author: KELLY, Judge: ROWLEY, Judge,

text:
    545 A.2d 301
    COMMONWEALTH of Pennsylvania, Appellant, v. Dynel McMILLAN, Appellee.
    Superior Court of Pennsylvania.
    Argued May 28, 1987.
    Filed June 24, 1988.

      Harriet Brumberg, Assistant District Attorney, Philadelphia, for Com., appellant.
    Stuart Lev, Assistant Public Defender, Philadelphia, for appellee.
    Before ROWLEY, KELLY and WATKINS, JJ.
   KELLY, Judge:

The Commonwealth appeals from an order granting reconsideration of post-verdict motions and awarding a new trial, some two years, eight months, and nine days after the original order denying post-verdict motions was entered. We reverse and remand for re-sentencing.

FACTS AND PROCEDURAL HISTORY

The facts and the procedural history of this storied case may be summarized as follows. At approximately 9:30 p.m. on November 10,1982, appellee/defendant, Dynel McMillan, accosted the victim in front of Phyllis’s Bar in Philadelphia and demanded repayment of a five dollar debt allegedly owed by the victim to appellee. When the victim denied the existence of the debt, appellee threatened to “deal” with the victim. The victim then left and went to his grandmother’s house. Later that evening, when the victim left his grandmother’s house, a gold or tannish Dodge Dart passed him and skidded to a stop. Appellee jumped out of the car from the back seat, produced a revolver, and fired several shots at the victim. The victim ran back to his grandmother’s house attempting to avoid the gun fire. He was struck once in the right buttocks.

The victim called the police, reported the incident, and was taken to the hospital. He remained in the hospital for four days, during which time an unsuccessful surgical attempt was made to remove the bullet. In his initial report to the police he did not reveal that he knew and could identify his assailant. Later, however, he identified appellee as his attacker and explained to the police that when he made his initial report he was afraid that if he identified appellee as his assailant, appellee would have attacked him again.

Appellee was arrested on November 17, 1982. Following a preliminary hearing on December 21, 1982, appellee was held for trial on charges of aggravated assault, recklessly endangering another person, carrying a firearm on a public street, carrying a firearm without a license, and possession of an instrument of crime. On January 3, 1983, the Commonwealth served appellee, and filed with the trial court, a written notice of its intent to seek the application of the mandatory minimum sentence provisions of 42 Pa.C.S.A. § 9712.

On August 4, 1983, following a jury trial, appellee was convicted of aggravated assault and possessing an instrument of crime. The remaining charges were nol prossed. On January 9, 1984, after a hearing, post-verdict motions were denied. At the hearing, appellee raised constitutional challenges to the application of the mandatory minimum sentence provisions of 42 Pa.C.S.A. § 9712. The court did not immediately decide appellee’s constitutional challenges but held them under advisement.

On January 30, 1984, the trial court sustained appellee’s constitutional challenges to 42 Pa.C.S.A. § 9712, and sentenced appellee to a term of imprisonment of three to ten years. The Commonwealth filed a motion to reconsider sentence, arguing that the trial court erred in refusing to impose the mandatory minimum sentence of five years imprisonment required by 42 Pa.C.S.A. § 9712 and specifically challenging the trial court’s conclusion that the statute was unconstitutional. The motion was denied without a hearing. The trial court filed an opinion in support of judgment of sentence on February 7, 1984.

On February 24, 1984, the Commonwealth filed a timely notice of appeal to our Supreme Court. On February 29, 1984, appellee filed a timely notice of cross-appeal to this Court. On June 10, 1985, our Supreme Court filed its opinion reversing the trial court’s determination that 42 Pa.C.S.A. § 9712 was unconstitutional, vacating sentence, and remanding for resentencing in accordance with 42 Pa.C. S.A. § 9712. Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985). On June 13, 1985, this Court, sua sponte, dismissed appellee’s appeal from the then vacated judgment of sentence without prejudice to appellee’s appellate rights following resentencing. Appellee sought and was granted certiorari review in the United States Supreme Court which affirmed the decision of our Supreme Court by opinion filed June 19,1986. McMillan v. Pennsylvania, 477 U.S. 79,106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).

On September 18,1986, appellee filed a petition for reconsideration of the January 9,1984, order denying post-verdict motions in the trial court. Appellee requested a new trial based upon the change in the law, announced during the pendency of appellee’s appeals, regarding the substantive use of prior inconsistent statements. See Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986) (filed March 26, 1986). A hearing was held and briefs were submitted by appellee and the Commonwealth. On November 12, 1986, the trial court granted the motion for reconsideration and awarded appellee a new trial based on its conclusion that Brady, supra, applied and that the failure to instruct the jury that evidence of the victim’s prior inconsistent statement could be used as substantive evidence and not merely as impeachment evidence constituted reversible error. The Commonwealth filed timely notice of appeal to this Court.

Although an order granting appellee a new trial is an interlocutory order, the Commonwealth may, nevertheless, appeal as of right “where the Commonwealth claims that the lower court committed an error of law.” Pa.R.A.P. 311(a)(5); see also Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962); Commonwealth v. Coleman, 367 Pa.Super. 108, 114-21, 532 A.2d 477, 480-83 (1987). As will be seen infra, both of the Commonwealth’s contentions on appeal allege errors of law by the trial court. We thus conclude that the Commonwealth’s appeal is properly before this Court for review.

I.

The Commonwealth’s first contention is that the trial court lacked authority to reconsider the January 9, 1984 order denying post-verdict motions. The Commonwealth argues that pursuant to 42 Pa.C.S.A. § 5505 the trial court lost authority to modify or rescind the order denying post-verdict motions thirty days after its entry. The Commonwealth argues further that the trial court violated 42 Pa.C. S.A. § 706 and Pa.R.A.P. 2591(a) in failing to resentence appellee as directed by our Supreme Court. Finally, the Commonwealth argues that, under existing case law, the reconsideration of alleged trial errors is not permitted on remand for resentencing; the Commonwealth cites Commonwealth v. Gaito, 277 Pa.Super. 404, 419 A.2d 1208, 1211-12 (1980) (defendant not permitted to raise alleged trial errors on remand for resentencing), and Commonwealth v. Speelman, 235 Pa.Super. 109, 115 n. 4, 341 A.2d 138, 141 n. 4 (1975) (resentencing in no way affects the underlying conviction).

Appellee responds that the trial court, in fact, had authority to reconsider the January 9,1984 order denying post-verdict motions. Appellee argues that 42 Pa.C.S.A. § 5505 applies only to final orders and does not apply to interlocutory orders such as the denial of post-verdict motions; appellee cites Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973), Commonwealth v. Baker, 352 Pa.Super. 260, 507 A.2d 872 (1986), and Commonwealth v. Parker, 305 Pa.Super. 516, 451 A.2d 767 (1982) (Lipez, J., concurring). Appellee argues further that 42 Pa.C.S.A. § 706 and Pa.R.A.P. 2591(a) were not violated as the remand orders of our Supreme Court and this Court are silent on the question of whether post-verdict motions may be reconsidered. Finally, appellee argues that to delay consideration of appellee’s Brady issue until a new sentence is imposed and direct appeal is taken to this Court would be unjust.

The trial court embraced the appellee’s arguments and granted appellee a new trial. For the reasons which follow, we agree with the trial court’s conclusion that it had authority to reconsider appellee’s timely filed post-verdict motions following remand for resentencing.

A.

The Commonwealth’s reliance on 42 Pa.C.S.A. § 706 and Pa.R.A.P. 2591(a) is misplaced. The statute and the rule provide no more (and no less) than a basic requirement that the trial court obey the directive of an appellate court in proceedings on remand. We agree with appellee and the trial court that neither the order of our Supreme Court nor the order of this Court provides any directive, express or implied, on the subject of whether reconsideration of the order denying post-verdict motions could be granted. Consequently, we find that the statute and rule cited provide no support for the Commonwealth’s contention.

Likewise, we find the Commonwealth’s reliance on Commonwealth v. Gaito, supra, misplaced. In Gaito, this Court held that a defendant could not raise alleged trial errors for the first time in proceedings in the trial court following remand for resentencing, because the issues had not been properly preserved by timely post-verdict motions pursuant to Pa.R.Crim.P. 1123. In the instant case, appellee claimed that his challenge was preserved in a timely post-verdict motion; he sought reconsideration rather than consideration in the first instance nunc pro tunc.

The Commonwealth’s reliance upon the dictum in Commonwealth v. Speelman, 235 Pa.Super. 109, 341 A.2d 138 (1975), that, “[rjesentencing in no way affects the underlying convictions,” is also misplaced. Upon tracing the Speelman dictum to its original source, we discover that it stands for the historically interesting but rather uneontroversial proposition that if an accused is properly convicted but is thereafter sentenced illegally, an appellate court may correct the sentence or remand for resentencing, and need not vacate the conviction and discharge the prisoner. Beale v. Commonwealth, 25 Pa. 11, 13 & 22 (1855); see also Commonwealth v. McCord, 116 Pa.Super. 480, 176 A. 834 (1935); Commonwealth v. Camwell, 89 Pa.Super. 339 (1926); Commonwealth v. Fetterman, 26 Pa.Super. 569 (1904). We find the Speelman dictum to have no bearing on the issue presented for review.

