text:
    539 A.2d 451
    COMMONWEALTH of Pennsylvania, Appellant, v. Diane HAZUR.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1987.
    Filed March 29, 1988.

      Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Com., appellant.
    David R. Lipka, Plymouth, for appellee.
    Before OLSZEWSKI, WATKINS and CERCONE, JJ.
   CERCONE, Judge:

This is a Commonwealth appeal from the order of the lower court of June 26, 1987 finding appellee, Diane Hazur, to be incompetent to stand trial and dismissing the charges of driving under the influence that were filed against her.

Appellee was arrested and charged with driving under the influence in Luzerne County. Trial was scheduled to begin on April 21, 1987. However, on that date appellee’s counsel requested a hearing pursuant to the Mental Health Procedures Act 50 P.S. § 7401 et seq. which provides a procedure for determining a defendant’s competency to stand trial. The court granted appellee’s request and conducted a hearing on the matter. Testimony adduced at the competency hearing from Dr. Thomas Fiume, a psychiatrist, established that appellee was currently under his care for depression. Appellee’s treatment was the result of a suicide attempt precipitated by a divorce and alcohol abuse. Dr. Fiume stated that despite her depression, appellee was a supervising nurse to one hundred twenty patients, cared for her elderly parents, attended church functions and maintained her own home. It was Dr. Fiume’s expert opinion that appellee could assist her attorney in preparing a defense but would not be able to testify in her own behalf as the thought of having to publicly explain her behavior was causing her to mentally break down and her depression to deepen perhaps to the point where she would become suicidal again. Following Dr. Fiume’s testimony the court questioned appellee extensively concerning her comprehension of the charges and her understanding of the procedures that she would go through should her case go to trial. Appellee acknowledged her comprehension of all matters. At the close of the hearing the court continued the proceedings for sixty (60) days, ordered appellee to continue her treatment with Dr. Fiume and ordered that a progress report of her treatment be presented to the court. On June 22, 1987, a second hearing was conducted as to appellee’s competency to stand trial. As before, Dr. Fiume testified that appellee could function socially but when a hearing date approached she became depressed and “decomposed” or broke down by crying or acting distressed. On June 26, 1987 the court issued an order dismissing the charges against appellee and stating that “the Court finds that due to the passage of time and its effect upon the criminal proceedings filed to the above term and number, it would be unjust to resume the prosecution against the defendant, Diane Hazur”. This timely Commonwealth appeal followed.

The Commonwealth seeks review of the following issues: whether appellee established her incompetency to proceed to trial pursuant to 50 P.S. § 7403(a) by clear and convincing evidence and whether the lower court abused its discretion by dismissing the charge against appellee.

The mental competence of an accused is regarded as an absolute and basic condition of a fair trial. See Commonwealth v. Marshall, 456 Pa. 313, 318 A.2d 724 (1974). A defendant asserting mental incompetence to stand trial has the burden of proving incompetency by clear and convincing evidence and the decision as to competency rests within the discretion of the trial judge whose determination will not be reversed unless it is unsupported by the record. See Commonwealth v. Knight, 276 Pa.Super. 348, 419 A.2d 492 (1980). The test for competency is whether the defendant can comprehend his position as one accused of an offense and cooperate with his counsel in making a rational defense. Under this test, a person may be competent to stand trial even if he has a history of mental illness. See Commonwealth v. Tyson, 485 Pa. 344, 402 A.2d 995 (1979); Commonwealth v. Pifer, 284 Pa.Super. 170, 425 A.2d 757 (1981). The Commonwealth maintains that the lower court erred in finding that appellee was not competent to stand trial and was not likely to regain her competence making a continuance of the proceedings unnecessary. In Commonwealth v. Kennedy, 451 Pa. 483, 305 A.2d 890 (1973), the court opined:

[T]he test to be applied in determining the legal sufficiency of his mental capacity to stand trial, or enter a plea at the time involved, is not the M’Naghten ‘right or wrong’ test, but rather his ability to comprehend his position as one accused of murder and to cooperate with his counsel, in making a rational defense ... Or stated another way, did he have sufficient ability at the pertinent time to consult with his lawyers with a reasonable degree of rational understanding and have a rational as well as factual understanding of the proceedings against him.
A man’s right to a fair trial and a meaningful defense strike at the heart of due process of the law. If a defendant is incapable of cooperating with his defense counsel, because of mental illness he cannot take advantage of the basic protections the law affords to all men ... legal counsel is an absolute necessity in a criminal trial, and yet, if a man is provided with counsel, but unable to cooperate with his counsel because of mental illness, the protections which counsel can provide become a nullity.

Id., 451 Pa. at 487-88, 305 A.2d at 892-3 (citations omitted) Thus, a defendant’s history of mental illness does not necessarily preclude his or her ability to stand trial for the test is not the nature of the mental illness but the defendant’s comprehension of the charges filed and ability to cooperate in preparing a defense. See Tyson, supra.

Accordingly, we must review the record for any indication that appellee was unable to comprehend her position as one accused of a crime and was unable to assist her counsel in presenting a rational defense. Appellee, as the moving party, has the burden of establishing incompetency to proceed to trial by clear and convincing evidence. On the record before us we find that appellee has failed to do this.

The testimony of Dr. Fiume, appellee’s psychiatrist, taken at both competency hearings established that appellee suffered from severe depression. As a hearing date in her case approached appellee would “decompose” or break down emotionally by crying and becoming more distressed. Dr. Fiume feared that appellee would possibly try suicide. Appellee’s distress was apparently triggered by her thoughts of having a criminal record if she were convicted and the disgrace she would suffer in her job and the community. But, Dr. Fiume also stated that appellee functioned socially, maintained a responsible job, cared for her elderly parents, maintained her own home, and attended church functions. When questioned as to appellee’s ability to assist with her defense, Dr. Fiume testified that appellee understood the charges lodged against her and was cooperating by assisting her attorney. Moreover, the trial court also questioned appellee as to her comprehension of the charges and the procedures that she would go through should her case proceed to trial. Appellee answered all of the judge’s questions affirmatively.

While we sympathize with the trauma that befalls appellee as a result of her arrest and charge with the crime of driving under the influence, her mental illness does not rise to the level contemplated by section 7403 (a) of the Mental Health Procedures Act. The legal qualifications of incompetency when determining whether a defendant is able to stand trial are not synonymous with those in medicine. Dr. Fiume’s testimony was replete with his medical observations of appellee’s inability to function emotionally during a criminal proceeding but when questioned as to appellee’s comprehension of the charges and ability to cooperate in her defense — the legal test for incompetency — Dr. Fiume acknowledged that appellee was capable of functioning in this manner. Appellee did not demonstrate by clear and convincing evidence her inability to understand the nature and object of the proceedings against her nor an unwillingness or inability to assist with her defense. What appellee did present was a picture of an emotionally distressed but socially functioning defendant. Thus, we hold that the record does not support the lower court’s finding that appellee was not competent to stand trial.

The Commonwealth next submits that the lower court abused its discretion by dismissing the charges against appellee on a finding that due to the passage of time and its effect upon criminal proceedings it would be unjust to resume the prosecution against her. See 50 P.S. § 7403(e). Because of our disposition of the Commonwealth’s first issue that appellee did not establish incompetency to stand trial by clear and convincing evidence, we need not address the second. Dismissal of the charges is only appropriate when a defendant is found incompetent and then regains competency but too much time has lapsed in the interim making it unjust to continue the prosecution. This is not the situation herein.

Accordingly, the charge of driving under the influence is reinstated against appellee and this case is remanded for trial on the merits of the charge. Jurisdiction relinquished.

      . Hearing and determination of Incompetency to proceed; stay of proceedings; dismissal of charges
      (a) Competency Determination and Burden of Proof. The moving party shall have the burden of establishing incompetency to proceed by clear and convincing evidence. The determination shall be made by the court.

      . Section 7403 (e) of the Mental Health Procedures Act reads as follows:
      Resumption of Proceedings or Dismissal — When the court, on its own motion or upon the application of the attorney for the Commonwealth or counsel for the defendant, determines that such person has regained his competence to proceed, the proceedings shall be resumed. If the court is of the opinion that by reason of the passage of time and its effect upon the criminal proceedings it would be unjust to resume the prosecution, the court may dismiss the charge and order the person discharged.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    539 A.2d 454
    COMMONWEALTH of Pennsylvania, Appellant, v. Lynn M. STINE, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 4, 1988.
    Filed March 28, 1988.

      Keith Kendall, Assistant District Attorney, Lewistown, for Com., appellant.
    Lester H. Zimmerman, Jr., Lewistown, for appellee.
    Before CAVANAUGH, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the trial court’s order granting the defendant-appellee’s motion to suppress the results of blood tests performed on appellee. Appellant, the Commonwealth, raises one issue for our review: was the blood test taken in conformity with the “Clinical Laboratory Act”, P.L. 1539, No. 389.

Preliminarily, we note that the Commonwealth may appeal from a trial court’s ruling on a suppression motion when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). The Commonwealth has done so in this case; therefore, the appeal is properly before us. We also note that in reviewing a Commonwealth appeal of a suppression order, we must consider only the evidence of the defendant’s witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983). Furthermore, our scope of appellate review is limited primarily to questions of law. See Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986). We are bound by the suppression court’s findings of fact if those findings are supported by the record. Id. Factual findings wholly lacking in evidence, however, may be rejected. Id.

We now proceed to a review of the instant case. Appellee, Lynn Stine, was charged with operating a motor vehicle under the influence of alcohol. 75 Pa.C.S.A. § 3731. Appellee filed a pre-trial motion for relief asking that the results of the blood test be suppressed on the grounds that the testing was not done at the direction or under the supervision of the hospital clinical laboratory supervisory personnel as required by the regulations issued by the Department of Health.

Chemical testing to determine the amount of alcohol is provided for by 75 Pa.C.S.A. § 1547. Pertinent to the instant case is 75 Pa.C.S.A. § 1547(c)(2), which states:

Chemical tests of blood or urine shall be performed by a clinical laboratory licensed and approved by the Department of Health for this purpose using procedures and equipment prescribed by the Department of Health. For purposes of blood and urine testing, qualified persons means an individual who is authorized to perform those chemical tests under the Act of September 26, 1951 (P.L. 1539, No. 389) known as “The Clinical Laboratory Act”.

