author: HESTER, Judge:

text:
    482 A.2d 593
    COMMONWEALTH of Pennsylvania v. Frank VOSS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 17, 1984.
    Filed Sept. 21, 1984.

      William F. Cercone, Jr., Pittsburgh, for appellant.
    Melinda G. Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   HESTER, Judge:

Appellant, Frank Voss, was convicted by jury on September 30, 1981 of two counts of aggravated assault, one count of robbery, and one count of simple assault. Post-verdict motions were argued and denied. Sentences of five to ten years were imposed for each count of aggravated assault, and five to ten years for the third count of robbery, for a total sentence of fifteen to thirty years, as the sentences were to be served consecutively. Sentence was suspended on count four, simple assault. This is an appeal from the judgment of sentence entered April 2, 1982 in the Court of Common Pleas of Allegheny County, Pennsylvania. Appellant contends that the identification procedures used were suggestive and prejudicial, and that the arrest warrant was illegally issued. We reject appellant’s contentions and the judgment of sentence is affirmed.

The relevant facts are as follows: On April 11, 1981, Thomas Jackson, Dennis Kuhn, Edward Gray, and Robert Doyle were drinking at The Triangle Bar in the Mount Washington area of Pittsburgh. As the four emerged from the bar at 2:00 a.m., closing time, appellant approached the group and began shooting a thirty-two caliber handgun.

Mr. Gray, who never saw the assailant, was shot in the stomach and fell to the street. Mr. Jackson was then grabbed by appellant and beaten about the face and head with the pistol. Appellant demanded money, which Jackson did not have, after which appellant demanded and received Jackson’s leather coat. Jackson was able to view appellant face-to-face for approximately one minute. Both Dennis Kuhn and Robert Doyle witnessed this assault from distances of twenty feet and twenty-five feet respectively.

After beating Mr. Jackson, appellant approached Dennis Kuhn, put a gun to his side, and demanded money. After giving Voss $30.00, Kuhn was shot twice by Voss, once in the chest, which required surgery, and once in the side. This latter bullet lodged in a key ring in Kuhn’s chest pocket. Mr. Jackson witnessed the shooting of Kuhn from a distance of between thirty-to-forty feet. He was able to determine that Kuhn’s assailant was the same person who had assaulted him.

Robert Doyle corroborated the events as told by the victims, witnessing Ed Gray being shot, Tom Jackson being beaten, and appellant pointing the gun at Kuhn. Doyle did not see appellant shoot Kuhn because he had started down the street to seek help. Doyle returned with a friend and passed within ten feet of appellant, viewing him again for about five seconds and recognizing that appellant was the same person who had shot Gray and beaten Jackson. Hearing the police rushing to the scene, appellant fled on foot.

Richard Ammer was in appellant’s company during the day and night in question. He was across the street when he observed appellant pull out the pistol and fire a shot which struck Tom Jackson. Ammer then ran away.

Witnesses Doyle and Jackson gave descriptions of the assailant. The police officers realized the descriptions matched those of a man whom they had suspected as the perpetrator of an unrelated incident a few hours earlier. The officers went to Voss’ home where they obtained four Polaroid photographs of him from his landlady. The police then obtained a fifth photo, a mug shot, from police files. Thereafter, they went to the hospital showing the photos to Jackson, Doyle, and Doyle’s brother, all unequivocally identifying Voss as the assailant.

The officers relayed this information to another officer who in turn had an arrest warrant executed. Concluding that the suspect was still in the immediate vicinity, the police wanted to apprehend him as quickly as possible.

Appellant was apprehended later the same morning and placed in a police van. Another person was placed in the van on the opposite side. That person was eventually released from custody. The van was searched, after the removal of appellant, by Officer Williams, with assistance from arresting Officer Dyer. Four thirty-two caliber bullets (Smith & Wesson) were recovered. Analyzed by the Allegheny County Crime Laboratory, the bullets were found to match the bullet retrieved from the key chain in victim Dennis Kuhn’s chest pocket. There was no evidence that the other man in the van was associated with a .32 caliber gun, and the bullets recovered from the van were of the same type fired by appellant. There was sufficient evidence to link the bullets to appellant.

Issues numbered 1, 2, 3 and 6 are inter-related and treated concurrently. Appellant asserts that the trial court erred when it failed to suppress identifications made of him through use of a suggestive and prejudicial photographic array and unlawful pre-trial confrontation.

Generally, a pre-trial identification may be inadmissible at trial if it was obtained by a procedure so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny the accused due process. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978). In the light most favorable to the Commonwealth, the record here does not highlight any procedure that was unnecessarily suggestive.

The pre-trial identification procedures utilized here have been consistently held admissible in Pennsylvania. Commonwealth v. Gore, 262 Pa.Super. 540, 396 A.2d 1302 (1978); Commonwealth v. Jones, 231 Pa.Super. 323, 331 A.2d 788 (1974.) In some situations, a prior extra-judicial identification of an accused may be considered more reliable than an at-trial identification. Closeness in time to the criminal act may afford less opportunity for both deterioration of the witness’ recollections and for changes in the appearance of the accused. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956); Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978); Commonwealth v. Rothlisberger, 197 Pa.Super. 451, 178 A.2d 853 (1962). In Commonwealth v. Allen, 287 Pa.Super. 88, 429 A.2d 1113 (1981), in a situation analogous to the case sub judice, the defendants were displayed for identification within one block of the crime scene and approximately one hour following the incident. The court held that the identification was proper even though the defendants were in handcuffs and the police had asked the victims whether the defendants were the perpetrators.

Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972), is a factually similar case in that the defendant alleged he was unlawfully arrested (no probable cause). Similarly, he was taken to the scene and exhibited to victims who identified him. The defendant was also identified at trial. Our Supreme Court held that the identification evidence was not the fruit of the illegal arrest since it could not be assumed “that but for the illegal arrest the appellant would have remained at large indefinitely.” Id., 448 Pa. at 266, 293 A.2d at 38. The record indicates that this would have been the case with appellant.

In the instant case, the Commonwealth met its burden of establishing the reliability of the identification and an independent basis apart from any potential illegality. The testimony of Richard Ammer contributes to the independent basis. The prior confrontations did hot entail a substantial likelihood of misidentification. The in-court identification was not tainted and rendered inadmissible by an illegal pretrial confrontation. The suppression court reviewed the necessity for the procedures and the admissibility of the identifications in light of the totality of surrounding circumstances and the possibility that there would be misidentification.

In analogous cases, where a witness saw the perpetrator clearly for several minutes, gave a complete and accurate description to the police, and did not waver from that description, the in-court identifications were unaffected by an illegal lineup and hence admissible. Commonwealth v. Bogan, 482 Pa. 151, 393 A.2d 424 (1978); United States v. Higgins, 458 F.2d 461 (3rd. Cir.1972). As the Commonwealth in this case has adequately established an independant basis of identification, appellant is precluded from asserting the likelihood of in-court misidentifications. Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983); Commonwealth v. Williams, 323 Pa.Super. 512, 470 A.2d 1376 (1984); Commonwealth v. Liverpool, 294 Pa.Super. 133, 439 A.2d 786 (1982).

For the foregoing reasons, the trial court properly disposed of all issues relating to pre-trial and in-court identifications.

Appellant next contends in issues 4 and 5 that the arrest warrant was executed without probable cause and consequently that the fruits of his arrest should be suppressed. The tests are well-settled. To be constitutionally valid, an arrest must be based upon probable cause. Commonwealth v. Barnett, 484 Pa. 211, 398 A.2d 1019 (1979). Probable cause to arrest exists if at the time the defendant is arrested by the police, “the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [defendant] has committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). See also Commonwealth v. Rutigliano, 310 Pa.Super. 364, 456 A.2d 654 (1983); Commonwealth v. Pytak, 278 Pa.Super. 476, 420 A.2d 640 (1980); Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979). The totality of the circumstances facing the police must be taken into account, and facts insufficient to justify an arrest if considered separately may cumulatively provide probable cause. In the instant case, the arrest warrant was supported by evidence of specific descriptions of appellant, and by the officers’ knowledge that these descriptions matched those given by witnesses from the unrelated incident. The arrest warrant was based upon probable cause. It was reasonable to believe that appellant was the perpetrator.