We agree with the Commonwealth that Commonwealth v. Shenkin, 337 Pa.Super. 517, 487 A.2d 380 (1985) and Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977) are equally inapposite. In Shenkin and Meadows, consideration of the accused’s motion for a new trial on remand was expressly directed by this Court (following our decision to vacate an arrest of judgment) because the trial court did not rule on the accuseds’ alternate claims for a new trial when arrest of judgments were originally granted. These cases are both factually distinguishable in material respects from the instant case and are clearly inapposite.

We agree with appellee and the trial court that 42 Pa.C.S.A. § 5505 does not apply to interlocutory orders, and that prior to entry of judgment of sentence the thirty day limit does not apply to reconsideration of interlocutory orders. See Commonwealth v. Bowden, supra, 309 A.2d at 716-17 & nn. 2-3; Commonwealth v. Baker, supra, 507 A.2d at 876; Commonwealth v. Parker, supra, 451 A.2d at 772 & n. 4 (Lipez, J., concurring). On the other hand, it is well-settled that the trial court loses all power to alter its orders, final or interlocutory, thirty days from entry of judgment of sentence unless an order granting reconsideration is granted within that thirty day period. See Pa.R.A.P. 1701(a) and 1701(b)(3); see also Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965).

B.

Under Pa.R.A.P. 1701(a), the trial court is barred from reconsidering interlocutory orders, like those disposing of timely filed post-verdict motions, during the pendency of the appeal except as expressly permitted pursuant to Pa.R.A.P. 1701(b-c). Upon remand, however, the bar to reconsideration imposed by Pa.R.A.P. 1701(a) is expressly removed by Pa.R.A.P. 2591(a) which provides:

Rule 2591. Proceedings on Remand.

(a) General Rule. On remand of the record the Court ... below shall proceed in accordance with the judgment or other order of the appellate court and, except as otherwise provided in such order, Rule 1701(a) (effect of appeals generally) shall no longer be applicable to the matter.

(Emphasis added). Thus, Pa.R.A.P. 1701(a) merely suspends the trial court’s authority to reconsider timely filed post-verdict motions. In absence of express direction to the contrary in the remand order, the suspension is automatically removed by Pa.R.A.P. 2591(a) upon remand, and the parties are returned to the positions they held immediately prior to imposition of sentence. As neither remand order in this case expressly restricted the trial court’s authority to reconsider the timely filed post-verdict motions, we find no error in the trial court’s determination that it had jurisdiction and authority to do so.

II.

The Commonwealth also contends that, even if the court had jurisdiction and authority to reconsider the post-verdict motions, the trial court erred in granting appellee a new trial. The Commonwealth asserts that appellee failed to preserve an objection on Brady grounds, and, alternatively, that any error concerning the Brady issue was harmless. Appellee argues that the Commonwealth abandoned these assertions at oral argument, and that prejudicial error requiring a new trial was committed. The trial court adopted both of appellee’s arguments; we, on the other hand, reject both and agree with the Commonwealth that the order granting appellee a new trial must be reversed.

A.

In accordance with the law at the time of the trial, the jury was instructed that the victim's prior inconsistent statements could be considered only on the issue of credibility and could not be considered as substantive evidence. (N.T. 8/4/83 at 3, 4); Commonwealth v. Waller, 498 Pa. 33, 444 A.2d 653 (1982). After trial and while this case was being appealed on the issue of the constitutionality of 42 Pa.C.S.A. § 9712, our Supreme Court handed down its decision in Commonwealth v. Brady, supra, which overruled Commonwealth v. Waller, supra, and declared that under certain circumstances prior inconsistent statements could be treated as substantive evidence. The Commonwealth concedes that it has waived any challenge to the retroactive application of Brady to any case still pending on direct appeal in which a challenge to a jury instruction on Brady grounds was properly raised and preserved. (Commonwealth’s Brief at 13 n. 7).

Appellee contends, however, that the Commonwealth waived not only its challenge to the retroactivity of Brady, but also any challenge to the assertion that appellee was entitled to a new trial based on Brady. Appellee cites isolated excerpts from the hearing on appellee’s motion and contends that it establishes the waiver of all grounds other than the Commonwealth’s jurisdictional challenge. (N.T. 11/12/86 at 2).

Upon review of the entire transcript, we cannot agree. While it is clear that the “informal” discussion focused almost exclusively on the jurisdiction issue and that the Commonwealth expressly waived the retroactivity arguments, the fate of the Commonwealth’s other arguments is less clear. At least one argument, i.e. that any Brady error was harmless, was expressly raised after the statement excerpted by appellee was made. On this record, we do not find waiver of the Commonwealth’s other contentions at argument in the trial court. The Commonwealth raised specific contentions in a written memorandum to the trial court, and has specifically raised those contentions in this Court. In absence of a clear abandonment at oral argument (not present here), we will not imply abandonment under these circumstances. Hence, we find appellee’s reliance upon Commonwealth v. Urbina, 290 Pa.Super. 117, 434 A.2d 157 (1981), relating to the effect of abandonment to be misplaced.

B.

The Commonwealth contends that the Brady issue was not properly preserved by appellee at trial; we agree.

When a specific objection to the admission of evidence is made at trial, all other reasons for excluding the evidence are waived. Commonwealth v. McNeal, 456 Pa. 394, 398, 319 A.2d 669 (1974). Moreover, in determining whether a party should be given the benefit of retroactive application of a change in the law upon a particular issue, the controlling question is whether the reasoning of the new decision was urged as the basis for relief in the trial court by that party; if not, the issue has not been preserved in a manner to warrant retroactive application of the change in the law. See Commonwealth v. Hernandez, 498 Pa. 405, 411, 446 A.2d 1268, 1271 (1982).

The objection raised by counsel for appellee at trial was as follows:

MS. CHIARELLO: Your Honor, you gave them a charge, with respect to prior inconsistent statements, that said, ‘They were not substantive evidence.’
However, the statement, when he was asked, ‘Who did this crime?’ ‘I don’t know,’ and the circumstances of the pain that he was experiencing, recently uttered after the incident had occurred, is an excited utterance, and the law says that that’s a hearsay exception and that comes in as substantive evidence.
It was error to charge the jury that all prior inconsistent statements could only be viewed, with regard to credibility and not as substantive evidence. Therefore, I would ask you to tell the jury, with regard to those statements, I don’t know, that is substantive evidence they can consider.
THE COURT: You have an exception on that.
MS. CHIARELLO: You’re overruling my objection?
THE COURT: That’s correct.

(N.T. 8/4/83 at 3, 12). (Emphasis added). This objection does not challenge the instruction based upon Brady grounds, i.e. prior inconsistent statements should all be treated as substantive evidence; rather, this objection challenged the charge based upon the ground that this particular prior inconsistent statement was also an excited utterance, and as an excited utterance should have been treated as substantive evidence. Thus, the Brady issue was waived. See Commonwealth v. McNeal, supra. Moreover, as the Brady reasoning was not the basis of the challenge preserved by appellee at trial, appellee is not entitled to retroactive application of Brady. Cf. Commonwealth v. Hernandez, supra.

C.

Alternatively, we also agree with the Commonwealth’s argument that any error regarding the Brady issue was harmless. Under the facts of this case, it made no difference whatsoever whether the prior inconsistent statement was labeled as impeachment evidence or substantive evidence.

In his testimony at trial, the victim admitted that he had told the police he did not know who shot him. (N.T. 8/2/83 at 1.20). He explained that he did not identify appellee initially because he was scared. (N.T. 8/2/83 at 1.20-1.21). The issue for the jury to decide was whether the victim’s in-court explanation for the statement was credible, not whether the out-of-court statement was made. The fact that the prior inconsistent statement was made was not contested. The jury apparently elected to accept the victim’s explanation. Under these circumstances, we can see no way in which the characterization of the prior inconsistent statement as impeachment evidence rather than substantive evidence prejudiced appellee.

Moreover, the distinction between substantive evidence and impeachment or corroborative evidence is addressed to the questions of whether the evidence is to be admitted and, if so, whether it may be considered in determining whether a burden of proof or production has been met. See Commonwealth v. Brady, supra; cf. Commonwealth v. Stohr, 361 Pa.Super. 293, 314-317, 522 A.2d 589, 600-01 (1987) (Kelly, J., concurring; McEwen, J., joins) (use of prior consistent statement was corroborative, not substantive, where it was not used to establish any of the elements of the offense). In the instant case, the prior inconsistent statement was admitted into evidence and appellee had no burden of proof or production whatsoever; consequently, we find that the trial court abused its discretion in failing to find that the characterization of the prior inconsistent statement was harmless.

CONCLUSION

Based upon the foregoing, the order granting a new trial is vacated, the verdict is reinstated, and the trial court is directed to proceed to resentence appellee in accordance with this and all prior opinions in this matter. Jurisdiction is relinquished.

