author: KELLY, Judge:

text:
    512 A.2d 1242
    COMMONWEALTH of Pennsylvania v. James Earl JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 15, 1986.
    Filed July 14, 1986.

      Gary V. Skiba, Erie, for appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before CAVANAUGH, OLSZEWSKI and KELLY, JJ.
   KELLY, Judge:

This case involves an appeal from an order denying the appellant post-conviction relief. The appellant has raised ten issues on appeal. The primary issue raised by the appellant and the only one argued before the PCHA court is whether re-sentencing counsel was ineffective in failing to elicit the appellant’s desires regarding an appeal and in failing to advise the appellant as to the effect of the order granting his motion to withdraw his original guilty plea on the notice of appeal taken from the original sentence imposed. We find no merit in this appeal and affirm the order of the learned PCHA court.

On January 10, 1979, after a jury trial, the appellant was found guilty of rape and burglary. On May 16, 1979, a second jury found the appellant guilty of a second set of rape and burglary charges. On June 18, 1979, the appellant pleaded guilty to a third set of charges for rape, burglary and assault.

At the plea hearing on June 18,1979, the appellant signed a document entitled “Defendant’s Statement of Understanding of Rights Prior to Guilty Plea” which contained a clear statement of the appellant’s rights with respect to his plea. On August 27, 1979, the appellant was sentenced on all three sets of charges. The sentencing colloquy contained a full and correct statement of the appellant’s right to appeal as well as an additional inquiry as to the voluntary nature of the appellant’s guilty plea. The appellant and his attorney also signed a document entitled “Right of Appeal Following Sentence,” which contained a complete statement of post-sentence rights.

The trial court proceeded to impose sentence upon the appellant as follows:

At No. 78 of 1979 (Plea: June, 1979)
Rape: 10 to 20 years imprisonment
Burglary: 5 to 10 years imprisonment, consecutive to imprisonment at No. 78 of 1979, Rape.
Assault: suspended
At No. 1030 of 1978 (Trial: January, 1979)
Rape: 10 years probation, consecutive to imprisonment at No. 78 of 1979.
Burglary: 10 years probation, concurrent to imprisonment at No. 78 of 1979
At No. 273 of 1979 (Trial: May, 1979)
Rape: 10 years probation, consecutive to probation at 1030 of 1978, Burglary, and concurrent with the imprisonment term imposed at No. 78 of 1979, Burglary. Burglary: 10 years probation, concurrent with probation at No. 273 of 1979, Rape.

On September 6, 1979, the appellant filed a motion to withdraw his guilty plea, alleging that he did not understand the plea bargain and that he had not been sentenced in accordance with his expectations. Two terms of probation were imposed consecutively rather than concurrently as had been anticipated. On September 26, 1979, timely notice of appeal was filed. On November 28, 1979, the motion to withdraw the guilty plea was granted by the trial court.

On December 10, 1979, the court ordered that the appellant be returned from state custody to the Erie County Jail by January 9, 1980, in order to give the appellant time to prepare for trial scheduled for January 15, 1980. Plea negotiations continued.

On January 18, 1980, the appellant appeared in court for the purpose of re-entering his guilty plea. The appellant again signed both the documents acknowledging his rights regarding guilty pleas and appeal. The transcript of the sentencing hearing indicates that prior counsel, Miss Fisher, had written the appellant two letters explaining “all the procedures and what was being done.” (Re-Sentencing Transcript at 4). The appellant indicated that he understood what was going on.

The court fully explained the plea bargain and stated that the court would accept it. Appellant’s attorney, Mr. McGeorge, also explained the bargain. The appellant stated that he understood the bargain. The Court then re-sentenced the appellant in accordance with the bargain as follows:

At No. 1030 of 1978 (Trial: January, 1979)
Rape: 10 to 20 years imprisonment
Burglary: 5 to 10 years imprisonment, consecutive to imprisonment at No. 1030 of 1978, Rape.
At No. 273 of 1979 (Trial: May, 1979)
Rape: 10 years probation, concurrent with imprisonment at No. 1030 of 1978, Rape.
Burglary: 10 years probation, consecutive to probation at No. 273 of 1979, Rape; concurrent with and overlapping the imprisonment at No. 1030 of 1978, Burglary.
At No. 78 of 1979 (plea: June, 1979)
Rape: 10 years probation, concurrent with probation at No. 273 of 1979, Rape.
Burglary: 10 years probation concurrent with probation at No. 273 of 1979, Burglary
Assault: 10 years probation concurrent with probation at No. 273 of 1979, Rape.

The appellant did not file a motion to withdraw his plea, a motion to reconsider the sentence, or a notice of appeal. However, on April 29, 1980, the appellant filed a petition seeking post-conviction relief. After an unsuccessful petition for allowance of appeal nunc pro tunc, the appellant was granted a hearing on his amended PCHA petition. The appellant’s petition was denied on April 6, 1984. The instant appeal is taken from the PCHA court’s order of that date.

Appellant’s primary contention on appeal is that the re-sentencing counsel was ineffective for failing to elicit the appellant’s “desires in regard to an appeal and in failing to appeal thereafter especially when the Public Defender’s staff, of which the attorney was a member, knew that he had previously appealed.” (Appellant’s Brief at 13). He argues further that:

In the present case, Mr. Johnson was told of his right to appeal and the time limits thereof, but there is no indication that he was ever told that his prior appeal was of no effect. Nor is there any indication of why or how he should have known. There is nothing to rebut his plausible testimony that he wanted his first appeal to continue. In layman’s terms the appeal was “filed” within thirty days of the second sentencing — the notice of appeal was docketed in the records of the Superior Court, specifically. Under the unique circumstances of this case, the standard colloquy was inadequate and, to an extent, misleading.

(Appellant’s Brief at 17).

In proceedings under the Post-Conviction Hearing Act, the petitioner has the burden of proving ineffective assistance of counsel. Commonwealth v. Presbury, 329 Pa.Super. 179, 478 A.2d 21 (1984); Commonwealth v. McCaskill, 321 Pa.Super. 266, 468 A.2d 472 (1983). In order for a defendant to be granted collateral relief he must demonstrate a credible claim that he has actually received ineffective assistance. A naked allegation without more will not suffice. Commonwealth v. Parker, 503 Pa. 336, 469 A.2d 582 (1983). Furthermore, counsel is presumed competent and will not be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Strickland, 306 Pa.Super. 516, 452 A.2d 844 (1982).

We note initially that the appellant’s theory on appeal is quite different from that urged in the court below. Instantly, he argues he was misled into thinking no action was necessary to perfect an appeal. However, at the PCHA hearing the appellant testified that he spoke to re-sentencing counsel immediately after sentencing, expressing his desire to pursue an appeal. He also testified that he wrote both re-sentencing counsel and the Erie County Clerk of Courts to see if an appeal was in fact taken.

The appellant’s self-serving and uncorroborated allegations were rejected by the PCHA court in favor of the testimony of resentencing counsel, Gustave McGeorge. Attorney McGeorge testified that: the appellant did not request that counsel take an appeal; the appellant never wrote asking whether an appeal was taken; the appellant expressed satisfaction with the plea bargain; and when asked, “if there was anything else he needed,” the appellant replied, “no.” The only letter received from appellant by the Erie County Clerk of Courts was received thirty-seven days after the time for an appeal had expired, and did not indicate that he had requested that counsel perfect an appeal nor did it inquire as to the status of such an appeal. In short, the appellant’s allegations below were wholly uncorroborated, directly contradicted, and understandably rejected.

It was for the PCHA court to weigh the credibility of the witnesses and to resolve conflicts in the evidence. Accordingly, the PCHA court rejected the appellant’s self-serving and uncorroborated statements and specifically found that the appellant did not request that counsel file an appeal and that the appellant had in fact made a knowing and intelligent waiver of his right to appeal. PCHA court opinion at 13-15.

The PCHA court also rejected the appellant’s contention that as an employee of the Office of the Public Defender, counsel should have known that defendant wanted to appeal, since defendant’s appeal from the original sentence was a matter of record. PCHA court opinion at 12. The PCHA court stated:

The first sentence was vacated because defendant had withdrawn the guilty plea upon which the sentences for charges at all three docket numbers were based. Defendant re-entered the guilty plea after various negotiations and discussions between defense counsel and the Commonwealth resulted in the Commonwealth’s offer to recommend concurrent sentences for all charges upon re-entry of the plea. Since defendant’s decision to re-enter the guilty plea was presumably based on the plea bargain, and since the recommended concurrent sentences were imposed, counsel is not ineffective for failing to assume that defendant would want to appeal that sentence which had been agreed upon and actually imposed.

PCHA court opinion at 12.

Undaunted by adverse rulings in the court below, the appellant raises yet another theory to explain why his failure to take a direct appeal was the result of ineffective assistance of counsel and not a knowing and intelligent waiver of his right to appeal. Instantly, he contends he was misled by re-sentencing counsel’s failure to explain the effect of the order granting the motion to withdraw the original guilty plea on the notice of appeal previously filed. This contention is supported by neither facts nor law. It is true that re-sentencing counsel was not aware that a notice of appeal was filed on September 26, 1979. (H.T. at 24-25). It is also true that re-sentencing counsel never explained to the appellant how Pa.R.A.P. 1701 affected the previous notice of appeal. However, the record establishes that the appellant was not, in fact, misled by the previous notice of appeal.

Indeed, the appellant’s current theory is in direct conflict with his testimony at the PCHA hearing. The appellant replied to Assistant District Attorney Connelly’s question as follows:

Q: You already testified that you knew you had thirty days to take an appeal. You knew that time was going to run out on you, what did you do?
A: I talked to a few guys, you know, how — what I could do and I think I wrote a letter to the Clerk of Courts to see if — to see if McGeorge had filed an appeal and I never got an answer from that either.

(PCHA Hearing Transcript at 14). Thus in the court below, the appellant claimed that he took direct action to perfect an appeal. His testimony below, therefore, rebuts the suggestion that he was lulled into complacency by the prior notice of appeal. To the contrary, the appellant claimed that he was diligent in pursuing a direct appeal.

