author: OLSZEWSKI, Judge: ROWLEY, Judge, JOHNSON, Judge,

text:
    563 A.2d 1229
    COMMONWEALTH of Pennsylvania v. Anthony MARTORANO, Appellant.
    Superior Court of Pennsylvania.
    Argued June 5, 1989.
    Filed Aug. 22, 1989.

      Francis X. Meehan, Philadelphia, for appellant.
    Linda Perkins, Asst. Dist. Atty., for Com., appellee.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, McEWEN, OLSZEWSKI, TAMILIA, POPOVICH, JOHNSON and MELINSON, JJ.

       Judge Melinson did not participate in the consideration or decision of this case.

   OLSZEWSKI, Judge:

Appellant, Anthony Martorano, appeals from a judgment of sentence entered by the Court of Common Pleas of Philadelphia County sustaining the traffic court’s imposition of a fine following appellant’s conviction for speeding. For reasons delineated below, we vacate the judgment of sentence and discharge appellant.

During the early morning hours of June 19, 1986, Officer Patrick Taylor of the Philadelphia Police Department parked his patrol car, which was equipped with a speed timing device known as “Vascar,” on the the Betsy Ross Bridge exit ramp onto Interstate 95. While so situated, Officer Taylor observed appellant traveling at a high rate of speed on the Bridge Street exit; moreover, a Vascar reading indicated that appellant had been traveling at an average speed of 71.81 miles per hour in a 25-miles-per-hour zone. The officer subsequently apprehended appellant and issued a traffic citation for appellant’s violation of 75 Pa.C. S.A. § 3362(a)(3).

On April 17, 1987, appellant was convicted as charged in traffic court. Appellant appealed the conviction to the court of common pleas, which convened a de novo hearing on May 1, 1987. At the hearing, the Commonwealth submitted a copy of the original certificate of accuracy of the Vascar unit operated by Officer Taylor. Counsel for appellant objected on the grounds that photocopies are inadmissible pursuant to this Court’s ruling in Commonwealth v. Cummings, 338 Pa.Super. 149, 487 A.2d 897 (1985). In order to provide the Commonwealth with the opportunity to obtain the original document, the Honorable Joseph D. O’Keefe continued the hearing until June 10, 1987. At that time, however, the Commonwealth was still unable to supply the original certificate. Nonetheless, the Commonwealth urged that failure to comply with Cummings was not fatal to its case, arguing that:

The fact that the certificate of accuracy is not here just means that the Commonwealth didn’t prove prima faciely [sic] with that certificate, but the testimony and the routine course and practice clearly prove that this man was speeding both under the Vacar [sic] and under the officer’s observation.

Transcript at 26.

The trial court, over defense counsel’s objection, admitted the evidence obtained through operation of the Vascar unit and appellant was convicted of violating § 3362(a)(3). Post-verdict motions were filed and denied on July 16, 1987. In it’s opinion issued pursuant to Pa.R.A.P. 1925(a), however, the de novo court acknowledged that “[Appellant’s] contentions ... relating to the production of the Original Certificate of Accuracy and to the approvals of the Vascar Unit and testing station by the Pennsylvania Department of Transportation are supported under the law. Absent [the] requisite foundational facts regarding the calibration and approval of Vascar Unit NO. 2054 and the approval of the EM2 testing station, the speed of Mr. Martorano’s automobile, as it was clocked by the Vascar Unit, cannot properly be sustained as competent evidence.” Opinion at 5. Nonetheless, Judge O’Keefe found that there was sufficient evidence independent of the Vascar reading to support appellant’s conviction. Citing Officer Taylor’s experience, including the fact that he had issued approximately fifteen to twenty thousand speeding citations during his more than sixteen-year tenure with the police force, the court maintained “that the opinion testimony of Officer Taylor is, itself, sufficient to uphold the speeding conviction of Mr. Martorano.” Opinion at 9. This appeal followed.

