Assistant District Attorney Thompson then agreed not to use the prior conviction evidence and explained:

Mr. Thompson: Based on that, the Commonwealth has more than one witness. We have three or four witnesses who can say that that’s not how it happened. That whatever happened took place down on the subway platform.
The Court: Then you are not pressing your request?
Mr. Thompson: No sir, based on the Roots criteria.

(N.T. at 260-261).

The court informed defense counsel that the prior record would not be admitted, but admonished counsel that:

If I find that your offer of proof is not in good faith because of something else that is going to be said quite different from what has been said to me now, that puts a different light on it. Otherwise it [the prior record evidence] is not going to be offered.

(N.T. at 261-262). (Emphasis added). The court explained that if the defendant later denied his presence at the scene, there would be a substantial variance with the appellant’s offer of proof at the Bighum hearing, in which case the court would be required to reconsider the admissibility of the prior record as impeachment evidence. (N.T. at 262).

Our previous rulings that a trial judge’s refusal to rule on a Bighum motion was the equivalent of an adverse ruling on the issue lend no support to the appellant’s contention that the court wrongly permitted the prior convictions to be used. See Dombrauskas, supra; Commonwealth v. Moore, 246 Pa.Super. 163, 369 A.2d 862 (1977). In Moore, supra, the trial judge refused to make a ruling on the appellant’s Bighum motion, but indicated that he was inclined to allow introduction of both prior convictions. In Dombrauskas, supra, the trial judge refused to consider a Bighum motion at the close of the Commonwealth’s case and ordered defense counsel to proceed. In both cases the procedure utilized left the appellant so uncertain as to the prior record evidence’s admissibility that the appellant was compelled to admit the prior conviction on direct examination in order to lessen its prejudicial impact.

In the instant case, however, the trial judge conducted a pre-trial Bighum hearing and made an express ruling in the appellant’s favor. The fact that the trial court indicated to counsel that his ruling could be reconsidered does not render the ruling so indefinite as to place the matter within the Moore-Dombrauskas rule.

The sole condition placed upon the trial judge’s ruling that the prior conviction evidence would be excluded was that if the appellant decided to testify and then presented a defense substantially different than that proffered to the court in the Bighum hearing, the trial judge would then have to re-evaluate the Roots criteria in light of the new facts.

Roots, Bighum, and their progeny require that the trial court balance various factors in determining, essentially, whether the probative value of prior conviction evidence outweighs the risk of unfair prejudice inherent in such evidence. In striking the proper balance between competing interests the trial judge must rely upon the accuracy of counsel’s statements with respect to the factors being considered. To the extent that either party makes inaccurate or unfounded assertions to the trial judge during the Big-hum hearing, that party runs the risk that a material variance, which becomes apparent at trial, may tip the balance and compel the trial judge, in the interests of justice, to reconsider the previous ruling.

In reaching this conclusion we are mindful of the importance to appellant of certainty with respect to the admissibility of prior record evidence for impeachment purposes in determining trial strategy. See Commonwealth v. Hill, 302 Pa.Super. 377, 448 A.2d 1090 (1982) (pre-trial hearing allows defendant to more intelligently weigh his or her decision to testify at trial). However, a defendant’s interest in certainty in such cases is not sufficient to compel a trial court to enforce an evidentiary ruling which is flawed by errors or omissions in the defendant’s proffer to the court during the Bighum hearing. The defendant’s own role in inducing the flawed ruling cannot be ignored.

To hold otherwise, would court subtrafuge and introduce a dangerous variable into what is already a delicate balancing process. Consequently, we find that trial judge’s admonition to counsel was entirely appropriate and provides no basis for the appellant’s contention on appeal. As no adverse ruling was in fact made by the trial court, the appellant’s second contention on appeal is found to be without merit.

Ill

The appellant next contends that his rights to equal protection of the laws and due process guaranteed by the Fourteenth Amendment were violated by the appellant’s inclusion in a career criminal program. Specifically, the appellant contends that his equal protection and due process rights to a presumption of innocence were compromised when he was tried by a judge who, by virtue of the appellant’s inclusion in the career criminal program, knew of the appellant’s extensive prior record. We find neither legal support nor factual basis for the appellant’s contentions.