ROWLEY, J,, files a concurring statement.

ROWLEY, Judge,

concurring:

I join in the Order vacating the trial court’s order and remanding for resentencing. I also join in all of the Court’s opinion with the exception of Section IIC.

Since I agree that the Brady issue was not preserved, I respectfully decline to join in the discussion of “harmless error” relative to that issue.

      . Pursuant to 42 Pa.C.S.A. § 706, "An appellate court may affirm, modify, vacate, set aside or reverse any order brought before it for review, and may remand the matter and direct the entry of such appropriate order, or require such further proceedings to be had as may be just under the circumstances.”

      . Pursuant to Pa.R.A.P. § 2591(a), “On remand of the record the court or other government unit below shall proceed in accordance with the judgment or other order of the appellate court and, except as otherwise provided in such order. Rule 1701(a) (effect of appeals generally) shall no longer be applicable to the matter.”

      . Appellee argued that if the trial court were without jurisdiction or authority to reconsider the post-verdict motions the delay occasioned by appellate review of a valid claim might result in an undue burden on an appellant. While we find the trial court had jurisdiction and authority to reconsider the timely filed post-verdict motions filed in the instant case, we note that where the trial court is without jurisdiction to correct an erroneous ruling or decision, it may nonetheless confess error in its Pa.R.A.P. 1925(a) opinion and this Court may in its discretion remand the case to the trial court for reconsideration. See Commonwealth v. Gore, 327 Pa.Super. 294, 475 A.2d 804 (1984); MNC Corp. v. Mt. Lebanon Medical Center, Inc., 294 Pa.Super. 405, 440 A.2d 528 (1982). Such a course of conduct will, of course, tend to minimize the burden on worthy appellants occasioned by the logistic and temporal necessities of orderly appellate review.

      . Appellee's argument in this regard is as follows:
      In his opinion, Judge Goldman wrote
      ... the Commonwealth stated during oral argument that its objection was limited to a jurisdictional one. The Commonwealth essentially acknowledged defendant's entitlement to a new trial, but insisted that he must appeal to the Superior Court to get it. (Opinion p. 4).
      Judge Goldman’s conclusion that the district attorney limited the question to the jurisdictional issue is amply supported by the record of the argument. At the outset it was clear that the district attorney conceded that she could not argue the substantive issue.
      MS. SWEENEY: I am not going to argue that, Judge. I can’t. It pains me to say that, but I can't under the case law. (N.T. 11/12/86, 2).
      In response to the court’s question about the Gioan case (an unpublished order applying Brady to a case on direct appeal where the issue was preserved), the district attorney limited her argument to the jurisdictional issue.
      THE COURT: When did they consider this Gioan case?
      MS. SWEENEY: I don’t know that they did consider it. I know that there was another case of which they were made aware that said the same principle and based upon this case, they told me, even though that case was not precedential, it was not a published Opinion, but they told me based on that principle that I can’t argue against it; that all I can attempt to persuade you is that jurisdiction-

        ally you don’t have the power to accept it. (N.T. 11/12/86 at 5) (emphasis added).
      In light of the finding of the Court and the argument of counsel, the district attorney has abandoned any substantive challenge to the court’s decision granting a new trial and has limited appellate review to the jurisdictional issue raised, supra.

      (Appellee’s Brief at 11-12).

      . We note that the transcript includes this opening exchange:
      THE COURT: Do you mind talking about this before your client comes?
      MS. CHIARELLO: You mean, informally?
      THE COURT: I guess informally.
      MS. CHIARELLO: I think it is pretty clear, and I spoke to the lawyer out in Pittsburgh on Monday about this case—
      THE COURT: I’m talking about the jurisdiction. They are not going to argue that.
      MS. SWEENEY: I am not going to argue that, Judge. I can’t. It pains me to say that, but I can’t under the case law.
      (N.T. 11/12/86 at 2). Appellee was not brought in until after both the statements excerpted by appellee were made. (N.T. 11/12/86 at 9).

      . The notes of testimony contain the following exchanges:
      MS. SWEENEY: No, Your Honor. Then there is another position that I haven’t articulated yet, which goes to the fact that counsel had at such great length cross-examined the witness concerning the failure to state who the defendant — who the shooter was.
      THE COURT: That’s what you are not supposed to argue.
      MS. SWEENEY: No, sir. That’s what you told me not to argue. That goes to the merits of Brady.
      THE COURT: Not really, because there’s always a harmless error principle. It doesn’t go specifically to the merits of Brady. Certainly, Brady talks about it. Those jurors are like computers. When you tell them it is substantive evidence, it matters to them. ******
      MS. SWEENEY: Your Honor, the Commonwealth also believes, having reviewed the record in this case, that there is harmless error here, so that even if the Court had instructed the jury differently with respect to the prior inconsistent statement, it wouldn’t have made a difference.
      (N.T. 11/12/86 at 6, 12).

      . As indicated previously, this contention was specifically preserved at oral argument in the trial court.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    545 A.2d 309
    COMMONWEALTH of Pennsylvania v. Leroy MYERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1988.
    Filed July 1, 1988.
    Reargument Denied Aug. 18, 1988.

      John Packel, Assistant Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WIEAND, MONTGOMERY and HESTER, JJ.
   WIEAND, Judge:

Leroy Myers was tried by jury and was found guilty of kidnapping, false imprisonment, rape, simple and aggravated assault, and possession of an instrument of crime. Post-trial motions were denied, and Myers was sentenced to serve consecutive terms of imprisonment of ten to twenty years for rape, seven and one-half to fifteen years for kidnapping, and two and one-half to five years for possession of an instrument of crime. On direct appeal from the judgment of sentence, Myers argues that the trial court (1) abused its discretion by refusing a defense request to ask potential jurors if they were members of Women Organized Against Rape or a similar group; and (2) committed error by instructing the jury that a pair of scissors could be found to be an instrument of crime.

On Thursday afternoon, April 12, 1984, at or about 3:00 p.m., appellant persuaded Mrs. Rosemary Brown, who had been his girlfriend and who earlier had lived with him, to accompany him to his residence at 3531 Aspen Street in Philadelphia. Upon arriving at appellant’s residence, Mrs. Brown was asked to go upstairs to the bedroom so that she and appellant could talk. In the bedroom an argument erupted, and during the course thereof appellant picked up a pair of scissors and struck Mrs. Brown in the face, breaking her nose. After further struggle, appellant directed Mrs. Brown to undress and lie down on the bed. She complied. Appellant then tied Mrs. Brown’s hands and feet to the bed and began to make threats on her life. At one point he displayed a knife, which he held close to her throat, and threatened to puncture her lungs with it. Appellant also beat Mrs. Brown about the body with a wooden club. After she had been beaten and while still tied to the bed, Mrs. Brown was raped. According to her testimony, she was held captive until the morning of Sunday, April 14, 1984, when she was able to escape. At trial, appellant admitted that he had had a fight with Mrs. Brown, but he denied raping her, contending that the sexual acts had been consensual.

In Commonwealth v. Clark, 280 Pa.Super. 1, 421 A.2d 374 (1980), aff'd, 501 Pa. 393, 461 A.2d 794 (1983), this Court reviewed the applicable law as follows:

The scope of our review of the voir dire questioning is limited since the extent of the examination is within the sound discretion of the trial judge, and we will not reverse absent palpable error. Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977); Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976). The scope of voir dire should be limited to questions attempting to disclose lack of qualification and whether the juror has formed a fixed opinion as to the accused’s guilt or innocence. Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977); Commonwealth v. Legree, 256 Pa.Super. 128, 389 A.2d 634 (1978). It is not designed to provide a basis for peremptory challenge, and thus, “generally speaking, the ordinary prejudices of veniremen are beyond the pale of exploration on voir dire.” Commonwealth v. Legree, supra, 256 Pa.Superior Ct. at 133, 389 A.2d at 634 (recognized exception for racial prejudice). We are conscious that it would be unrealistic to expect jurors to be free from all prejudices, and therefore, we require only that jurors be conscious of their sworn responsibility and attempt to reach a decision solely on the facts presented. Commonwealth v. England, supra; Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973).

Id., 280 Pa.Superior Ct. at 13, 421 A.2d at 380. See also: Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318 (1983); Commonwealth v. Hathaway, 347 Pa.Super. 134, 500 A.2d 443 (1985); Commonwealth v. DeMarco, 332 Pa.Super. 315, 481 A.2d 632 (1984); Commonwealth v. Legree, 256 Pa.Super. 128, 389 A.2d 634 (1978). “The sole purpose of voir dire is to provide the accused with a competent, fair, impartial and unprejudiced jury.” Commonwealth v. Robbins, 358 Pa.Super. 225, 232, 516 A.2d 1266, 1270 (1986). See also: Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977); Commonwealth v. Richmond, 316 Pa.Super. 304, 462 A.2d 1362 (1983); Commonwealth v. Holland, 298 Pa.Super. 289, 444 A.2d 1179 (1982); Commonwealth v. Davis, 282 Pa.Super. 51, 422 A.2d 671 (1980).