In Commonwealth v. Sabb, 269 Pa.Super. 206, 409 A.2d 437 (1979), this Court found that a general description of the perpetrator and subsequent observation of a suspect matching the description near the scene of the crime were sufficient for probable cause to arrest. As in the instant case where the description of appellant varied only slightly from his actual appearance, it was held that “minor discrepancies can hardly vitiate an otherwise proper arrest.” Id., 269 Pa.Superior Ct. at 213, 409 A.2d at 441. See also United States ex rel. Wright v. Cuyler, 563 F.2d 627 (3rd Cir.1977); Commonwealth v. Bynum, 265 Pa.Super. 13, 401 A.2d 776 (1979). In Commonwealth v. Moore, 321 Pa.Super. 1, 467 A.2d 862 (1983), an arrest warrant was issued on the basis of information received from three eyewitnesses. Two of the witnesses specifically identified the defendant as the individual who shot the victim and the third identified the defendant as the person she observed fleeing from the scene immediately after the shooting. These accounts were deemed sufficiently reliable to support the issuance of the arrest warrant. Furthermore, as an independent basis for identification existed, probable cause was established with the aid of photographic identification in conjunction with the description of the suspect. We are satisfied that the descriptions, coupled with the circumstances, provided the necessary probable cause to support the arrest warrant. There was no error.

Appellant further contends that the thirty-two caliber bullets recovered from the police van were the products of an illegal arrest and should have been suppressed. The exclusionary rule prohibits the admission of “fruit of the poisonous tree.” Commonwealth v. Beatty, 281 Pa.Super. 85, 421 A.2d 1159 (1980).

We recognize that the legality of an arrest is important in the determination of what evidence may be admissible at trial due to the fact that physical evidence, confessions, or identification obtained as a result of an unlawful arrest normally is not admissible. Where the conditions of the unlawful arrest amount to “outrageous conduct”, courts will inquire into the circumstances of the arrest to determine whether evidence should be excluded and the defendant thereby discharged. Commonwealth v. Flume, 292 Pa.Super. 54, 436 A.2d 1001 (1981). However, in the instant case, the police recognized the description of the assailant and had a basis for probable cause in securing an arrest warrant. As the arrest was lawful, the use of the thirty-two caliber bullets as evidence was lawful. For these reasons, we reject appellant’s contentions.

Appellant next contends that the court improperly denied requested voir dire questions concerning whether appellant’s decision not to take the witness stand would create bias in the mind of a prospective juror. We disagree.

This Court has recently addressed this issue in Commonwealth v. Richmond, 316 Pa.Super. 304, 462 A.2d 1362 (1983). In Richmond, as here, appellant submitted questions on the presumption of innocence and the privilege against self-incrimination. The court held that it was well-settled that voir dire questions encompassing legal principles were improper. Id., 316 Pa.Superior Ct. at 310, 462 A.2d at 1365. See also Commonwealth v. Kingsley, 480 Pa. 560, 391 A.2d 1027 (1978).

The court satisfied the purpose of the voir dire system in providing a competent, fair and impartial jury. Commonwealth v. Richmond, supra. We are confident that the empanelled jury was free from any bias.

Appellant also asserts that the court below acted improperly in refusing to dismiss Juror $9 who was told by Juror $8 that the prosecuting officer and Juror $8 were friends. Our review of the record reveals that Juror $8 was dismissed for his relationship to the officer. Juror $9, who is the focus of this issue, had no relation to the officer. Had the officer and Juror $9 had a close relationship, familial, financial, or social, then dismissal would have been appropriate. See Commonwealth v. Fletcher, 245 Pa.Super. 88, 369 A.2d 307 (1976). After close questioning of Juror $9 by the lower court, the court, with the acquiescence of appellant’s trial counsel, concluded that he had maintained his integrity and was not biased. There was therefore no error and we dismiss the contention.

Finally, appellant contends that the evidence was insufficient to convict him. The proper procedure to challenge the sufficiency of the evidence is by a post-verdict motion as specified by Pa.R.Crim.P. 1123.

Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), is a lead case in this area. The Blair court condemned the practice of using boilerplate challenges to the sufficiency of the evidence. In Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980), the court held that a motion which simply stated that the verdict was against the weight of the evidence was insufficient to preserve appellant’s right of review. In light of Philpot and the demands of Rule 1123, appellant has failed to preserve this issue for review by failing to present specific allegations.

A review of the record in the light most favorable to the Commonwealth, including that the elements of the crimes had been proven beyond a reasonable doubt, and that all inferences deducible from the evidence had supported the Commonwealth’s burden, reveals that the fact-finder did not find contrary to the weight of the evidence and the trial judge did not abuse his discretion.

For the above stated reasons, appellant’s contention cannot be asserted meritoriously.

Judgment of sentence affirmed.

POPOVICH, J., concurs in the result.

      . Crimes Code, 18 Pa.C.S. § 2702.

      . Id. § 3701.

      . Id. § 2701.

      . Appellant raises nine issues on appeal:
      1) Trial court erred when it refused to suppress identifications made of appellant through use of a suggestive and prejudicial photographic array;
      2) Identifications made at a preliminary hearing should have been suppressed because of suggestive one-on-one confrontations;
      3) In-court identification should have been disallowed as a result of prior suggestive identification procedures;
      4) Thirty-two caliber bullets should have been suppressed as a result of an illegally-issued arrest warrant;
      5) It was error to admit the bullets into evidence where it was not established that appellant possessed them nor that they had any probative value;
      6) Photographic identification of appellant which occurred immediately after the preliminary hearing should have been excluded as suggestive;
      7) The court below improperly denied voir dire concerning legal principles;

        8) It was error to refuse to dismiss the juror who was told that a testifying police officer and a juror were friends, and
      9) The evidence was insufficient to support a conviction.

      . The prior confrontations may be considered to be the actual assault, the initial photographic array at the hospital and the identification at the preliminary hearing. From Commonwealth v. Hall, 217 Pa.Super. 218, 269 A.2d 352 (1970), it may be said that all confrontations between victims, witnesses, and suspects are "potentially suggestive". Id., 217 Pa.Superior Ct. at 225, 269 A.2d at 356. However, the facts of this case support the conclusion that there was no likelihood of misidentification. The identifications were made independent of any possible influencing and suggestive factors. Thus, the in-court identifications were not tainted. See Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Liverpool, 294 Pa.Super. 133, 439 A.2d 786 (1982); Commonwealth v. Farrell, 265 Pa.Super. 41, 401 A.2d 790 (1979). In addition, the burden of proof may be examined by a review of Commonwealth v. Wright, 279 Pa.Super. 608, 421 A.2d 365 (1980); Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978); and Commonwealth v. Hodge, 246 Pa.Super. 71, 369 A.2d 815 (1977).

      . See Commonwealth v. Williams, 323 Pa.Super. 512, 470 A.2d 1376 (1984). In Williams the defendant also challenged the legitimacy of an identification procedure. A photo identification formed part of the basis for the issuance of an arrest warrant. Despite errors committed at the suppression stage, this Court held not to remand the case because "the trial transcript affords us with abundant evidence [footnote omitted] from which to conclude that the victim’s identification of appellant as her assailant enjoyed an independent basis sufficiently distinct from the suggestive pre-trial photographic identification so as to be purged of the original taint.” Id., 323 Pa.Superior Ct. at 528, 470 A.2d at 1384.

      . See also Commonwealth v. Jones, 285 Pa.Super. 112, 426 A.2d 1167 (1981), where an in-court identification of defendant was not tainted by a prior showing of a single photograph of defendant to a witness. While recognizing that use of a single photograph of a suspect can constitute improper suggestive procedure, making references to Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), this Court placed the burden on the prosecution to establish that the totality of circumstances affecting the witness’ identification did not involve a substantial likelihood of misidentification. This court found, as in the instant case, that the Commonwealth met that burden. Id., 285 Pa.Superior Ct. at 119, 426 A.2d at 1170.

      . Most recent case law regarding boilerplate challenges to the sufficiency of the evidence lies in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). The Holmes decision, rendered subsequent to these lower court proceedings, dictates that where the issue of insufficiency is presented without particularity it is not preserved for review and is considered waived.

      . The facts and testimony, including, inter alia, the identifications by the victims, recognition by the police of the possible perpetrator, and the testimony by Richard Ammer, establish appellant as the perpetrator. See Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979) (where the court held, inter alia, that viewed in totality of circumstances, identification of defendant at trial was independent, and evidence was sufficient for factfinder to establish guilt); Commonwealth v. Hines, 230 Pa.Super. 290, 326 A.2d 485 (1974) (where the court held that evidence sustained conviction and provided probable cause for arrest).


source: Caselaw Access Project

license: Public Domain

text:
    482 A.2d 600
    COMMONWEALTH of Pennsylvania v. Gwendolyn Marie Swank KERSTEN, a/k/a Gwendolyn Marie McFadden, Appellant.
    Superior Court of Pennsylvania.
    Argued May 16, 1984.
    Filed Sept. 21, 1984.
    Petition for Allowance of Appeal Denied April 21, 1985.