The Equal Protection Clause in the United States Constitution is directed at every form of state action — legislative, executive, and judicial. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). It not only proscribes the enactment of discriminatory laws, but also the discriminatory enforcement of laws which are fair on their face. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). See Commonwealth v. Lewis, 443 Pa. 305, 279 A.2d 26 (1971).

In Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1974), the Supreme Court stated that in analyzing allegations of equal protection violations the Court “looks, in essence, to three things: the character of the classification; the individual interest affected by the classification; and the governmental interest involved.”

In the instant case the challenged classification is based upon prior criminal conduct (prior convictions). The Equal Protection Clause prohibits differences in treatment of similarly situated persons based upon a constitutionally suspect standard (race or religion) or other classifications lacking in rational justification. See Loving v. Virginia, 388 U.S. 1, 9, 87 S.Ct. 1817, 1822, 18 L.Ed.2d 1010 (1967); McLaughlin v. Florida, 379 U.S. 184, 191, 85 S.Ct. 283, 287, 13 L.Ed.2d 222 (1964); Skinner v. Oklahoma, 316 U.S. 535, 541-542, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942); see also Commonwealth ex rel. Sullivan v. Ashe, 325 Pa. 305, 307, 188 A. 841, 842 (1937) (classifications are permissible when founded upon reason and logic; they are prohibited only when arbitrary and capricious).

Classification of criminals based upon prior criminal conduct is not new. As early as 1692 the Massachusetts Bay Colony had a recidivist statute for robbers and burglars. Support for the classification of defendants based upon prior criminal conduct may be found in the Supreme Court’s consistent recognition of the constitutionality of recidivist statutes and rejection of challenges predicated upon constitutional grounds. In Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), the Supreme Court stated:

No claim is made here that recidivist statutes are themselves unconstitutional, nor could there be under our cases. Such statutes and other enhanced-sentence laws and procedures designed to implement their underlying policies, have been enacted in all the States, and by the Federal Government as well____ Such statutes, ..., have been sustained in this Court on several occasions against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection and privileges and immunities.

385 U.S. at 559-560, 87 S.Ct. at 651 (citations omitted).

Moreover, the Supreme Court reaffirmed its recognition of the rational basis behind the classification based upon prior criminal activity when it stated:

Tolerance for a spectrum of state procedures dealing with a common problem of law enforcement is especially appropriate here. The rate of recidivism is acknowledged to be high, a wide variety of methods of dealing with the problem exists.

Spencer, 385 U.S. at 566, 87 S.Ct. at 655. Consequently, we find that the classification of defendants on the basis of prior criminal conduct for heightened prosecutorial efforts under a career criminal program does not involve a suspect or arbitrary classification.

Nor do we find that the appellant’s inclusion in the career criminal program impacts a significant interest of the appellant. While defendants in general have significant liberty interests at stake, we find no constitutionally protected right implicated by the pattern of accelerated and enhanced prosecutorial efforts which characterize an appellant’s treatment under the career criminal programs. See Commonwealth v. Carter, 347 Pa.Super. 624, 626, 501 A.2d 250, 251 (1985) (description of the career criminal program).

In Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977) the Supreme Court held that “there is no constitutional right to plea bargain, since the prosecutor need not do so if he prefers to go to trial.” Likewise, in Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977), the Supreme Court held that a defendant has “no substantive right to a particular sentence within a range authorized by statute.” See also Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985) (because defendant has no right to a particular sentence within the statutory range, mandatory sentence within such a range affects no substantive right), affirmed McMillan v. Pennsylvania, — U.S. —, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1977), the Supreme Court stated:

A constitutional entitlement cannot be created — as is by estoppel — merely because a wholly and expressly discretionary state privilege has been granted in the past.

452 U.S. at 465, 101 S.Ct. at 2465. In light of these rulings, we find that an appellant has no substantive right in the less aggressive prosecutorial effort which is commonly afforded criminal defendants not prosecuted under career criminal programs.