Moreover, he never testified, plausibly or otherwise, that he believed that the prior notice of appeal was still in effect. His only testimony regarding the prior appeal was addressed to the issue of whether re-sentencing counsel should have known that the appellant wanted to take an appeal. His actual testimony was:

Q: You were aware that Marilyn Fisher did appeal from your initial sentence, is that correct?
A: Yes.
Q: And if that had been — if it would have been proper legally to appeal the Superior Court on that basis for that would you have wanted to continue also?
A: Yes.
Q: You mentioned your concern about the sentence.
Did you also want to appeal about trial errors? A: Well, since the trial — since I hadn’t originally filed I wanted to file on everything but the jail term in the original appeal. I had discussed that with Miss Fisher when I talked to her about the original appeal and I stated to her I didn’t want to bother with the probation, just the jail time. That I told her. I felt the jail time should have run concurrent and that’s how she told me she would file the appeal.

(H.T. at 16-17) (emphasis added). The appellant, thus, indicated that his sole concern in filing a motion to withdraw his guilty plea and a notice of appeal was whether the jail time imposed should have been imposed concurrently or consecutively. This issue was discussed and resolved in plea negotiations prior to the re-entry of the appellant’s guilty plea at the January 18, 1980 resentencing hearing.

Additionally, we note that after the motion to withdraw the original guilty plea was granted, the appellant’s case was scheduled for trial. The appellant was ordered to be returned from state custody to the county jail in order that he could participate in the preparation of his defense. All objective manifestations indicated that the previous plea and sentence had been cancelled, and that the case was to proceed as if no plea or sentence had ever been rendered.

In support of his contention that re-sentencing counsel was ineffective in failing to explain the effect of Pa.R.A.P. 1701, the appellant cites Commonwealth v. Ritchie, 298 Pa.Super. 165, 444 A.2d 712 (1982) and Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). Neither case, however, supports the appellant’s contention.

The appellant’s reliance upon Ritchie is misplaced as it is factually distinguishable in material respects from the instant case. In Ritchie we stated:

Had the defender but once asked appellant whether he wanted to appeal, the problem presented by this case might have been avoided. Instead, he never informed appellant of his right to appeal, never asked him whether he wanted to appeal, and may well have misled appellant, for it was clear from appellant’s letter of June 3, that appellant wanted to appeal, and by replying to the letter only that appellant would be informed when his transcripts had been filed, the defender may have suggested that filing an appeal could await receipt of the transcripts.

298 Pa.Superior Ct. at 168-169, 444 A.2d at 714 (emphasis added). In the instant case, the transcript of the sentencing hearing, the signed documents, and the testimony of the parties clearly establish that the appellant was fully informed of his right to appeal. There is no indication that the appellant was misled in any way.

The appellant’s reliance upon Wilson, supra, is likewise misplaced. In Wilson, our Supreme Court stated:

The record below, although it does indicate that appellant may have been told that he could appeal, is completely silent as to whether appellant was at any point informed or was aware that he was entitled to court appointed counsel. Douglas [v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) ] requires that an indigent accused be aware of both rights.

430 Pa. 5, 241 A.2d at 763.

Wilson and Ritchie require that the appellant be fully informed of his rights on appeal prior to any waiver of his rights. Significantly, the appellant concedes that the statement of rights, absent in Ritchie and Wilson, was present in the instant case. (Appellant’s Brief at 17). The appellant contends, though, that “unique circumstances” required that more than the standard colloquy be conducted, and that a knowing and intelligent waiver could not be made where the appellant was not specifically informed that the prior notice of appeal was not still in effect. We cannot agree.

The record presents no evidence that the appellant in fact harbored any misconception regarding the prior notice of appeal. Nor do we find any evidence that he was in anyway misled. Allegations of prejudice, like allegations of ineffectiveness, cannot exist in a vacuum. See Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). Error in the abstract does not require a new trial. Commonwealth v. Butts, 495 Pa. 528, 434 A.2d 1216 (1981); Commonwealth v. Pittman, 320 Pa.Super. 166, 466 A.2d 1370 (1983).

Furthermore, neither Wilson nor Ritchie require counsel to anticipate every desire, question, or misapprehension of fact which may linger unexpressed in a client’s mind. The appellant was given several opportunities to ask questions and to make statements. We cannot find counsel ineffective for not answering a question which was never asked. Absent a specific inquiry by his client, we see no reason why counsel representing a defendant at the re-entry of a negotiated guilty plea should inform his client of the effect of an order vacating the prior sentence on a notice of appeal taken from that prior sentence. Thus, the contention is without legal, as well as factual, basis.

Moreover, there is no duty on the part of defense counsel to elicit a defendant’s desires in regard to an appeal. It is beyond dispute that a defendant has an absolute right to a direct appeal. Pa.Constitution, Article V, sec. 9. Furthermore, it is clear that the ultimate decision of whether to do so must be made by the defendant and not counsel. Commonwealth v. Hertzog, 492 Pa. 632, 425 A.2d 329 (1981) (citing cases); Commonwealth v. Stokes, 294 Pa.Super. 529, 440 A.2d 591 (1982). It is also well-settled that a defendant may knowingly and intelligently waive his right to appeal. See Stokes, supra; Commonwealth v. Mika, 277 Pa.Super. 339, 419 A.2d 1172 (1980). Thus, it is both the right and the responsibility of the defendant to determine whether a direct appeal should be taken. Therefore, the appellant’s first contention on appeal is without merit.

The appellant’s second contention on appeal is that the PCHA court should not have addressed the underlying merits of the appeal. It is true that where the appellant has shown that he was wrongfully denied his right to appeal, the question of whether his appeal is meritorious is to be decided on the appeal to which he has been entitled all along and not by the PCHA court. Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982); See also Ritchie, supra. However, as the appellant was not wrongfully denied his right to appeal, the cases cited do not apply, and the contention is without merit.

The appellant’s third contention on appeal is that resentencing counsel was ineffective for failing to object to entry of the guilty plea where the District Attorney misstated the definition of rape in the plea colloquy. The appellant is correct, the District Attorney misstated the elements of rape when he defined sexual intercourse in the terms of slightest “touching,” rather than slightest “penetration.” (Re-Sentencing Transcript at 10). The colloquy was, therefore, defective.

However, in Commonwealth v. Newell, 486 Pa. 474, 406 A.2d 733 (1979), our Supreme Court held that guilty plea counsel was not ineffective in failing to attack a defective colloquy, even though there were valid grounds to do so, because the record demonstrated that the defendant was satisfied with the favorable plea bargain which had been negotiated.

The law governing this case has been precisely stated as follows:

The record shows that appellant’s counsel negotiated a favorable plea bargain, and appellant understood the bargain and was satisfied to accept it rather than go to trial. In these circumstances counsel’s failure to challenge the defective colloquy had a reasonable basis designed to effectuate appellant’s interests. Accordingly, counsel was not ineffective.

Commonwealth v. Weiss, 289 Pa.Super. 1, 432 A.2d 1020 (1980) (Concurrence per Spaeth, J.); as cited in Commonwealth v. Burno, 310 Pa.Super. 564, 456 A.2d 1080 (1983).

In the instant case, counsel for the appellant succeeded in negotiating for the appellant a very favorable plea bargain. The appellant was convicted of four major felonies. He pled guilty to two additional felonies and a misdemeanor. Still, the appellant received only concurrent terms of probation on four of the six felonies, including both of the felony convictions which were based upon the contested plea. Each of the felonies had potential penalties of twenty (20) years imprisonment and up to twenty-five thousand dollar ($25,000) fines.

There is no question as to the favorable nature of the bargain, or as to the appellant’s understanding and acceptance of the bargain. The re-sentencing transcript reveals an extensive discussion of the bargain. (Re-Sentencing Transcript 6-9). Furthermore, the record contains the “Defendant’s Statement of Understanding of Rights Prior to Guilty Plea,” which is signed by the trial judge, the prosecutor, the defendant’s attorney, and the defendant. This document is dated January 18, 1980, and provides in pertinent part:

8. I understand that the maximum sentence for the crime to which I am pleading guilty is: Ct. 1 Rape; Felony 1st Degree $25,000/20 years; Ct. 2 Burglary; Felony 1st Degree $25,000/20 years; Ct. 3 Simple Assault; Misdemeanor 2nd Degree $5,000/5 years.
9. I certify and understand that no plea bargain was made that led to this plea of guilty, ..., Except: Recommend concurrent time with Docket No. 1030 of 1978 and Docket No. 273 of 1979.

The bargain was favorable to the appellant, and it was fully explained to the appellant prior to its acceptance by both the appellant and the court. His contention on appeal is, therefore, without merit.

The appellant next contends that the trial court erred in not granting a mistrial where a juror had read a prejudicial newspaper article. The PCHA court found that the contention was without merit as “the situation fell squarely within the ambits of pretrial publicity standards enunciated in many cases, including Commonwealth v. Hoss, 469 Pa. 195, 364 A.2d 1335 (1976).” While we agree, we need not decide the issue on that basis, as the issue was waived by the appellant’s knowing and intelligent waiver of his right to a direct appeal from judgment of sentence. Commonwealth v. Hayes, 462 Pa. 291, 341 A.2d 85 (1975); Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974).

The appellant next contends that, “Detective Stazer was improperly examined on redirect beyond the scope of the previous examination in the trial at 1030 of 1978, and counsel was ineffective in not objecting.” (Appellant’s Brief at 26).

We note that the appellant neither briefed nor argued this issue before the PCHA court. Nor was this issue raised or briefed by prior counsel. Appellant’s PCHA counsel stated:

I did add a couple of other allegations, paragraph ten and paragraph eleven about objecting to evidence but, again, that is all a matter of what is on the record and I don’t think the testimony is needed for that.

(Transcript of PCHA Hearing at 5).

The appellant failed to present to the PCHA court any evidence that prior counsel had no reasonable basis for his alleged ineffective conduct. The appellant presented no argument whatsoever in this regard. Such failure is fatal to the appellant’s claim. See Commonwealth v. Williams, 314 Pa.Super. 355, 460 A.2d 1178 (1983); Commonwealth v. Brown, 313 Pa.Super. 256, 459 A.2d 837 (1983); Commonwealth v. Bowers, 245 Pa.Super. 214, 369 A.2d 370 (1976). “Bald assertions of ineffectiveness have never been sufficient to warrant relief in this Commonwealth.” Williams, 314 Pa.Superior Ct. at 361, 460 A.2d at 1181.

“Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.” Pettus, supra, 492 Pa. at 563, 424 A.2d at 1335.

The appellant now contends that the PCHA court erred in finding that the trial counsel was not ineffective and presents legal argument for the first time in support of his contention. To accept this new theory we would have to ignore the well-settled rule that appellate courts should not consider theories and issues not posited or advanced in the court below. Commonwealth v. Hughes, 480 Pa. 311, 389 A.2d 1081 (1978); Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978). We reject the appellant’s argument: first, because it is improper to raise such argument for the first time on appeal; and secondly, because the contention is without merit.

It is true that one who calls a witness is generally required to elicit on his first direct examination all that is wished to be proved by that witness. Catina v. Maree, 498 Pa. 443, 447 A.2d 228 (1982). However, “[i]t is clear that the trial judge has wide discretion to vary the normal order of proof and may permit a party to bring out on redirect examination relevant evidence which inadvertently the party failed to bring out on direct.” Commonwealth v. Brown, 462 Pa. 578, 590, 342 A.2d 84, 91 (1975); McCormick, Evidence § 32, at 69 (West 3rd Ed. 1984).

Generally, the order in which testimony is admitted is within the discretion of the trial court, and a very gross abuse of this discretion will have to be manifested to induce a reversal. Dosch v. Diem, 176 Pa. 603, 35 A. 207 (1896); See also Commonwealth v. Crosby, 450 Pa. 68, 297 A.2d 114 (1972); Knoble v. Ritter, 145 Pa.Super. 149, 20 A.2d 848 (1941); Koch v. Ziegler, 130 Pa.Super. 158, 196 A.2d 562 (1938) (court has wide discretion as to order in which evidence is received, and as to whether case shall be reopened to allow more testimony).

The rationale behind the trial court court’s broad discretion is explained by Professor Wigmore as follows:

It is obvious that, while the usual order for introducing topics of evidence and witnesses is a desirable thing, a variation from that order, which is often equally desirable, will not necessarily cause direct harm; it can do so only where it tends to confuse the jury, or where it misleads the opponent and finds him unprepared to meet it. Moreover, the necessity for such a variation and likelihood that it will confuse or mislead must depend entirely upon the particular circumstances of each case. Accordingly, it is a cardinal doctrine, applicable generally to all of the ensuing rules, that they are not invariable, that they are directory rather than mandatory, and that an alteration of the prescribed customary order is always allowable in the discretion of the trial court.

6 Wigmore, Evidence § 1867 at 655-56 (Chadbourn rev. 1976) (footnote omitted) (emphasis supplied).

With respect to redirect examination, specifically, Professor Wigmore explained:

... inadvertent omissions constantly and unavoidably occur; and repetitions become desirable sometimes for clearness’ sake. The chief danger to be guarded against is the unfair misleading of the opponent, who may have dismissed his own witnesses.
Accordingly, while a recall may probably not be demanded as of right, it is conceded that allowance of recall, upon the general principle (§ 1867 supra), is within the trial court’s discretion.

6 Wigmore, Evidence § 1898 at 741 (Chadbourn rev. 1976) (footnote omitted).

Without the benefit of argument or briefs, the PCHA court nonetheless proceeded to review the record and reached the following conclusion:

Because the detective’s testimony on direct and redirect concerned entirely different evidentiary matters relating to separate criminal offenses, there was nothing upon which defense counsel could have based a proper objection. Therefore, counsel was not ineffective and defendant’s argument is without merit.

PCHA court opinion at 15. We agree.

Detective Stazer testified on direct examination regarding the manner in which certain physical evidence was collected, marked, and transported to the state police crime lab. On redirect, Detective Stazer testified as to the manner in which latent fingerprints were collected at the scene of the crime, marked, and transported to the F.B.I. for comparison with the appellant’s known fingerprints.

The two intervening witnesses were Mr. John Robertson and Detective Raymond F. King. Mr. Robertson, a criminologist at the state police crime lab, testified regarding tests conducted on the physical evidence which had been sent to the crime lab, and the relationship of the test results to the identification of the perpetrator of the crime. Detective King testified regarding the fingerprinting of the appellant and the transporting of the appellant’s known prints with the latent prints to the FBI for comparison.

We cannot find that counsel was ineffective for failing to object to Detective Stazer’s testimony. There was no unfair prejudice created by the order in which the evidence was presented. There is no indication of “sandbagging” or improper motive. In short, the only prejudice alleged by the appellant is the denial of the benefit of prosecution’s inadvertent error.

The fingerprint evidence was otherwise admissible, relevant, and highly probative evidence. Thus, while a technical objection based upon Cantina might have been made by counsel, the facts and circumstances of this case would clearly have called for the Court to exercise its discretion to allow the testimony.

It is well-established that it is not the function of appellate courts to second-guess the tactical decisions of the trial counsel or to employ a hindsight evaluation of the record in determining whether an appellant received effective assistance of counsel. See Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980); Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). Where, as here, counsel must choose between a doubtful objection and the certainty of heightened attention to damaging testimony, his decision is tactical and not subject to appellate review on ineffectiveness grounds. Thus, appellant’s contention is without merit.

Finally, the appellant raised the following additional questions for review:

4. Was counsel ineffective for failing to set forth a post-trial motion at No. 1030 of 1978 the allegation that the search and seizure of the defendant’s person, hair, and clothes and blood samples was in violation of the Fourth and Fifth Amendments of the Constitution of the United States and the analogous provisions of the Pennsylvania Constitution;
6. Was counsel ineffective in the proceeding at No. 273 of 1979 by not objecting to hearsay testimony of a physician who described what the alleged victim told her about the attack;
7. Did the trial court err in failing to grant defendant’s application and dismissed it based upon Rule 1100 in the proceeding at No. 272 of 1979;
8. Did the trial court err in failing to grant defendant’s Motion for a mistrial based upon references during the trial to “photos,” which implied mug shots and therefore a prior record; and
10. Did the trial court err in failing to grant a mistrial as a result of prejudicial and inflammatory comments of the District Attorney in the proceeding at No. 1030 of 1978.

Appellant’s brief at 3-5. (quoted verbatim).

The appellant has neither briefed nor argued these issues in this Court; thus, the issues are deemed to have been waived. See Commonwealth v. Bossick, 305 Pa.Super. 196, 451 A.2d 489 (1982); Commonwealth v. Sanford, 299 Pa. Super. 64, 445 A.2d 149 (1982). Furthermore, the issues alleging error on the part of the trial court were waived by the appellant’s knowing and intelligent waiver of his right to litigate said issues on direct appeal. Hayes, supra; Via, supra. Finally, we note that the underlying merits of each of these issues were addressed by the learned PCHA judge and that each of the issues was correctly and adequately disposed of in his opinion below.

For the foregoing reasons the Order is affirmed.

      . See Pa.R.A.P. 343.

      . “All charges” at No. 78 of 1979, for which the appellant was entering a plea.

      . See Pa.R.A.P. 1701 which provides in pertinent part:

        A timely order granting reconsideration under this paragraph shall render inoperative any such notice of appeal theretofore or thereafter filed or docketed with respect to the prior order, and the clerk of any court in which such an inoperative notice or petition is filed or docketed shall upon praecipe of any party note on the docket that such notice or petition has been stricken under this rule.

      . The notice of appeal was then admitted into evidence.

      . That the appellant may have desired a better plea bargain (i.e.: one that provided for the jail time to be served concurrently) is of no consequence. The actual bargain was fully explained and freely accepted. What is of consequence is that the sole issue which the appellant had sought to raise in his original appeal was resolved prior to his re-sentencing.

      . This document also contains each of the warnings mandated by Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977).

      . In Commonwealth v. Prowell, 249 Pa.Super. 435, 378 A.2d 374 (1977), this Court recognized "the inherent conflict of loyalties to one’s client on one hand and to one’s associates on the other,” where an attorney is faced with the dilemma of whether or not to raise issues of alleged ineffective assistance of counsel on the part of an associate with whom counsel maintains a continuing professional relationship.
      In Commonwealth v. Hill, 302 Pa.Super. 377, 380, 448 A.2d 1090, 1092 (1982), this Court applied the reasoning in Prowell and held that "[¡Ineffective assistance of counsel, therefore, must be asserted at the first stage at which the party is represented by counsel not associated with the same public defender’s office.”
      Though prior counsel in the instant case were all members of the same public defender’s office, trial counsel was no longer associated with the public defender’s office when re-sentencing counsel began his representation of the appellant. Under these facts, the conflict identified in Prowell and Hill does not exist.
      Because re-sentencing counsel and trial counsel were not associated at the time of re-sentencing counsel’s representation of the appellant, it is apparent that the issue of trial counsel’s alleged ineffectiveness was not raised at the earliest possible stage of the proceedings as required by Commonwealth v. Glass, 486 Pa. 334, 405 A.2d 1236 (1979). However, as neither party has briefed or argued this issue, we decline to decide the appellant’s contentions upon these grounds.

      . The first reason precludes success on this appeal, the second precludes re-litigation of this issue in a subsequent appeal.

      . Indeed, it may have been an abuse of discretion for the court not to have allowed the testimony on redirect. See Commonwealth v. Staten, 350 Pa.Super. 173, 504 A.2d 301 (1986).


source: Caselaw Access Project

license: Public Domain

text:
    512 A. 2d 1253
    COMMONWEALTH of Pennsylvania v. Bernard Cary DUFFY, a/k/a Bernard C. Duffy, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 15, 1986.
    Filed July 16, 1986.

      Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and KELLY, JJ.
   KELLY, Judge:

This is a direct appeal from judgment of sentence entered in the Court of Common Pleas of Allegheny County on October 10, 1984. The appellant was charged by information with Criminal Homicide and Firearms Not to be Carried Without a License as a result of a fatal altercation between the appellant and Rudy Ryder in the early morning hours of August 2, 1983 outside the Wagner Club, an after-hours bar.

On April 6, 1984, a jury found the appellant guilty of Voluntary Manslaughter and Firearms Not To Be Carried Without a License. Post-trial motions were filed and denied. On October 10, 1984, the appellant was sentenced to a term of from five (5) to ten (10) years on the Voluntary Manslaughter charge, and a concurrent term of from two and one half (2V2) to five (5) years on the firearms charge.