The Department of Health regulations provide at 28 Pa. Code § 5.24 the following:

(a) a clinical laboratory technologist shall perform clinical laboratory tests with minimal supervision by the di rector or supervisors, while working in those areas in which he is qualified by education or experience.

(Emphasis Added).

In the case at hand, the technologist who tested the blood was the only person working in the lab at the time appellee was brought in. The technologist worked the 11 p.m. to 7 a.m. shift, a shift which on weekends necessitated the attendance of only one technologist. The technologist testified that she was in charge of the lab; however, if there was a problem with the machine she was to call the chemistry supervisor or if there was a problem of another nature she was to call the pathologist.

The trial court, in applying the Department of Health Regulations, interpreted the term “minimal supervision” according to its ordinary and daily usage and found that it meant the least quantity of critical watching and directing assignable. The trial court also found that the technologist in the instant case, although qualified as a laboratory technologist under the Department of Health Regulations, was not qualified as a supervisor. Since there was no individual qualified as a supervisor overseeing the blood test, the trial court reasoned that the test was not taken in accordance with the Department of Health Regulations and therefore the results of that test must be suppressed.

Our Court has not yet dealt with the specific issue raised by appellant in the instant case. We have, however, twice dealt with the claim that results of a blood test should not be admitted into evidence without calling the technician who performed the test. Commonwealth v. Seville, 266 Pa.Super. 587, 405 A.2d 1262 (1979); Commonwealth v. Karch, 349 Pa.Super. 227, 502 A.2d 1359 (1986). Although our decision to admit the results of the blood tests in the above cases rested upon our conclusion that the results of the tests fell within the business record exception to the hearsay rule, our discussion of the factual situations present in these cases revealed that in both instances the blood test was taken by a technician without direct supervision. Specifically, in Commonwealth v. Seville, testimony given by the Chairman of the Department of Pathology of the hospital where the blood test was administered revealed that he was not present when the blood was drawn. Similarly, in Commonwealth v. Karch, the physician who established the protocol for such laboratory procedures was not present when the blood test was performed. Although not in attendance at the actual taking of the blood tests, both physicians exercised general supervision over such laboratory procedures. An identical situation is presented by the instant case where the blood test was administered by a technologist in the laboratory with a pathologist, although not directly supervising the actual drawing of the blood, available on the premises should a problem arise.

Appellant does not claim in the instant case that the technologist who administered the blood test was not properly qualified or otherwise competent. Neither does appellant challenge the qualifications of the equipment used in analyzing the blood. Finally, appellant does not contend that the results of the blood test are inaccurate. Appellant’s sole argument on appeal is that the technologist performed the test in the absence of a qualified supervisor. The drawing and testing of blood for alcohol content is a matter particularly within the ambit of basic and routine hospital procedure. See Commonwealth v. Seville, supra. We do not believe that such a routine procedure, when performed by a qualified technologist, need be conducted under the direct scrutinization of a supervisor in order to be in accordance with the Department of Health Regulations. Such an interpretation of the Regulations would be overly technical and unmindful of the standardized procedures utilized in the taking and testing of blood for alcohol content. We are of the opinion, therefore, that the requirement of minimal supervision is satisfied as long as there is an individual, qualified under the Department of Health Regulations as a supervisor, available. The order of the trial court suppressing the results of the blood test, in the instant case is reversed. Case remanded for further proceedings. Jurisdiction relinquished.


author: CIRILLO, President Judge:

text:
    539 A.2d 814
    COMMONWEALTH of Pennsylvania v. Gail DENNY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 25, 1987.
    Filed Sept. 25, 1987.
    Reargument Denied Nov. 19, 1987.

      Alan M. Rosen, Philadelphia, for appellant.
    Stuart Suss, Assistant District Attorney, West Chester, for Com., appellee.
    Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas, Chester County.

Appellant Gail Denny was convicted of exceeding the maximum speed as proscribed by 75 Pa.C.S.A. § 3362. Her citation indicated that she had been clocked by a KR-10 radar device as travelling at 69 miles per hour in a 55 mile per hour speed zone. Appellant appealed pursuant to Pa.R. Crim.P. 63(b)(3), and a de novo hearing was held before President Judge Stively on March 19, 1986.

On July 22, 1986, appellant’s post-trial motions were denied. On September 29, 1986, appellant was sentenced in absentia. Appellant was notified of the sentence and her right to appeal within thirty days when she received a letter from the District Attorney’s Office dated November 12, 1986. Denny received this letter on or about November 15. Notice of appeal was filed in this court on December 15, 1986.

We consider the following question on appeal: whether the trial court erred in admitting into evidence a Certificate of Accuracy of a radar speed timing device, where the Commonwealth failed to introduce competent evidence that the issuer of the Certificate was a testing station approved by the Department of Transportation at the time it allegedly tested the radar device in question?

Section 3368(d) of the Vehicle Code provides:

All mechanical, electrical or electronic devices shall be of a type approved by the department, which shall appoint stations for calibrating and testing the devices and may prescribe regulations as to the manner in which calibrations and tests shall be made. The devices shall have been tested for accuracy within a period of 60 days prior to the alleged violation. A certificate from the station showing that the calibration and test were made within the required period, and that the device was accurate, shall be competent and prima facie evidence of those facts in every proceeding in which a violation of this title is charged.

75 Pa.C.S.A. § 3368(d) (emphasis added).

Appellant argues that the case of Commonwealth v. Gernsheimer, 276 Pa.Super. 418, 419 A.2d 528 (1980) is controlling. In Gernsheimer, this court stated:

We hold that in prosecuting speeding cases where a radar or other electronic device is used to calibrate a defendant’s speed that in order to introduce the results of such into evidence the Commonwealth must offer a Certificate, certified by the Secretary of Transportation or his designee certifying the agency which performs the tests on the devices as an official testing station, and must introduce a Certificate of Electronic Device (radar) Accuracy into evidence.

Id., 276 Pa.Superior Ct. at 423, 419 A.2d at 530.

In the instant case, the trial court did not find Gernsheimer to be controlling, stating, “the Gernsheimer court did not squarely address the issue with which we are presented and we are therefore under no obligation to follow its recommendations.” In Gernsheimer, appellant was convicted of speeding. On appeal, the issue raised was whether the trial court improperly admitted the Certificate of Accuracy because the certificate did not contain an official seal on its face.

In Gernsheimer, the Commonwealth introduced two exhibits: (1) a certificate from the Secretary of Transportation under seal appointing York Corporation as an official testing station, and (2) a certificate of accuracy, signed by both the person who calibrated the device and the person in charge of the testing station. The latter certificate was at issue, and the appellant contended it should not have been admitted into evidence because it did not contain an official seal and the officer who testified at appellant’s hearing had not performed the tests nor was he present during its testing. Gernsheimer, 276 Pa.Super. at 422-23, 419 A.2d at 530. The Gernsheimer court held that an official seal was not needed for admissibility, stating that “[tjhere is nothing in [75 Pa.C.S.A. § 3368(d)] which requires that a seal appear on the Certificate of Electronic Device Accuracy.” Id., 276 Pa.Superior Ct. at 423, 419 A.2d at 530.

The trial court in the instant case thus concluded that since the language in Gernsheimer went beyond the particular issue raised and was not applicable to the particular facts in Gernsheimer’s case, it is obiter dictum. See In re Estate of Pew, 411 Pa. 96, 103, 191 A.2d 399, 404 (1963) (what is actually decided and controlling is the law applicable to the particular facts of that particular case and while all other statements and conclusions therein are entitled to great consideration, they are not controlling).

The language in Gernsheimer clearly went beyond the specific issue raised. However, this court has twice restated this “dictum” as setting forth the requirements of 75 Pa.C.S.A. § 3368(d). See Commonwealth v. Cummings, 338 Pa.Super. 149, 487 A.2d 897 (1985); Commonwealth v. Gussey, 319 Pa.Super. 398, 466 A.2d 219 (1983).

In Cummings, the sole issue on appeal was whether in a prosecution for exceeding the maximum speed limit, the Commonwealth may enter into evidence a photocopy of the certificate of accuracy required by 75 Pa.C.S.A. § 3368(d). The court held a photocopy of the certificate was not admissible into evidence because it could not be authenticated. In Gussey, the issue on appeal was whether the certificate of accuracy was improperly admitted over objection because the date was typed in instead of written by hand, and the Commonwealth did not call the party who executed the certificate to verify the date of execution. The court found no error, holding that “the Commonwealth can utilize any means to fill in the ‘certificate of accuracy,’ i.e., by typing or hand-writing the required data, except for the signatures of the certifying personnel.” Gussey, 319 Pa. Super, at 409, 466 A.2d at 225.

Like Gernsheimer, neither of these cases address the specific issue before us: whether the Commonwealth offered competent evidence that the certificate of accuracy was prepared by a testing station appointed by the Department of Transportation. See 75 Pa.C.S.A. § 3368(d). Thus, the trial court was correct in its finding that the dictum in Gernsheimer, as well as its reiteration in Cummings and Gussey, is not binding precedent.

The confusion in establishing a proper foundation for the admission of a certificate of accuracy pursuant to § 3368 is evident from our review of the record. The Commonwealth relies on the certificate of accuracy itself as proof that Thomas Associates has been designated an official testing station, arguing that “the court properly took judicial notice of the fact that ... the testing station, Thomas Associates, Inc., is an approved testing station since those facts appear in numerous publications of the Pennsylvania Bulletin.”

This argument, however, is misleading. It is true that the trial court is required to take judicial notice of this fact pursuant to the Commonwealth Documents Law, 45 P.S. §§ 1501 and 1506 (1986 special Pamphlet). But the trial court specifically stated:

“We are not considering any entry in the Pennsylvania Bulletin because that was not properly before us ... having been raised long after the evidence of the Commonwealth had closed in this case. So we are not relying on that. We are relying on a reading of [the statute] and a fair appraisal of [the certificate of accuracy].”