      Anne N. John, Uniontown, for appellant.
    John M. Zeglen, Assistant District Attorney, Uniontown, for Commonwealth, appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   HESTER, Judge:

Appellant, Gwendolyn Marie Kersten, also known as Gwendolyn Marie McFadden, on January 18, 1979, was charged with criminal homicide and criminal conspiracy stemming from the death of her son, William Swank. The jury, on July 16, 1979, found appellant guilty of third degree murder and criminal conspiracy. Post-verdict motions were filed and denied. On February 15, 1980, appellant was sentenced to undergo imprisonment for not less than ten years nor more than twenty years for the third degree murder conviction. For the criminal conspiracy conviction, appellant was sentenced to undergo imprisonment for not less than five years nor more than ten years. These sentences were imposed consecutively. Defense counsel did not file a Notice of Appeal from the judgment of sentence despite appellant’s request.

Appellant filed a petition for post conviction relief alleging counsel’s ineffectiveness for not appealing her conviction. Appellant’s counsel was found to be ineffective; consequently, this appeal nunc pro tunc from the judgment of sentence was allowed. We affirm.

Appellant’s first argument is that the criminal conspiracy verdict was against the sufficiency of the evidence.

In Commonwealth v. Anderson, 265 Pa.Super. 494, 501, 402 A.2d 546, 549 (1979), the Superior Court said:

Among the circumstances relevant, but not sufficient by themselves, to prove a corrupt confederation are (1) association between alleged conspirators, (citations omitted); (2) knowledge of the commission of the crime, (citations omitted); (3) presence at the scene of the crime, (citations omitted); and (4) in some situations, participation in the object of the conspiracy, (citations omitted). However, while such circumstances are insufficient standing alone, they may furnish a web of evidence linking an accused to the alleged conspiracy beyond a reasonable doubt “when viewed in conjunction with each other and in the context in which they occurred.” Commonwealth v. Clark, 256 Pa.Super. 97, 103, 389 A.2d 619, 621 (1978) (citations omitted).
However, such evidence must be of a volume and quality sufficient to overcome the presumption of innocence and satisfy the factfinder of a defendant’s guilt beyond a reasonable doubt. A conviction of conspiracy cannot be based on mere suspicion or conjecture. Commonwealth v. DiEmidio, 410 Pa. 172, 176, 188 A.2d 750, 752 (1963).

Under the attendant circumstances, the testimony of the co-conspirator, Lloyd Gilbert McFadden, established criminal conspiracy. It has long been the law of Pennsylvania that the uncorroborated testimony of a co-conspirator is sufficient to establish all elements of criminal conspiracy. Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981).

The test to be applied is whether the evidence and all reasonable inferences therefrom are sufficient to support a finding by the jury that the defendant was guilty beyond a reasonable doubt. Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1979). The testimony of the co-conspirator, Gilbert McFadden, was sufficient to establish all elements of the criminal conspiracy against appellant.

Appellant’s next argument is that the co-conspirator’s hearsay testimony was improperly admitted.

To lay a foundation for the co-conspirator exception to the hearsay rule, the Commonwealth must prove that: (1) a conspiracy existed between declarant and the person against whom the evidence is offered and (2) the statement sought to be admitted was made during the course of the conspiracy. In addition, there must be evidence other than the statement of the co-conspirator to prove that a conspiracy existed. Commonwealth v. Basile, 312 Pa.Super. 206, 458 A.2d 587 (1983).

The order of proof is within the discretion of the lower court, which may, upon only slight evidence of the conspiracy, admit such statements subject to later proof of the conspiracy. Commonwealth v. Plusquellic, 303 Pa.Super. 1, 449 A.2d 47 (1982).

The testimony of Gilbert McFadden identified the numerous instances of physical punishment appellant inflicted upon her son, William Swank. McFadden also testified that he repeatedly lied to relatives about the boy’s condition in order to cover up appellant’s beating of the boy. These beatings culminated in the boy’s death. Thus, the declarations of appellant, made to her co-conspirator Gilbert McFadden in furtherance of the conspiracy, were admissible.

Appellant’s third argument is that the testimony of Gilbert McFadden was so incredible that the jury could only base its decision on mere conjecture or surmise. Thus, the lower court should not have permitted the verdict to stand.

The credibility of a witness is within the exclusive province of the fact finder. “The fact-finder is free to believe all, part or none of the evidence.” Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975).

The fact-finder’s decision is not to be disturbed unless the “evidence offered to support a verdict of guilty is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, ...” Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976). After a review of the record, we hold that Gilbert McFadden’s testimony was credible and the jury had sufficient evidence upon which to base its decision.

Appellant’s fourth argument is that the prosecution’s recurrent questions concerning her condition after learning the death of her child were so improper as to prejudice the jury. Initially, we consider this issue as waived for it was not part of appellant’s post trial motions. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). This argument is also lacking in merit. Both Carl Sneldon and Mary Bittenger testified that appellant looked nervous and then began to cry upon hearing of her child’s death. We do not see how this testimony could be prejudicial or could have tainted the jury’s decision. In Commonwealth v. Hoss, 469 Pa. 195, 210, 364 A.2d 1335, 1343 (1976), the Pennsylvania Supreme Court stated:

But even where the language of the District Attorney is intemperate, uncalled for and improper, a new trial is not necessarily required (citations omitted). The language must be such that its “unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968).

Since the testimony elicited by the prosecution on cross-examination could actually be viewed as helpful to appellant, her fourth argument is without merit.

Appellant also contends that the evidence did not establish the element of malice and the causal relationship necessary for the third degree murder conviction.

The Pennsylvania Supreme Court has established that malice may be inferred from attending circumstances. It consists either of an express intent to kill or inflict great bodily harm, or of a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, indicating unjustified disregard for the probability of death or great bodily harm. Commonwealth v. Matthews, 480 Pa. 33, 389 A.2d 71 (1978); Commonwealth v. Lawrence, 428 Pa. 188, 236 A.2d 768 (1968).

The medical testimony of Dr. Manuel Peleaz, who performed the autopsy on the 272-year-old boy, showed extensive bruises, burns and lacerations. The internal examination disclosed a vertical laceration of the rectal wall which caused peritonitis, an inflammation of the internal lining of the abdominal organs and the abdominal wall. This laceration resulted from the application of pressure to the victim’s rectal wall. There was also extensive hemorrhaging of the left kidney due to trauma. It was the doctor’s opinion that none of these wounds or contusions was self-inflicted. The cause of death was peritonitis, with the laceration of the rectal wall and acute bronchial pneumonia as contributing factors.

The doctor’s testimony was consistent with Gilbert McFadden’s testimony of appellant repeatedly beating the victim. Mr. McFadden also described how appellant would lie on the boy. On the day of Billy Swank’s death, appellant, while holding him upside down by the feet, dropped him into the sink and punched him in the stomach.

In sum, the medical testimony intertwined with Mr. McFadden’s testimony established the causal relationship and that appellant possessed the requisite malice necessary for a finding of third degree murder.

Appellant’s next contention is that her counsel was ineffective for failing to object to the introduction of a prejudicial picture. The picture in question depicted a hairbrush appellant allegedly utilized to murder her son.

In analyzing a claim of ineffectiveness of counsel, it must be first determined whether appellant raises an issue of arguable merit, and, if he does, the approach emphasized by counsel must then be examined in light of the available alternatives to determine whether he had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

In determining the admissibility of potentially inflammatory photographs, the court must apply a balancing test of whether or not photos are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors. If the court deems these photographs not to be inflammatory, then they are admissible as any evidentiary items subject of course to qualifications of relevance. Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980).

Applying these principles to the immediate case, a black and white photograph was introduced by the Commonwealth as part of its rebuttal. The picture was taken January 18, 1978, at approximately 8:00 p.m., of appellant’s bathroom. Detective Jones testified that the photograph accurately depicted what he saw at the time the photograph was taken.

Appellant denied owning a hairbrush. The prosecutor was properly exercising his rebuttal powers to impeach appellant’s credibility by introducing the photograph of the hairbrush into evidence. Hence, counsel’s objection would have been fruitless. The value of the evidence outweighed its possible prejudicial effect. Accordingly, appellant’s counsel cannot be deemed ineffective for not pursuing a baseless issue. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981).

Appellant’s second ineffectiveness claim is that counsel failed to move for suppression of an oral statement made during an allegedly unconstitutional interrogation.

Pennsylvania courts have enounced that although failure to file a suppression motion may be evidence of ineffective assistance of counsel, if the grounds underpinning the suppression motion are without merit, counsel will not be deemed ineffective. Commonwealth v. Kennedy, 271 Pa.Super. 1, 411 A.2d 1249 (1979); Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979).