Appellant in this case requested the trial court to ask prospective jurors whether they or close relatives or friends had ever been a member of Women Organized Against Rape or a similar group. The trial court refused the request. Appellant argues that the court’s refusal denied him the opportunity to explore potential prejudice on the part of the jury and, as such, was an abuse of discretion entitling him to a new trial. In support of this argument, appellant asserts that membership in a group such as Women Organized Against Rape may establish an affinity between juror and rape victim sufficient to support a challenge for cause. We disagree.

With respect to challenging a juror for cause the Supreme Court has said:

The test for determining whether a prospective juror should be disqualified is whether he or she is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor, Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). It must be determined whether any biases or prejudices can be put aside on proper instruction of the court, Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318 (1983). A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice or demonstrate a likelihood of prejudice by his or her conduct and answers to questions, Commonwealth v. Colon, 223 Pa.Super. 202, 299 A.2d 326 (1972). The decision on whether to disqualify is within the sound discretion of the trial court and will not be reversed in the absence of a palpable abuse of discretion, Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977).

A remote relationship to an involved party is not a basis for disqualification where a prospective juror indicates during voir dire that he or she will not be prejudiced. Commonwealth v. Colson, 507 Pa. 440, 454, 490 A.2d 811, 818 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). See also: Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986); Commonwealth v. Hashem, 363 Pa.Super. Ill, 525 A.2d 744 (1987); Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694 (1980).

In United States v. Salamone, 800 F.2d 1216 (3rd Cir. 1986), the United States Court of Appeals for the Third Circuit held that a district court had abused its discretion in a trial involving alleged violations of gun control laws by systematically excluding prospective jurors who were members of the National Rifle Association. In reaching this conclusion, the Court of Appeals reasoned as follows:

“Jury competence is an individual rather than a group or class matter.” Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 986, 90 L.Ed. 1181 (1946). Challenges for cause “permit rejection of jurors on narrowly specified, provable and legally cognizable bas[e]s of partiality.” Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 836, 13 L.Ed.2d 759 (1965). The central inquiry in the determination whether a juror should be excused for cause is whether the juror holds a particular belief or opinion that will “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). See also Patton v. Yount, 467 U.S. 1025, 1036-37, [& n. 12], 104 S.Ct. 2885, 2891-92 & n. 12, 81 L.Ed.2d 847 (1984) (noting that the constitutional standard for juror impartiality rests on the determination' whether “he can lay aside his opinion and render a verdict based on the evidence presented in court”). Juror bias need not be established with “unmistakable clarity.” Witt, 105 S.Ct. at 852. Thus, the factual determination by the trial court whether a juror can in fact serve impartially is entitled to “special deference” by the reviewing court. Yount, 104 S.Ct. at 2892. In the instant appeal, however, at no time were the excluded jurors questioned as to their ability to faithfully and impartially apply the law. Indeed, no inquiries whatsoever were directed to the excluded jurors to determine the nature and extent of their commitment to any principles that might have impaired their ability to serve impartially. While we recognize that the scope and content of voir dire is committed to the sound discretion of the trial court, that discretion will “include[] the decision as to what questions should be asked when the court itself decides to examine the prospective jurors so long as inquiries relevant to the discovery of actual bias are not omitted.” United States v. Dansker, 537 F.2d 40, 56 (3d Cir.1976) (emphasis added). Where the appropriate inquiries have been made and the district court has made a judgment on the basis of the jurors’ responses, normally, that judgment will not be disturbed. The usual factors cautioning restraint in appellate review, i.e., credibility and demeanor evidence, however, are simply absent from this record. Thus, the “factual determination” by the district court in the instant appeal, being totally devoid of any foundation, leaves us with the single conclusion that the voir dire was inadequate to preserve and protect the rights of the accused. See Dennis, [v. United States ], 339 U.S. [162] at 168, 70 S.Ct. [519] at 521 [94 L.Ed. 734 (1950)]. Absent the requisite nexus-that the challenged affiliation will “prevent or substantially impair” a juror’s impartiality-no juror may be excluded for cause on the basis of his or her membership in an organization that adheres to a particular view. Failure to make the necessary inquiry deprives the trial court of the benefit of the factual predicate that justifies an exclusion for cause. In the words of Mr. Justice Murphy in Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946), uttered over forty years ago, the conduct of the trial judge and the position urged by the government today would “open the door” to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.

United States v. Salamone, supra at 1226 (footnotes omitted).

By a similar process of reasoning, we conclude that a prospective juror is not subject to being challenged for cause in a rape trial merely because of membership in an organization such as Women Organized Against Rape. Opposition to rape, after all, is a sentiment shared by a vast majority of right thinking persons. To express such a sentiment militantly or to join an organized group of persons who share the same sentiment does not necessarily render a person incapable of weighing evidence impartially to determine whether a rape has occurred in fact or whether the person accused is in fact the person who committed the act. Cf. Commonwealth v. Hook, 300 Pa.Super. 181, 446 A.2d 290 (1982) (trial counsel not ineffective for failing to challenge for cause three jurors who signed an anti-rape petition shortly before defendant’s trial); Commonwealth v. Henderson, 275 Pa.Super. 350, 418 A.2d 757 (1980) (trial court did not abuse its discretion by denying challenge for cause where juror had disclosed that her granddaughter had been a rape victim, where juror also stated that she could be absolutely fair to the defendant). More important than membership in an organized group is whether a prospective juror can put aside any bias which he or she may have and render a verdict based solely on the evidence presented at trial. See: Commonwealth v. Colson, supra. This determination must be made by the trial court according to the prospective juror’s answers and demeanor during voir dire. Id.

In the instant case, the trial court asked all venirepersons the following questions:

“[I]s there anyone here that knows me, the attorneys, the defendant, any of the court officers or any of the possible witnesses?”
“Is there anyone here who has any close friends, relatives or inlaws who are in law enforcement or the court system?”
“Is there anyone here who has, themselves been a victim of violence or do you have a close friend, relative or inlaw who has been a victim of violence?”
“[I]s there anyone here who has heard or read anything about this case before coming to the courtroom?”
“Is there anyone here who feels that a defendant is guilty merely because he has been charged with a crime?” “Is there anyone here who would hold it against the defendant if he does not testify or does not present a defense?”
“Is there anyone here who will believe a police officer more than another person merely because that person is a police officer?”
“Is there anyone here who would not be able to follow any instructions as to the law, even if you do not agree with it?”
“Now, the defendant, the police officer and the witnesses may be of a different race from each other or from you. Would that cause anyone here to be partial or unfair?” “Is there anyone here who cannot [be] fair and impartial for any reason best known to yourself?”
“Is there anyone here who, because of religious scruples or beliefs, feels those religious scruples or beliefs will prevent them from rendering a judgment for or against another person?”

After a panel of twenty-four prospective jurors had been seated in the jury box, the court asked each of them, individually, the following questions:

“[W]ill you listen to all of the evidence and will you make your decision on the basis of that evidence and not on the basis of sympathy, favoritism, or prejudice?”
“Will you be able to follow my instructions on the law regardless of your own beliefs?”
“Will you be fair and impartial if you are picked to serve on a jury?”
“[C]an you tell us in which section of the City you live and for how long?”
“And if you live with any other people are any of those people involved in law enforcement?”
“Can you tell us your type of employment you have and for how long you have had that type of employment?” “And your age, and how far did you go in school?”

Having reviewed the voir dire proceedings in the instant case, we conclude that the questions asked of prospective jurors by the trial court were adequate to ensure that appellant would be tried before a competent, fair, impartial and unprejudiced jury. This was all that appellant was entitled to receive. See: Commonwealth v. Robbins, supra. See also: Commonwealth v. Lark, 350 Pa.Super. 558, 565-566, 504 A.2d 1291, 1295 (1986). In view of the questions asked, the trial court did not abuse its discretion by refusing to ask, in addition, whether prospective jurors were members of Women Organized Against Rape. The questions asked of prospective jurors were adequate to protect appellant’s right to be tried by a fair and impartial jury. See: United States v. Joe, 831 F.2d 218, 221 (10th Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 1043, 98 L.Ed.2d 1006 (1988) (district court did not abuse its discretion by refusing to ask prospective jurors about their familiarity with the crime scene, their possible association with rape crisis and alcohol victim centers, and the possibility that jurors might have a daughter the victim’s age where the questions which the court did ask combined with its instructions to the jury were adequate to protect the defendant against prejudice).

In reviewing jury instructions to determine whether reversible error has been committed by a trial court, we consider the charge as a whole. Error will not be predicated on isolated excerpts. Rather, it is the general effect of the charge that controls. Commonwealth v. Mason, 358 Pa.Super. 562, 580, 518 A.2d 282, 291 (1986); Common wealth v. Sweger, 351 Pa.Super. 188, 194, 505 A.2d 331, 334 (1986).