The appellant raises five issues on appeal. He argues that the trial court erred: in failing to suppress his “involuntary” statements to the police; in permitting use of a prior conviction to impeach the appellant; in refusing to give a requested instruction on Homicide by Accidental Misadventure; in finding the evidence sufficient to sustain a Voluntary Manslaughter conviction; and in finding the evidence sufficient to sustain a conviction for Firearms Not to be Carried Without a License. We find no merit in the appellant’s allegations of error and accordingly affirm the judgment of sentence.

Appellant’s first contention is that the trial court erred in failing to suppress his allegedly involuntary statements to the police. The appellant contends “that his lack of sleep, alcohol consumption, and shock over the shooting incident negated his ability to voluntarily and intelligently waive his rights as guaranteed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before making an inculpatory statement.” (Appellant’s Brief at 9).

The appropriate standard for appellate review of the finding of a suppression court is for the appellate court to consider the evidence of the Commonwealth and so much of the defense evidence as fairly read in context of the record as a whole, remains uncontradicted. Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147, 151 fn. 5 (1980), Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert. denied, — U.S. —, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985).

“[T]he ultimate test for voluntariness is whether the confession is the product of an essentially free and unconstrained choice of its maker.” Commonwealth v. Smith, 470 Pa. 220, 225, 368 A.2d 272, 275 (1977), quoting Commonwealth v. Alston, 456 Pa. 128, 133, 317 A.2d 241, 243 (1974). All circumstances “which may serve to drain one’s power of resistance to suggestion and undermine his self-determination” must be considered. Commonwealth v. Fleck, 324 Pa.Super. 227, 471 A.2d 547 (1984).

Succinctly, the police officers each testified that the appellant’s demeanor was calm and that he showed no signs of intoxication. They testified that the appellant was given full Miranda warnings and agreed to waive his rights orally and in writing. The “Pre-interrogation Warning Form” which the appellant signed was produced and entered into evidence. Thus, there was sufficient credible evidence upon which to base the findings of the learned trial judge. See also Commonwealth v. Thomas, 266 Pa.Super. 529, 405 A.2d 945 (1976). The appellant’s first contention on appeal is, therefore, without merit.

The appellant next contends that the trial court erred in permitting the use of the appellant’s prior crimen falsi conviction. The appellant alleges that:

At the conclusion of the defense case and prior to Mr. Duffy taking the witness stand, the Commonwealth surprised the defense by indicating that he intended to use a prior crimen falsi conviction of Mr. Duffy to impeach his credibility. (T.T. 235). Mr. Duffy’s record was unknown to the defense counsel at the time of trial and any criminal record was not forwarded to the defense as required by the Pennsylvania Rules of Criminal Procedure. (Pa.R.C.P. 305(B)(l)(c)).The alleged offense took place in 1977 when Mr. Duffy was 18 years of age. (T.T. 235). The defense was placed at a tactical disadvantage in that it had already presented several witnesses based on the conclusion that Mr. Duffy could not be impeached by a prior record because he had no prior record.”

(Appellant’s Brief at 12).

It is true that when the admissibility of prior convictions is an issue, the trial court should conduct an in camera, Bighum hearing prior to the commencement of trial, in order that the defendant may weigh his or her decision to testify at trial. It is error for the court to deny the defendant such a hearing. See Commonwealth v. Hill, 302 Pa.Super. 377, 448 A.2d 1090 (1982). However, in Commonwealth v. Tangle, 349 Pa.Super. 574, 504 A.2d 193 (1986), this Court held that the Commonwealth did not have the exclusive responsibility to request a pretrial, in camera, Bighum hearing to determine the admissibility of prior convictions to impeach the defendant; and, thus, did not waive the right to use impeaching material by failing to request a hearing.

In Commonwealth v. Jennings, 335 Pa.Super. 404, 484 A.2d 409 (1984), this Court considered the failure of the trial court to conduct a pretrial Bighum hearing, among other factors, in determining that the trial court abused its discretion in permitting the use of the prior conviction evidence for impeachment purposes. However, in Commonwealth v. Richardson, 347 Pa.Super. 564, 500 A.2d 1200 (1985), Commonwealth v. Kearse, 326 Pa.Super. 1, 473 A.2d 577 (1984), and Commonwealth v. Toomey, 321 Pa.Super. 281, 468 A.2d 479 (1983), this Court upheld the trial court’s decision to allow prior conviction evidence to be admitted for impeachment purposes in spite of the fact that no pretrial Bighum hearing was held.

In Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), our Supreme Court stated:

We here reiterate, and to some extent, refine the factors that should be considered in the balancing equation. It is to be stressed that the list is not to be considered exhaustive or exclusive, but rather illustrative of the type of considerations that should influence the decision.

482 Pa. at 39, 393 A.2d at 367. It is clear that the trial court is required to balance each of the factors favoring and disfavoring admission of the prior record evidence in making its determination. Absence of a pretrial Bighum hearing and consequent protestations of prejudice are certainly factors to be considered in this analysis.

In reviewing the trial court’s decision to admit prior conviction evidence we may only reverse where the trial court has abused its discretion. Roots, supra; Kearse, supra. In making this determination in the instant case we will first consider whether the appellant was prejudiced by the absence of a pretrial Bighum hearing. Next, we will consider the factors set forth in Roots.

Initially, we note that we do not accept the appellant’s characterization of the facts. The appellant seeks to create the illusion that the prosecution sprang the appellant’s prior conviction on the defense at the end of the trial just prior to the appellant’s testimony. Such is not the case.

The only defense witnesses who testified prior to the required Bighum hearing did so upon the request of defense counsel, for the convenience of the defense witnesses, and prior to the close of the Commonwealth’s case. The following discussion appears in the record between the Judge; the District Attorney, Mr. Conrad; and Defense Counsel, Mr. Radoycis:

THE COURT: We’re going to deviate a slight bit, members of the jury, so that we can accommodate the lawyers on both sides here; and the jurors as well, not wasting time. Although the Commonwealth will not have concluded its case today, there may be some wrapup tomorrow. Is that possible?
MR. CONRAD: Yes, Your Honor.
THE COURT: The pathologist who will testify is unavailable at the present time. He is an important individual who must, I mean he is on call. But he’s unavailable to be here today. Counsel for the defense has witness that he has in court; is that correct?
MR. RADOYCIS: That is correct, Judge.
THE COURT: That he wishes to call out of turn; and the Commonwealth has agreed to it; and we see nothing wrong with that; so we’re going to accommodate him. That will be that much less for you to have to hear tomorrow.
MR. RADOYCIS: Your Honor, just so we’re clear, I will make the necessary and appropriate motions at the completion of the Prosecution’s case when Doctor Williams completes his testimony tomorrow. It’s for the convenience of some of the people who have been so gracious to come to court to testify on behalf of the defense that we are asking the District Attorney for this unusual procedure.

(Trial Transcript at 185-186). The next day, after the Commonwealth closed its case and before the appellant re-opened its case, a Bighum hearing was held.

We also reject the appellant’s allegation of unfair surprise. Appellant’s counsel stated:

MR. RADOYCIS: The District Attorney has advised me that he intends to use a 1977 conviction from my client for theft and receiving stolen property, some hubcaps when he was 18 years old. My client indicated to me prior to this that he didn’t recall having any convictions as such on his record. As a result, I didn’t want to consider the possibility of any theft admission being used against him at trial. Secondly, I did not receive any rap sheet indicating that he had been convicted of a theft under discovery procedures.

(T.T. at 235).

Yet the appellant had two prior convictions. One was for a crimen falsi offense, one was not. In rejecting defense counsel’s claim of unfair surprise the learned trial judge aptly stated, “the defendant himself should have known and should have told you.” (T.T. at 239). We agree.

Even if we were to accept, arguendo, the alleged lapse of memory concerning the existence of two prior convictions as genuine and excusable, the alleged surprise would still be attributable to the appellant. All discovery in this case was conducted under the provisions of Pa.R.Crim.P. 305(A) which provides in pertinent part:

A. Informal
Before any disclosure or discovery can be sought under these rules by either party, counsel for the parties shall make a good faith effort to resolve all questions of discovery, and to provide information requested or required under these rules as to which there is no dispute.

(Emphasis added).

Upon review of the record, we find that the Commonwealth made a good faith effort to provide all information requested by the appellant. Two discovery packets were prepared in this case. (T.T. at 239). The record does not disclose what the packets did or did not contain. The appellant claims a “Rap Sheet” was not included; the District Attorney explained to the Court that he would have to take defense counsel at his word. (T.T. at 239). Nonetheless, the appellant apparently concedes the fact that the Commonwealth acted in good faith as he has stated:

While it is not contended that the omission to forward Mr. Duffy’s record to the defense was done deliberately,____

(Appellant’s Brief at 13).

Importantly, the appellant made no motion to compel discovery of the prior record pursuant to Pa.R.Crim.P. 305(B)(1)(c). Had such a request been made or had the appellant merely informed the Commonwealth of the alleged omission, the discovery could have been provided, and any surprise avoided. Additionally, any omission or refusal to provide under Pa.R.Crim.P. 305(B)(1)(c) discovery would appear in the record itself, rather than through the unverifiable allegations of counsel. All that is required under Pa.R.Crim.P. 305(A) is that the parties act in good faith. The record indicates that the Commonwealth did; thus, we find no violation of the criminal discovery rules.

Furthermore, we are unpersuaded that the appellant’s alleged surprise presented any unfair prejudice or tactical disadvantage. Allegations of prejudice, like allegations of ineffectiveness, can not exist in a vacuum. See Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). Error in the abstract does not require a new trial. Commonwealth v. Pittman, 320 Pa.Super. 166, 466 A.2d 1370 (1983); Commonwealth v. Butts, 495 Pa. 528, 434 A.2d 1216 (1981).

First, any surprise is attributable to the appellant. Secondly, the fact that two defense witnesses were called out of order and prior to the Bighum hearing is, likewise, attributable to the appellant. Finally, the appellant fails to specify what prejudice was caused by the “surprise” evidence.