A certificate of accuracy, if properly authenticated, is evidence of the fact that the radar device has been calibrated and tested pursuant to the requirements of § 3368(d). Section 3368(d) provides that the “department shall appoint stations for calibrating and testing.” Thus, in order to meet the statutory requirements, the Commonwealth must show that the testing station was appointed by the Department of Transportation. Evidence, independent of the certificate itself, is necessary to prove this. A certificate of accuracy, issued by Thomas Associates, which merely states that Thomas Associates has been designated an official testing station, signed by David A. Thomas, is insufficient. We agree with appellant that an employee of the testing center cannot attest to the fact that the testing station has been appointed by the Department of Transportation as an official testing station.

Although the dictum in Gernsheimer is not controlling, it is entitled to great consideration. In re Estate of Pew, 411 Pa. at 103, 191 A.2d at 404. In light of the confusion in this case, we find the foundational requirements clarified in Gernsheimer to be particularly helpful. In Gernsheimer, the Commonwealth introduced a separate document from the Secretary of Transportation under seal appointing York Corporation as an official testing station. We recognize the inefficiency of requiring this type of document in the prosecution of such cases, and at the same time recognize the utility of the listings in the Pennsylvania Bulletin.

We therefore hold that in order for results of a radar device to be properly admissible at trial, the Commonwealth must offer evidence, independent of the certificate of accuracy, to show that the testing facility has been appointed by the Department of Transportation as an official testing station pursuant to the requirements of section 3368(d) of the Vehicle Code. This independent evidence may consist of either a separate document from the Secretary of Transportation under seal or a citation to the Pennsylvania Bulletin which lists the station as an official testing station.

Judgment of sentence vacated.

      . We note that the Commonwealth also requested the court to take judicial notice of the testing stations listed in the Pennsylvania Bulletin prior to the close of its case, though the court made no specific ruling on this request.


author: TAMILIA, Judge:

text:
    539 A.2d 817
    COMMONWEALTH of Pennsylvania v. Albert Shonk DUNGAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1987.
    Filed Feb. 11, 1988.
    Reargument Denied April 8, 1988.

      S.R. Zimmerman, III, Lancaster, for appellant.
    Cheryl A. Ondechek, Assistant District Attorney, Lancaster, for Com., appellee.
    Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

This appeal is from judgment of sentence imposed following appellant’s conviction by a jury of five counts of homicide by vehicle (75 Pa.C.S. § 3732), five counts of homicide by vehicle while driving under the influence (75 Pa.C.S. § 3735) and two counts of driving under the influence of alcohol (75 Pa.C.S. § 3731(a)(1), (4)).

The charges arose out of a tragic accident that occurred April 9,1984, in which two persons in the van appellant was driving, and three persons in one of the vehicles he struck, were killed. Eyewitnesses provided information that appellant drove his van at a high rate of speed through the intersection of Pennsylvania routes 441 and 23 colliding with the car in which three persons were killed. The van immediately burst into flames, turned over on its side and collided with a second car, the driver of which was injured. The three victims in the first car were killed instantly. A fourth passenger, trapped in the automobile, was subsequently removed by emergency personnel. The van’s passengers were thrown from the vehicle; the body of one victim was found underneath the second car struck in the accident; another victim was found on the roadway adjacent to the undercarriage of the van; appellant’s wife, Lauren Dungan, who survived, was found on the far side of the car which was initially struck by the van. Appellant was initially found by a witness to the accident partially in and partially out of the space where the windshield had been; this witness dragged appellant to the roadway where he was found by emergency personnel.

Appellant was transported to a hospital in Lancaster where a quantity of blood was drawn pursuant to the hospital’s routine concerning trauma patients. This blood was tested for alcohol content and eventually admitted into evidence at trial. Charges were subsequently filed against appellant.

On April 10, 1984, appellant’s wife, while a patient in the intensive care unit at St. Joseph Hospital, was interviewed by the Chief of the Marietta Borough Police Department. At trial, appellant’s wife, over objection, was called as a witness by the Commonwealth to testify as to her statements given to the Chief of Police and her recollection at the time of the trial as to the circumstances of the accident and in particular the identity of the driver of the van.

At a jury trial which concluded on July 15, 1985, the jury returned a verdict of guilty on all counts. On July 24, 1985, appellant filed a motion for a new trial and motion in arrest of judgment. The post-verdict motions were denied by the trial court on December 4, 1986, and a presentence investigation was prepared. Thereafter, appellant was sentenced to serve three consecutive jail terms of three to six years each, two concurrent jail terms of three to six years each and pay the costs of prosecution. Appellant subsequently filed a motion to modify sentence which was denied. This appeal followed.

Appellant initially contends the trial court erred in failing to suppress the results of the chemical analysis of defendant’s blood since requirements of the Vehicle Code (75 Pa.C.S. § 101 et seq.), Clinical Laboratory Act (35 P.S. § 2151 et seq.) and regulations promulgated thereunder were not met in that: (a) the person who collected defendant’s blood was not a “qualified person” to draw such blood within the meaning of said acts and regulations; (b) the Commonwealth failed to prove the equipment utilized to analyze defendant’s blood was approved by the Pennsylvania Department of Health and met the requirements for such approval; (c) the hospital personnel collecting the blood did not have probable cause to believe a violation of section 3731 of the Vehicle Code (driving under the influence of alcohol or controlled substance) was involved; (d) the blood sample was not collected by a physician or his designee; and (e) the hospital testing defendant’s blood was not proven to be a clinical laboratory licensed, approved by the Department of Health.

In the alternative, appellant maintains the blood test results which showed an alcohol content of 0.19% should have been suppressed since they were obtained pursuant to the filing of a criminal complaint alleging a violation of section 3731(a)(4) of the Vehicle Code without the Commonwealth’s having had probable cause for defendant’s arrest.

The procedure for chemical testing of an individual’s blood is provided for in 75 Pa.C.S.A. § 1547(c)(2):

(c) Test results admissible in evidence. — In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant’s blood, as shown by chemical testing of the person’s breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.
(2) Chemical tests of blood or urine shall be performed by a clinical laboratory licensed and approved by the Department of Health for this purpose using procedures and equipment prescribed by the Department of Health. For purposes of blood and urine testing, qualified persons means an individual who is authorized to perform those chemical tests under the act of September 26, 1951 (P.L. 1539, No. 389), known as “The Clinical Laboratory Act.”

The Pennsylvania Code at section 5.41 of Title 28 sets forth the requirements for those who accept and collect blood specimens:

§ 5.41. Acceptance and collection of specimens.
(a) Specimens shall be accepted or collected from patients by a clinical laboratory only when tests are requested on the specimens by a member of the healing arts licensed to practice in Pennsylvania, or other persons authorized by statute, or authorized agents of the foregoing.
(b) No specimen shall be collected by an owner, an employe or other person associated with the clinical laboratory except under one of the following conditions:
(1) The person is a member of the healing arts licensed in this Commonwealth or a laboratory director qualified under the provisions of the Clinical Laboratory Act of 1951 (P.L. 1539) (35 P.S. § 2151 et seq.).
(2) The person is collecting the specimen under the direction of a member of the healing arts licensed in this Commonwealth or a laboratory director qualified under the provisions of the Clinical Laboratory Act (35 P.S. § 2151 et seq.).
(c) This section does not prohibit the transmission of specimens collected as set forth in subsection (b) under the following circumstances:
(1) To another laboratory licensed under the Clinical Laboratory Act (35 P.S. § 2151 et seq.).

Carol Pape, a trained phlebotomist, drew appellant’s blood at the hospital. Her testimony at trial revealed she drew the blood pursuant to standard hospital procedure whereby blood was drawn from all trauma patients admitted unless otherwise directed by the treating physician. Dr. Roger Eshleman, appellant’s treating physician the night of the accident, testified he had ordered several blood tests to be performed on appellant. The trial court, therefore, found appellant’s blood was drawn pursuant to hospital policy under directions of a physician and, accordingly, met the qualification requirements of 28 Pa.Code § 5.41. We agree with the trial court that Ms. Pape was qualified according to the Code requirements and was authorized to conduct the test as a person collecting the specimen under the direction of a member of the healing arts. Accordingly, the motion to suppress the results of the test on this basis was properly denied.

Appellant next maintains the Commonwealth failed to prove St. Joseph Hospital, the facility in which the clinical laboratory was located, was licensed by the Department of Health at the time of the test and that the equipment used to analyze his blood met the requirements of 28 Pa.Code § 5.103, a regulation which was issued under the Clinical Laboratory Act and provides as follows:

§ 5.103. Blood tests for blood alcohol content.
Equipment used for blood analysis to determine the amount of alcohol in a person’s blood which performs the analysis by means of gas chromatography, enzymatic procedures, distillation procedures or diffusion procedures is approved by the Department provided that:
(1) The equipment is located within a clinical laboratory currently licensed by the Department.
(2) The particular brand or model of equipment used and a reagent or procedures relating thereto have not been prohibited by specific notification of the Department under § 5.46 (relating to reagents and equipment).
(3) A clinical laboratory performing blood analysis with the equipment has in effect an approval to provide the special analytical services under § 5.50 (relating to provide special analytical services).

At trial, the only certificate of licensing produced by the Commonwealth was issued for the period extending from August 27, 1984 to August 15, 1985, and was not in effect on April 9, 1984, the date on which appellant’s blood was tested. Appellant contends the failure to provide supporting certification pertaining to licensing on the exact date on which the blood test occurred was fatal to the Commonwealth’s burden of proving the hospital was licensed. The record shows, however, that Lisa Binkley, a medical technologist employed at St. Joseph Hospital, testified the hospital was currently licensed by the Pennsylvania Department of Health and had been licensed prior to August 27, 1984. Ms. Binkley further testified the certificate from the Department of Health does not itself contain a date, but rather, a small portion in the corner of the certificate has the date attached to it. When a renewal comes in, the old portion is torn off and discarded and the new date attached. The trial court found her testimony sufficient to demonstrate the laboratory at St. Joseph Hospital was properly licensed by the Department of Health and hence, the test was performed in a proper facility.