The trial court instructed the jury, in part, as follows: In order to find the defendant guilty of possessing a criminal instrument you must be satisfied that the following elements have been proven beyond a reasonable doubt. First, that the defendant pocessed [sic] a certain item, in this case that would be the scissors. And second, that the item was an instrument of a crime, and that the defendant pocessed [sic] the item with intent to employ it criminally. That is, with intent to commit a crime with it.
Now, an instrument of a crime is anything specially made or specially adapted for criminal use. Or anything commonly used for criminal purposes and pocessed [sic] by the defendant under circumstances not manifestly appropriate for the lawful use it may have. For a person to possess an item, he must have the power to control and the intent to control that item.
Now, if you are satisfied that the elements of possessing a criminal instrument have been proven beyond a reasonable doubt, then you must find the defendant guilty. Otherwise, you must find the defendant not guilty of this crime, (emphasis added).

At the conclusion of the charge, in response to a request by the prosecuting attorney, the trial court further instructed the jury as follows:

I would point out to the ladies and gentlemen of the jury in this case, the butcher knife could also be a possession of an instrument of a crime. If you believe that under the rules that I gave you, that the defendant possessed that, and if, in fact, it is an instrument of a crime as I have defined that for you, and you believe that beyond a reasonable doubt, then the same would pertain. Appellant contends that it was error to instruct the jury

that it could find him guilty of possessing an instrument of crime if it found that he had had a pair of scissors in his possession. We are constrained to agree.

Possessing an instrument of crime is made criminal by the provisions of 18 Pa.C.S. § 907(a) as follows:

(a) Criminal instruments generally. — A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally-

Instrument of crime is defined in 18 Pa.C.S. § 907(c) as follows:

(c) Definitions. — As used in this section the following words and phrases shall have the meanings given to them in this subsection:

“Instrument of crime.”

(1) Anything specially made or specially adapted for criminal use; or
(2) Anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

A pair of scissors does not fit within either definition. In Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942, allocatur denied, 516 Pa. 640, 533 A.2d 712 (1987), the Court reasoned:

The Legislature has established two alternative criteria for determining whether an object is an instrument of crime: the object must either be one which is regularly used by criminals or it must be one which is physically altered in such a fashion as to demonstrate a criminal objective. Commonwealth v. Rodriquez, 316 Pa.Superi- or Ct. 203, 462 A.2d 1310 (1983). A review of the case law leads us to agree that an ice pick and a pair of scissors may not fit within the statutory definition of an instrument of crime. See e.g., Commonwealth v. Durrant, 501 Pa. 147, 460 A.2d 732 (1983) (a pool cue does not fit within the statutory definition of an instrument of crime); Commonwealth v. Rodriquez, supra (an ordinary razor blade is not an instrument of crime); Commonwealth v. Aycock, 323 Pa.Superior Ct. 62, 470 A.2d 130 (1983) (18" long piece of channel steel is not an instrument of crime).

Id., 362 Pa.Superior Ct. at 422, 524 A.2d at 949. We agree with this reasoning. A pair of scissors is not specially made or specially adapted for criminal use; neither is it commonly used for criminal purposes. It is commonly used for a myriad of lawful purposes, ranging from the home to the workplace or office. A person does not commit a crime merely by possessing a pair of scissors, and this is so irrespective of the circumstances under which possession is obtained or retained.

In Commonwealth v. Taylor, supra, the Court held that trial counsel had not been ineffective for failing to object to a general instruction to the jury which defined an instrument of crime and left it to the jury to determine whether a knife, a pair of scissors, and an ice pick in the possession of the defendant were in fact instruments of crime. The court reasoned that even though an ice pick and a pair of scissors could not be instruments of crime, the trial court’s definition of an instrument of crime was correct and, because the knife could be found to be an instrument of crime, the defendant had not been prejudiced by counsel’s failure to object to the instruction.

In the instant case, however, we are not concerned with a claim that counsel was ineffective. The trial court’s instruction referred specifically to the scissors and told the jury that if appellant had scissors in his possession, he could be found guilty if the item were found to be an instrument of crime and if he possessed it with the intent of employing it criminally. At the conclusion of the trial court’s instructions to the jury, defense counsel objected to the court’s instruction on the specific grounds that “scissors cannot be an instrument of crime.” The trial judge expressed his disagreement and rejected the defense objection. It was then that the prosecuting attorney requested an instruction to the effect that the knife could also be found to be an instrument of crime.

It is apparent from the entirety of the trial court’s instructions that the jury was permitted to find appellant guilty of possessing an instrument of crime if he possessed either scissors or a knife. This was error. A pair of scissors cannot be found to be an instrument of crime, and the jury should not have been instructed that it could find otherwise.

The record does not enable this Court to determine that the trial court’s erroneous instruction did not contribute to the jury’s verdict. On the record before us it appears that the jury may well have concluded that appellant’s possession of the scissors was a violation of the statute which made it criminal to possess an instrument of crime. Because the trial court’s erroneous instruction may have contributed to the verdict, a new trial on this charge must be granted. See: Jones v. Montefiore Hospital, 494 Pa. 410, 420, 431 A.2d 920, 925 (1981); Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 468, 209 A.2d 279, 282 (1965); Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 382, 492 A.2d 1382, 1386 (1985).

The judgments of sentence imposed for rape and kidnapping are affirmed. The judgment of sentence for possession of an instrument of crime is reversed, and with respect to the information charging such offense a new trial is granted. Jurisdiction is not retained.

      . 18 Pa.C.S. § 2901.

      , 3. See notes 2 and 3 on page 43.

      . 18 Pa.C.S. § 2903.

      . 18 Pa.C.S. § 3121.

      . 18 Pa.C.S. §§ 2701, 2702.

      . 18 Pa.C.S. § 907(a).

      . The jury had found Myers not guilty of involuntary deviate sexual intercourse and intimidation of witnesses or victims.

      . The conviction for false imprisonment was held to merge with the kidnapping conviction for purposes of sentencing, and sentence was suspended on the assault offenses.


author:
OLSZEWSKI, Judge:
      POPOVICH, Judge,

text:
    545 A.2d 316
    COMMONWEALTH of Pennsylvania v. Salvador Carlos SANTIAGO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 16, 1987.
    Filed June 27, 1988.

      Lawrence M. Kelly, New Castle, for appellant.
    Thomas W. Minett, Assistant District Attorney, Ellwood City, for Com., appellee.
    Before OLSZEWSKI, POPOVICH and WATKINS, JJ.
   OLSZEWSKI, Judge:

On September 13, 1985, a jury found appellant Salvador Carlos Santiago guilty but mentally ill of murder in the second degree, robbery, theft by unlawful taking, receiving stolen property, crimes committed with firearms, firearms not to be carried without a license and former convict not to own a firearm. Timely post-trial motions were filed and denied and Santiago was sentenced to life imprisonment. This timely appeal followed.

On appeal, Santiago raises seventeen (17) issues for our consideration:

I. Whether the jury verdict of September 13, 1985 is contrary to the evidence?
II. Whether the jury verdict is contrary to the weight of the evidence?
III. Whether the pre-trial suppression hearing judge, President Judge Glenn McCracken, Jr., erred when he decreed that the arrest of the defendant was legal, and that the arrest warrant was issued upon probable cause?
IV. Whether the pre-trial suppression judge, President Judge Glenn McCracken, Jr., erred when he decreed defendant’s statements to Pittsburgh City Police Detectives, Ronald Freeman and Terry Hedinger and PSP Joseph Holtman and Corporal John P. Wherthey, should not be suppressed as violative of defendant’s Fifth and Fourteenth Amendment Rights?
V. Whether the pre-trial suppression hearing judge, President Judge Glenn McCracken, Jr., erred when he decreed that the defendant’s taped statement to Pennsylvania State Police Trooper, Joseph Holtman, and Corporal John P. Wherthey, was not a result of delay from arrest to preliminary arraignment?
VI. Whether the trial judge, Francis X. Caiazza, erred when he allowed inflammatory descriptions of the gunshot wounds from the pathologist, which exceeded the bounds of relevancy and were highly prejudicial to Defendant?
VII. Whether the trial judge, Francis X. Caiazza, erred when he allowed the opinion testimony from Pennsylvania State Trooper, Darryl Mayfield, which was not unequivocal and was not within a reasonable degree of certainty.
VIII. Whether the trial judge, Francis X. Caiazza, erred when he allowed the Pittsburgh Police Detective, Terry Hedinger, to testify as to the oral statements of Major Anderson advising defendant of his rights?
IX. Whether the prosecutor/assistant district attorney, J. Craig Cox, after being instructed by the trial judge, Francis X. Caiazza, during cross-examination of Fred P. Gallo, Jr., psychologist, as to the examination of the Defendant to the events of January 15, 1985, surrounding the shooting, again inquired of Dr. Jonathan Himmelhoch, psychiatrist, as to the events surrounding the shooting, which caused the defense to object, for the same constituted prosecutorial misconduct, since it appeared that the defendant had to exercise his Fifth Amendment Right to remain silent?
X. Whether the prosecutor/assistant district attorney, Thomas Minnett, committed prosecutorial misconduct in the closing summation to the jury:
A. When he displayed, demonstratively, the murder scene directly in front of the family of the victim, with the intent to inflame the passion of the jury;
B. When he made reference that the defense was attempting to divert the jury’s attention from important facts of the case;
C. When he argued that the defense was arguing three (3) to four (4) different defenses, or inconsistent defenses which were illogical and inconsistent, for the defense had argued that the defendant did the shooting but was insane and didn’t imply any other defenses;
D. By the prosecution’s reference that the jury could presume specific intent and malice?
XI. Whether the trial judge, Francis X. Caiazza, erred when he instructed the jury as to defendant’s burden of proof as to “legal insanity” by preponderance of the evidence, and mental illness beyond a reasonable doubt which is violative of both Federal and Pennsylvania Constitutions?
XII. Whether the trial judge, Francis X. Caiazza, erred when he submitted a single verdict slip as to homicide charges, which was misleading?
XIII. Whether or not the pre-trial suppression hearing judge, President Judge Glenn McCracken, Jr., erred when he permitted the in-court identification of the defendant by James Suttles?
XIV. Whether the trial judge, Francis X. Caiazza, erred when he allowed district attorney/assistant district attorney, Thomas Minnett, to elicit testimony from the prothonotary concerning the defendant’s prior sentence of incarceration?
XV. Whether the trial judge, Francis X. Caiazza, erred when he allowed the deputy warden, Dominic Farina, to testify as to the defendant’s incarceration at the time of trial before the jury?
XVI. Whether the trial judge, Francis X. Caiazza, erred when he precluded evidence from Frankie Mack as to a telephone conversation in the presence of a Youngstown Police Officer on January 15, 1985, where an unknown white male related to her “for $1,000.00 I will give your car back”?
XVII. Whether the trial judge, Francis X. Caiazza, erred when he allowed FBI agents to testify that the defendant had been charged with the Federal offense of Unlawful Flight to Avoid Prosecution?