The oral statement in dispute is exposed by the following colloquy:

Q. Did Gwendolyn Kersten make any statements, say anything to you regarding the death of the child?
A. She did. The first thing she said to me after recognizing that I was in the (hospital) room was, “Mr. Hunchuck, you know I love Billy. You know we love him. We didn’t mean to do it. We didn’t mean to do it.” Knowing nothing what she was talking about, I advised her that the best thing was for her to be quiet until she is finished, that I would talk to her after she was done with the other people in the room.
COURT: Were those statements made by the defendant pursuant to questions asked by you?
WITNESS: Yes, your honor, I asked her nothing. This was voluntary, and I had no chance to stop her. She just blurted them out to me.

(N.T. July 16, 1979, pp. 11, 12). These statements were made to County Detective Hunchuk who knew appellant. They were made in the hospital waiting room while the victim was receiving emergency medical attention. Therefore, the primary question is whether the general conversation constituted an interrogation. The secondary determination is whether the appellant’s statement was voluntary.

In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966), the United States Supreme Court stated, “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”

In Commonwealth v. Simala, 434 Pa. 219, 252 A.2d 575, (1969), the Supreme Court defined interrogation as

“not simply custody plus ‘questioning,’ as such, which calls for the Miranda safeguards, but custody plus police conduct ... calculated to, expected to, or likely to, evoke admissions.”

Id., 434 Pa. at 226, 252 A.2d at 578 [quoting Institute of Continuing Legal Education, “Criminal Law and the Constitution — Sources and Commentaries” 356 (1968) (Emphasis in original) ]; See also Commonwealth v. Smith, 313 Pa.Super. 138, 459 A.2d 777 (1983). “The requirement of ‘interrogation’ is designed to permit the use by the prosecution of a confession that is given by an accused without any prompting, before warnings can be given.” Simala, supra, 434 Pa. at 226, 252 A.2d at 578, 579. (Emphasis in original).

Based upon the standards enunciated by our Supreme Court and the United States Supreme Court, the hospital conversation did not constitute an interrogation. Appellant was voluntarily in the hospital awaiting word on the condition of her son. Although the officer approached appellant, he had no opportunity to address her prior to the admission. At that moment, the situation did not yet require Miranda warnings.

Counsel did not have sufficient grounds to move for the suppression of the oral statement. Hence, counsel cannot be held ineffective for not advancing a baseless claim. Kennedy, supra.

Appellant’s final contention is that the Commonwealth should have called certain witnesses, and that the absence of these witnesses raised a presumption that their testimony would have been contrary to the Commonwealth’s case. For this alleged reason, it is argued that the judge erred in refusing to instruct the jury that the absence of these witnesses resulted in a presumption that their testimony would have been favorable to the accused and unfavorable to the Commonwealth.

After a review of the record on this issue, we conclude that this argument is devoid of merit. Accordingly, we dismiss it summarily.

In accordance with our rejection of the above arguments, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Appellant does not in fact argue that the verdict was against the sufficiency of the evidence. Instead, she argues that the lower court erred in denying her demurrer to the charge of criminal conspiracy. Whether the trial court properly denied the demurrer is not a matter for appeal once, as here, the defendant proceeds with her case following the denial. The issue becomes one of sufficiency of the evidence. Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976).


text:
    482 A.2d 606
    Sarah D. OMAN, v. Richard J. OMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 15, 1984.
    Filed Sept. 21, 1984.

      James V. Voss, Pittsburgh, for appellant.
    Kathleen Durkin, Pittsburgh, for appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   HESTER, Judge:

In this appeal, we are asked to review an order modifying a Virginia support decree. Appellant sought enforcement of a Virginia decree which terminated support for his daughter upon her eighteenth birthday. The lower court, although reducing appellant’s current level of monthly support, refused his requested relief. Following the denial of exceptions, this appeal ensued. We affirm.

Appellant Richard Oman and his former wife Sarah were married in Pennsylvania in 1957. Two children were born during their marriage, Anne, on April 27, 1965, and Richard, on July 23, 1969. The parties were divorced in Virginia in 1977. The divorce decree incorporated a written agreement of the parties which provided that the mother, appellee herein, would retain custody of the children and that appellant would contribute $200.00 per month per child until the occasion of their respective eighteenth birthdays.

Appellant returned to Pennsylvania and subsequently began reneging upon his support obligations. Seeking to enforce the support agreement, appellee filed a petition in Pennsylvania pursuant to the Revised Uniform Reciprocal Enforcement of Support Act (hereinafter RURESA). On November 29, 1982, an order of court directed appellant to continue paying the agreed-upon support according to the parties’ written agreement.

On March 24, 1983, appellant filed a petition to terminate support for his daughter as of April 27, 1983, her eighteenth birthday. At the hearing on said petition, the hearing officer issued the following:

RECOMMENDATIONS:
Defendant is to pay $200 month for the support of his son and $200 month for support of his daughter until June 15, 1983, then, he is to pay $200 month for the support of his son and $100 month for the support of his daughter. Arrearages to 5/6/83 set at $2900 with Def. to pay $100 month on arrearages until paid in full.
Review in August 25, 1983 to determine needs of daughter regarding college.
EXPLANATION (if needed)
Daughter turned 18 on 4/27/83, but does not graduate from H.(igh) S.(chool) until June. She will be attending Univ. of Va. in Sept. 1983 and will work fulltime this summer. As part of her financial aid package, she will have to save from $700~$900 from her summer employment. Daughter’s net from said employment should enable her to pay Plaintiff $100 mo. room and board and save for school.

Appellant excepted to the above order, specifically arguing that the hearing officer erred in failing to suspend the order for appellant’s daughter pursuant to the settlement agreement between the parties. From the denial of his exceptions, appellant files this appeal.

Initially, we observe that appellee’s capacity in this action is a representative one, similar to that of a guardian ad litem for her daughter, Anne, who is the real party in interest. See Commonwealth ex rel Durso v. Durso, 292 Pa.Super. 94, 436 A.2d 1021 (1981); Pa.R.C.P. 1910.3(4). While such a procedural posture is clearly appropriate where the child has reached the age of eighteen but is not yet self-supporting, it in no way binds the child to the terms of a contract for support entered into by her guardian. It is firmly settled that, in Pennsylvania, one parent cannot contract away the right of his or her child to seek adequate support from the other parent. Brown v. Hall, 495 Pa. 635, 643 n. 11, 435 A.2d 859, 863 n. 11 (1981); Commonwealth ex rel. Snively v. Snively, 206 Pa.Super. 278, 281, 212 A.2d 905, 906 (1965); Commonwealth ex rel. Rossi v. Rossi, 161 Pa.Super. 86, 89, 53 A.2d 887, 888 (1947). “Agreements or disputes are almost irrelevant when balanced against the overwhelming concern of the law with the welfare of children.” Commonwealth ex rel McCartney v. McCartney, 217 Pa.Super. 417, 420, 274 A.2d 206, 207 (1970).

The concern of this Commonwealth with the welfare of children does not cease when the child reaches the age of majority. In certain situations, the duty of support continues beyond the age of eighteen. For example, in those instances where a child has the ability and incentive to pursue a college education, a parent has a legal duty to furnish aid, subject to the ability to provide financial assistance without undue hardship. Lederer v. Lederer, 291 Pa.Super. 22, 435 A.2d 199 (1981); Deiley v. Deiley, 281 Pa.Super. 288, 422 A.2d 172 (1980). A child’s cause of action against a parent for college expenses has thus been judicially recognized in this Commonwealth and survives an attempt by the parents to contract for any less support, regardless of the settlement agreement entered into by the parties. Consequently, appellee as representative of Anne has a legally cognizable claim against appellant for college education funds.

Appellant argues otherwise. He contends simply that the support order was consistent with the laws of Virginia, which does not recognize a duty of support for college education, and that it should be accorded full faith and credit.

Article IV, § 1, of the United States Constitution provides, in relevant part: “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.” Our Supreme Court discussed the application of this clause to child support cases in Posner v. Sheridan, 451 Pa. 51, 299 A.2d 309 (1973):

“a foreign decree for the support of children, to be entitled to recognition and enforcement in another state, must be a final judgment for a fixed sum, and if under the law of the foreign state such order is subject to modification at the discretion of the court, the order is not a final judgment which may be enforced in Pennsylvania. However, with regard to support payments already accrued, a foreign divorce decree providing for child support payment by the divorced husband is a final foreign judgment entitled to enforcement in Pennsylvania.”

Id., 451 Pa. at 57 n. 4, 299 A.2d at 312 n. 4, quoting Volume 15, Standard Pennsylvania Practice, ch. 72, § 557.