At trial, counsel stated, “Had I been notified of it, I certainly would have used greater discretion or judgment in determining how to proceed in this case.” (T.T. at 235). This is precisely the type of abstract claim which Pettus, Pittman, and Butts expressly reject. The learned trial judge correctly rejected this claim of prejudice. (T.T. at 235-236).

Later in the hearing, after receiving appellant’s “Rap Sheet,” counsel pointed out that the trial judge had presided in one of the prior cases in which appellant was convicted. Counsel then argued that, “had this been resolved in discovery, I would have asked this Court to recuse itself because of prior contacts with the defendant which I think is the proper procedure at that point.” (T.T. at 238).

The learned trial judge rejected this allegation of prejudice and stated:

THE COURT: In a county this size when we have the case load that we have [we] just [have] to accommodate—
MR. RADOYCIS: It’s not a matter of accommodation, Judge.
THE COURT: I had no recollection of this. I didn’t know about it. I didn’t know anything about it. I still have no recollection even though I have the papers here. I recognize my signature on that one and that is — that’s the way it is.

(T.T. at 238).

“Evidence that the trial judge has presided over an earlier trial involving the same defendant is not, in itself, sufficient evidence of prejudice, nor does it switch to the Commonwealth the burden of proving the judge’s incessant impartiality.” Commonwealth v. Edney, 318 Pa.Super. 362, 464 A.2d 1386 (1983); See also Commonwealth v. McQuaid, 273 Pa.Super. 600, 417 A.2d 1210 (1980); Commonwealth v. Conrad, 241 Pa.Super. 324, 361 A.2d 421 (1976). The appellant made no other allegations of bias or prejudice. Thus, the recusal argument was without merit, as the only prejudice alleged was inadequate as a matter of law to warrant recusal.

Finally, the appellant alleges in his brief to this Court that “the defense was placed at a tactical disadvantage in that it had presented several witnesses based upon the conclusion that Mr. Duffy could not be impeached by a prior record because he had no prior record.” (Appellant’s Brief at 12). We reject the appellant’s cryptic allegation of “tactical disadvantage.”

The Commonwealth had three eyewitnesses to the crime. Additionally, they presented testimony from four police officers, a criminologist, and a pathologist from the coroner’s office. Succinctly, the Commonwealth had ample evidence to put the appellant at the scene of the crime, put the gun in his hand and establish a gunshot wound as the cause of death. Janice McCowen testified, “Rudy was on the ground, Duffy had picked up the gun; he shot him.” (T.T. at 53). Mark Shields testified that Duffy picked up the gun, that the gun was about a foot from Ryders head, and that after the shot the gun was in Duffy’s hand. (T.T. at 126-128). Barbara Russel testified, “Bernie [Duffy] picked the gun up and he pointed it to Rudy’s temple; and then he said, “I will blow your fucking brains out.” (T.T. at 91).

The appellant’s theory of the case from the outset was that the gun discharged by accident as the appellant lunged for the gun to prevent Ryder from recovering control of it. This theory could be seen as plausibly consistent with all but Barbara Russel’s testimony. All the witnesses testified that the last critical events occurred in seconds, and admitted some confusion. Only Barbara Russel testified that she saw the appellant actually pick up the gun, point, threaten, and fire.

With or without the prior record impeachment evidence it was necessary for the appellant to call both witnesses who testified prior to the Bighum hearing. John Duffy, the appellant’s brother, testified that Barbara Russel had admitted to him that she was not certain that the appellant had actually said, “I will blow your fucking brains out.” (T.T. at 209). Dennis O’Hare testified that the fatal shot occurred five seconds after Ryder was knocked down and that everything was in a state of confusion. (T.T. at 194, 200). This evidence was necessary to rebut Barbara Russel’s testimony whether or not the appellant chose to testify-

We fail to see, and the appellant has failed to indicate, how the trial tactics might have been altered had appellant’s counsel known of the prior record evidence before the witnesses had testified. Thus, the appellant failed to identify any prejudice resulting from the absence of a pre-trial Bighum hearing for the court to consider in determining whether the probative value of the prior conviction evidence outweighed its prejudicial effects.

We note that the appellant has presented no argument as to the admissibility of the prior record evidence under the balancing test for admissibility announced in Bighum, supra, and refined in Roots, supra. Nevertheless, we have reviewed the record and find that evidence of the prior crimen falsi conviction was properly admissible under Big-hum, Roots, and their progeny.

The prior conviction was for a theft offense, thus necessarily it reflected upon the defendant’s veracity. The current charge was for homicide, hence the offenses were fundamentally distinct and there was little risk of an improper inference of a propensity to commit the crime charged. Nor was the prior record extensive or otherwise inflammatory. The appellant committed the offense when he was eighteen years old, an adult in the eyes of the law. The prior offense was not stale, having been committed approximately six years prior to trial.

The Commonwealth’s case was not overwhelming. Although the Commonwealth presented testimony from several witnesses, only Barbara Russel could establish the critical element of intent. Moreover, the defense was able to damage her credibility both on cross-examination and with its own witness. Consequently, credibility was a crucial issue at trial. Finally, the Commonwealth had no adequate alternative means of impeachment. Although the defendant initially denied any knowledge of the incident to the police, his story once he began talking was consistent with his theory at trial. Under these circumstances we find no abuse of the trial court’s discretion.

Thus, we find no unfair surprise, no prejudice caused by the absence of a pretrial hearing, no grounds to exclude the evidence under the Roots test, and therefore, no merit in the appellant’s second contention on appeal.

The appellant next contends that the trial court erred in failing to give a requested charge on Homicide by Accidental Misadventure. Prior to the charge of the jury, defense counsel submitted standard jury instruction 15.250(d) pertaining to Homicide by Accidental Misadventure. The court rejected the offered instruction and substituted its own language. (Transcript of the Jury Charge at 28). Defense counsel did not object at the conclusion of the charge, nor later, when the jury returned for clarification of the charge. (T.J.C. at 43-52).

Upon review we find that the evidence did not support the requested charge. Homicide by Accidental Misadventure requires that the act which causes death must be: 1) lawful; 2) done with reasonable care and due regard for the lives of others; and 3) an accident without design or intent. See Commonwealth v. Jackson, 464 Pa. 292, 346 A.2d 746 (1975). Accepting the appellant’s version of the facts as true, he is still not entitled to the requested charge. The act of lunging for a loaded gun is not one which is done with reasonable care and due regard for the lives of others. Hence, the appellant was not entitled to the charge. Furthermore, the jury charge, as a whole, fairly indicates that the prosecution had the burden to prove beyond a reasonable doubt that the shooting was not accidental. Consequently, we find the appellant’s third contention on appeal to be without merit.

Next, the appellant contends that the evidence was not sufficient to sustain either the Voluntary Manslaughter conviction or the conviction for Firearm Not to be Carried Without a License. We cannot agree.

In reviewing the evidence to support a conviction, the evidence must be viewed in the light most favorable to the Commonwealth. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984), cert. denied, 469 U.S. 963, 105 S.Ct. 361, 83 L.Ed.2d 297 (1984). The Commonwealth is entitled to the benefit of all favorable inferences to be drawn from the evidence. Commonwealth v. Santiago, 476 Pa. 340, 382 A.2d 1200 (1978).

“It is solely the province of the trier of fact to pass upon the credibility of witnesses, and to give it such weight as may be accorded to the evidence therein produced. The factfinder is free to reject a contention of accident or self-defense in favor of testimonial or circumstantial evidence to the contrary. See Commonwealth v. Phillips, 269 Pa.Super. 537, 410 A.2d 832 (1978); Commonwealth v. Rambo, 250 Pa.Super. 314, 378 A.2d 953 (1977).

We find that there was sufficient evidence upon which to base the verdicts. Appellant’s argument is based upon the false premise that the trial court was bound to accept his version of the facts in accessing the sufficiency of the evidence. The trial court was not so bound.

The testimony was sufficient to establish that the appellant was seriously provoked by the decedent, Rudy Ryder. Rudy slammed the appellant against the wall of the bar arid later fired three shots at the appellant. Thus, provocation was established.

The testimony was also sufficient to establish that immediately after Ryder was disarmed, the appellant came over, picked up the gun, threatened the decedent, and fired the fatal shot. The evidence was clearly sufficient to support the verdict of guilty as to Voluntary Manslaughter.

Finally, the appellant made the following admissions at trial: “I had the gun wrapped up in a towel;” “I just carried the gun away;” and “... I put the gun in my pants____” (T.T. at 300). The appellant also testified that he placed the gun in his brother-in-law’s car. (T.T. at 288). It was stipulated that the appellant had no license to carry a weapon either concealed on his body or in an automobile. (T.T. at 229). The stipulation and the appellant’s admissions, alone, were sufficient evidence to sustain the verdict of guilty to the charge of Firearms Not be Carried Without a License. Thus, the appellant’s fourth and fifth contentions on appeal are found to be without merit.

For the foregoing reasons, Judgment of Sentence is Affirmed.

      . Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1983).

      . A Bighum hearing was in fact conducted during the trial in each of these cases. In Kearse, the hearing was conducted after the appellant had begun his testimony.

      . We speak, of course, only of those cases where neither side has requested a pre-trial hearing and the issue arises at trial. Where a pre-trial hearing is requested, a hearing must be conducted. See Hill, supra.

      . In fact two witnesses were called for the defense, John Duffy and Dennis O’Hare.

      . We acknowledge the "plausibility" of the theory only in reference to the tactics of trial counsel and imply no endorsement of its merits.

      . Our Supreme Court stated in Roots that in making its determination of the admissibility of prior record evidence the court should consider: 1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecution’s case and the prosecution’s need to resort to the evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant’s credibility. 482 Pa. at 39-40, 393 A.2d at 367.

      . We note that this contention may have been waived by counsel’s failure to renew his initial objection to the trial court’s rejection of the offered instruction at the close of the charge or thereafter when additional instructions were requested by the jury. See Pa.R.Crim.P. 1119(b); Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220 (1981); Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747 (1977); Commonwealth v. Fisher, 342 Pa.Super. 533, 493 A.2d 719 (1985); But See Commonwealth v. Williams, 463 Pa. 370, 344 A.2d 877 (1975); Commonwealth v. Hastings, 301 Pa.Super. 65, 446 A.2d 1337 (1982). However, we decline to resolve this issue on procedural grounds and instead dispose of the contention on its merits.


author: HESTER, Judge:

text:
    512 A.2d 1261
    COMMONWEALTH of Pennsylvania v. James M. WATSON, Appellant.
    Superior Court of Pennsylvania.
    Argued June 3, 1986.
    Filed July 18, 1986.