Appellant raises two issues for our review:

1. Did the Lower Court err when it found the appellant guilty of speeding, 75 Pa.C.S.A. Section 3362(a)(3), where the Commonwealth failed to submit into evidence an original certificate of accuracy for the speed timing device, and where the Commonwealth further failed to introduce any competent evidence, independent of the certificate of accuracy, to show that the speed timing device used by the police officer was approved for use by the Pennsylvania Department of Transportation and further that a testing facility appointed and approved by the Commonwealth tested the machine in accordance with the requirements of 75 Pa.C.S.A. Section 3368(d) of the vehicle code.
2. Did the Lower Court err when it found appellant guilty of speeding solely based on the police officer’s opinion testimony as to speed.

Appellant’s brief at 2.

We are faced with deciding the issue, previously not addressed in appellate courts of this Commonwealth, of whether a police officer’s opinion testimony is sufficient grounds upon which to base a speeding violation pursuant to 42 Pa.C.S.A. § 3362. In so doing, we are guided by 75 Pa.C.S.A. § 3368, in which our legislature established comprehensive guidelines governing the implementation and maintenance of speed timing devices.

(c) Mechanical, electrical and electronic devices authorized.—
(1) Except as otherwise provided in this section, the rate of speed of any vehicle may be timed on any highway by a police officer using a mechanical or electrical speed timing device.
(2) Except as otherwise provided in paragraph (3), electronic devices such as radio-microwave devices (commonly referred to as electronic speed meters or radar) may be used only by members of the Pennsylvania State Police.
(3) Electronic devices which calculate speed by measuring elapsed time between measured road surface points by using two sensors and devices which measure and calculate the average speed of a vehicle between any two points may be used by any police officer.
(4) No person may be convicted upon evidence obtained through the use of devices authorized by paragraphs (2) and (3) unless the speed recorded is six or more miles per hour in excess of the legal speed limit. Furthermore, no person may be convicted upon evidence obtained through the use of devices authorized by paragraph (3) in an area where the legal speed limit is less than 55 miles per hour if the speed recorded is less than ten miles per hour in excess of the legal speed limit. This paragraph shall not apply to evidence obtained through the use of devices authorized by paragraph (3) within a school zone.

As amended 1985, July 11, P.L. 204, No. 52, § 3, imd. effective; 1986, March 27, P.L. 71, No. 24, § 2, imd. effective.

(d) Classification, approval and testing of mechanical, electrical and electronic devices. — The department may, by regulation, classify specific devices as being mechanical, electrical or electronic. 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 certification and calibration of electronic devices under subsection (c)(3) shall also include the certification and calibration of all equipment, timing strips and other devices which are actually used with the particular electronic device being certified and calibrated. 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.

As amended 1986, March 27, P.L. 71, No. 24, § 2, imd. effective.

(e) Distance requirements for use of mechanical, electrical and electronic devices. — Mechanical, electrical or electronic devices may not be used to time the rate of speed of vehicles within 500 feet after a speed limit sign indicating a decrease of speed. This limitation on the use of speed timing devices shall not apply to speed limit signs indicating school zones, bridge and elevated structure speed limits, hazardous grade speed limits and work zone speed limits.

Added 1985, July 11, P.L. 204, No. 52, § 3, imd. effective.

“In order to properly ascertain the meaning of a statute, we are required to consider the intent of the Legislature.” Commonwealth v. Stewart, 375 Pa.Super. 585, 592, 544 A.2d 1384, 1388 (1988). “The polestar of statutory construction is to ascertain and effectuate the intention of the General Assembly.” Bronchik v. Commonwealth, Department of Transportation, 101 Pa.Commw. 231, 233, 515 A.2d 1045, 1046 (1986), citing 1 Pa.C.S. § 1921(a); Mt. Laurel Racing Association v. Zoning Hearing Board, Municipality of Monroeville, 73 Pa.Commw. 531, 458 A.2d 1043 (1983). There is a presumption under under Section 1922(2) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(2), that the legislature intended the whole statute to be effective and certain. Commonwealth, Department of Environmental Resources v. Pennsylvania Mines Corporation, 102 Pa.Commw. 452, 457-60, 519 A.2d 522, 525-26 (1986). Moreover, we are to presume that the General Assembly did not intend a result that is absurd or unreasonable. Stewart, supra, quoting 1 Pa.C.S. § 1921(a); see also Lehigh Valley Cooperative Farmers v. Commonwealth, Bureau of Employment Security Department of Labor and Industry, 498 Pa. 521, 526, 447 A.2d 948, 950 (1982) (citations omitted).