In Silverstein v. Silverstein, 246 Pa.Super. 503, 371 A.2d 948 (1977), this Court refused to accord full faith and credit to a Florida support order which was modifiable by the foreign jurisdiction. Although neither that state nor our own could modify a party’s right to support that had already accrued, and now existed in the form of arrearages, an order that was prospectively modifiable was deemed not final and thus stood outside of the protection of the Full Faith and Credit Clause.

Appellant concedes the above, but contends that the challenged Virginia order is final and unmodifiable. In support of his position, appellant refers us to Virginia cases which hold that the jurisdiction of Virginia courts in divorce and support actions terminates when the child reaches majority, and that no parental duty to support a child beyond the age of eighteen exists absent some contractual undertaking. See Cutshaw v. Cutshaw, 220 Va. 638, 261 S.E.2d 52 (1979); Eaton v. Eaton, 215 Va. 824, 213 S.E.2d 789 (1975). Thus, appellant characterizes his support order as final and entitled to full faith and credit.

Appellant’s contentions must fail for several reasons. Although Virginia may not recognize a non-contractual duty of support for a college education, it does empower the court to modify orders for support in certain instances. The Virginia Code provides:

The court may ... revise and alter such decree concerning the care, custody, and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require.

Virginia Code § 20-108 (1950). According to the above language, a child support order can be modified, if the circumstances so warrant, at any time. See Featherstone v. Brooks, 220 Va. 443, 258 S.E.2d 513 (1979). Since appellant instituted this action prior to the time his daughter reached her eighteenth birthday, this order was modifiable according to the law of Virginia. As seen above, Pennsylvania is not required to extend full faith and credit to a foreign decree which is not a final judgment.

Assuming arguendo that the decree was final, this Court is still not compelled to recognize foreign decrees, even final ones, that contravene the public policy of this Commonwealth. Recently, this court determined that a Virginia order suspending support until satisfactory visitation rights were established was inconsistent with the announced policy of this Commonwealth and would not preclude entry of a support order in Pennsylvania. Myers v. Young, 285 Pa.Super. 254, 427 A.2d 209 (1981). This Court in Young v. Young, 320 Pa.Super. 269, 467 A.2d 33 (1983) again refused to give full faith and credit to a New Jersey order for equitable distribution which would have attached a municipal pension in that such an attachment was inconsistent with the stated policy of this Commonwealth. See also Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974) (court refused to give full faith and credit to a foreign award of alimony, which was not recoverable in Pennsylvania).

As discussed earlier, Virginia does not recognize a duty on the part of parents to assist in the educational expenses of their children beyond the age of eighteen. However, the children of Pennsylvania are entitled to receive financial support for a college education, providing this assistance does not constitute a financial hardship upon their parents. To enforce the Virginia order would be in direct contravention of the stated policy of this Commonwealth. In light of the above, the lower court correctly applied the laws of Pennsylvania and rejected appellant’s full faith and credit argument.

Finally, the trial court properly resolved this issue within the context of RURESA.

Pennsylvania, Virginia and the other forty-eight states have enacted some form of a reciprocal act to improve and extend the enforcement of duties of support. This legislation, known commonly as RURESA, was designed to prevent the very argument advanced by appellant. Section 6747 provides:

Choice of Law
Duties of support applicable under this subchapter are those imposed under the laws of any state where the obligor was present for the period during which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown.

The above statute answers the question of which body of law to apply when an order is entered in the “initiating” state and the obligor thereafter establishes domicile in the “responding” state.

Herein, appellant became a domiciliary of Pennsylvania some time following his divorce in 1977, and has continued to reside here throughout this controversy. In fact, as mentioned earlier, appellant availed himself of the judicial system of this Commonwealth when he initiated this action to modify the pre-existing support order. As a resident of this jurisdiction, appellant falls directly within the purview of § 6747. Therefore, the laws of Pennsylvania govern this action. Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 472 A.2d 1128 (1984). See also Commonwealth ex rel. Byrne v. Byrne, 212 Pa.Super. 566, 243 A.2d 196 (1968).

Appellant argues that RURESA only applies to modifiable orders and not final ones. As we have determined, the order in question is modifiable; however, even if it were final, RURESA would still apply. A support order is defined by the Act as:

Any judgment, decree, or order of support in favor of an obligee whether temporary or final, or subject to modification, revocation, or remission, regardless of the kind of action or proceeding in which it is entered.

42 Pa.C.S.A. § 6742. (Emphasis added). This clear and unambiguous language leaves no doubt that the legislature intended the courts of this Commonwealth to review any support order, modifiable or final, brought within its jurisdiction. Since RURESA applies, its choice of law statute dictates an application of the law of this Commonwealth. The lower court correctly followed this course and, in doing so, found a duty on the part of appellant to provide continued financial aid to his daughter during her college education. No error was committed below. Hence, we affirm.

Order affirmed.

      . 42 Pa.C.S.A. § 6741 et seq.

      . Majority is defined as "of the age of eighteen or over.” Pa.R.C.P. 76.

      . Authority to enter such an order in the face of a pre-existing order is also found within the boundaries of RURESA. Section 6771 provides: "A support order made by a court of this Commonwealth pursuant to this subchapter ... is not nullified ... by a support order made by a court of any other state ... regardless of priority of issuance, unless otherwise specifically provided by the court." See Myers v. Young, supra. It can thus be seen that the intendment of RURESA was not to permit the entry of an order in one state to bar the entry of an order in the state having jurisdiction. Id.


text:
    482 A.2d 611
    COMMONWEALTH of Pennsylvania v. Gerald KENON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1984.
    Filed Sept. 21, 1984.
    Petition for Allowance of Appeal Denied March 4, 1985.

      William J. Perrone, Norristown, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   HESTER, Judge:

In late morning of October '27, 1981, Carey Kressler was driving a delivery truck for his employer, Stroehman Bakery. He double-parked on the twenty-one hundred block of Dauphin Street in the City of Philadelphia in order to make a delivery.

As Kressler walked to the inside rear of the truck to remove stock, appellant, Gerald Kenon, entered the truck from the driver’s side. Armed with a thirty-eight caliber automatic pistol, appellant stopped within three feet of Kressler and said, “Give me your money or I’ll kill you.” Following Kressler’s surrender of approximately $80.00 in cash, appellant fled.

Attracted by Kressler’s unlawfully parked vehicle, Officers Brown and Armstead of Philadelphia’s Anticrime Unit had driven their police vehicle alongside Kressler’s truck as appellant alighted from the driver’s side and ran from the scene. Both officers pursued appellant in their vehicle for a short distance until he eluded them by running through an empty lot. The officers returned to Kressler’s truck. Shortly thereafter, Officer Armstead departed to secure the area while Brown remained at the truck with Kressler.

As Brown and Kressler were standing alongside the truck, appellant walked by. Brown radioed Armstead and waited for his arrival as it was the Unit’s policy to discourage arrests by one officer. The officers apprehended appellant within a short time at 22nd and Diamond Streets.

As a result of this incident, appellant was charged with robbery, receiving stolen property, recklessly endangering another person, firearms not to be carried without a license, theft, terroristic threats, possessing instruments of crime and carrying firearms on public streets or public property in Philadelphia.

Following a jury trial, appellant was found guilty of possessing instruments of crime, carrying firearms on public streets and robbery. Post trial motions in arrest of judgment and for a new trial were denied. Appellant was sentenced to a term of imprisonment of five to ten years on the robbery bill, and to a consecutive term of two to four years on possessing an instrument of crime. Sentence was suspended on the conviction for carrying firearms on public streets. This appeal was taken from the judgment of sentence.

Appellant’s first argument is that counsel was ineffective for not demanding that a court-ordered line-up be held prior to an in-court identification, and for not filing a pre-trial motion to suppress the victim’s in-court identification. A line-up, ordered by the Philadelphia Police Department, was scheduled for November 25, 1981, twenty-one days prior to the preliminary hearing. The line-up was cancelled due to the fact that the prison in which appellant was held was under a lock up until a missing prisoner was found. The line-up was not re-scheduled; therefore, appellant was identified in court for the first time. Appellant complains that the absence of a line-up made the first in-court identification at the preliminary hearing suggestive and tainted subsequent in-court identifications.