With respect to issues I and II, the record discloses that boilerplate challenges to the sufficiency and weight of the evidence were raised in the post-trial motions. As it is well established that boilerplate challenges to the weight and the sufficiency of the evidence fail to preserve the issues for appellate review, we find that these two issues have been waived. See Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). Even if we were to find these issues have not been waived, however, we agree with the trial court that these challenges are meritless. See Opinion 3/27/87 at 2-7.

With regard to appellant’s issues III, V, VI, VII, VIII, IX, X, XII, XIII, XIV, XV, XVI, and XVII, we are persuaded by the reasoning of the Honorable Francis X. Caiazza, and accordingly, affirm on the basis of the trial court’s excellent opinion as to these issues. Thus, two issues — IV and XI— remain for our consideration.

In issue IV, appellant claims that the inculpatory statements made during questioning by the police were admitted into evidence in violation of his fifth and fourteenth amendment rights. Before addressing the merits of this claim, we are reminded that upon review of a ruling by a suppression court, an appellate court need only determine whether the record supports the factual findings of the lower court, and question whether the inferences and legal conclusions drawn from those findings are legitimate. Commonwealth v. Chamberlain, 332 Pa.Super. 108, 111, 480 A.2d 1209, 1211 (1984). If the suppression court has determined that the evidence is admissible, we will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Chamberlain, supra.

According to the notes of testimony from the suppression proceedings, Santiago was arrested by FBI agents in Washington, D.C. on April 4, 1985. After being advised of his Miranda rights by an FBI agent, appellant invoked his right to remain silent and he requested an attorney. No further questioning took place. On April 5, 1985, counsel was appointed and appellant was arraigned before a United States magistrate on the charge of unlawful flight to avoid prosecution, 18 U.S.C. § 1073.

On April 6, 1985, two detectives from the Pittsburgh Police Department traveled to the facility in Washington, D.C. where Santiago was being held and requested to speak to him. Appellant was advised by an official of the detention facility that the Pittsburgh detectives wanted to question him, but was told that he did not have to speak to the detectives unless he so desired. Appellant expressed a willingness to talk to the detectives and signed a consent form to that effect. Appellant was advised of his Miranda rights, which he waived, and was then questioned by the Pittsburgh police officers. During the course of the questioning, appellant made several inculpatory statements.

On April 8, 1985, troopers from the Pennsylvania State Police presented Washington, D.C. Police Department officials with arrest warrants for Santiago. Thereafter, the Washington D.C. Police Department lodged charges against appellant as a fugitive from justice. Appellant was taken before the local judicial authority where, with the representation of counsel, he waived extradition. That same day, the charge brought against appellant by the federal authorities was dismissed.

Immediately after the federal charges were dismissed, Pennsylvania State Police sought to interview appellant. At that time, appellant was asked to give a videotaped statement. Appellant did not immediately respond to the request. Thereafter, appellant and the state troopers engaged in some conversation as to the possible charges against him. Appellant then asked one of the troopers if he knew how he was going to die; appellant also stated that he deserved to die for what he had done. N.T. 6/18/85 at 55. The troopers explained the possible sequence of events in the prosecution, and, in response to a second request to give a videotaped statement, appellant informed the troopers that he would give a taped statement on the way back to Pennsylvania.

Shortly thereafter, in a second conversation with Santiago, the state troopers asked to speak to appellant concerning the gun which had been used during the commission of the offenses. The troopers also told appellant that it was necessary to advise him of his rights. After being assured that the questioning would only relate to the use of the gun, appellant agreed to talk. He was then given the Miranda warnings. Appellant orally waived his Miranda rights and proceeded to answer the questions regarding the use of a weapon. While returning to Pennsylvania, appellant refused to make any statement to the troopers but he did indicate that he would give a statement when they reached their destination. Upon their arrival at the State Police Barracks in New Castle, Pennsylvania, appellant was asked to make a statement and he agreed. After being advised of his Miranda rights, which he waived, appellant was interrogated.

Appellant now contends that the inculpatory statements made to the Pittsburgh police officers and the Pennsylvania State Troopers should have been suppressed because they were obtained after he had invoked his rights to remain silent and to consult with an attorney. In support of his argument, appellant contends that the circumstances of this case are similar to those at issue in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (per curiam), reh’g denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981), and thus, that his inculpatory statements should have been suppressed under the rule of that case.

In Edwards, the Supreme Court of the United States held that once an accused has invoked the right to have counsel present during custodial interrogation, further interrogation must cease until counsel has been made available, unless the accused initiates further conversation with the police. Edwards, 451 U.S. at 484-485, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386. See Commonwealth v. Hubble, 509 Pa. 497, 504 A.2d 168, cert. denied, Hubble v. Pennsylvania, 477 U.S. 904, 106 S.Ct. 3272, 91 L.Ed.2d 563 (1986); Commonwealth v. Waggoner, 373 Pa.Super. 23, 37-41, 540 A.2d 280, 287-288 (1988); Commonwealth v. Petrino, 332 Pa.Super. 13, 480 A.2d 1160 (1984), cert. denied, Petrino v. Pennsylvania, 471 U.S. 1069, 105 S.Ct. 2149, 85 L.Ed.2d 505 (1985). Central to the holding in Edwards was the fact that after the accused asserted his right to have counsel present during questioning, the police resumed the interrogation without giving Edwards access to an attorney. Under such circumstances, the Supreme Court concluded that additional safeguards were necessary before an accused may validly waive the right to counsel. Edwards, 451 U.S. at 484, 101 S.Ct. at 1884, 68 L.Ed.2d at 386.

Although we agree with appellant that Edwards is applicable to the present case, we find that case is not

controlling. Instantly, appellant was informed of his rights to remain silent and to have an attorney present immediately upon being arrested by the federal authorities. Appellant exercised his rights and counsel was promptly made available to him. Importantly, however, the police officers from the Commonwealth did not seek to interview appellant until after he had consulted with an attorney. In this way, Edwards is distinguishable. Unlike the facts before the Court in Edwards, appellant was given the opportunity to consult with an attorney after invoking his rights and prior to being interviewed by the police officers from Pennsylvania. Further, unlike the facts at issue in Edwards, appellant willingly agreed to speak with the police officers from Pennsylvania; prior to the initiation of any questioning by those officers, appellant was given the Miranda warnings, which he waived. Because appellant was given the opportunity to consult with an attorney after being informed of his Miranda rights by the federal authorities, and because appellant thereafter agreed to speak with the police officers from Pennsylvania, appellant’s statements to the Pennsylvania police officers amounted to a valid waiver and, thus, were admissible.

In the remaining issue before us, appellant asserts that the trial court erred in instructing the jury as to the burden of proving legal insanity and mental illness. The jury instructions in question are as follows:

A defendant must prove insanity defense by a preponderance of the evidence. That is, by the greater weight of the evidence. If the defense is proven, the defendant is entitled to a verdict of not guilty by reason of legal insanity.
* * * * * *
Now, guilty but mentally ill becomes a possible verdict when a defendant offers but fails to prove a legal insanity defense. A jury may return such a verdict when it finds beyond a reasonable doubt that the defendant committed the crime alleged and that the defendant, although the jury did not find him legally insane, was mentally ill at the time of the crime.
* * * sit * *
Legal insanity must be proven by a preponderance of the evidence, while mental illness must be proven beyond a reasonable doubt.