As to the equipment used to analyze his blood, appellant argues the Commonwealth failed to establish the particular brand of equipment used and the procedures relating thereto were not prohibited by the Department of Health (28 Pa.Code § 5.103). The record discloses Ms. Binkley also testified about the actual procedures used in analyzing the blood, specifically testifying that an enzyme reaction was utilized. Section 5.103 provides for analysis by “enzymatic procedures,” so long as other Code sections are complied with. Appellant at no time during the trial made any attempt to show the equipment used was prohibited under the statute and accordingly, we find the blood alcohol test was performed on approved equipment in a licensed laboratory by a qualified person and was therefore properly admissible at trial.

Appellant next raises the applicability of 75 Pa.C.S.A. § 3755, Reports by emergency room personnel, to the instant case. This section provides for the obtaining of blood samples in emergency rooms from motor vehicle accident victims upon police officer request. See Commonwealth Department of Transportation v. Emoryo, 91 Pa.Commw. 580, 498 A.2d 26 (1985). Appellant argues that even if the blood was drawn under proper conditions, the evidence should be suppressed due to the fact there was no probable cause at the time the blood-alcohol test was given. At trial, the police testified they did not request the blood-alcohol test taken at St. Joseph’s Hospital. The attending physician testified he ordered the blood test of appellant when appellant arrived in the emergency room, and the phlebotomist, who drew the blood, testified appellant’s blood was drawn pursuant to regular medical procedures under the direction of hospital personnel. We note the fourth amendment prohibitions against unreasonable searches and seizures are directed toward governmental action and are inapplicable to a search effected by a private individual not acting as an agent of the government. Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985). Accordingly, the blood drawn in this case pursuant to hospital policy was not subject to the strict probable cause analysis as if the blood had been at police request, and we reject appellant’s contention as to this point.

Appellant also argues the trial judge erred in failing to suppress the results of the blood analysis as the Commonwealth did not have probable cause to charge appellant with driving under the influence of alcohol pursuant to 75 Pa.C.S.A. § 3731. Probable cause exists where the facts and circumstances within the knowledge of the officer are reasonably trustworthy and sufficient to warrant a person of reasonable caution in believing that the arrestee has committed the offense. Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983).

It is clear from the facts of this case the police had probable cause to arrest appellant for the offense of driving under the influence of alcohol. Chief of Police William D. Roberts testified at the suppression hearing he had spoken with a number of individuals concerning the accident, including other drivers on the road who observed the van immediately prior to the accident, the bartender who had served appellant drinks the same day and the three ambulance attendants at the scene of the accident who detected the odor of alcohol on appellant. One member of the Northwest Life Support Unit present at the scene also testified as to a steering wheel contusion on appellant’s chest and the fact appellant had indicated he was the driver of the van. In addition, testimony revealed the police had discovered both full and empty beer cans from the scene of the accident along with a partially full gin bottle and plastic cups which contained the odor of alcohol. See Commonwealth v. Pelkey, 349 Pa.Super. 373, 503 A.2d 414 (1985).

In a related issue, appellant maintains the Commonwealth charged him with a violation of 75 Pa.C.S.A. § 3731(a)(4) prior to obtaining the results of his blood test and hence, his arrest on a violation of subsection (a)(4) was unconstitutional. We disagree. The Commonwealth filed a criminal complaint against appellant charging him in separate counts with violations of both subsections (a)(1) and (a)(4) of 75 Pa.C.S.A. § 3731. A violation of subsection (a)(4) is by virtue of his having a blood alcohol content of .10% or more while operating a motor vehicle, and the only way this can be proved is through the results of a blood, breath or urine test.

In Commonwealth v. Slingerland, 358 Pa.Super. 531, 518 A.2d 266 (1986), this Court held that subsections (a)(1) and (a)(4) of 75 Pa.C.S.A. § 3731 are cognate offenses. Even though the elements are not identical, the offenses are similar in nature — the operation of a vehicle after alcohol consumption to a degree which renders the vehicle operator a hazard. The Slingerland Court noted: “Subsection (a)(4) presumes that an operator with a blood alcohol content of 0.10% or greater is unfit to drive, see: Commonwealth v. Mikulan, 504 Pa. 244, 249-251, 470 A.2d 1339, 1341-1342 (1983); whereas subsection (a)(1) requires proof that the defendant was, in fact, incapable of driving because of an excessive consumption of alcohol. Both subsections, therefore, proscribe the same conduct: driving a motor vehicle while under the influence of alcohol.” Id., 358 Pa.Superior Ct. at 535, 518 A.2d at 268.

Applying this analysis to this case, we conclude the criminal complaint charging appellant with driving under the influence of alcohol to an extent which rendered him incapable of safe driving was sufficient to allow the Commonwealth to include in the information the cognate offense of driving while appellant’s blood exceeded 0.10%.

Appellant next alleges trial court error in permitting the Commonwealth to call appellant’s wife, over his objection, to testify against him. The Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended (42 Pa.C.S.A. § 5913), provides as follows:

§ 5913. Spouses as witnesses against each other
Except as otherwise provided in this subchapter, in a criminal proceeding husband and wife shall not be competent or permitted to testify against each other, except that in proceedings for desertion and maintenance, and in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them, each shall be competent witness against the other, and except also that either of them shall be competent merely to prove the fact of marriage, in support of a criminal charge of bigamy alleged to have been committed by or with the other.

The trial court noted this rule is a declaration of the common law rule aimed at preserving marital harmony and trust, see Commonwealth v. Wilkes, 414 Pa. 246, 199 A.2d 411 (1964), but also noted the rule provides an exception that allows a spouse to testify in any criminal proceeding where one spouse experienced bodily injury or threats from the other. The court then proceeded to apply the above exception to the facts of this case based upon the rationale found in the case of Commonwealth v. Galloway, 271 Pa.Super. 305, 413 A.2d 418 (1979).

In Galloway, the defendant’s wife had been subjected by him to threats and an assault prior to the intervention of a third party. When that third party and Galloway began to fight, the wife fled. Thereafter, the third party was shot and killed. The murder charge proceeded to court where the defendant was found guilty of second degree murder. After the conviction, charges pertaining to assault and pointing a deadly weapon at the wife were nolle prossed. On appeal, defendant’s murder conviction was remanded for a new trial, at which time a competency hearing was held to determine whether defendant’s wife was competent to testify against him at the second trial. The trial court determined the wife was not competent to testify against her husband under 19 P.S. § 683 and the Commonwealth was granted permission to appeal. Superior Court held a “spouse of an accused is competent under 19 P.S. § 683 to testify against the defendant as to a crime committed against a third person when such crime occurs in the same criminal episode as an act of violence committed by the accused upon the spouse, regardless of whether separate criminal proceedings are involved.” Galloway, supra, 271 Pa.Superior Ct. at 312, 413 A.2d 421.

The trial court held the fact charges were not brought against appellant for the criminal acts which caused bodily injury to his wife would not render Mrs. Dungan incompetent in light of the severe bodily injuries she sustained, in addition to the deaths of five other people in the accident.

Appellant contends since no charges were filed against him for any alleged criminal activity toward his wife, there was consequently no “criminal proceeding against [him] for bodily injury or violence attempted, done or threatened upon” (42 Pa.C.S.A. § 5913) his wife, and the Galloway exception to the incompetency provision does not apply. Contrary to this view, the prosecution contends allowing Mrs. Dungan to testify was not error, agreeing with the trial court’s reliance on Galloway, and cites the New Jersey case of State of New Jersey v. Briley, 53 N.J. 498, 251 A.2d 442 (1969) (cited with approval in Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665, 671 (1976)) for the proposition that the incompetency exception should apply to the facts of this case.

In Briley, a unanimous Supreme Court of New Jersey, interpreting a similar evidentiary statute of that state, held:

[I]f there is a single criminal event in which [the wife] and others are targets or victims of the husband’s criminal conduct in the totality of the integrated incident and formal charges are made against the husband for some or all the offenses committed (one of which charges is for an offense against the spouse), the wife should be a competent and compellable witness against her husband at the trial of all the case regardless of whether they are tried separately or in one proceeding.

Id. 53 N.J. at 506, 251 A.2d at 446.

The Commonwealth argues under the facts of this case appellant could have been charged with recklessly endangering his wife, and the Galloway holding does not require that a defendant be charged with a crime against the spouse at the time she testifies. In addition, they maintain a “greater interest” is served by recognizing the competency of one spouse to testify against the other as long as no violence is done to the privilege as expressed in a statutory or judicial rule of evidence. See Briley, supra.

We believe it was error to admit the testimony of Mrs. Dungan against her husband. Moreover, we do not believe Briley supports the interpretation of the statute urged by the Commonwealth and that Galloway is distinguishable from the facts of this case. Initially, we note in Galloway, the defendant had been charged with a criminal act against his wife which we believe is required for the exception to incompetency to apply. This Court, in declaring the wife competent to testify in the Galloway murder trial, held it did not matter that the charges against Galloway for criminal violence toward his wife were prosecuted in proceedings separate from those involving the homicide charges — the crucial factor was that all of the charges arose out of the same criminal episode. Herein, no charges whatsoever were filed against appellant for any alleged criminal activity toward his wife. Rather, the trial court broadly interpreted the statute to include within its parameters unintentional conduct on the part of a spouse that results in serious injury to his wife on the basis of injury to a third party arising out of the same incident. We believe the statute was not enacted to apply to the facts of this case, an automobile accident resulting in serious injury to a spouse, but instead are persuaded the exception to the incompetency rule was designed to protect those spouses victimized by an act of intentional violence committed upon them by an accused spouse.

As to the Commonwealth’s reliance on Briley, supra we draw its attention to the later New Jersey case of State of New Jersey v. Eason, 138 N.J.Super. 249, 350 A.2d 506 (1975). In Eason, the trial judge relied on Briley and held that so long as the spouse was in fact a victim or an intended victim of the entire event, the failure of the prosecution to initiate criminal proceedings on a complaint was immaterial.