      Michael J. Healey, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CIRILLO, President Judge, and POPOVICH and HESTER, JJ.
   HESTER, Judge:

This is an appeal from judgment of sentence entered upon appellant’s conviction of third degree murder by a jury. Our review of the numerous issues raised by appellant discloses no error, so we affirm.

This case involves a conspiracy leading to the contract killing of Norman McGregor on December 14, 1978. Eight men were involved in the conspiracy, some of whom were intermediaries who hired Robert Bricker to perform the murder. Bricker enlisted the aid of appellant and another man, Charles Rossi. Three conspirators, including Rossi, were granted immunity and testified for the Commonwealth at appellant’s trial, which was severed from those of the other participants.

Bricker was given a physical description of the victim which he shared with Rossi and appellant, since none of them had ever seen the victim, together with a list of locations frequented by the victim. One of these locations was the Down Under Lounge in Homestead, Pa. On September 3, 1978, appellant shot and injured James Smith at the Down Under Lounge, mistakenly believing him to be McGregor. Two months later, after many nights of lying in wait, appellant shot and killed McGregor in his front yard when he returned home at 3:00 A.M. Later in the day, Bricker told Rossi that appellant had killed McGregor. Following the killing, the final installment of the $10,000 contract price was paid to the murderers.

Appellant has raised seven issues. He claims the trial court erred in: (1) allowing hearsay statements by code-fendant Bricker to witness Rossi into evidence, for (a) such statements were not made during the course of or in furtherance of the conspiracy, and (b) such statements were inadmissible because they violated appellant’s rights under the confrontation clause; (2) denying appellant the opportunity to place codefendant Bricker on the witness stand in the presence of the jury; (3) denying appellant’s request that codefendant Bricker be given use immunity for the purpose of securing his testimony at trial; (4) allowing evidence of appellant’s incarceration on other charges and evidence of his shooting of Smith at the Down Under Lounge; (5) allowing the Commonwealth to question prospective jurors regarding their attitude towards the death penalty and in allowing the Commonwealth to challenge for cause any person irrevocably committed to vote against the death penalty; (6) denying appellant’s demurrer to the charge of criminal homicide, for there was insufficient evidence to support a verdict of murder in the third degree; and (7) refusing appellant’s motion for disclosure of exculpatory information and refusing to review the homicide investigative file in the possession of the Commonwealth in camera to determine if, in fact, it contained exculpatory material.

The first three issues center on trial court rulings pertaining to co-conspirator Bricker. Appellant first objects to admission of Rossi’s testimony that “sometime in the middle of December Mr. Bricker give me a call and he said, and I quote, that Sonny Watson had killed Mr. McGregor.” N.T., 10/5/82, at 425. Appellant denies that the co-conspirator exception to the hearsay rule justifies admission of the statement; he argues that the statement was made following the completion of the conspiracy and was not made in furtherance of the conspiracy. He also argues that, even if admissible as a hearsay exception, the statement lacked sufficient indicia of reliability to satisfy the confrontation clause, primarily because Bricker told other co-conspirators that he shot McGregor.

The Commonwealth argues that Bricker’s statement that appellant had killed McGregor was made both during and in furtherance of the conspiracy, inasmuch as it was made prior to final payment for the crime and was related to securing payment. Furthermore, the statement was sufficiently reliable to satisfy the constitutional requirements of the confrontation clause.

We hold that the trial court was correct in admitting Rossi’s hearsay testimony. In discussing the admissibility of hearsay declarations made during a conspiracy in furtherance of the common design, the supreme court stated the general rule that a conspiracy ends when its principal objective is accomplished. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). The court, however, continued:

But the fact that the “central objective” of the conspiracy has been nominally attained does not preclude the continuance of the conspiracy. Where there is evidence that the conspirators originally agreed to take certain steps after the principal objective of the conspiracy was reached, or evidence from which such an agreement may reasonably be inferred, the conspiracy may be found to continue____ The crucial factor is the necessity for some showing that the later activities were part of the original plan.

Evans, supra, 489 Pa. at 93, 413 A.2d at 1029 (citations omitted). It is clear that payment for the murder was part of the original plan, and the conspiracy did not end until the murder was reported and payment received. We also hold that sufficient indicia of reliability attended the statement to satisfy the confrontation clause as the requirement was recently stated by the Supreme Court. “[T]he Confrontation Clause normally requires a showing that [a hearsay declarant] is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608 (1980). The co-conspirator exception is a well-established exception to the hearsay rule in Pennsylvania. Commonwealth v. Coccioletti, 493 Pa. 103, 111, 425 A.2d 387, 391 (1981).

The second and third issues relate to the availability of Bricker, the declarant of the hearsay statement. Appellant argues that the trial court should have permitted appellant to place Bricker on the witness stand in the presence of the jury so the jury could have heard Bricker invoke his privilege against self-incrimination. As appellant’s brief notes, however, such a procedure is forbidden by Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971), and this court has no authority to ignore the holding in Greene. Appellant’s related argument is that the court erred in refusing to grant use immunity to Bricker in order to secure his testimony. The power to grant immunity upon request of the Commonwealth is derived from 42 Pa.C.S. § 5947(b). Appellant’s precise argument was rejected in Commonwealth v. Johnson, 507 Pa. 27, 29, 487 A.2d 1320, 1321 (1985), wherein the court stated that the trial court “lacked the power to grant use immunity to the defense witness without the consent of the prosecutor.” Again, the supreme court’s holding is binding on this court, as it was on the trial court. Thus, the trial court did not err in refusing to grant immunity to Bricker.

The fourth issue is appellant’s claim that the trial court erred by allowing evidence of other criminal activity by appellant including evidence of incarceration on other charges and evidence of a shooting at the Down Under Lounge. The first objection is to testimony by Commonwealth witness Rossi that after the murder, he saw appellant at the county jail when Rossi was arrested in 1981. N.T., 10/5/82, at 433. No objection was made at the time, but appellant’s counsel moved for a mistrial at the conclusion of Rossi’s direct testimony. He argued that the jury would learn that Rossi was arrested for McGregor’s murder before appellant had been arrested, and that Rossi did not implicate appellant in the murder until after his arrest; the jury would therefore infer that appellant was in jail on unrelated charges when Rossi was arrested. Id. at 436-38. The trial judge denied the mistrial but offered a cautionary instruction, which was declined. Id. Only upon cross-examination by appellant’s counsel did the jury learn that Rossi’s arrest in 1981 preceded appellant’s arrest for the McGregor murder. Id. at 444.

Clear references to prior unrelated criminal activity warrant a mistrial. However:

the Pennsylvania Supreme Court stated in Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979) that “[not] all references which may indicate prior criminal activity warrant reversal.” Mere “passing references” to prior criminal activity do not warrant reversal unless the record illustrates that prejudice resulted from the reference. Ibid. As we stated in Commonwealth v. Colon, 264 Pa.Super. 314, 321-322, 399 A.2d 1068, 1071 (1979), there is “no per se rule requiring a new trial from every reference [to prior criminal conduct]. The decision whether to declare a mistrial when faced with these situations is addressed to the sound discretion of the trial judge.”

Commonwealth v. Bowermaster, 297 Pa.Super. 444, 451, 444 A.2d 115, 118 (1982). In this case the testimony was that Rossi saw appellant “at the County Jail when they arrested me.” N.T., 10/5/82, at 433. It was not clear that appellant was incarcerated, or if he were, that it was on unrelated charges. It was not until the following week of trial, during Rossi’s cross-examination by appellant’s counsel, that Rossi testified that he did not implicate appellant in the conspiracy until after his own arrest for the murder. Id. at 444. The trial court held that the implied reference to unrelated criminal activity was too tenuous to warrant a mistrial. Slip op., 12/19/86, at 15-16. We agree, particularly in view of the facts that no timely objection was made nor was a cautionary instruction requested, which might “have only exaggerated a very minor problem.” Commonwealth v. Bowermaster, supra, 297 Pa.Super. at 452, 444 A.2d at 119; Commonwealth v. Jackson, 248 Pa.Super. 420, 425, 875 A.2d 168, 170 (1977).

Appellant also objects to the testimony regarding his mistaken shooting of Smith at the Down Under Lounge two months before the killing of McGregor. A well-established exception to the rule against prior criminal activity permits such evidence to prove motive, intent, a mode of operation or a common scheme. Commonwealth v. Peterson, 453 Pa. 187, 197-98, 307 A.2d 264, 269 (1973); Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984). Evidence of the prior shooting was clearly relevant to establish specific intent to kill, the mode of operation and that it was part of-the conspirators’ common scheme. There was no error in the admission of this evidence.

Appellant’s fifth argument is that the trial court erred in permitting potential jurors to be stricken for cause if they were irrevocably committed to vote against the death penalty. The argument is definitively foreclosed by the Supreme Court’s holding in Lockhart v. McCree, — U.S. —, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

Appellant’s sixth argument is that the trial court erred in denying his demurrer to the charge of criminal homicide and that there was insufficient evidence to support a verdict of third degree murder. When a defendant does not rest following denial of a demurrer, but instead presents a defense, the correctness of the ruling on the demurrer is not preserved for appellate review; the proper procedure is to challenge the sufficiency of the evidence. Commonwealth v. Beckham, 349 Pa.Super. 430, 435, 503 A.2d 443, 445 (1986). Appellant’s boilerplate attack on the sufficiency of the evidence would be proscribed under Commonwealth v. Holmes, 315 Pa.Super. 256, 259-60, 461 A.2d 1268, 1274 (1983), but appellant’s post-verdict motions were filed prior to the decision in Holmes and therefore suffice to preserve this issue for review.