N.T. 9/11/85 at 66, 67, 68-69. Appellant submits that the instructions in question were violative of both the federal and state constitutions. Specifically, appellant claims that the statutory provision for a verdict of guilty but mentally ill, 18 Pa.C.S. § 314, violates due process guarantees by shifting the burden of proof to the accused. For the following reasons we find appellant’s claim to be without merit.

Upon review of a challenge to the constitutionality of a statute, we are reminded that a strong presumption exists in favor of the constitutionality of all lawfully enacted legislation. See Daly v. Hemphill, 411 Pa. 263, 271, 191 A.2d 835, 840 (1963). The party making such a challenge must demonstrate that the statute in question clearly, palpably and plainly violates the constitution. Commonwealth v. Doty, 345 Pa.Super. 374, 387, 498 A.2d 870, 876 (1985), cert. denied, Doty v. Pennsylvania, 479 U.S. 853, 107 S.Ct. 185, 93 L.Ed.2d 119 (1986).

It is well established that the Commonwealth carries a never-shifting burden of proving beyond a reasonable doubt all the elements of a crime. See, e.g., Commonwealth v. Bishop, 472 Pa. 485, 489, 372 A.2d 794, 796 (1977). Due process requires that the prosecution prove beyond a reasonable doubt every Tact necessary to constitute the crime charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970). A state may, however, impose a “burden of proof” on a criminal defendant in regard to any affirmative defense which relieves the accused of criminal responsibility but does not negate an element of crime. Commonwealth v. Hilbert, 476 Pa. 288, 297, 382 A.2d 724, 729 (1978); Commonwealth v. Shenkin, 337 Pa.Super. 517, 524, 487 A.2d 380, 384 (1985). Hence, we must discern whether the statutory provision at issue here improperly shifts the burden to the defendant to disprove any fact essential to the crime charged.

Section 314 of the Crimes Code provides:
(a) General rule. — A person who timely offers a defense of insanity in accordance with the Rules of Criminal Procedure may be found “guilty but mentally ill” at trial if the trier of facts finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.

18 Pa.C.S. § 314(a) (emphasis added). Section 315, which deals with the insanity defense provides:

(a) General rule. — The mental soundness of an actor engaged in conduct charged to constitute an offense shall only be a defense to the charged offense when the actor proves by a preponderance of evidence that the actor was legally insane at the time of the commission of the offense.

18 Pa.C.S. § 315(a) (emphasis added). A plain reading of these two statutes makes clear that while an accused bears the burden of proving legal insanity by the preponderance of the evidence, the ultimate burden of proving the elements of a crime beyond a reasonable doubt remains with the Commonwealth. The defendant has only the burden of producing relevant evidence indicating that his state of mind was other than that which is shared by normal reasonable men and women. Such provision is not constitutionally suspect. See Commonwealth v. Terry, 513 Pa. 381, 394 n. 14, 521 A.2d 398, 404-405 n. 14, cert. denied, Terry v. Pennsylvania, — U.S. —, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987). See also Commonwealth v. Trill, 374 Pa.Super. 549, 590-594, 543 A.2d 1106, 1127-1128 (1988) (in upholding the constitutionality of Section 314 under equal protection and due process attacks, this Court thoroughly examined and approved of the statutory scheme). Moreover, the Supreme Court has noted that a state’s choice of procedures to be used in a criminal proceeding would not be subject to proscription under the due process clause unless that decision offends some principle of justice so deeply ingrained in the traditions and conscience of the citizenship of the country as to be fundamental. Patterson v. New York, 432 U.S. 197, 207, 97 S.Ct. 2319, 2325, 53 L.Ed.2d 281, 286-287 (1977). We find no fundamental principle offended by the statutory provisions now in question. By requiring the defendant in a criminal proceeding to prove insanity by the preponderance of the evidence or, alternatively, by requiring that the factfinder find mental illness beyond a reasonable doubt, Sections 314 and 315 of the Crimes Code place the burden of proving the affirmative defense of insanity on the defendant but does not shift the burden to the defendant to disprove any fact essential to the offense charged. Nothing in § 314(a) requires that the accused prove mental illness beyond a reasonable doubt. See Trill, supra. See also Commonwealth v. Johnson, 373 Pa.Super. 312, 324-326, 541 A.2d 332, 338-339 (1988) (reviewing an application of Section 314(a) upon challenges to the weight and the sufficiency of the evidence).

Likewise, the court’s charge to the jury which virtually mirrors the language of Section 314, does not place the burden of proving mental illness beyond a reasonable doubt on the defendant. Rather, the factfinders were clearly advised that the Commonwealth bore the burden of proving beyond a reasonable doubt every element of the crimes charged. See County Court of Ulster County v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777, 791 (1979) (in criminal cases the ultimate test of any evidentiary device’s constitutional validity in a given case is whether the device undermines the factfinder’s responsibility at trial based on evidence adduced by the state, to find the ultimate facts beyond a reasonable doubt). Finding no basis for appellant’s due process attack on the constitutionality of Section 314 and, in turn, on the instructions issued to the jury, we affirm the judgment.

Judgment of sentence affirmed.

POPOVICH, J., concurs and dissents with an opinion.

POPOVICH, Judge,

concurring and dissenting:

Unlike the Majority, I find that the use of the defendant’s confession at trial violated his rights under the Fifth and Fourteenth Amendments as construed in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 878 (1981).

Before giving my rationale for the position espoused, I find it necessary to recount the facts. To that end, the suppression hearing transcript reveals that, on April 4, 1985, F.B.I. Special Agents Hosinski and Rasmussen arrested the defendant in Washington, D.C. The arrest was effectuated on the strength of a criminal complaint reproduced over a teletype indicating that the authorities in Pennsylvania were seeking the defendant on homicide charges.

Once the defendant had been transported to the Agents’ field office, he was advised of his rights and was asked if he wished to make a statement. His response was: “... no, I would like to have an attorney; I think I should have an attorney.” No questions were asked of the defendant; he was merely processed and informed of his rights a second time before being removed to the Metropolitan Police Department for additional processing on the local level, per an understanding between federal and local officials. As a result thereof, the defendant was charged by federal officials with unlawful flight to avoid prosecution, the arraignment on which took place on April 5, 1985, in federal district court. Counsel for the defendant was Attorney Barney J. Keren.

However, because the District of Columbia police charged the defendant on April 8, 1985, with being a fugitive from justice, the equivalent federal charge was dismissed the same day. Also, Attorney Nancy Beiter was appointed counsel for the defendant on April 8 as well. She represented him when he waived extradition in Superior Court and remained in the District of Columbia jail until the proper authorities arrived to remove him to Pennsylvania.

On April 5, 1985, the Pennsylvania State Police were notified by Detective Smith, of the District of Columbia police, that the defendant was being held by federal officials on fugitive charges. He was aware of Pennsylvania’s interest because the defendant was listed in the NCIC computer. However, the State Police did not arrive in Washington, D.C. until April 8. Prior thereto, it appears that the Pittsburgh police were also looking for the defendant to question him regarding the robbery/murder of one Patrick Huber.

Pittsburgh detectives Hedinger and Freeman arrived in Washington, D.C. on April 6 and proceeded to the federal facility housing the defendant. The “shift” commander informed the defendant that there were two officers from Pittsburgh who wanted to question him, but that “he didn’t have to speak with [the police] if he didn’t want to.” Defendant agreed to talk to the police and signed a form to that effect. Next, the detectives advised the defendant of his Miranda rights before inquiring about the Huber killing. At this point, the defendant agreed to discuss the matter and, as a result thereof, made incriminating statements concerning the Huber case. Moreover, following the rendition of the Miranda warnings a second time, the defendant made inculpatory statements regarding the Lawrence County shooting of Dean O’Hara, a third shooting which occurred in Mercer County and the robbery of a store, all of which transpired in this Commonwealth.

The interrogation of the defendant lasted from 11:14 a.m. to 1:39 p.m. During this time, the detectives never asked the defendant whether he had an attorney. They merely inquired if he wished to speak in the presence of an attorney, to which he answered, “no”.

It was not until April 8, 1985, that Pennsylvania State Troopers Holtman and Wherthey made their way to Washington, D.C. They observed the defendant as he stood before a federal magistrate, with counsel present (Attorney Keren) from the public defender’s office, being arraigned for unlawful flight to avoid prosecution charges. Once this was completed, the defendant was removed to another room whereupon Troopers Holtman and Wherthey were allowed to question the defendant concerning the O’Hara homicide. In particular, the troopers informed the defendant of the numerous procedures which would occur upon his return to Lawrence County. During the course of the troopers’ discussion with the defendant, they asked whether the defendant would “make a statement and have it put on videotape.” The defendant stated: “... he did not want to give a statement while he was in Washington, D.C____ He said, I’ll give you a taped statement on the way home.”