Additionally, federal cases have generally held that prosecutorial discretion in law enforcement “is by its very nature exceedingly broad.” Washington v. United States, 401 F.2d 915, 925 (D.C.Cir.1968); See also United States v. Gainey, 440 F.2d 290, 291-292 (D.C.Cir.1971); Newman v. United States, 382 F.2d 479, 480 (D.C.Cir.1967). We note particularly Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962), wherein the Supreme Court stated: “The conscious exercise of some selectivity in enforcement is not in itself a violation [of due process or equal protection].”

Finally, career criminal programs address important governmental interests. The cost of incarcerating all felons for extended terms is prohibitive. By identifying and prosecuting serious repeat offenders, career criminal programs concentrate prosecutorial resources on those who have proven themselves to be a greater threat to the community by their failure to learn from past contacts with the criminal justice system. Moreover, studies indicate that repeat offenders often commit crimes with greater frequency than first-time offenders. Thus, the selective incapacitation policies of career criminal programs may lead to reduced crime.

Based upon the foregoing discussion we find no violation of the appellant’s equal protection rights based upon his inclusion in the career criminal program. Accord People v. Peterson, 91 Misc.2d 407, 398 N.Y.S.2d 24 (1977) (court upheld prosecution and conviction under New York career criminal program from a myriad of due process and equal protection claims); State v. Lamp, 59 Ohio App.2d 125, 392 N.E.2d 1090, 13 0.0.3d 173 (1977) (court upheld prosecution and conviction under Ohio career criminal program from similar due process and equal protection claims).

Appellant’s main contention, however, sounds in the nature of an alleged due process violation. He argues, essentially, that he was denied his due process right to a presumption of innocence (and consequently a fair trial) when the trial judge was made aware of the appellant’s prior record by the fact of his inclusion in the career criminal program. We find no violation of the appellant’s federal due process rights.

In Spencer v. Texas, supra, the Supreme Court found no due process violation where the jury was informed of the appellant’s prior record in a trial involving primary charges and a habitual offender’s statute. It follows, of course, that if no constitutional infirmity attaches in instances where a jury, as the trier of fact, is aware of the defendant’s prior record, then certainly none exists if the trial judge who presides at a jury trial is made aware of the record. Accord Peterson, supra, 398 N.Y.S.2d at 33.

Moreover, it is well established in Pennsylvania that the fact that a trial judge is aware of the defendant’s prior record does not automatically require recusal. Commonwealth v. Edney, 318 Pa.Super. 362, 464 A.2d 1386 (1983); Commonwealth v. Darush, 279 Pa.Super. 140, 420 A.2d 1071 (1980); accord Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980) (admission of prior record evidence is harmless error in bench trial since trial judge presumed to disregard inadmissible evidence).

In Carter, supra, which also involved an appeal by a defendant assigned to the career criminal program (although presenting different challenges), Judge Cavanaugh opined for the Court:

[The appellant] has had his day in court. He was tried before and convicted by a jury of his peers. We do not believe that his right to an impartial fact finder has been compromised in any way nor do we see any reason to duplicate the jury’s factfinding effort by granting a new trial.

247 Pa.Superior Ct. at 632, 501 A.2d at 254. This statement is equally applicable in the instant case. Moreover, it is hard to conceive of how the appellant could have been prejudiced by the court’s general awareness of the appellant’s prior record gained through the appellant’s inclusion in the career criminal program as the information was properly presented to the court in detail during the pre-trial Bighum hearing. Consequently, the appellant’s third contention on appeal is found to be without merit.

IV

The appellant next contends that the trial judge improperly limited cross-examination of police witnesses. We note initially, that the scope and manner of cross-examination are within the sound discretion of the trial court and decisions relating thereto will not be reversed on appeal absent a clear abuse of discretion or mistake of law. Commonwealth v. Sisco, 484 Pa. 85, 398 A.2d 955 (1979); Commonwealth v. Schmidt, 437 Pa. 563, 263 A.2d 382 (1970). We find no such error or abuse in the instant case.