On appeal, however, the court rejected this interpretation and stated:

Briley indicates that while the wife’s competency and compellability to testify against her husband regarding a crime committed by him against a third party may not be limited if the charges against him that relate to her are of lesser extent or are tried in a different proceeding than those relating to the third party, there must nevertheless be charges of some kind pending against the husband for the alleged crime of which the wife was a ‘victim.’

Id. at 255, 350 A.2d at 509.

The Eason appellate court further buttressed its interpretation by quoting the following language in Briley.

[I]n our view under the circumstances of the case Mrs. Briley would have been a competent and compellable witness in the murder case whether a charge of assault and battery upon her was instituted in the municipal court or the court for atrocious assault and battery had been severed and the murder charge tried separately.

Id. at 255, 350 A.2d at 509 (citing Briley, 53 N.J. at 504, 251 A.2d at 445).

Applying this law to the case presently before us, we submit the exception to incompetency is triggered in those situations in which criminal proceedings are initiated by intentional violent conduct directed at the spouse and failure to initiate such proceedings renders the testifying spouse incompetent.

Therefore, having determined the trial court erred in admitting the testimony of Mrs. Dungan over appellant’s objection, we proceed to analyze whether the error was harmless. The standard of review for determining harmless error has been set forth in the following manner:

an error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict. Whenever there is a ‘ “reasonable possibility” ’ that an error ‘ “might have contributed to the conviction,” ’ the error is not harmless. Commonwealth v. Davis, 452 Pa. [171] at 178, 305 A.2d [715] at 719 [1973], quoting Chapman v. California, 386 U.S. [18] at 24, 87 S.Ct. [824] at 828 [17 L.Ed.2d 705 (1967)].

Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155, 164 (1978); see also Commonwealth v. Kellum, 339 Pa.Super. 513, 489 A.2d 758, 762 (1985).

In directing the harmless error test to the facts of this case we believe that even without the testimony of Mrs. Dungan, the evidence appellant was the driver of the van was conclusive and would compel a jury to determine as much. The independent evidence on the record included appellant’s admission to the ambulance attendant, Kay Bleecher, that he was the driver of the van and evidence of contusions on his chest caused by the steering wheel, which support the finding that he was the driver. Additionally, he was first discovered after the accident partially in and out of the windshield and he was the owner of the van. Despite close cross examination, the Bleecher testimony was unshaken and went unrefuted. Contrary to appellant’s assertion that he was compelled to testify because of his wife’s testimony, it would have been equally necessary for him to testify in the face of Bleecher’s testimony and his physical position when first discovered. We, therefore, find any error in permitting appellant’s wife to testify was harmless.

Appellant also contends the trial court improperly permitted the introduction of evidence of the van’s registration through a Pennsylvania Department of Transportation certificate. This certification identified appellant as the registered owner of the van. Appellant argues the evidence was irrelevant and prejudicial and therefore should not have been permitted. It is well settled that evidence which tends to establish facts material to a criminal prosecution or which tends to make a fact at issue more or less probable is relevant. Commonwealth v. Davenport, 462 Pa. 543, 342 A.2d 67 (1975); Commonwealth v. Stewart, 461 Pa. 274, 336 A.2d 282 (1975). In addition, the admission of evidence is a matter within the discretion of the trial judge, and absent an abuse of discretion, there is no reversible error. Commonwealth v. Barnhart, 497 Pa.Super. 616, 497 A.2d 616 (1985). We find no error in the trial court’s decision. Appellant himself testified he owned the van and evidence of ownership was properly before the jury for their consideration.

Appellant alleges the trial court erred in denying his motion in arrest of judgment. Specifically, he maintains if all of the evidence that was allegedly improperly admitted was excluded, the remaining evidence would be insufficient to sustain the verdicts. The effect of a motion in arrest of judgment is to admit all facts which the Commonwealth’s evidence tends to prove. Commonwealth v. Davis, 477 Pa. 197, 383 A.2d 891 (1978). The entire record must be considered in evaluating the sufficiency of the evidence. Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983). A review of the record indicates the evidence was more than sufficient to support the verdicts. In light of the testimony and evidence presented which proved appellant was the owner and driver of the van at the time of the accident, appellant’s motion in arrest of judgment was properly denied.

Next, appellant challenges the multiple sentences imposed by the trial court on the basis that it is unlawful for a court to impose multiple sentences for multiple deaths resulting from a single accident.

The Supreme Court held in Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984), that where it is legislatively authorized, it is legal to impose multiple sentences upon a defendant whose single unlawful act injures multiple victims. There, it was held that where the legislature intended to preclude multiple punishments for multiple injuries resulting from a single act, it has expressly done so. Commonwealth v. Miller, 469 Pa. 24, 364 A.2d 886 (1976). In Commonwealth v. Zaengle, 345 Pa.Super. 124, 497 A.2d 1335 (1985) this Court concluded the legislature authorized multiple sentences for multiple deaths resulting from a single violation of the homicide by vehicle statute, 75 Pa.C. S.A. section 3732.

A review of the homicide by vehicle while driving under the influence statute, 75 Pa.C.S.A. § 3735, leads us to determine the multiple sentences imposed are legislatively authorized. The operative language crucial to our conclusion reads: “Any person who unintentionally causes the death of another person ...” and is identical to that language in section 3732 which is distinguished only by the underlying violation committed in the course of the homicide. Pursuant to the test set forth in Frisbie, the multiple sentences for multiple deaths occurring in a single violation of this section are legislatively authorized and were, therefore, lawfully imposed. Also see Commonwealth v. Williams, 514 Pa. 124, 522 A.2d 1095 (1987).

Appellant’s final contention is that the total length of the sentence imposed is excessive and constitutes an abuse of discretion. Appellant was found guilty of five counts of homicide by vehicle and five counts of homicide by vehicle while driving under the influence of alcohol. As noted above, the court imposed a sentence of not less than three nor more than six years in a state correctional institute on each of the five counts of homicide by vehicle while driving under the influence. Counts eight, nine and ten are consecutive; counts six and seven are concurrent to the other sentences.

Pennsylvania Rule of Appellate Procedure 2119(f) requires that the appellant’s brief contain a concise statement of the reasons relied upon for allowance of the appeal of the discretionary aspects of sentencing which appellant is raising to enable our Court to determine whether it is a “substantial question” which would allow our discretionary jurisdiction to be invoked. See 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

In Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987), Commonwealth v. Chase, 365 Pa.Super. 572, 530 A.2d 458 (1987) and Commonwealth v. Rumbaugh, 365 Pa.Super. 388, 529 A.2d 1112 (1987), we held that when the appellee, or party opposing review of the sentence, fails to object to such procedural violations concerning presentation of discretionary appeals as to sentencing (Rule 2119(f)), those violations are waived. As stated above, the Commonwealth did not object, therefore, we must determine whether appellant has presented a suitable “ ‘statement of question’ by brief reasons indicating a ‘substantial question’ exists before discussion of the merits.” Commonwealth v. Lapcevich, 364 Pa.Super. 151, 155, n. 2, 527 A.2d 572, 574, n. 2 (1987) (citing Tuladziecki, supra); Rumbaugh supra.

Our examination of appellant’s claim shows he has failed to establish that a substantial question is involved in positing his sentence of three consecutive (rather than concurrent) terms of imprisonment is excessive and an abuse of discretion. As discussed previously, multiple sentences for multiple deaths occurring in a single violation of this section are legislatively authorized and were therefore lawfully imposed by the sentencing court. These sentences were within the statutory limits and the three-year mandatory term for homicide under 75 Pa.C.S. § 3735(b) is not governed by the sentencing guidelines. The trial judge properly imposed the mandatory sentence on the five homicides and his discretion to impose three consecutive three-year terms and two concurrent three-year terms requires no further justification than the incredible carnage and terrible loss due to appellant’s actions. Indeed, a judgment of five consecutive minimum terms could be just as well justified.

Judgment of sentence affirmed.

       35 P.S. § 2151 et seq.

      . 19 P.S. § 683 was repealed effective June 27, 1978 but was substantially reenacted as part of the Judicial Code at 42 Pa.C.S.A. § 5913.


author: HOFFMAN, Judge:

text:
    539 A.2d 826
    Jane A. SOXMAN and John F. Buzzatto, her husband, v. James L. GOODGE, D.C., and D.L. Randour, D.C. each individually and trading and doing business as Randour’s Chiropractic Clinic, a partnership Randour’s Chiropractic Clinic and Daniel Vosel, D.C., an individual. Appeal of James L. GOODGE, D.C. and D.L. Randour, D.C., each individually and trading as Randour’s Chiropractic Clinic, a partnership Randour’s Chiropractic Clinic.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1987.
    Filed Feb. 16, 1988.
    Reargument Denied April 12, 1988.

      John W. Jordan, IV, Pittsburgh, for appellants.
    Keithley D. Mulvihill, Pittsburgh, for appellees.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the order of the lower court granting in part and denying in part appellants’ motion for leave to file an amended answer. Appellants contend that the lower court erred in concluding that the execution of releases by appellees did not present a viable defense for appellants. For the reasons that follow, we affirm the order of the trial court.

From August 1983 to April 1984, appellee Jane Soxman was treated for cochlear hydrops, a condition of the inner ear, at appellant Randour Chiropractic Clinic. Having developed back problems, Soxman discontinued chiropractic treatment in April 1984 and began treatment by a medical doctor. In June 1984, Soxman obtained her X-rays from Randour Clinic. In exchange, Soxman was required to execute the following release:

GENERAL RELEASE
Date June 22, 1984
Carnegie, PA
(City and State)
KNOW ALL MEN BY THESE PRESENTS: That I, Jane Soxman have requested the release of X-rays which are a part of the office records of James L. Goodge, III, D.C., relating to my case, and I hereby acknowledge receipt of these X-ray films. In consideration of the foregoing, I hereby release and forever discharge the aforesaid James L. Goodge, III, D.C., from any and all responsibility or liability of any kind, nature or character whatsoever from the beginning of the world to this day. This transaction is consummated at my specific request, /s/ James L. Goodge III, D.C.
(Witness)
/s/ Louise Durkolski
(Witness)
/s/ Jane A. Soxman, D.D.S.
(Patient)

On January 28, 1985, appellee John Buzzatto executed a similar release for the relinquishment of X-rays of his wife, appellee Jane Soxman.