The defendant was then taken back to the Fugitive Division of the Metropolitan Police Department. Thereafter, the troopers went back to see the defendant. He was advised of his Miranda rights and asked whether he would speak to them about the gun used in the homicide. He said, “yes”. The remarks made by the defendant indicated he was aware of the weapon used in the shooting and from whose vehicle (the decedent’s) it was taken. Prior to the troopers return to Pennsylvania with the defendant, they saw him a third time in the Superior Court for the District of Columbia. This was the extradition hearing where the defendant was represented by Attorney Beiter.

En route from Washington, D.C., the troopers asked the defendant for a statement, and he stated he would give one once they reached New Castle. Upon arrival, the defendant was advised of his rights and indicated he did not want an attorney. Thereafter, he gave a taped statement dealing with the O’Hara murder and the robbery of the store. At the completion of the statement, the defendant received a phone call from the attorney (David Acker, the public defender) assigned to represent him. The defendant was told by counsel not to make any further statements to the police. When this was communicated to the troopers, the questioning of the defendant ceased.

On appeal, the defendant challenges, inter alia, the incriminating statements he made while in custody in Washington, D.C. to the Pittsburgh detectives and the Pennsylvania State Police. He does so on the basis that his request for the appointment of counsel following his arrest on federal fugitive charges precluded his interrogation thereafter, and he does so on the basis of Edwards v. Arizona, supra.

In Edwards v. Arizona, the defendant was being questioned by police in regard to a robbery, burglary and murder. Following the rendition of his Miranda rights, Edwards agreed to talk and gave an alibi defense. When he was told by police that a suspect in custody had implicate him, he wanted to “make a deal”. When the officer informed the accused that he did not have the authority to do so, Edwards told the officer that he wanted an attorney. At this stage, the questioning stopped and Edwards was taken from the police station to county jail.

The next day, two detectives went to speak to the accused. When the detention officer told the accused that he had to talk even though he did not want to, the detectives read him his Miranda rights before he agreed to make a statement implicating himself in the crimes.

The Arizona Supreme Court held that albeit the defendant had invoked his rights to remain silent and to counsel, he waived them during the following day’s meeting with detectives after the Miranda rights were given to the accused. The United States Supreme Court held otherwise by agreeing with Edwards that because he had exercised his right to counsel one day during interrogation, he did not validly waive that right the succeeding day. In the course of so holding, the Court wrote:

... we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
Miranda itself indicated that the assertion of the right to counsel was a significant event and that once exercised by the accused, “the interrogation must cease until an attorney is present.” 384 U.S., at 474, 86 S.Ct., at 1627. Our later cases have not abandoned that view.

451 U.S. at 484-85, 101 S.Ct. at 1884-85 (Footnote omitted). As noted by the Court in Edwards v. Arizona, the cessation of questioning with the invocation of one’s Fifth Amendment right to counsel has its roots in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), wherein the Court stated, in clear and mandatory language:

If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.

384 U.S. at 474, 86 S.Ct. at 1628 (Emphasis added). Accord Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 2568, 61 L.Ed.2d 197 (1979); see also Rhode Island v. Innis, 446. U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980); Michigan v. Mosley, 423 U.S. 96,104 n. 10, 96 S.Ct. 321, 326 n. 10, 46 L.Ed.2d 313 (1975).

Given the “bright-line” mandate of Edwards v. Arizona, when read in conjunction with Miranda v. Arizona, our inquiry should be one of whether the defendant’s invocation of his right to counsel when questioned by the federal authorities on April 4, 1985, triggered his right to representation during subsequent questioning by the Pittsburgh police on April 6 and the Pennsylvania State Troopers on April 8? I believe it did and look to the remarks in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) in support of the same. On this exact issue, the United States Supreme Court stated:

The State maintains that respondents may not have actually intended their request for counsel to encompass representation during any further questioning by the police. This argument, however, must be considered against the backdrop of our standard for assessing waivers of constitutional rights. Almost a half century ago, in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), a case involving an alleged waiver of a defendant’s Sixth Amendment right to counsel, the Court explained that we should “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Id., at 464, 58 S.Ct., at 1023. For that reason, it is the State that has the burden of establishing a valid waiver. Brewer v. Williams, 430 U.S. [387], at 404, 97 S.Ct. [1232], at 1242 [51 L.Ed.2d 424 (1977)]. Doubts must be resolved in favor of protecting the constitutional claim. This settled approach to questions of waiver requires us to give a broad, rather than a narrow, interpretation to a defendant’s request for counsel — we presume that the defendant requests the lawyer’s services at every critical stage of the prosecution. We thus reject the State’s suggestion that respondents’ requests for the appointment of counsel should be construed to apply only to representation in formal legal proceedings.

475 U.S. at 633 & n. 6, 106 S.Ct. at 1409 & n. 6 (Emphasis added; footnote omitted).

In this writer’s mind, the remarks in Michigan v. Jackson, when viewed against the backdrop of the facts instantly, militate against any finding that the defendant knowingly and intelligently waived his right to the presence of counsel during his interrogation by Pittsburgh police and Pennsylvania State Troopers. Once the Fifth Amendment right to counsel is invoked, Edwards v. Arizona’s “bright-line” rule to safeguard such a right can be waived by the initiation of conversation by the defendant and not the police. See Solem v. Stumes, 465 U.S. 638, 641, 648, 104 S.Ct. 1338, 1340,1343, 79 L.Ed.2d 579 (1984). Such was not the case instantly. I find this to be fatal under the teachings of Miranda v. Arizona and its progeny, most notably Edwards v. Arizona, since the defendant’s attorney’s function as a “ ‘medium’ between [the suspect] and the State” during interrogation, see Moran v. Burbine, 475 U.S. 412, 428, 106 S.Ct. 1135, 1145, 89 L.Ed.2d 410 (1986), was undermined by the actions of the authorities in the face of record evidence that the defendant invoked his right to counsel before the federal authorities. Accord Arizona v. Roberson, — U.S. —, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). And, the fact that the Pittsburgh police and the Pennsylvania State Troopers were not cognizant of this is to no avail. In the context of a Sixth Amendment right to counsel case, which I find applicable to this Fifth Amendment issue before us, the United States Supreme Court responded to a similar contention thusly:

The State points to another factual difference: The police may not know of the defendant’s request for attorney at the arraignment. That claimed distinction is similarly unavailing. In the cases at bar, in which the officers in charge of the investigations of respondents were present at the arraignments, the argument is particularly unconvincing. More generally, however, Sixth Amendment principles require that we impute the State’s knowledge from one state actor to another. For the Sixth Amendment concerns the confrontation between the State and the individual. One set of state actors (the police) may not claim ignorance of defendants’ unequivocal request for counsel to another state actor (the court).

Michigan v. Jackson, supra, 475 U.S. at 634, 106 S.Ct. at 1410 (Emphasis added). In a similar vein, just as in Michigan v. Jackson, I see no reason why the federal agents’ awareness of the defendant’s request for counsel during his interrogation could not be imputed to the state officials so as to taint their questioning of the accused in the absence of counsel.

Further, I cannot join in that portion of the Majority’s Opinion whereby it concludes that, under 18 Pa.C.S. § 314(a), a defendant need prove his mental illness “beyond a reasonable doubt” whereas the defense of legal insanity must be established by a mere “preponderance of the evidence”. The Majority offers no justification, be it premised upon law or logic, for the dichotomy, and I can find none since both are affirmative defenses.

As in the circumstances where a defendant is afforded the opportunity to rebut the “intent” element in a charge of murder in the first degree by producing evidence of his intoxication (by a preponderance of the evidence), see Commonwealth v. White, 366 Pa.Super. 538, 531 A.2d 806 (1987), should not the same standard prevail in effectuating the intention of the Legislature in promulgating § 314. See Wharton’s Criminal Evidence § 32 (13th Ed.1972). I would so hold.

In other words, my reading of § 314, in a common sense fashion (1 Pa.C.S. § 1921), would invoke the application of the “preponderance of the evidence” standard to both the “mentally ill” and “legally insane” defenses. See generally Wharton’s Criminal Evidence § 30 (13th Ed.1972). It would be for the factfinder to determine whether the Commonwealth established the defendant’s sanity or absence of mental illness beyond a reasonable doubt. See generally Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147, 149 (1980).

To the extent that the Majority would affirm the actions of the trial court in its charge to the jury — mental illness defense need be proven beyond a reasonable doubt by the defendant whereas legal insanity must be proven by a preponderance of the evidence, I dissent and would award the defendant a new trial.

For the reasons herein stated, I respectfully dissent.

      . In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court of the United States declared that an accused has a fifth and fourteenth amendment right to have counsel present during custodial interrogation.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . This charge was dismissed on April 8, 1985.

       In construing respondents’ request for counsel, we do not, of course, suggest that the right to counsel turns on such a request. See Brewer v. Williams, 430 U.S., at 404, 97 S.Ct., at 1242 ("the right to counsel does not depend upon a request by the defendant”); Camley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 888, 8 L.Ed.2d 70 (1962) ("it is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request”). Rather, we construe the defendant’s request for counsel as an extremely important fact in considering the validity of a subsequent waiver in response to police-initiated interrogation.