An accused’s right to a line-up and counsel’s alleged ineffectiveness for not demanding a line-up were discussed by this Court in Commonwealth v. Davis, 293 Pa. Super. 447, 439 A.2d 195 (1981);

To begin with, an accused does not have a constitutional right to a line-up and the suggestiveness of a courtroom identification is only one factor to be considered in determining the reliability of the identification evidence. Moreover, this jurisdiction has “declined to accept a per se rule that a pre-trial, pre-hearing line up is mandatory in all cases.” A fortiori, counsel’s failure to request a lineup or failure to object to identification testimony is not per se ineffective assistance. Because a review of the totality of the circumstances revealed that the identification testimony was reliable, and further revealed that even if the preliminary hearing was suggestive, the in-court identification had an independent basis, a lineup or objection would have been fruitless. (Citations omitted).

Id,., 293 Pa.Superior Ct. at 455, 456, 439 A.2d at 200. Irrespective of the possible suggestiveness surrounding the in-court identifications, numerous factors uphold the reliability of the identifications. Appellant was first viewed by Kressler during the robbery. Although this confrontation lasted less than a minute, Kressler was within three feet of appellant and could identify him as a black male wearing a hooded sweatshirt, fatigue jacket, khaki trousers and black desert boots. Kressler also observed appellant brandishing a thirty-five caliber handgun.

As Officers Brown and Armstead drove their unmarked police vehicle abreast of Kressler’s truck, they observed appellant jump from the driver’s side and run eastwardly on Dauphin Street. The officers followed appellant in their vehicle along Dauphin Street and then northwardly on Van Pelt Street.

That particular chase terminated when appellant ran through an empty lot on Van Pelt Street, prohibiting the officers from pursuing him in the vehicle. During this first pursuit, the officers observed appellant’s face on two occasions. On one occasion, his entire face and head were observed as the sweatshirt hood fell to his shoulders. The officers also noted appellant’s camouflaged fatigue jacket, hooded sweatshirt, khaki pants and black desert boots.

As appellant ran through the empty lot, he threw the handgun. Officer Brown retrieved it, and Kressler later identified it as the weapon used in the hold-up. Officer Armstead recovered a fatigue jacket and sweatshirt in the immediate vicinity. They too were identified by Kressler as having been worn by appellant.

Following Brown’s return to Kressler, while Armstead continued his search, appellant returned to Dauphin Street and walked by Brown and Kressler on the opposite side. Both Brown and Kressler recognized him, although he was no longer wearing the jacket and sweatshirt. Brown immediately summoned Armstead to the scene. Upon Arm-stead’s arrival, the two officers began their second joint pursuit. They apprehended appellant shortly thereafter.

Although the line-up, as requested by the Philadelphia Police Department, did not occur, the in-court identifications were supported by an independent basis which negated the suggestiveness of the in-court confrontations. Therefore, demanding a line-up or moving to suppress the identifications would have been futile, failure of which to pursue is not ineffectiveness. Commonwealth v. Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). During the post-trial motions’ hearing, defense counsel recognized the inefficacy of a line-up:

The same officer testified, Brown, as I recall, that he saw Mr. Kenon jump over the Strohmann (sic) Bread truck and drop the gun and walk back in front of him.
He also arrested Mr. Kenon ten minutes later two blocks away.
You are talking about a post incident confrontation. I don’t think a lineup would have been in order from Officer Brown.
I assumed Mr. Kressler saw him as well.

(N.T. March 29, 1983, p. 28).

Next, appellant argues that counsel was ineffective for failing to introduce police photographs of him and for failing to prominently display him at both the suppression hearing and trial. According to appellant, counsel acknowledged appellant’s facial scars, yet did not attempt to discredit Kressler, who, despite being within three feet of appellant inside the bakery truck, testified to observing no facial scars.

First, the perceptibility of the scars was in doubt. During the post-verdict motions hearing, the court took judicial notice of the absence of scars: “Let the record show that I can’t see scars from here and he is about eight feet away from me.” (N.T. March 29, 1983, p. 35). When pressed by post-trial counsel to have the record reflect a scar on appellant’s left cheek, the court responded:

Yes, but remember, he had a sweatshirt with a towel over his head at the time of the robbery. But on his face, I can see no scars. If you point out something to me, perhaps I may be able to see what you are talking about. But no one knew it. The picture does not show any scars.

(N.T., March 29, 1983, p. 36). Whether scars were perceptible was placed in serious question during a particular segment of the post-conviction hearing:

POST-TRIAL COUNSEL: But he (Kressler) also said that the man (appellant) had no distinguishable characteristics.
THE COURT: That is right. And I do not see any distinguishable scars on him, either.
POST-TRIAL COUNSEL: On his face there is a gash about four inches long.
THE COURT: Where is the gash on his face?
POST-TRIAL COUNSEL: This (Indicating).
TRIAL COUNSEL: No, no, no, there.
THE COURT: I don’t see it from here and right now he is about seven feet away from me.

(N.T., March 29, 1983, pp. 37-38).

There is sufficient evidence to the effect that any facial scars were not easily discernible by the victim albeit appellant stood during the robbery within three feet of him for nearly one minute. First, a hood covered appellant’s head. Secondly, despite having its attention drawn to the photograph and appellant’s face during the post-trial hearing, the court did not detect a scar. Finally, despite their close proximity to appellant at the post-trial hearing, trial counsel and post-trial counsel could not agree as to the location of the alleged scar.

Appellant did not introduce sufficient evidence of facial scarring that would diminish the victim’s credibility and establish counsel’s ineffectiveness for failing to exhibit appellant’s photograph and face to the jury and suppression court. This is true irrespective of trial counsel’s post-trial admission of ineffectiveness. As the fact-finder, the post-trial court disbelieved counsel’s avowed incompetence when it opined:

THE COURT: One other thing: You, know, I think you are a good lawyer, Mr. Dubrow, you are a very good lawyer. It troubles me immensely when a lawyer says I was ineffective in order to assist the defendant who has absolutely no use for you, absolutely no use for you. I think — every petition comes through, ineffective assistance of counsel. We are hearing it constantly. We are debasing the legal profession and especially when an attorney says I was ineffective. I want to weep when I hear that, absolutely I want to weep.

(N.T., March 29, 1983, p. 38). Counsel is not ineffective where no evidence supports ineffectiveness and where counsel’s admission of incompetence is discredited by the trial court.

Finally, appellant contends that the court erred in ordering him to try on the hooded sweatshirt and fatigue jacket in the presence of the jury. According to appellant, this exhibition violated his Fifth Amendment right to remain silent and his Fourteenth Amendment due process of law right to be free of inflammatory evidence.

First, inasmuch as demonstrative evidence is not testimonial it does not activate the right against self-incrimination. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Commonwealth v. Richbourg, 260 Pa.Super. 438, 394 A.2d 1007 (1978). Secondly, courtroom exhibits of this type are left to the far-reaching discretion of the trial court; accordingly, appellate review is restricted. Commonwealth v. Laniewski, 427 Pa. 455, 235 A.2d 136 (1967); Commonwealth v. Williams, 317 Pa.Super. 456, 464 A.2d 411 (1983);.

The probative value of having appellant try on the clothing during trial outweighed potential prejudice. In pressing the identification issue, appellant compelled the Commonwealth to expend significant effort in substantiating the in-court identifications. The experiment displayed for the jury the extent to which appellant’s head was covered by the hood. It also indicated whether the sweatshirt and jacket were properly fitted to appellant’s body. We perceive no abuse of discretion in conducting a courtroom experiment for these purposes.

Judgment of sentence affirmed.


author: SPAETH, President Judge:

text:
    482 A.2d 615
    Sue Jojean HORTON, Appellant, v. Russell R. APPLEBY.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1984.
    Filed Sept. 28, 1984.

      John D. Miller, Jr., York, for appellant.
    Russell E. Appleby, Airville, appellee, in propria persona.
    Before SPAETH, President Judge, and CIRILLO and CERCONE, JJ.
   SPAETH, President Judge:

This is a paternity action. Appellant, as the child’s mother, brought the action against appellee, and a jury returned a verdict in favor of appellee. We have concluded that the trial court erred in admitting certain evidence of appellant’s character. We therefore reverse and remand for a.new trial.

-1-

Appellant argues that the trial court erred in admitting testimony that she was 16 years old at the time of conception. This argument is without merit. Appellant’s age was one of the background facts of the case, and the court could not very well have excluded evidence of it. See Gregg v. Fisher, 377 Pa. 445, 454, 105 A.2d 105, 110 (1954) (“ ‘Evidence is admissible which tends to ... show the origin and history of the transaction between the parties and explain its character.’ ” (quoting trial court opinion with approval)).

-2-

Appellant also argues that the trial court erred in admitting testimony that appellant was receiving public assistance and that the Department of Public Welfare required her to bring a paternity action in order to maintain her benefits. We agree with this argument, and since we are unable to say that the error was harmless, we reverse and remand for a new trial.