Applying these tenets to 75 Pa.C.S.A. § 3368, we conclude that because the Legislature enacted detailed and specific instructions regarding use and maintenance of speed timing devices in this Commonwealth, it would be impermissible for us to sanction circumvention of those provisions. Therefore, we hold that in order to sustain a speeding conviction under 75 Pa.C.S.A. § 3362, the Commonwealth must present evidence which would satisfy the requirements of 75 Pa.C.S.A. § 3368. As a consequence, we also hold that a police officer’s uncorroborated testimony as to speed is insufficient to support a conviction for violating Section 3362.

In support of its position that a police officer’s estimation of speed, absent an exact measurement from a speed timing device, is legally sufficient to establish a speeding violation, the Commonwealth cites Commonwealth v. Monosky, 360 Pa.Super. 481, 520 A.2d 1192 (1987). We, however, find Monosky distinguishable from the case at bar. In Mono-sky, the appellant was charged with violating 75 Pa.C.S.A. § 3361 (driving vehicle at safe speed) as opposed to 75 Pa.C.S.A. § 3362 (maximum speed limits). A panel of this Court held that the opinion testimony of police officers who observed appellant’s driving was sufficient to establish a violation of the statute. Section 3361 provides as follows:

§ 3361. Driving vehicle at safe speed
No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around curve, when approaching a hill crest, when travelling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

Section 3361 does not require that a specific speed limit must be exceeded in order for a violation to occur. Conversely, it is necessary to prove, as an element of a 75 Pa.C.S.A. § 3362 violation, that the offender exceeded a posted speed limit. This requirement, by definition, entails greater specificity with respect to the driver’s actual speed than would a case involving 75 Pa.C.S.A. § 3361. Accordingly, we find Monosky inapplicable to the instant situation.

Finding no precedent in this Commonwealth, our sister jurisdictions provide guidance in resolving this issue. While not controlling, we find City of Kansas City v. Oxley, 579 S.W.2d 113 (Mo.1979), to be factually analogous and to provide instructive and compelling rationale. In Oxley, the appellant was convicted of exceeding the posted speed limit. The Supreme Court of Missouri, sitting en banc, observed that, “The only evidence ... from which the court, as the trier of facts, could have found the defendant, Oxley, guilty of speeding was that the officer, based on his experience as a police officer, arrived at a speed that he believed to be approximately ten miles over the posted speed limit of 85 m.p.h.” Id. at 114. The prosecution had attempted to submit evidence which had been obtained through the use of radar, but was unsuccessful in its efforts. Thus, the only weapon remaining in its arsenal was the opinion testimony of the arresting officer. After stating that the violation had “criminal overtones” and that guilt had to be proven beyond a reasonable doubt, the Missouri court held that, under the circumstances, “the testimonial opinion of the officer as to the defendant's rate of speed is not substantial evidence upon which to support a finding of guilt.” Id. at 116.

Similarly, the Missouri Court of Appeals, in City of Jackson v. Langford, 648 S.W.2d 927 (Mo.Ct.App.1988), cited a substantial body of case law in support of the proposition that radar had long been accepted as a means of speed detection in that jurisdiction. The appellant in Lang-ford had been convicted of speeding. After finding that the prosecution had failed to establish the accuracy and proper operation of the radar unit that had provided evidence in support of the conviction, the court held that the opinion testimony of two officers that the appellant had been speeding “[did] not constitute sufficient substantial evidence to find defendant guilty beyond a reasonable doubt.” Id. at 930, citing Oxley, supra.