In evaluating the sufficiency of the evidence to support a conviction, “we view the evidence in the light most favorable to the Commonwealth and, drawing all reasonable inferences therefrom favorable to the Commonwealth, determine if there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.” Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718 (1984). Appellant challenges the inconsistencies in the Commonwealth’s evidence — notably, Bricker’s statements that he shot McGregor vis-a-vis his statement to Rossi that appellant shot McGregor. Appellant also alleges the third degree murder verdict is a compromise verdict due to the absence of facts which would have specifically allowed for a reduction of the grading of the homicide to third degree murder.

The jury, passing on the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 539 (1979). Bricker’s claim to have shot McGregor was explained as an attempt to maintain his personal reputation as a contract killer without giving credit to someone else he hired to commit the killing. N.T., 10/5/82, at 433, 814. This explanation reasonably accounts for Bricker’s inconsistent statements and certainly justifies the jury’s possible conclusion that appellant shot McGregor. Under the standards set forth in Stoyko, supra, and Harper, supra, the Commonwealth presented sufficient evidence to support a verdict of first degree murder or third degree murder. Third degree murder is a lesser included offense of first degree murder, Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977), and evidence sufficient to support a first degree murder conviction is, a fortiori, sufficient to support a verdict of third degree murder.

Appellant’s seventh and final argument is that the court committed a Brady violation by refusing his motion for disclosure of exculpatory information and by failing to conduct an in camera inspection of the Commonwealth’s investigative file. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). “An in camera inspection of the Commonwealth’s file is not required unless there is reason to believe that evidence favorable to the defense will be revealed.” Commonwealth v. Colson, 507 Pa. 440, 462, 490 A.2d 811, 822 (1985). Furthermore, “[e]xculpatory evidence is that which extrinsically tends to establish defendant’s innocence of the crimes charged, as differentiated from that which, although favorable, is merely collateral or impeaching.” Commonwealth v. Hicks, 270 Pa.Super. 546, 550, 411 A.2d 1220, 1222 (1979). Appellant points to no evidence which approaches this definition of exculpatory material and advances no reason to justify an in camera inspection of the Commonwealth file. Accordingly, we hold that no Brady violation occurred.

Having rejected all of appellant’s arguments, we affirm his judgment of sentence.


author: WIEAND, Judge:

text:
    512 A.2d 1266
    Rita KORN, Appellant, v. CONSOLIDATED RAIL CORPORATION and Bernard Kirshbaum, Appellees. Rita KORN v. CONSOLIDATED RAIL CORPORATION and Bernard Kirshbaum. Appeal of CONSOLIDATED RAIL CORPORATION.
    Superior Court of Pennsylvania.
    Argued April 9, 1986.
    Filed July 22, 1986.

      Sarah M. Thompson, Philadelphia, for appellant (at 2202) and appellee (at 2375).
    Marilyn Monaco, Broomall, for appellee (at 2202) and appellant (at 2375).

      Before CIRILLO, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

The principal issue in this appeal is whether a non-settling defendant whose causal negligence has been found to be 35% should be required to pay Rule 238 damages on the total amount of damages awarded to the plaintiff or only upon the portion thereof which the non-settling defendant is required to pay. The trial court determined the amount of the delay damages by reference to the portion of the award which the non-settling defendant was required to pay. We affirm.

On June 7, 1978, Rita Korn was injured when the automobile in which she was riding as a passenger collided with a train owned and operated by Consolidated Rail Corporation (Conrail). She filed an action in trespass against Conrail and also against Dr. Bernard Kirshbaum, who was the driver of the automobile in which she was riding. The claim against Dr. Kirshbaum was settled prior to trial. On June 11, 1985, a jury returned a verdict finding Kirshbaum’s negligence to be 65% and Conrail’s negligence to be 35%. The jury awarded damages to Korn in the amount of $150,000, of which Conrail’s proportionate share was $52,-500. Korn filed a petition in the trial court requesting that delay damages be awarded against Conrail on the entire amount of the damages as found by the jury. The trial court denied the request and directed Conrail to pay delay damages on the proportionate part of the verdict which it was required to pay. Korn appealed.

Rule 238 of the Pennsylvania Rules of Civil Procedure provides:

(a) Except as otherwise provided in subdivision (e), in an action seeking monetary relief for bodily injury ... the court ... shall
(1) add to the amount of compensatory damages ... in the verdict of a jury ... damages for delay at ten (10) percent per annum, not compounded, which shall become part of the ... verdict ...
(c) Except as provided in subdivision (e), damages for delay shall be added to the ... verdict ... against all defendants found liable____
(e) If a defendant at any time prior to trial makes a written offer of settlement in a specified sum with prompt cash payment to the plaintiff and continues that offer in effect until commencement of trial, but the offer is not accepted and the plaintiff does not recover by ... verdict ..., exclusive of damages for delay, more than 125 percent of the offer, the court ... shall not award damages for delay for the period after the date the offer was made.

The primary purpose of this rule is to encourage pre-trial settlements, thereby lessening congestion in the courts. See: Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 59, 436 A.2d 147, 151 (1981); Hawthorne v. Dravo Corp., 352 Pa.Super. 359, 378, 508 A.2d 298, 308 (1986); Richardson v. LaBuz, 81 Pa.Cmwlth. 436, 458, 474 A.2d 1181, 1196 (1984). See also: Rocco v. Johns-Manville Corp., 754 F.2d 110, 118 (3d Cir.1985); Barris v. Bob’s Drag Chutes & Safety Equipment, 717 F.2d 52, 56 (3d Cir.1983). A secondary purpose of the rule is to award plaintiff compensation for the delay in receiving funds to which he or she is entitled. An award of delay damages “serves to compensate the plaintiff for the inability to use funds rightfully due him____” Laudenberger v. Port Authority of Allegheny County, supra, 496 Pa. at 59, 436 A.2d at 151; Greenspan v. United Services Automobile Association, 324 Pa.Super. 315, 323, 471 A.2d 856, 860 (1984).

In Baciotti v. Simmons, 346 Pa.Super. 23, 498 A.2d 1351 (1985), this Court was required to apply Pa.R.C.P. 238 to a verdict against joint tortfeasors where one of them had settled prior to trial and had taken a joint tortfeasor’s release. We there held, inter alia, as follows:

The total verdict recovered by [the plaintiff] ... must be apportioned in the same manner in which the jury apportioned liability. “It would be unrealistic to require each defendant to offer nearly the full amount of damages ultimately recovered in an action, where the amount finally attributed to each defendant is only a percentage of the total [verdict]____” Richardson v. LaBuz, 81 Pa.Cmwlth. 436, 458, 474 A.2d 1181, 1196 (1984). Thus, the liability of [the non-settling defendant] is computed on ... the proportionate part of the total verdict assessed against the [non-settling defendant]

Id., 346 Pa.Superior Ct. at 29-30, 498 A.2d at 1354 (emphasis added).

In Rocco v. Johns-Manville Corp., supra, the Court of Appeals was faced with precisely the same issue presented in the instant case. The Court of Appeals concluded that neither purpose of Rule 238 would be furthered by requiring a non-settling defendant to pay delay damages based on more than its proportionate share of the verdict. With regard to the secondary purpose of compensating plaintiff for the delay in receiving money to which he or she was entitled, the Court said: “It would be anomalous to award a plaintiff delay damages on money already received from the settling defendants. This would clearly represent a windfall not supported by any reasonable interpretation of the rule.” Rocco v. Johns-Manville Corp., supra at 118. With respect to the other purpose for the rule, the Court observed that settlements would not be encouraged by penalizing a non-settling defendant for more than its share of ultimate liability. Id. The Court held that delay damages could properly be assessed against a non-settling defendant only for its proportionate share of the verdict. Id.

The trial court applied Rule 238 in the instant case consistently with the decided cases. This was the only fair and reasonable way in which the rule could be applied in cases such as this where liability was apportioned among multiple defendants. The determination of the trial court, therefore, will be affirmed.

In a separate appeal, Conrail contends (1) that the trial court abused its discretion when it denied Conrad’s “motion for judgment non obstante veredicto nunc pro tunc” without considering the alleged absence of “compelling evidence of negligence”; and (2) that the trial court erred when it permitted a witness to testify as an expert regarding the safe placing of railroad crossing devices. These issues, however, have not been preserved for appellate review.

Before the case was submitted to the jury, Conrail did not request a directed verdict. Moreover, after the verdict, Conrail did not file a motion for post-trial relief within ten days. On June 26, 1985, fifteen days after the verdict, Conrail filed a “motion for judgment non obstante veredicto nunc pro tunc.” At no time did it file a posttrial request for a new trial.

Pa.R.C.P. 227.1(c) requires that a post-trial motion be filed within ten days after the verdict. Conrail concedes that its post-trial motion was not filed within the time constraints of this rule. In the absence of adequate explanation for its failure to file a timely post-trial motion, the trial court refused to consider its motion for judgment n.o.v. nunc pro tunc. We perceive therein no abuse of discretion. See: Stokes v. Thiemann, 296 Pa.Super. 112, 442 A.2d 322 (1982).

Similarly, Conrad’s contention that the trial court erred by permitting expert testimony regarding the proper placement of crossing gates has been waived. This argument, if meritorious, would have required a new trial. Conrail concedes that it did not file a motion for new trial. A review of its motion for judgment n.o.v. nunc pro tunc, moreover, reveals that this issue was not raised in any manner in that motion. This issue, in short, was not raised post-trial in the trial court and is being argued for the first time on appeal. Where an evidentiary ruling has not been properly preserved in the trial court, an appellate court will not consider the ruling for the first time on appeal. See: Pa.R.C.P. 227.1(b)(2); Horton v. Appleby, 333 Pa.Super. 375, 482 A.2d 615 (1984); Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 473 A.2d 584 (1984); Durkin v. Equine Clinics, Inc., 313 Pa.Super. 75, 459 A.2d 417 (1983).

Finding no basis for disturbing the judgment entered in the trial court, the same is affirmed.

      . Pa.R.C.P. 238.


author:
WIEAND, Judge:
      BECK, Judge,

text:
    512 A.2d 1270
    COMMONWEALTH of Pennsylvania, Appellant, v. Ralph Isreal CRUZ, Appellee.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1986.
    Filed July 22, 1986.