The evidence that appellant was receiving public assistance carried two inferences, both prejudicial to appellant: (1) that appellant was a lazy person; and (2) that appellant’s child did not really need support payments because he would be taken care of through public assistance benefits if the jury failed to find in favor of appellant. The evidence was relevant only to the extent that it tended to show why appellant had brought a paternity action: if she did not, she would lose her public assistance benefits. This relevance, however, was marginal, for it did not tend to show any motive to bring a paternity action against appellee in particular. While appellant testified on cross-examination that she was told by the Department that as long as she was receiving public assistance, she “would have to take [appellee] to court,” N.T. 18, on redirect-examination she explained that the Department did not require that she take appellee to court but only that she take the appropriate steps to establish paternity, no matter who the father was. N.T. 20. Given the prejudicial nature of the evidence and its marginal relevance, we hold that the trial court erred in admitting it. Cf. Geesey v. Albee Pennsylvania Homes, Inc., 211 Pa.Super. 215, 235 A.2d 176 (1967) (trial court did not err in excluding evidence that plaintiff did not proceed against defendant until he realized that he was foreclosed from proceeding against third party by third party’s petition in bankruptcy; such evidence would confuse issue by distracting attention of jury to collateral issues).

We must still determine, however, whether the error was harmless. In making this determination, it is helpful to examine the other evidence in the case.

Appellant introduced into evidence the results of red blood cell tests and human leukocyte antigen (HLA) tests. A medical technologist testified that these tests resulted in a 96.92% likelihood of paternity and a 32 to 1 paternity index. N.T. 49. The technologist testified that a 32 to 1 paternity index means that appellee is 32 times more likely to be the father of appellant’s child than a man chosen at random from the population. Id. He further testified that these figures make it “very likely” that appellee is the father of the child. N.T. 50.

Appellant testified that she had had sexual intercourse with appellee twice during the period of possible conception, and that she did not have sexual intercourse with any other man during that period. N.T. 4-5. Appellant further testified that on two occasions when she spoke with appellee concerning the pregnancy, he told her that he did not want her to have the child but wanted her to have an abortion. N.T. 6-7. Appellant further testified that appellee twice told her that he wanted her to say that she did not know who the father was so that he would not have to pay support. N.T. 7-8.

Appellee admitted knowing appellant and taking her out once and going to her house to play cards once, but he denied that they had ever had sexual intercourse and that he was the father of appellant’s child. N.T. 59-60. A friend of appellee’s girlfriend at the time of trial testified that appellant had told her during the pregnancy that someone else was the father. N.T. 62-64. Appellant testified on rebuttal that she had never said this. N.T. 65.

It therefore appears that the jury rejected the red blood cell and HLA test results and found in favor of appellee on the basis of its appraisal of appellant’s credibility. In these circumstances, we cannot say that admission of the evidence that appellant was receiving public assistance was harmless error. In rejecting the test results and finding appellant incredible, the jury could well have been swayed by a dislike for appellant as lazy or a belief that her child would be adequately provided for even if a verdict was returned in favor of appellee.

-3-

Appellant also argues that the trial court erred in admitting evidence that appellant rented a room in a house in which two men lived, and in allowing appellee’s counsel to comment on this evidence in summation to the jury. We agree that this evidence was not admissible and that comment on it was improper. It is arguable that appellant has waived any objection to these errors. With respect to the testimony itself, appellant’s counsel did not object to it at the time of its admission. Normally, any objection to the admission of inadmissible evidence is waived by the failure to object at the time it is admitted. See Dudash v. Dudash, 313 Pa.Super. 547, 460 A.2d 323 (1983). With respect to the reference to the testimony in summation to the jury, appellant’s counsel did object at the time of the reference but he did not preserve the objection by raising it in his post-trial motion. Normally, any objection not raised in post-trial motions is waived and will not be considered on appeal. See Sullivan v. City of Philadelphia, 314 Pa.Super. 381, 460 A.2d 1191 (1983). Nevertheless, we shall consider appellant’s objections because we are remanding for a new trial anyway and the error should not be repeated at the new trial.

On cross-examination of appellant, counsel for appellee elicited testimony that in January 1978 appellant had rented a room in a house in which two men lived, and after living there for a couple of months, had moved back to her mother’s home. N.T. 12. (It should be noted at this point that the period during which appellant conceived was late October to early November 1978. N.T. 4.) Although the summations to the jury were not transcribed, appellant’s objection to comment on this testimony during appellee’s summation, and the court’s response, appear in the transcript as follows:

MR. MILLER: Objection, your Honor. I don’t think there was any testimony that she lived in that sense with two other — I think there was testimony she rented.
THE COURT: Well, counsel can argue that testimony was that she lived in the same household. It’s a permissible argument, but the jury can use their own recollection as to the actual testimony.

N.T. 66.

We agree with appellant that the testimony was not relevant and that its admission and the comment on it were improper. The only inference to be drawn from the testimony was that appellant was a bad person because she had lived with two men some time before becoming pregnant. Of course, evidence that appellant had had sexual intercourse with a man, or men, other than appellee during the period of possible conception would have been relevant. See Commonwealth v. Rankin, 226 Pa.Super. 37, 311 A.2d 660 (1973); Commonwealth v. Harbaugh, 201 Pa.Super. 360, 191 A.2d 844 (1963). However, there was no evidence, either that appellant had had an intimate association with either of the two men, or that she had lived in the rented room during the period during which she conceived. Cf. Commonwealth v. Boggio, 204 Pa.Super. 434, 205 A.2d 694 (1964) (trial court did not err in excluding evidence that prosecutrix had intercourse with a third person during a three year period not within the possible period of conception).

Order reversed; case remanded for new trial; jurisdiction relinquished.

      . In its opinion at page 4 the trial court states:
      The specific testimony to which the Plaintiff objects, was the inquiry of her concerning her having two male roommates at or near the time of probable conception. When it appeared that this situation, if it existed at all, was some months prior to the time of conception, the Court cautioned the jury that any such testimony could not be considered by them in determining paternity but should be disregarded unless they were satisfied that the Plaintiff had in fact been sexually intimate with some other male during the critical period.
      The trial transcript does not reveal that any cautionary instruction was given at the time this testimony was elicited. The court did state in its charge to the jury: "The question is not the morality of any of the parties. The question is not whether they are nice people or not. The only question is whether or not the Defendant is the father of the child." N.T. 69. The trial court also stated in the charge: "Now, a third issue or point is, did the Plaintiff have sexual relations with other men during the conception period and, if so, is that man or one of them the father of the child?” N.T. 75. We do not believe, however, that these general statements were sufficient to overcome the prejudice from the admission of the evidence and appellee’s counsel’s comment on it.


author: DEL SOLE, Judge:

text:
    482 A.2d 619
    COMMONWEALTH of Pennsylvania v. Gerald LANDAMUS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1984.
    Filed Sept. 28, 1984.

      Philip T. Medico, Jr., Assistant Public Defender, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before CIRILLO, DEL SOLE and POPOVICH, JJ.
   DEL SOLE, Judge:

This appeal was taken from the Judgment of Sentence from a burglary conviction. The issue raised is whether physical evidence found from the search of Appellant’s vehicle was properly admitted into trial.

The crucial facts are that on January 2, 1981, the Stella residence in Plains Township was burglarized and several pieces of jewelry were taken. Two weeks later on January 16, 1981, Dominick Augustine, a neighbor of the Stella’s, accompanied police to Wilkes-Barre where he identified Appellant’s automobile as being the same as the one he had seen near the Stella home on the night of the burglary. The original description he gave police was that the car was a blue Dodge, Pennsylvania license No. DDU 660, 760 or 670, and the car identified was a blue Dodge No. BBU-670. Appellant’s car, which was parked at the curb adjacent to his property, was impounded. The car was reported by Whitney Klein, a neighbor and friend of Landamus’, to have not been driven for two weeks (which would have been the night of the robbery). It is not clear from the record whether Appellant was arrested and charged with the burglary and theft prior to the impoundment of his vehicle. Both events, however, occurred within a short time of each other on January 16, 1981. Appellant was arrested in his home. Prior to applying to a magistrate on January 19 for a warrant to search the car, police made an inventory search. A diamond pin, a pair of earrings initialed with an “A” and an aqua-colored earring were found on and under the seats. Mrs. Stella identified them as her missing jewelry. The warrant was granted on the 19th, and a second search produced no new items.

The search warrant used to inventory the car was found to be invalidly executed by the Common Pleas Court under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. U.S., 393 U.S. 410, 80 S.Ct. 584, 21 L.Ed.2d 637 (1969).

We must decide whether the impounding and inventorying of Appellant’s vehicle without a warrant was lawful.