In August 1985, appellees filed suit against appellants seeking damages for malpractice. Appellants filed an answer on December 10, 1985. Appellants subsequently retained new counsel and filed a motion for leave to file an amended answer and new matter. Paragraphs 30 and 31 of the amended pleading that was attached to the motion raised the above releases as a bar to liability. The trial court denied the motion for an amended pleading as to paragraphs 30 and 31 and granted the remaining motion. This appeal followed.

Appellants contend that the trial court erred in refusing to allow appellants to amend their answer to raise the releases as an affirmative defense. The Rules of Civil Procedure provide in part that:

A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his [or her] pleading.

Pa.R.Civ.P. 1033. Although leave to amend pleadings is within the sound discretion of the trial court, such amendments should be allowed unless they violate law or prejudice the rights of the opposing party. Jacob v. New Kensington Y.M.C.A., 312 Pa.Superior Ct. 533, 540, 459 A.2d 350, 353 (1983).

In the instant case, the trial court disallowed the amendment because it concluded that the releases signed by appellees violated public policy and were not the result of a freely bargained for exchange. We agree.

Although disfavored, contracts against liability may be valid. Leidy v. Deseret Enterprises, Inc., 252 Pa.Superior Ct. 162, 167, 381 A.2d 164, 167 (1977); Phillips Home Furnishing, Inc. v. Continental Bank, 231 Pa.Superior Ct. 174, 180, 331 A.2d 840, 843 (1974) rev'd on other grounds, 467 Pa. 43, 354 A.2d 542 (1976). “However, the law also recognized that lying behind these contracts is a residuum of public policy which is antagonistic to carte blanche exculpation from liability and thus developed the rule that these provisions would be strictly construed with every intendment against the party seeking their protection.” Phillips Home Furnishing, Inc. v. Continental Bank, supra (citations omitted). Our Courts have refused to enforce such releases when the agreement does not reflect the free choice of one party who is forced to accept the releases by the necessities of his or her situation. Id., 231 Pa.Superior Ct. at 181, 331 A.2d at 843. Cf. Jenkins v. Peoples Cab Co., 208 Pa. Superior Ct. 131, 220 A.2d 669 (1966) (our Courts also disfavor releases secured through fraud or misrepresentation). In addition, our Courts have distinguished between exculpatory clauses that relate entirely to private affairs between the parties and those that contradict public policy as articulated by the legislature.

Statutes grounded in public policy are those which forbid acts having a tendency to be injurious to the public good. The prime question is whether the thing forbidden is inimical to the public interest. Where public policy requires the observance of a statute, it cannot be waived by an individual or denied effect by courts, since the integrity of the rule expressed by the Legislature is necessary for the common welfare.

Leidy v. Deseret Enterprises, Inc., supra 252 Pa.Super. at 169-70, 381 A.2d at 168 (quoting Boyd v. Smith, 372 Pa. 306, 309-10, 94 A.2d 44, 46 (1953)).

Here, the releases signed by appellees contradicted a specific public policy articulated by our Legislature. The Pennsylvania Code mandates that:

Patients or patient designees shall be given access to or a copy of their medical records, or both, in accordance with § 013.22(b)(15) (relating to implementation)____ The patient or the patient’s next of kin may be charged for the cost of reproducing the copies; however, the charges shall be reasonably related to the cost of making the copy.

28 Pa. Code § 115.29 (emphasis supplied). The Code further provides that a physician engages in unprofessional conduct when he or she fails to make available medical records or copies of medical records at the patient’s request. 49 Pa.Code § 17.251(18).

The Code reflects, therefore, a clear policy in favor of a patient’s access to his or her medical records. Indeed, there are obvious policy considerations why medical records should be made freely available to a patient at his or her request. Access to medical records allows a patient to participate meaningfully with his or her physician in making decisions regarding treatment and encourages informed consent. In addition, making copies of medical records available to a patient assists the patient in seeking a second opinion.

Here, contrary to this public policy embodied in the Pennsylvania Code, appellants failed to make appellee’s medical records freely accessible to her. Instead, appellants required appellee to sign releases in exchange for the records to which she was entitled. This requirement not only violated the policy of unfettered access to medical records but also violated the policy of freely bargained for exchanges. The only way appellee Soxman could obtain her medical records so that she could continue medical treatment with another doctor was to sign the release absolving appellants of all liability: she had no alternative. Such an agreement does not reflect the free choice of appellees because the necessities of her situation forced her to accept the terms set forth by appellants. See Phillips Home Furnishing, Inc. v. Continental Bank, supra. We decline to enforce the instant release agreement as it contradicts public policy. See Leidy v. Deseret Enterprises, Inc., supra. We conclude, therefore, that the trial court correctly denied appellants’ motion to amend their answer to plead the releases as an affirmative defense.

For the foregoing reasons, we affirm the order of the trial court.

Affirmed.

      . An order denying leave to amend an answer to plead an affirmative defense is final and appealable. Grota v. La Boccetta, 425 Pa. 620, 623, 230 A.2d 206, 207 (1967).

      . The trial court also concluded that the releases were not supported by consideration. Because we conclude that the releases were the result of the parties’ disparate bargaining positions and thus violate public policy, we need not decide whether the releases were supported by adequate consideration.

      . Although these provisions specifically refer to physicians, there is no reason why the same policy considerations should not apply equally to chiropractors. Indeed, appellants concede this point: "[wjhile there are no regulations regulating the disposition of the office records of chiropractors, ... there is no reason for [chiropractors’]

        rights in their records to be any less than those of hospitals and medical doctors. Brief for Appellants at 12 (emphasis supplied).

      . Appellants suggest that the release of appellee’s medical records was not conditioned upon the execution of the release forms. This argument ignores appellants’ own assertion that the releases were signed in consideration of appellee’s receipt of her records. Brief for Appellants at 11. See also General Release.


author: WIEAND, Judge:

text:
    539 A.2d 829
    COMMONWEALTH of Pennsylvania v. Craig Steven THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 24, 1987.
    Filed Feb. 24, 1988.
    Reargument Denied April 19, 1988.

      Eileen Courtney, Wayne, for appellant.
    Ann A. Osborne, Assistant District Attorney, Radnor, for Com., appellee.
    Before CIRILLO, President Judge, and WIEAND and WATKINS, JJ.
   WIEAND, Judge:

Craig Steven Thomas was tried by jury and was found guilty of robbery and possession of an instrument of crime. Post-trial motions were denied, and Thomas was sentenced to serve a term of imprisonment for not less than six years nor more than twelve years. On direct appeal, Thomas argues numerous issues which we will consider seriatim.

On June 20, 1985, while walking on Main Street in Trainer, Delaware County, Roberta Wilkerson was approached from behind by a black male who, at gunpoint, took her purse and a radio which she was carrying. She described the robber as a black male, slender, about 5' 7" and wearing light clothes. She could not otherwise identify the robber. Lorraine and Amanda Voshelle witnessed the robbery and gave general descriptions of the robber. Although their descriptions generally matched Thomas’s description, neither of them specifically identified Thomas as the robber. Paul Barnard, while driving on Main Street, observed a black male run in front of his car carrying a radio and pocketbook. Barnard saw the man jump into the passenger side of a car, which Barnard followed into a dead end street. There, as the vehicle retreated, Barnard was able to observe the man for a period of several seconds. Barnard also made notes of the description of the man, who was wearing a wide brimmed straw hat, a white shirt, and blue shorts. He returned to the scene approximately one hour later and there identified Thomas, who was then seated in the rear of a police vehicle. Barnard subsequently selected Thomas from a lineup and made a positive identification at trial.

In Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984), this Court said:

‘Sufficiency of the evidence and weight of the evidence are discrete inquiries____ In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt----
A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion____ The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.’
Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1229-30 (1984); accord, Commonwealth v. Sample, 321 Pa.Super. 457, 468 A.2d 799 (1983) (allocatur denied); see also Commonwealth v. Miller, 303 Pa.Super. 504, 450 A.2d 40 (1982).

Id., 336 Pa.Superior Ct. at 124-125, 485 A.2d at 461-462.

The evidence in the instant case was clearly sufficient to sustain the verdict of the jury. Therefore, counsel was not ineffective for failing to submit a written motion for a directed verdict. Counsel is not required to perform a useless act or file a meritless motion. Commonwealth v. Albrecht, 510 Pa. 603, 626, 511 A.2d 764, 776 (1986), cert. denied, — U.S.-, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987); Commonwealth v. Stoyko, 504 Pa. 455, 472, 475 A.2d 714, 723 (1984), cert. denied, 469 U.S. 963, 105 S.Ct. 361, 83 L.Ed.2d 297 (1984); Commonwealth v. Cope, 359 Pa.Super. 140, 144, 518 A.2d 819, 820 (1986). Similarly, counsel was not ineffective for failing to seek a new trial on the ground that the verdict was contrary to the weight of the evidence. Such an averment would also have been lacking in merit.

As a part of its case against appellant, the Commonwealth offered into evidence a gold pocket watch engraved with a locomotive which, at the time of the robbery, had been left behind with the victim. When appellant testified in his own behalf, he denied ownership and any knowledge of the watch. On rebuttal, the Commonwealth offered Officer James Magaw, who testified that on the day following the robbery appellant’s parents had inquired regarding a pocket watch. The trial court initially sustained an objection to statements made by appellant’s parents but allowed the witness to testify that following the parents’ inquiry he went in search of a gold pocket watch with a railroad engine engraved upon it. Such a watch, he said, had been retrieved from the victim of the robbery. Subsequently, he testified that appellant’s parents had told him that appellant was the owner of the watch.