The trial judge sustained the Commonwealth’s objections to the following questions:

... how many times, if you know, has the District Attorney’s office dismissed cases from the Grandpop cops because officers were lying and placing people in jeopardy when they had not committed crimes, do you know? (N.T. at 349).
Are you familiar with the cases that the District Attorney has discharged in the Grandpop Detail? (N.T. at 349). Is this not the same unit that has been discredited numerous times in terms of its false arrests? (N.T. at 352).

The Commonwealth argued that the questions were irrelevant and impertinent in that “[tjhere has never been any allegations of false arrest against this police officer or any police officer in his back-up unit.” (N.T. at 352). Defense counsel argued that:

My position is that my client did not commit this particular offense. That my client is known by these police officers. That my client was set up by these officers and ordered — in order to effectuate an arrest against my client that would stick against him and that this is what happened. And that this particular unit in which this officer is in, has been known to do this sort of thing and I think the jury should be made aware of the fact____ (N.T. at 353).

However, defense counsel acknowledged that none of the allegations he was referring to had been made with respect to the police officers involved in the instant case. (N.T. at 354).

Because the questions were directed to matters which were not related to the incident involved or the parties testifying in relation thereto, we find the questions properly objectionable. Thus, the trial court acted within its sound discretion in limiting cross-examination regarding these matters.

V

Next, the appellant contends that the trial court abused its discretion by not ruling that a prosecution witness violated the sequestration order, and in not excluding his testimony as a result of the violation. We cannot agree.

The question of whether or not a violation of a sequestration order occurred is a question of fact for the trial court and will not be overturned on appeal where the determination is supported by sufficient credible evidence. Commonwealth v. Smith, 464 Pa. 314, 346 A.2d 757 (1975). Likewise, it is for the trial court to determine the appropriate remedy if a violation is found. Id., 464 Pa. at 320, 346 A.2d at 760.

The trial court entertained testimony from Mrs. Stinnett, the appellant’s mother, to the effect that Officer Dizio had violated the sequestration order by standing at the court room doors for 10-12 minutes while a fellow police officer was testifying (N.T. at 366-369). Officer Dizio testified that: he stood by the door for less than one minute; that he did so to read a sign because his eyes were watering; and that he heard no testimony (N.T. at 369-377). Officer Dizio’s testimony was corroborated by Sergeant Keaveney, who testified that Officer Dizio stood at the doors for no more than a minute and a half, and that he complained about his eyes earlier. (N.T. at 379).

After considering this testimony, the trial judge informed Officer Dizio that he should not come near the courtroom door and that the sequestration order was still in effect. (N.T. at 378). Although the trial judge initially ruled that he could not determine whether the order was violated (suggesting the evidence was insufficient), he ruled on the following day that no violation of the order had occurred. (N.T. at 387-393). We find no abuse of discretion in this regard. Moreover, even if we were to assume a violation occurred, we find no prejudice to the defendant caused thereby.

Officer Dizio was not called as a prosecution witness by the Commonwealth. Consequently, we are at a loss to understand the nature of the prejudice alleged by the appellant regarding the trial court’s failure to order Officer Dizio’s testimony excluded, as it was the defense who called him to testify. Moreover, his uneventful testimony was merely cumulative of evidence already admitted. Therefore, we find no merit in the appellant’s fifth contention on appeal. Accord Commonwealth v. Martin, 479 Pa. 609, 388 A.2d 1361 (1979) (testimony of unsequestered witness did not harm defense); Commonwealth v. Mokluk, 298 Pa.Super. 360, 444 A.2d 1214 (1982) (no harm where violation was unintentional and testimony not affected); Commonwealth v. Bellachio, 296 Pa.Super. 468, 442 A.2d 1147 (1982) (testimony of unsequestered rebuttal witness not affected by other’s testimony); see generally Commonwealth v. Floyd, 259 Pa.Super. 552, 393 A.2d 963 (1978) (summarizing law governing violation of sequestration orders).