While a review of the foregoing cases provides support for our resolution of the instant matter, we need look no further than 75 Pa.C.S.A. § 3368 in order to conclude that the Pennsylvania Legislature fully intended to require the use of speed timing devices when a driver is charged with violating 75 Pa.C.S.A. § 3362. We find, therefore, that the trial court erred in accepting Officer Taylor’s uncorroborated testimony regarding appellant’s speed as sufficient to convict appellant of violating 75 Pa.C.S.A. § 3362.

We vacate the judgment of sentence and discharge appellant. Jurisdiction relinquished.

ROWLEY, J., files dissenting statement.

JOHNSON, J., files dissenting opinion in which POPOVICH, J., joins.

ROWLEY, Judge,

dissenting.

I respectfully dissent. The majority, in arresting judgment and discharging appellant on the ground of insufficient evidence, has done so by excluding from consideration the improperly admitted evidence of the Vascar reading — in other words, by diminishing the record. As I understand the applicable case law, “we may not grant a motion in arrest of judgment on a diminished record....” Commonwealth v. Maybee, 429 Pa. 222, 226, 239 A.2d 332, 335 (1968). Accord Commonwealth v. Baker, 466 Pa. 479, 483, 353 A.2d 454, 456 (1976). Instead, in reviewing a motion in arrest of judgment, “the sufficiency of the evidence must be evaluated upon the entire trial record____ [A]ll evidence actually received must be considered, whether the trial rulings thereon were right or wrong.” Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965), quoted in Commonwealth v. Hazlett, 429 Pa. 476, 478, 240 A.2d 555, 556 (1968), and Commonwealth v. Maldonado, 343 Pa.Super. 154, 158, 494 A.2d 402, 404 (1985) (citations omitted; emphasis in original). Since “[t]he trial court, over defense counsel’s objection, admitted the evidence obtained through operation of the Vascar unit” (Majority Opinion at 1230), we are required by the cases just cited to consider the Vascar reading in evaluating appellant’s sufficiency claim. With the Vascar reading in the record, the evidence is clearly sufficient to sustain appellant’s conviction. However, where a conviction is based on inadmissible evidence, a new trial is warranted, see Commonwealth v. Maybee, supra, and appellant has preserved his right to that remedy by filing post-verdict motions for a new trial as well as in arrest of judgment. I agree that the evidence of the Vascar reading was improperly admitted in the present case, and therefore I would grant appellant the remedy of a new trial.

JOHNSON, Judge,

dissenting:

The majority has not set forth the limited scope of review which must control our determination of this appeal. Ignoring uncontested facts which were found by the trial court, the majority concludes that legislative authorization of speed timing devices was “fully intended to require the use” of such devices where a motor vehicle operator is charged with driving 65 miles per hour in a 25 mile-per-hour zone. Since this disregards the plain language of the statute and improperly strips the finder of fact of its long-established perogative to weigh the evidence before it, I must dissent.

Our scope of review in motor vehicle violation cases, where the trial court has heard the case de novo, is to determine whether or not the findings of fact are supported by competent evidence and to correct conclusions of law erroneously made. Commonwealth v. Gussey, 319 Pa.Super. 398, 402, 466 A.2d 219, 221 (1983); Cf. Rich v. Commonwealth, 74 Pa.Comwlth. 76, 78, 458 A.2d 1069, 1071 (1983).

The appellant, Anthony Martorano, contends that the trial court erred when it found him guilty of speeding based solely on the police officer’s testimony as to speed. I find no merit in that contention. I would affirm the conviction.

Our well-established standard in testing Martorano’s claim is whether the evidence and all reasonable inferences therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish the elements of the offense beyond a reasonable doubt. Commonwealth v. Thomas, 522 Pa. 256, 561 A.2d 699 (1989). In reviewing the record of the de novo hearing, we must recognize that Martorano makes no objection, on this appeal, to the admission of the police officer’s testimony.