More specifically, the following is what occurred during the direct examination of Magaw:

Q. Directing your attention to the day following the robbery in this case, or the incident in this case, which would be, I believe June 21st of this past year, 1985, did you become involved with the return of property to the families of Debra Jones and Craig Thomas?
A. Yes, I did.
Q. Did you come into contact with individuals identifying themselves as relatives and indeed parents of Craig Thomas?
A. Yes, I did.
Q. Did — were—were you in contact with them for the purpose of returning property?
A. Yes, I was.
Q. As a result of that — of any conversation with them, what, if anything, did you do?
A. I — after speaking with those individuals, I contacted Officer Griffin, who was the officer in charge of the case, I received from him a key to a — to a locker, which— that’s where the evidence was held for the case. I then returned to the family of Debra Jones, a camera, I believe a coat, some cash, mostly — mostly personal effects, personal items. For Craig Thomas, there was a — a problem with a pocket watch. The family said that he had with him a pocket watch and that we had taken it ...

Appellant objected to this line of questioning on grounds that it was irrelevant and constituted hearsay evidence. The trial court sustained the objection in part and disallowed any testimony of the statements made by appellant’s parents. However, the court allowed Magaw to testify to what he did in response to the information narrated by the parents.

Thus, Officer Magaw testified as follows:

Q. Officer Magaw, as a result of your contact with these individuals, did you search for anything?
A. Yes, I did.
Q. Where did you search?
A. I searched the evidence locker and the envelopes for a ...
Q. All right.
A. ... pocket watch.
Q. Specifically what were you looking for?
A. A gold pocket watch which was identified to me as one with a ...
******
MR. JOHNSON [Appellant’s Attorney]:
Objection.
BY MR. GOLDSTEIN [the District Attorney]:
Q. What were you looking for specifically?
******
MR. JOHNSON:
Objection.
THE COURT:
Yes, just — just that he was looking for a pocket watch. Go ahead.
THE WITNESS:
Gold pocket watch.
THE COURT:
What did you do, offi — what did you do, officer?
THE WITNESS:
I — I looked in the evidence locker and — and envelopes for a gold pocket watch with an engine engraved ...
THE COURT:
All right. What else ...
THE WITNESS:
... a railroad engine engraved on the ...
MR. JOHNSON:
Objection ...
THE WITNESS:
... on the back of it.

Magaw testified further that he had found such a gold pocket watch in the possession of the victim. Appellant cross-examined Magaw regarding his written report and the fact that nothing therein had suggested who it was to whom the watch belonged. On redirect examination, the trial court permitted the Commonwealth to ask Officer Magaw: “Do you know whether or not it was represented to you that it was the Defendant’s watch?” Magaw then answered: “Yes, as I said, I was advised by that lady back there that the watch belonged to the Defendant.” This was the only evidence establishing a connection between appellant and the watch found at the scene of the robbery.

Appellant argues that the trial court committed reversible error by allowing the Commonwealth to prove his ownership of the watch by inadmissible hearsay evidence. We are constrained to agree.

In Commonwealth v. Whiting, 358 Pa.Super. 465, 517 A.2d 1327 (1986), this Court said that

[hjearsay is an out-of-court statement offered to prove the truth of the matter asserted. Commonwealth v. Cassidy, 315 Pa.Superior Ct. 429, 433, 462 A.2d 270, 272 (1983).
When a statement is offered in evidence to prove the truth of a fact asserted therein, the speaker’s credit and the circumstances of the utterance become basic to a proper evaluation of the statement. Therefore, the hearsay rule generally excludes such evidence unless the speaker is on hand to personally testify.
Commonwealth v. DiSilvio, 232 Pa.Superior Ct. 386, 391, 335 A.2d 785, 787-88 (1975). The rationale behind the rule extends to indirect as well as direct attempts to introduce out-of-court statements. Commonwealth v. Farris, 251 Pa.Superior Ct. 277, 282, 380 A.2d 486, 489 (1977). Thus, “[i]f the apparent purpose of offered testimony is to use an out-of-court statement to evidence the truth of facts stated therein, the hearsay objection cannot be obviated by eliciting the purport of the statements in indirect form.” Id., 251 Pa.Superior Ct. at 282-83, 380 A.2d at 489 (quoting McCormick on Evidence § 249, at 593-94 (Cleary ed. 1972)).

Id., 358 Pa.Superior Ct. at 478-479, 517 A.2d at 1334. The issue of indirect hearsay was considered by this Court in Commonwealth v. Farris, 251 Pa.Super. 277, 380 A.2d 486 (1977). In that case, the issue was whether the hearsay rule had been violated by testimony of a police officer who told a jury what he had done as a result of that which a third person had told him. In resolving the hearsay issue, the Court said:

The Commonwealth argues that since “the statement itself was. never read to the jury ... Detective Aiken’s testimony ... does not constitute hearsay.” ... According to the Commonwealth, “Moore’s statement ... was merely referred to as part of the investigation____” ... The lower court accepted this argument, saying that “Detective Aiken merely described the steps in his investigation leading to the arrest of Emanuel Farris.” ...
To regard the testimony in this manner is disingenuous. By no means did the detective “merely describe[]” his investigation; what he did — that is, what the testimony elicited from him by the assistant district attorney did— was to tell the jury: “I interrogated Gary Moore, and he told me that one of the men involved in the robbery was Emanuel Farris, and so I arrested Farris.”
There can be little doubt — we have none — that this is just what the jury understood the detective to say. Common sense tells us so: a jury is not likely to make nice legal distinctions between a flat-out narrative (“Moore told me that____) and an oblique narrative (“as a result of what Moore told me, I did ...).
There can also be little doubt — and again, we have none — that the assistant district attorney intended to get across to the jury that Moore had identified appellant as involved in the robbery. That was the only reason to question the detective as he was questioned. Sometimes, to be sure, it will be relevant to ask a law enforcement officer to “describe the steps in your investigation,” for example, when the issue is whether the officer had reasonable cause to get a search warrant or to make an arrest. Here, however, the facts that the detective had taken “a statement” from Moore, and had then “[a]s a result of” that statement arrested appellant, were of no possible relevance — except to show that Moore had told the detective that appellant was involved in the robbery.
Had the detective testified flat-out, “Moore told me that one of the men involved was Farris,” it would be clear beyond reasonable argument that the testimony would have been hearsay: it would have been an assertion by someone not in court (Moore), offered for its truth (that one of the men was Farris), and thus depending for its value upon the credibility of the out-of-court asserter. See generally McCormick on Evidence § 246 (Cleary ed. 1972). The Commonwealth should not be permitted to evade this principle by having the detective testify obliquely rather than flat-out.

Id., 251 Pa.Superior Ct. at 281-282, 380 A.2d at 488-489.

In the instant case, the Commonwealth was permitted to show by direct and indirect hearsay evidence that appellant’s parents had told the police that appellant owned a gold watch, with a locomotive engraved thereon, which the parents believed appellant had been wearing prior to the time when he was taken into custody. In this manner the Commonwealth was able to connect appellant to the watch found at the scene of the robbery. This was error; the evidence was received in violation of the hearsay exclusionary rule.

Appellant’s remaining contentions pertain to the alleged ineffectiveness of his counsel. He had been represented prior to trial by the office of the public defender and at trial by counsel privately retained. Present counsel was appointed after post-trial motions had been denied and sentence imposed. It was at the request of present counsel that this Court remanded for an evidentiary hearing.

In examining claims of ineffective assistance of counsel, “we must first determine if the underlying issue is of arguable merit.” Commonwealth v. Thomas, 363 Pa.Super. 348, 352, 526 A.2d 380, 381 (1987). If, and only if, the underlying issue is found to be of arguable merit may we proceed to the second inquiry which is “whether the course of action chosen by counsel had some reasonable basis designed to effectuate the client’s interest.” Commonwealth v. Thomas, supra, 363 Pa.Superior Ct. at 352, 526 A.2d at 382. Finally, the appellant must additionally establish that counsel’s conduct so prejudiced his case that he was deprived of a fair trial. Commonwealth v. Thomas, supra. See also: Commonwealth v. Cope, supra 359 Pa.Super. at 144, 518 A.2d at 820-821; Commonwealth v. Pierce, 345 Pa.Super. 324, 326-329, 498 A.2d 423, 424-426 (1985), affirmed, 515 Pa. 153, 527 A.2d 973 (1987).

Appellant’s first claim of ineffective assistance is based upon the failure of counsel to file a pre-trial motion to suppress the identification testimony given by Paul Barnard. For identification testimony to be suppressed, it must be determined that “the identification procedure was so suggestive and conducive to irreparable mistaken identity so as to deny the accused due process.” Commonwealth v. Thomas, supra, 363 Pa.Superior Ct. at 352, 526 A.2d at 381. See also: Commonwealth v. Voss, 333 Pa.Super. 331, 482 A.2d 593 (1984); Commonwealth v. Williams, 323 Pa.Super. 512, 470 A.2d 1376 (1984). This Court has stated further that:

The essential criteria in determining whether or not evidence of pre-trial identification is admissible is its reliability under all of the circumstances disclosed by the record. The question for the suppression court is whether the challenged identification has sufficient indicia of reliability to warrant its admission even though the confrontation procedure may have been suggestive.

Commonwealth v. Thompkins, 311 Pa.Super. 357, 362-363, 457 A.2d 925, 928 (1983) (citation and footnote omitted).

The factual context in which Barnard identified appellant was that of an on-the-scene identification made approximately an hour after he had viewed the perpetrator running from the place where the robbery had occurred. Such identifications are held generally to be reliable and, thus, not subject to suppression on constitutional grounds. Commonwealth v. O’Neal, 321 Pa.Super. 323, 328, 468 A.2d 500, 503 (1983). The Supreme Court has spoken of such on-the-scene identifications as follows:

Evidence of identification should not be received at trial if the circumstances of the pre-trial confrontation were so infected by suggestiveness as to give rise to an irreparable likelihood of misidentification. However, absent some special elements of unfairness, we do not believe that prompt on-the-scene confrontations fall within this ambit of suggestiveness. We find support for this position in the opinions of the federal courts which hold that an in-custody-at-the-scene identification made shortly after the commission of the crime does not violate due process.