VI

Finally, we reject the appellant’s contention that trial counsel was ineffective in failing to preserve these issues for appeal. An analysis of an ineffectiveness claim first requires us to examine the merits of the appellant’s underlying claims. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). “If the claim which counsel failed to pursue had no merit, counsel will not be deemed ineffective.” Commonwealth v. Williams, 314 Pa.Super. 355, 359, 460 A.2d 1178, 1180 (1983), citing Commonwealth v. Taylor, 491 Pa. 205, 420 A.2d 413 (1980). Each of the issues which the appellant contends prior counsel failed to pursue have been found to be without merit. Consequently, the appellant’s final contention is found to be without merit as well.

For the foregoing reasons, Judgment of Sentence is AFFIRMED.

      . The decoy operations are conducted by special units commonly known as "grandpop squads.” The units are assigned to particular areas based upon current crime statistics. They are designed to combat the serious problem of violent criminal assaults against the elderly and others who are less able to defend themselves.

      . Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973).

      . We note that in Commonwealth v. Bryant, 247 Pa.Super. 386, 372 A.2d 880 (1977), and again in Commonwealth v. Gonce, 320 Pa.Super. 19, 466 A.2d 1039 (1983), this Court rejected appellant's arguments that binding evidentiary rulings were required. We stated in Bryant that:
      To hold that the trial judge must make a binding ruling on the admissibility of the convictions before the defense has presented any evidence would serve to remove the most crucial factor by which the judge is to be guided in making his ruling, that being whether or not appellant has any means of presenting a defense other than by taking the stand himself.
      247 Pa.Superior Ct. at 391, 372 A.2d at 882-83. See also Gonce, 320 Pa.Superior Ct. at 35, 466 A.2d at 1047. However, we need not rely upon Bryant and Gonce in the instant case, as the trial judge's ruling was conditional rather than tentative.

      . We note that a material error or omission in the Commonwealth’s proffer during the Bighum hearing would similarly justify reconsideration of a decision favorable to the Commonwealth.

      . 96 Harv.L.Rev. 511, 521 (1982).

      . Nevertheless, "the Career Criminal Program is not the product of an undisclosed and arbitrary prosecutorial policy.” Carter, supra, 247 Pa.Superior Ct. at 626, 501 A.2d at 250.

      . See J. Peterailia and P. Greenwood, Mandatory Prison Sentences: Their Projected Effects on Crime and Prison Populations, at 23-28 (U.S. Gov. Printing Office, Washington, D.C., 1977).

      . See M. Peterson and H. Braiker, Doing Crime: A Survey of California Prison Inmates (U.S. Gov. Printing Office, Washington, D.C., Nov. 1980); J. Peterailia, P. Greenwood, and M. Lavin, Criminal Careers of Habitual Felons, at 120 (U.S. Gov. Printing Office, Washington, D.C., July 1978).

      . See E. Chelimsky and J. Dahman, Career Criminal Program National Evaluation Final Report (Executive Summary) at 1-20 (U.S. Gov. Printing Office, Washington, D.C. July 1981); M. Bradbury, Career Criminal Program: Second Year Report, at 4 (Office of the District Attorney, Ventura, California, May 1979).


author: OLSZEWSKI, Judge:

text:
    514 A.2d 163
    MaryFrances CASSELL, Appellant, v. Shelly SHELLENBERGER, Joseph Sherer, Ervin Stutzman and Keith Yoder, Appellees.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed Aug. 20, 1986.

      MaryFrances Cassell, in propria persona.
    Jered L. Hock, Harrisburg, for appellees.
    Before OLSZEWSKI, HOFFMAN and ROBERTS, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order dismissing appellant’s complaint. After reviewing the procedural history of this case, replete with requests for continuances and petitions for disqualification of counsel, and upon examining the sufficiency of the complaint, we affirm the order of the trial court.