Patrick Taylor had been a Philadelphia Police Officer since February 2, 1971. He had issued between 15,000 and 20,000 traffic citations. Of that number, at least 3,000 or possibly 4,000 were for speeding violations. In March 1986, Taylor was assigned to the Expressway Unit of the Philadelphia Highway Patrol. He was trained with the Vascar Unit and had been working primarily on Interstate 95 (1-95) with the principal duty of apprehending speed violators. He regularly had occasion to observe the flow of traffic with the intent to detect vehicles proceeding faster than the flow of traffic.

On June 19, 1986 at 4:45 a.m., Officer Taylor was parked on the Betsy Ross Bridge exit ramp onto 1-95. He had a clear view of both the Bridge Street exit and 1-95. The traffic was very light. Officer Taylor observed a vehicle coming at a high rate of speed on the Bridge Street exit off of 1-95. At that location, before you enter the Bridge Street exit ramp, there is a yellow sign indicating: Speed 25 miles per hour. Officer Taylor was in an overhead position where he could see the Martorano vehicle approaching. Officer Taylor testified that the Martorano vehicle had been traveling at a higher rate than 60, 65 miles an hour and had not slowed down much, if at all, as it proceeded down the exit ramp. When asked for his opinion as to the speed of the Martorano vehicle, Officer Taylor testified that, at the time he observed the vehicle, he knew it was going in excess of 65 miles an hour. This was in a 25 mile-per-hour zone.

The section of the Vehicle Code under which Martorano was convicted provides as follows:

§ 3362. Maximum speed limits
(a) General rule. — -Except when a special hazard exists that requires lower speed for compliance with section 3361 (relating to driving vehicle at safe speed), the limits specified in this subsection or established under this subchapter shall be maximum lawful speeds and no person shall drive a vehicle at a speed in excess of the following maximum limits:
(1) 35 miles per hour in any urban district.
(2) 55 miles per hour in other locations.
(3) Any other maximum speed limit established under this subchapter.

75 Pa.C.S. § 3362. A conviction would require proof that Martorano drove a vehicle at a speed in excess of 25 miles per hour. Officer Taylor testified that Martorano was driving 65 miles per hour in a 25 mile per hour zone. Is this testimony sufficient to support the conviction? I conclude that it is.

Until the pronouncement of the majority in this case, a police officer has been competent to render an opinion as to the speed of an observed motor vehicle, subject only to the existence of an adequate opportunity to observe. Commonwealth v. Monosky, 360 Pa.Super. 481, 485, 520 A.2d 1192, 1194 (1987); Commonwealth v. Reynolds, 256 Pa.Super. 259, 271, 389 A.2d 1113, 1119 (1978); Commonwealth v. Forrey, 172 Pa.Super. 65, 70, 92 A.2d 233, 235 (1952). That opinion, once rendered, is for the factfinder, in this case the trial court, to weigh. Commonwealth v. Monosky, supra; Commonwealth v. Forrey, supra; accord, Commonwealth v. Reynolds, supra (jury question).

I find the attempt, by the majority, to distinguish Monosky totally unpersuasive. In Monosky, as in the case now before us, the defendant was driving in a posted 25 mile per hour speed limit zone. Two police officers testified that, in their respective opinions, the defendant was travelling approximately 50 miles per hour when initially observed. This court found such opinion testimony was not a subject matter related to a science, skill or occupation beyond the common experience of an average layperson, but rather involved a matter of common knowledge. 360 Pa.Super. at 485, 520 A.2d at 1194. Neither of the police officers had the length or depth of experience as does Officer Taylor in the case now before us. In Monosky, this court held that the opinion testimony of the officers was sufficient evidence for conviction under 75 Pa.C.S. § 3361 (driving vehicle at safe speed).

The majority opines that “greater specificity with respect to a driver’s actual speed” is required under § 3362 (exceeding maximum speed) than under § 3361 (driving vehicle at safe speed), since the latter does not require that a specific speed limit must be exceeded. Such an abstract, facial analysis is unwarranted, given this court’s scope of review. In order to unearth this “difficulty,” the majority must absolutely ignore that the present appeal involves uncontested testimony that Martorano was racing 65 miles per hour in a 25 mile per hour zone. As the Commonwealth correctly points out, Martorano neither contends that a police officer is incompetent to render an opinion with regard to vehicular speed nor that the trial court improperly admitted the testimony. In “distinguishing” Monosky, the majority seemingly approves opinion testimony where the actual speed exceeded a posted limit by 25 miles while rejecting the same type and quality of testimony where the actual speed is 40 miles per hour over the limit!