Commonwealth v. Turner, 454 Pa. 520, 523, 314 A.2d 496, 498 (1974) (citations omitted). See also: Commonwealth v. Capers, 340 Pa.Super. 136, 489 A.2d 879 (1985); Commonwealth v. Allen, 287 Pa.Super. 88, 429 A.2d 1113 (1981); Commonwealth v. Jones, 231 Pa.Super. 323, 331 A.2d 788 (1974). There were no special elements of unfairness in the identification procedure used by police in the instant case. Barnard was able to obtain a good look at the perpetrator, having had an unobstructed view from a distance of less than ten feet and for a period of five to ten seconds. Barnard testified that he had no doubt about the identification, and he was later able to identify appellant in a lineup and at trial. The mere fact that appellant was sitting alone in the back of a police car when Barnard identified him did not constitute a special element of unfairness. See: Commonwealth v. Allen, supra 287 Pa.Super. at 104, 429 A.2d at 1121. As for the discrepancy between Barnard’s notes which described the clothing worn by the robber and the descriptions given by other witnesses, this was a matter of credibility for the jury to decide and not adequate reason to suppress Barnard’s testimony. We conclude, therefore, that there would have been no merit in a petition to suppress Barnard’s identification. Counsel will not be deemed ineffective for failing to file a meritless pre-trial petition. See: Commonwealth v. Cope, supra 359 Pa.Super. at 144, 518 A.2d at 820.

During opening and closing arguments, the prosecuting attorney made the following remarks:

(1) “This Defendant, Craig Steven Thomas, that man over there, that, ladies and gentlemen, is why we are here in Court today.” (2/6/86, Trial Transcript at 19).
(2) “I believe, ladies and gentlemen, that they will say that they cannot identify that Defendant, and so he’s lucky.” (2/6/86, Trial Transcript at 21-22).
(3) “... but we don’t know if that Defendant was wearing the same clothes when he was arrested from the time that the act was committed.” (2/7/86, Trial Transcript at 172).
(4) “Call them up and tell them a black man jumped into my car and held me — and this is why there’s corroboration about the gun,____ (2/7/86, Trial Transcript at 174-175).
(5) “I ask you to come back into this Courtroom and say, Craig Steven Thomas, what you did was wrong. (2/7/86, Trial Transcript at 182).

Appellant argues that his trial counsel was ineffective for not objecting to these remarks on the grounds that they were likely to inflame the passions of the jury and create bias against appellant. Appellant also contends that his counsel was ineffective for failing to raise these allegedly improper remarks in a post-verdict motion seeking a new trial.

“In reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made.” Commonwealth v. Williams, 346 Pa.Super. 456, 459, 499 A.2d 1089, 1091 (1985). See also: Commonwealth v. D'Amato, 514 Pa. 471, 526 A.2d 300 (1987); Commonwealth v. Toledo, 365 Pa.Super. 224, 529 A.2d 480 (1987); Commonwealth v. Martin, 307 Pa.Super. 118, 452 A.2d 1066 (1982); Commonwealth v. Dozier, 294 Pa.Super. 249, 439 A.2d 1185 (1982). Moreover, “ ‘[i]t is well settled that comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.’ ” Commonwealth v. Chew, 338 Pa.Super. 472, 484, 487 A.2d 1379, 1385 (1985), quoting Commonwealth v. Tabron, 502 Pa. 154, 160, 465 A.2d 637, 639-640 (1983). See also: Commonwealth v. Carpenter, 511 Pa. 429, 515 A.2d 531 (1986); Commonwealth v. Baker, 511 Pa. 1, 511 A.2d 777 (1986); Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984), cert. denied, 469 U.S. 971, 105 S.Ct. 370, 83 L.Ed.2d 306 (1984), rehearing denied, 472 U.S. 1033, 105 S.Ct. 3516, 87 L.Ed.2d 644 (1985).

In viewing the remarks of the prosecutor in this case, we are unable to conclude that their unavoidable effect was to so prejudice the jury that it was unable to render a fair verdict according to the evidence. On the contrary, after reviewing the challenged remarks in the context of the prosecutor’s entire opening and closing arguments, we are led to the conclusion that the prosecutor stayed well “within the ambit of fair comment” and that his remarks were supported by the facts of the case and reasonable inferences to be drawn therefrom. Commonwealth v. Barren, 501 Pa. 493, 498, 462 A.2d 233, 235 (1983). See also: Commonwealth v. D'Amato, supra; Commonwealth v. Beasley, 504 Pa. 485, 475 A.2d 730 (1984); Commonwealth v. Shain, 493 Pa. 360, 426 A.2d 589 (1981); Commonwealth v. Anderson, 490 Pa. 225, 415 A.2d 887 (1980); Commonwealth v. Sargent, 349 Pa.Super. 289, 503 A.2d 3 (1986); Commonwealth v. Brown, 332 Pa.Super. 35, 480 A.2d 1171 (1984). Therefore, counsel will not be deemed ineffective for failing to object.

Appellant next argues that trial counsel was ineffective for failing to include in the motion for new trial a claim that the trial court improperly prevented defense exhibits from being sent to the jury. Specifically, appellant argues that defense exhibits D-l, D-2 and D-3, which consisted of Barnard’s contemporaneous notes describing the man he saw fleeing the crime scene, should have been permitted to go out with the jury. Appellant’s counsel entered these exhibits into evidence at the beginning of his cross-examination of Barnard. The prosecutor objected to this evidence being sent out with the jury, and the trial court ruled that the exhibits would not be permitted to go out with the jury.

Decisions as to what exhibits may be taken out by the jury are within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Commonwealth v. Sparks, 351 Pa.Super. 320, 327-328, 505 A.2d 1002, 1006 (1986); Commonwealth v. Lybrand, 272 Pa.Super. 475, 484, 416 A.2d 555, 560 (1979); Commonwealth v. Merbah, 270 Pa.Super. 190, 196, 411 A.2d 244, 247 (1979). See also: Pa.R.Crim.P. 1114. To establish an abuse of discretion, appellant must show that the trial court disregarded or misapplied the law or that “ ‘the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record____’” Commonwealth v. Jackson, 336 Pa.Super. 609, 627, 486 A.2d 431, 441 (1984). In the instant case, the trial court did not abuse its discretion. The exhibits, as even appellant concedes, had been used extensively during cross-examination of Barnard; and, therefore, the jury was aware of the contents thereof. He was not prejudiced because the written notes were not also sent into the jury deliberating room. Counsel was not ineffective for failing to contend otherwise in post-trial motions.

Appellant also contends that pre-trial counsel and trial counsel were ineffective for failing to request a bill of particulars, for failing to request pre-trial discovery, for failing to move for suppression of the pocket watch, and for failing to prepare adequately for trial. As to the failure of counsel to move to suppress the watch, appellant fails to allege any factual basis sufficient to support such a motion. Absent some showing by appellant that an adequate basis existed on which to obtain a pre-trial suppression of the evidence in question, we will not find counsel ineffective. Commonwealth v, Durah-El, 344 Pa.Super. 511, 516, 496 A.2d 1222, 1225 (1985).

Appellant failed also to disclose any specific evidence which counsel should have discovered or show how such evidence would have helped his cause. “Such an omission is fatal to the appellant’s claim.” Commonwealth v. Stinnett, 356 Pa.Super. 83, 88, 514 A.2d 154, 157 (1986). Counsel will not be found ineffective in a vacuum, and we will not consider claims of ineffectiveness without some showing of a factual predicate upon which counsel’s assistance may be evaluated. See: Commonwealth v. Silo, 509 Pa. 406, 411, 502 A.2d 173, 176 (1985); Commonwealth v. Pettus, 492 Pa. 558, 563-564, 424 A.2d 1332, 1335 (1981); Commonwealth v. Ehrsam, 355 Pa.Super. 40, 56, 512 A.2d 1199, 1207 (1986); Commonwealth v. Scott, 345 Pa.Super. 86, 91, 497 A.2d 656, 659 (1985); Commonwealth v. Williams, 344 Pa.Super. 493, 503, 496 A.2d 1213, 1218 (1985).

In support of his claim that both prior counsel were ineffective for failing to prepare adequately for trial, appellant alleges that his counsel failed to see him in prison before trial, failed to prepare him for direct testimony or cross-examination, and failed to discuss trial strategy with him. Appellant bears the burden of proving his counsel’s ineffectiveness, for counsel’s stewardship is presumed to be effective. Commonwealth v. Weaver, 363 Pa.Super. 194, 196, 525 A.2d 785, 786 (1987). The shortness of time which counsel spends in consultation with a defendant does not alone establish ineffective assistance. Commonwealth v. Smith, 348 Pa.Super. 81, 95, 501 A.2d 656, 663-664 (1985). See also: Commonwealth v. Bundy, 491 Pa. 607, 421 A.2d 1050 (1980); Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973). Here, appellant’s trial counsel testified at the P.C.H.A. hearing that he had spoken with appellant extensively prior to trial, and the court found counsel’s testimony to be credible.

Our own review of appellant’s testimony at trial does not suggest that he was unprepared to testify. Appellant offered a plausible explanation for his presence at the crime scene an hour after the commission of that crime. Additionally, his trial counsel extensively cross-examined the Commonwealth’s witnesses, especially Barnard, the identification witness. That the jury resolved issues of credibility against appellant does not require a conclusion that trial counsel was unprepared. On the basis of the record before us, we conclude that appellant failed to prove that counsel was unprepared for trial so as to render his assistance constitutionally ineffective.

Our review of the record suggests that appellant received a vigorous and skilled defense from counsel but that he was unfairly prejudiced by the evidentiary ruling which permitted the Commonwealth to use hearsay evidence to establish his ownership of the watch found at the scene of the crime. It is solely for this reason that we reverse and remand for a new trial.

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

      . The jury found that Thomas had committed a robbery which was both a felony of the first degree and a felony of the third degree. For sentencing purposes, however, the robberies were held to merge. See: 18 Pa.C.S. § 3701(a)(l)(ii), (v).

      . 18 Pa.C.S. § 907.

      . A timely appeal was not filed, but the trial court allowed an appeal nunc pro tunc. While the appeal was pending, appellant also filed a P.C.H.A. petition. This Court granted a temporary remand so that the P.C.H.A. petition could be heard. Following an evidentiary hearing, the P.C.H.A. petition was denied.