The Commonwealth claims that the items were properly discovered and admitted into trial based on a lawful, though warrantless, inventory search. There is no assertion that the items discovered were in “plain view” or that the seizure of the car was incident to a lawful arrest.

The Fourth Amendment, which was made applicable to the States through the Due Process Clause of the Fourteenth Amendment in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), mandates that government searches be “reasonable”. A true inventory search:

(T)akes place when it is not coupled with the intent of discovering evidence of a crime. The inventory is conducted not for the purpose of uncovering incriminating evidence, but for the purpose of safeguarding the contents of the vehicle for the benefit of both the owner and the police. Commonwealth v. Brandt, 244 Pa.Super. 154, 160, 366 A.2d 1238, 1241 (1976).

Although automobiles have been given less constitutional protection by the courts because of their mobility and the increased governmental interest in the efficient and unimpeded use of public highways, “it is clear that there is no ‘automobile exception’ as such and that constitutional protections are applicable to searches and seizures of a person’s car.” Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978). Instead of determining whether probable cause existed to justify the search and seizure, courts have analyzed such protective inventorying of automobiles using a standard of reasonableness, South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), thus encompassing the idea that these procedures are “searches” to be governed by the Fourth Amendment.

The U.S. Supreme Court wrote:

The relevant test is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts. Coolidge v. New Hampshire, 403 U.S. [443] at 509-510, 91 S.Ct. [2022 at] 2059, 29 L.Ed.2d 564 (Justice Black, concurring and dissenting).

It was determined in this case that Appellant had no access to his vehicle once he was arrested. Following Commonwealth v. Brandt, 244 Pa.Super. 154, 366 A.2d 1238 (1976), where there is no clear probable cause to justify such a search and seizure, the elements that the Commonwealth must show in order to legitimize such a search are: “First, the Commonwealth must show that the vehicle was lawfully in the custody of police. Secondly, the Commonwealth must show that the search was in fact an inventory search.” Brandt, 244 Pa.Super. at 162, 366 A.2d at 1242. Because this Court has defined a determination of an inventory search as a legal conclusion based on underlying facts rather than a factual conclusion, we are able to review the common pleas court’s holding that what occurred here was indeed an inventory search. Commonwealth v. Burgwin, 254 Pa.Super. 417, 386 A.2d 19 (1978).

In determining whether the car was lawfully in the custody of police, we note that Appellant’s vehicle was parked at the. curb near his home, there was no obstruction of traffic, two weeks had passed since the robbery occurred, and reports indicated that the car had not been driven since that time. The common pleas court cited Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978), as controlling in the determination that the seizure was lawful.

The Court in Holzer found that:

It is reasonable, therefore, for constitutional purposes for police to seize and hold a car until a search warrant can be obtained, where the seizure occurs after the user or owner has been placed into custody, where the vehicle is located on public property, and where there exists probable cause to believe that evidence of the commission of the crime will be obtained from the vehicle. Commonwealth v. Holzer, 480 Pa. 93, 96, 389 A.2d 101, 106 (1978).

In Holzer, the police were concerned with losing evidence thought to be inside the vehicle because, even though defendant was incarcerated, a co-conspirator to the murder was unapprehended and defendant’s girlfriend and family lived near where the car was located. The homicide was reported to have occurred in the car, and police seized it only two days after the crime. Given those facts, the Court found that police fears of losing valuable evidence were reasonable. The passage of time in this case, along with the fact that no testimony was offered to indicate concern that the car would be moved (since it had not been moved for two weeks), or that the car would yield valuable evidence of the crime, as in Holzer, leads to the conclusion that the seizure of the car without a warrant was not supported by the facts. More importantly, in Holzer, the Court took note that even after the car was impounded, no subsequent search of the car’s interior was made until police had secured a warrant.

Under the second prong of the analysis, i.e. whether the search was in fact for inventorying purposes, the Court must be convinced that the procedure was meant to protect the car’s contents for the owner and to insure the safety of police. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The Court paid specific attention to the fact that the seizure and inventorying of the car was done according to routine procedure and unlikely to be motivated by a desire to search for evidence. The car, which was illegally parked and ticketed several times, was impounded by police pursuant to motor vehicle laws. Marijuana was discovered during the inventorying of the car’s contents, leading to charges of possession against the owner. In contrast, Appellant’s car was not seized because it was obstructing traffic. The officers admitted that the purpose of impounding the vehicle was:

Q: And, when you seized the car, what was your purpose?
A: That car was used in the commission of a crime. I seized it as evidence. (Stenographic Record of May 6, 1981, p. 35).

We can draw no other conclusion than police had a motive to search for evidence when they seized the car. The major obstacle to the success of the Commonwealth’s argument that this was a valid inventory search is that the officers applied for a warrant to search the vehicle for evidence after they discovered the jewelry in the car. This strongly indicates that the motive behind their actions was to secure evidence against the Appellant.

The Commonwealth, in justifying the police action, makes reference to what has become a separate class of exceptions to Fourth Amendment protection. First articulated in Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564 (1971). The U.S. Supreme Court held:

The warrant requirement, however, is excused where exigent circumstances exist .. Exceptions arise where the need for prompt police action is imperative, either because evidence sought to be preserved is likely to be destroyed or secreted from investigation, or because the officer must protect himself from danger to his person by checking for concealed weapons.

This Court has further provided a two-part analysis: “The general rule dealing with warrantless automobile searches allows that a car may be searched or seized without a warrant if there are both exigent circumstances and probable cause to believe that the car will yield contraband or useful evidence for the prosecution of a crime.” Commonwealth v. Cooper, 268 Pa.Super. 99, 407 A.2d 456 (1979). Such exigent circumstances were present in Commonwealth v. Brandt, 244 Pa.Super. 154, 161, 366 A.2d 1238, 1242 (1976), where defendant’s vehicle had struck a pole and he was physically fighting police in their attempts to help him; in Opperman, where the car was illegally parked and ticketed; in Commonwealth v. Scott, 469 Pa. 258, 356 A.2d 140 (1976), where the car was in a high crime area and stereo equipment was on the seat in “plain view”; and in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), where defendant’s automobile was disabled following an accident and the police observed that defendant was intoxicated and unable to provide for the towing of his vehicle. After he told police he was also an officer and was taken to the hospital, the police searched the trunk looking for his regulation revolver. The search was upheld, supported by the exigencies. Appellant’s vehicle, in this case, was not illegally parked, nor was it in his control at the time of arrest to make it necessary to have the car towed. No jewels were seen in “plain view”. There are simply no facts supporting an exigent circumstance. In Commonwealth v. Burgwin, 254 Pa.Super. 417, 386 A.2d 19 (1978), the warrantless search of a car trunk after defendant was in custody was struck down for lack of any exigency and for not being evidence of standard police procedure. The routine nature of this action is likewise absent under the present facts. We are also not persuaded that there was probable cause to believe evidence or the fruits of the crime would be found in the car. To quote the dissenting opinion of Judge Toole from the common pleas court decision below:

In the instant case, the vehicle was impounded not because there was probable cause to believe that evidence of the commission of the crime could be obtained from the vehicle, or because the vehicle was parked in violation of any law posing a threat to the safety of others, or because it was necessary to preserve evidence until a search warrant could be obtained ... The mere fact that a vehicle may have been involved in the commission of a crime does not automatically authorize its search and seizure. There is no testimony in this record to indicate any probable cause to believe that evidence of the commission of this burglary could be obtained from the vehicle. This is particularly true since the alleged burglary in this case took place approximately fourteen (14) days before the so-called inventory search. We further add that there is no testimony in the record indicating even a suspicion that the car could or would be moved from the area where is was parked and any evidence lost.

(At page 3-4).

We also do not have a situation similar to that in the recent U.S. Supreme Court case of U.S. v. Leon, — U.S. —, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Court in Leon recognized a “good faith” exception for police who have obtained a warrant and reasonably relied on it to conduct a search, only to have the warrant subsequently found to be invalidly issued. Under our facts, the effort to procure a valid search warrant by police was done as an afterthought. The seizure and search had been accomplished, and the warrant was sought to legitimize the earlier illegal police conduct. The Court specifically preserved “the continued application of the rule to suppress evidence from the (prosecution’s) case where a Fourth Amendment violation has been substantial and deliberate.” U.S. v. Leon, — U.S. at p. —, 104 S.Ct. at p. 3413. We have such a situation at hand.

Since there was no probable cause to believe that the car would yield evidence of the crime, no exigent circumstances, no lawful inventory search or a search pursuant to a valid warrant, this evidence must be suppressed at trial.

Judgment of Sentence is vacated and the case is remanded for a new trial.

Jurisdiction is relinquished.