Appellant, a pro se plaintiff, filed a writ of summons against appellees in September 1984. At that time she was engaged in approximately 17 separate law suits, all of which appear to have arisen from the same set of circumstances. Due to a physical injury sustained in an automobile accident, appellant petitioned for a continuance in each lawsuit to which she was a party. The petition was denied on September 25, 1984, and a subsequent appeal to this Court was ultimately quashed. Appellant eventually filed a one-line complaint consisting of the single allegation, “They hateth me without a cause.” This complaint was later amended, without leave of court or the consent of the appellees, such that it contained the following allegations:

Count 1 — They hated me without a cause. Damages— $500,000
Count 2 — They devoureth my house, and for a pretense make long prayer. Damages — $500,000
Count 3 — Out of their hearts proceed evil thoughts. Damages — $500,000
Count 4 — They bear false witness. Damages — $500,000
Count 5 — They have disobeyed their own law to malign my character. Damages — $1,000,000
Count 6 — They commit all evil and charge it to me. Damages — $1,000,000

Appellees filed motions for judgment on the pleadings along with a supporting memorandum of law. Notice of the motion was given to appellant, who then had ten days within which to file an opposing brief in accordance with Rule 31 of the Rules of the Court of Common Pleas of Lancaster County. When the responsive brief was not forthcoming, appellees filed a petition for dismissal of the complaint, which was granted in February 1985. Although appellant now appeals from the order dismissing her complaint, the primary argument advanced in her brief is that the trial court erred by not granting her requested continuance. However, as this issue has already been appealed to this Court, we will confine our remarks to the order dismissing the complaint.

We are not insensitive to the fact that appellant has proceeded in this matter under pro se representation, requiring her to be familiar with the numerous rules and procedures employed by our courts. This is, indeed, a challenging task. In fact, we are bound to overlook, in the interest of justice and the speedy adjudication of claims, minor errors in the adherance to court rules and procedures. See Pa.R.C.P. 126. However, when inadequacies arise which threaten to impinge upon the substantive legal rights of others, whether committed by seasoned counsel or pro se litigants, the court is compelled to act to prevent any injustice which might occur. In re Estate of Schofield, 505 Pa. 95, 477 A.2d 473 (1984); Fleming v. Quaid, 204 Pa.Super. 19, 201 A.2d 252 (1964).

A plaintiff seeking relief from the court is required to file a complaint which must not only apprise the defendant of what the plaintiffs claim is and the grounds upon which it rests, but must also formulate issues by summarizing those facts essential to support the claim. Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa.Super. 293, 464 A.2d 1349 (1983); See. Weiss v. Equibank, 313 Pa.Super. 446, 460 A.2d 271 (1983); Pa.R.C.P. 1019. An examination of appellant’s complaint, in either its original or amended form, reveals no material facts upon which the general allegations contained therein might be based. Although we have held that a plaintiff is not obligated to state the legal theory underlying his claim, a complaint totally lacking any factual basis fails to give the defendant adequate notice of the circumstances surrounding the controversy. DelConte v. Stefonick, 268 Pa.Super. 572, 408 A.2d 1151 (1979). Absent such notice, a defendant is unable to properly formulate a defense. Weiss v. Equibank, supra.

Additionally, appellant has not averred injuries for which a court of law is capable of providing relief. It is not the objective of judicial tribunals to entertain grievances which are based on ecclesiastical or moral precepts. Our concerns are with more secular disputes. Thus, while we open our courts to those individuals capable of pleading specific legal injuries, we refuse to provide a public forum for others who seek only to air what are primarily personal adversities. Accordingly, we find that appellant’s complaint was properly dismissed.

Order affirmed.

      . In Mackey v. Adamski, 286 Pa.Super. 456, 429 A.2d 28 (1981), we held that any attempt to amend pleadings requires compliance with Pa.R.C.P. 1033 by obtaining either filed consent of the adverse party or leave of court.

      . In In re Request for Continuances of MaryFrances Cassell, No. 118 Philadelphia 1985, this Court issued a per curiam order quashing the appeal from an order by the Honorable Anthony R. Appel, President Judge of the Lancaster County Court, denying appellant’s request for a continuance in 17 lawsuits, the case at bar included. A subsequent motion for reconsideration was denied.

      . A review of appellant’s court activity reveals that during the pendancy of this appeal she initiated new proceedings against defendants Shellenberger, Sherer, Stutzman, and, in place of defendant Pastor Yoder, the Mounty Joy Mennonite Church. As in the case at bar, the trial court has again dismissed appellant's complaint. Subsequently, a notice of appeal was filed with this Court on July 17, 1986. See No. 1882 Philadelphia 1986.


author: CIRILLO, President Judge:

text:
    514 A.2d 165
    In the Interest of William DIXON. Appeal of William DIXON.
    Superior Court of Pennsylvania.
    Argued June 18, 1986.
    Filed Aug. 20, 1986.