      Joseph Giebus, Wilkes-Barre, Assistant District Attorney, for Com., appellant.
    Joseph J. Yeager, Assistant Public Defender, Wilkes-Barre, for appellee.
    Before WIEAND, MONTEMURO and BECK, JJ.
   WIEAND, Judge:

This is an appeal by the Commonwealth from an order sustaining a defense demurrer to a charge that Ralph Isreal Cruz had escaped on June 12, 1973 by failing to return to the State Correctional Institution at Dallas after a home furlough. The trial court sustained the demurrer and dismissed the charge because the information, on its face, failed to disclose that the applicable statute of limitations had been tolled.

The issue presented by this appeal is one of law. The trial court sustained the defense demurrer for reasons which did not pertain in any way to the guilt or innocence of the accused. Such an order is appealable by the Commonwealth. See: United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978).

The evidence at trial established that after Cruz had failed to return to the prison at the end of his furlough, a warrant for his arrest was issued on June 15, 1973. Cruz, upon leaving the prison at the start of his furlough, trav-elled to Chester where he stayed for a period of two days. He then borrowed money to buy an airline ticket and flew to Puerto Rico. There, he lived with his mother for approximately four years, after which he moved into the home of and lived with a woman who bore him two children. On December 20, 1984, he flew to Chicago where, on or about April 15, 1985, he was taken into custody by the Chicago police. A complaint charging Cruz with escape was thereafter signed, an arrest warrant was issued, and he was returned to Pennsylvania. An information charging him with escape was filed on June 11, 1985.

A prosecution for the offense of escape must be commenced within two years after its commission. 42 Pa.C. S.A. § 5552(a). “[A] prosecution is commenced either when an indictment is found or an information under § 8931(b) is issued, or when a warrant, summons or citation is issued, if such warrant, summons or citation is executed without reasonable delay.” 42 Pa.C.S.A. § 5552(e). The period of limitation, however, does not run while “the accused is continuously absent from this Commonwealth or has no reasonably ascertainable place of abode or work within this Commonwealth[.]” 42 Pa.C.S.A. § 5554(1).

The evidence offered by the Commonwealth in this case was clearly sufficient to establish a tolling of the statute from June 12, 1973 until April 15, 1985. It would seem, therefore, that the trial court’s order sustaining a defense demurrer to the evidence on grounds that prosecution was time barred was in error.

The trial court suggests, however, that the information was defective because it failed to contain averments of fact sufficient to show a tolling of the statute of limitations. “The fact that the Commonwealth did not allege in the [information] that it would seek to toll the statute of limitations is of no consequence [if] there was no prejudice to the appellant____ As long as a defendant, some reasonable time before trial, is appraised that the Commonwealth will seek to toll the statute of limitations, the due process requirements of notice are met.” Commonwealth v. Stock-ard, 489 Pa. 209, 217-218, 413 A.2d 1088, 1092 (1980).

In the instant case, it is clear that appellant was not prejudiced by the failure of the Commonwealth to allege in the information that it would seek to toll the statute of limitations. He was fully aware of the facts relied on by the Commonwealth. Indeed, they were recited in the affidavit submitted in support of the request for an arrest warrant. See: Commonwealth v. Stockard, supra.

Moreover and in any event, the failure of the Commonwealth to allege in the information the exception upon which it was relying to toll the statute of limitations was waived by appellant’s failure to raise it pre-trial. A challenge to the legitimacy of an information must be raised pre-trial. See: Pa.R.Crim.P. 306, 9020. A failure to state a ground for attacking the information in a pre-trial motion to quash results in a waiver of that ground. It will not be considered for the first time after a not guilty plea has been entered and a jury sworn. See: Commonwealth v. Gemelli, 326 Pa.Super. 388, 397-398, 474 A.2d 294, 299 (1984); Commonwealth v. Kimble, 323 Pa.Super. 499, 510, 470 A.2d 1369, 1375 (1984); Commonwealth v. Emmel, 194 Pa.Super. 441, 448, 168 A.2d 609, 612 (1961). See also: Commonwealth v. Williams, 252 Pa.Super. 587, 588, 384 A.2d 935, 935-936 (1978). An alleged defect in the information cannot properly be raised by a demurrer to the evidence at the conclusion of the Commonwealth’s evidence. When the trial court sustained a defense demurrer in this case because of the Commonwealth’s failure to allege in the information the grounds on which it would rely to toll the statute of limitations, the court fell into error. This was particularly so in view of the Commonwealth’s trial evidence, received without objection, that appellant had been continuously absent from Pennsylvania after his escape and before his subsequent apprehension in Illinois.

Reversed and remanded for a new trial. Jurisdiction is not retained.

BECK, J., files a concurring and dissenting opinion.

BECK, Judge,

concurring and dissenting:

I concur and agree with the majority that Cruz waived his objection to any defect in the information when he did not raise that objection pre-trial. Pa.R.Crim.P. 306, 9020(d).

The majority does not limit the basis of its decision to waiver. Instead it concludes that the trial court erred when, at the close of evidence, it granted a defense motion to dismiss the information.

I would find waiver alone sufficient to support reversal. I, therefore, conclude that the majority’s explication of the substantive law of this case is dicta. I, however, respond to the majority’s discussion of the substantive issue.

The majority holds that the absence of an averment in the information that the Commonwealth was seeking to toll the statute of limitations did not warrant a dismissal, relying on Commonwealth v. Stockard, 489 Pa. 209, 217-18, 413 A.2d 1088, 1092 (1980). Until Stockard, the rule in Pennsylvania was that “[wjhere the Commonwealth seeks to toll the statute of limitations by establishing one of the enumerated exceptions, it must allege the exception in the indictment. The purpose of this rule is ‘to apprise the defendant that he must defend not only against the crime itself but also against the limitation of prosecution.’ ” Id. (quoting Commonwealth v. Bender, 251 Pa.Super. 454, 459, 380 A.2d 868, 870 (1977)).

In Stockard, notice of the Commonwealth’s intent to toll the statute of limitations was not in the information, but was in Commonwealth’s answer to defendant’s motion to dismiss the complaint. Moreover, the issue was contested at a pre-trial hearing on the motion. The Stockard court held that the facts in the case constituted sufficient notice to defendant; the notice requirement was satisfied because the defendant was informed in an official document that the Commonwealth sought to toll the statute “some reasonable time before trial.” Id. 489 Pa. at 217-18, 413 A.2d at 1092-93.

The case sub judice is distinguishable from Stockard, and I would conclude the notice requirement was not met. The majority states that Cruz “was fully aware of the facts relied on by the Commonwealth. Indeed, they were recited in the affidavit submitted in support of the request for an arrest warrant.” Maj. Opinion at 180. I would find that this is not sufficient notice for two reasons. First, an affidavit in support of an arrest warrant is not sufficient to give a defendant pre-trial notice, because there is no guarantee that the defendant will see the affidavit. An answer to a defense motion, as in Stockard, is routinely transmitted to defense counsel. In the normal course of events defense counsel does not receive a copy of the arrest warrant affidavit. Second, in the case sub judice the affidavit merely recites the dates of Cruz’s escape in 1973 and his arrest in Chicago in 1985, along with the efforts of law enforcement officials to find him in the interim. These facts, even if Cruz was aware of them independently, did not give specific notice before trial that the Commonwealth intended to allege an exception which would toll the statute of limitations. Stockard requires more than simply that a defendant be aware of the facts on which the Commonwealth might base an allegation; it holds that due process requires pre-trial notice that the Commonwealth will allege the exception. Without that specific notice, in a document which the defendant will receive, the defendant is denied his due process right to an opportunity to defend against the allegation.

I would reverse solely on the basis that the trial court erred in not finding that Cruz waived his objection to the information at trial. I therefore join only that part of the majority opinion that relates to waiver. Maj. op. at 179-180. I do not join the majority’s discussion of the substantive issue, Maj. op. at 179-181, which amounts to an unwarranted extension of the holding of Stockard.

      . Although there is testimony referring to this warrant, a copy thereof is not a part of the record. We do not rest our decision, therefore, on the early issuance of this warrant. A new warrant for appellant’s arrest was issued upon his apprehension in Chicago in 1985.

      . The provisions of § 5552(a) are similar to the law in effect when Cruz escaped. See: Act of December 6, 1972, P.L. 1482, § 1, 18 Pa.C.S.A. § 108(b)(2), repealed by Act of July 9, 1976, P.L. 586, § 4(a), effective June 27, 1978.

      . This provision is similar to the Act of December 6, 1972, P.L. 1482, § 1, 18 Pa.C.S.A. § 108(e), repealed by Act of July 9, 1976, P.L. 586, § 4(a), effective June 27, 1978.

      . This provision is identical to the Act of December 6, 1972, P.L. 1482, § 1, 18 Pa.C.S.A. § 108(f)(1), repealed by Act of July 9, 1976, P.L. 586, § 4(a), effective June 27, 1978.

      . Cruz’s home furlough commenced on June 6, 1973, and, according to the Commonwealth’s evidence, he absconded to Puerto Rico two days later.

      . The trial court observed correctly that this Court had previously held that "where the Commonwealth seeks to toll the statute of limitations by establishing one of the enumerated exceptions, it must allege the exception in the [information].” Commonwealth v. Bender, 251 Pa.Super. 454, 459, 380 A.2d 868, 870 (1977). See also: Commonwealth v. Cody, 191 Pa.Super. 354, 359, 156 A.2d 620, 623 (1959) (“an indictment is fatally defective which shows on its face that it was found more than two years after the commission of the offense, and fails to allege, that the defendant had not been an inhabitant or usual resident of this State at any time before indictment.’’); Commonwealth v. Creamer, 236 Pa.Super. 168, 345 A.2d 212 (1974). These decisions, however, are at variance with the law as stated by the Supreme Court of Pennsylvania in Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980). Therefore, prior decisions of the Superior Court can no longer be said to reflect the law in this Commonwealth. See also: Commonwealth v. Eackles, 286 Pa.Super. 146, 428 A.2d 614 (1982).

      . See 42 Pa.C.S.A. § 5554 for the enumerated exceptions.

      . The argument that proof of an exception to a statute of limitations at trial satisfies due process has been rejected. See Commonwealth v. Eackles, 286 Pa.Super. 146, 155-56, 428 A.2d 614, 619 (1981).