      Karl Baker, Assistant Public Defender, Philadelphia, for appellant.
    Before CIRILLO, President Judge, and CAVANAUGH and TAMILIA, JJ.
   CIRILLO, President Judge:

This is an appeal from an adjudication of delinquency and commitment ordered by the Court of Common Pleas of Philadelphia County. Appellant, a minor at the time of his arrest, was charged with burglary, theft, receiving stolen property, criminal trespass, and conspiracy. A motion to suppress was granted in part and denied in part. The admissable evidence established at the suppression hearing was incorporated into the trial record. Appellant was adjudicated delinquent on the charge of receiving stolen property. We reverse.

Appellant contends that the trial court erred in failing to suppress the physical evidence seized. Appellant was stopped for investigation by a uniformed policeman who had received information over the police radio that a plain clothes unit was chasing two black males. Appellant was observed running in full stride approximately two minutes after the officer received the information over the police radio.

Responding to police questioning, appellant identified himself as “Tyrone Dixon” and stated that he had no identification. The officer observed papers protruding from appellant’s pocket which, according to the officer, appeared to include some form of identification. Upon examining the papers, the police discovered a school ID bearing the name “William Dixon.” The police officer testified that he then conducted a “thorough search” of appellant’s pockets, clothes, and school bags. During the search of appellant’s pockets, the officer found a heart-shaped gold charm. The officer justified the search on the basis that he did not believe appellant was telling the truth and to check if appellant had any weapons.

The question which we need to resolve is whether the officer was justified, under the circumstances, to conduct a thorough search of appellant. As this Court stated in Commonwealth v. Cavalieri, 336 Pa.Super. 252, 485 A.2d 790 (1984), we must decide whether the search was reasonable both in its inception and in the manner it was conducted. “[I]n justifying the particular intrusion a police officer must be able to point to specific and articulable facts which, taken together with rational infrences from those facts, reasonably warrant that intrusion.” Cavalieri, 336 Pa.Super. at 255, 485 A.2d at 792, quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).

In Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969), the Supreme Court of Pennsylvania stated that a limited search of an individual’s outer clothing may be conducted in an attempt to discover weapons which may endanger the safety of the police officer “if the police officer observes unusual or suspicious conduct ... which leads him to reasonably believe criminal activity may be afoot and the person with whom he is dealing may be armed and dangerous.” Id. 434 Pa. at 158-159, 253 A.2d at 279 (emphasis in original); see also Commonwealth v. Cortez, 507 Pa. 529, 533, 491 A.2d 111, 113 (1985), cert. denied — U.S. —, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985).

In the instant case, the police officer may have reasonably believed that criminal activity was afoot given the message which he had recently received over the police radio, followed by observing appellant running, and upon questioning, having received a name other than that indicated on the identification. However, the record is devoid of any evidence that the officer “reasonably believed” that the appellant was “armed and dangerous.”

As in Cavalieri, we find that regardless of whether the officer was justified in initiating a protective search of appellant, he exceeded the permissible scope of a Terry type of search. The Supreme Court of the United States noted that a protective search must “be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1888, 20 L.Ed.2d 889 (1968); see also Commonwealth v. Cavalieri, supra.

Assuming arguendo there were grounds for a Terry type protective search, we find that the “thorough search” of the appellant was beyond the scope of the Terry pat-down. It stretches the bounds of reason to believe that in a Terry pat-down, a heart-shaped charm would reasonably be mistaken for a dangerous weapon. In short, the “thorough search” of the appellant is not reasonable in the manner it was conducted in that the officer could not justify the particular intrusion by pointing to specific and articulable facts which would reasonably warrant that intrusion.

Consequently, we must vacate the adjudication of delinquency and commitment and remand the matter for a new adjudicatory hearing consistent with this opinion.

Reversed and remanded. Jurisdiction is relinquished.