Assuming that this appeal is properly before us, I have no difficulty in concluding that the findings of the distinguished trial judge are supported by uncontested competent evidence and that there have been no erroneous conclusions of law presented for our review. The uncontradicted testimony of Officer Taylor is abundantly sufficient to prove that Martorano. had driven his vehicle in excess of the maximum 25 mile per hour limit.

The trial court found that the testimony of Officer Taylor as to the speed of the Martorano vehicle on the Bridge Street exit ramp was credible. This finding of credibility is solely the province of the trial judge, as factfinder, and binding on this court. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984); Commonwealth v. Trignani, 334 Pa.Super. 526, 483 A.2d 862 (1984).

Since the evidence is sufficient to sustain the conviction under the express language of § 3362, I find no need to examine other sections of the Vehicle Code under the guise of exploring the intention of the legislature. 1 Pa.C.S. § 1921(b). The Commonwealth argues, quite cogently, that the legislature established limitations on speed timing devices not to require their use but to prevent their abuse. Like the Commonwealth, I find nothing in the Vehicle Code even remotely suggesting that the legislature intended to abolish opinion testimony of experienced police officers and require that speeding convictions depend solely on mechanical, electrical, or electronic speed timing devices.

I would affirm the judgment of sentence on the very able opinion of the distinguished trial judge, the Honorable Joseph D. O’Keefe. Hence, this dissent.

POPOVICH, J., joins.

      . The statute provides as follows:
      3362. Maximum speed limits
      (a) General rule. — Except when a special hazard exists that requires lower speed for compliance with section 3361 (relating to driving vehicle at safe speed), the limits specified in this subsection or established under this subchapter shall be maximum lawful speeds and no person shall drive a vehicle at a speed in excess of the following maximum limits:
      (1) 35 miles per hour in any urban district.
      (2) 55 miles per hour in other locations.
      (3) Any other maximum speed limit established under this sub-chapter.

      . In Cummings, a panel of this Court held that a photocopy of a certificate of accuracy was not admissible under the statutory hearsay exception for business and public records, 42 Pa.C.S.A. § 6109(b), and, therefore, was not admissible because it could not be authenticated by the testifying police officer who had not seen the original certificate. Similarly, in the instant case, Officer Taylor offered no testimony to establish the authenticity of the photocopy.

      . We note that the Oxley court made no mention of any statutory provision similar to 75 Pa.C.S.A. § 3368 that governed the use of speed timing devices.

      . In a footnote to this section, the Langford court stated that "Some writers have suggested that a speeding case can never be made with opinion evidence alone. We do not read Oxley that broadly.” 648 S.W.2d 927, 930 n. 3. Indeed, it would appear that the Oxley court could conceive of a case in which opinion testimony might be sufficient to support a conviction; the court, however, placed great emphasis on the fact that it was dealing with a criminal proceeding "where the standard of proof is of a higher caliber [than in civil cases].” 579 S.W.2d at 116. Moreover, the court emphasized that "under these facts” the opinion testimony was insufficient. Id. (emphasis supplied). This language leads us to conclude that while the Supreme Court of Missouri could envision a situation in which such testimony might be sufficient, a case involving criminal sanctions for speeding did not present that particular situation.

      . We note that it is possible that other charges may have been brought pursuant to which Officer Taylor may have testified as to speed in order to establish conditions that would have brought appellant’s offense within the purview of the particular statute. See, e.g., Mono-sky, supra; Commonwealth v. Dandar, 249 Pa.Super. 327, 378 A.2d 319 (1977).


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    563 A.2d 1236
    COMMONWEALTH of Pennsylvania v. Terry NEAL, Appellant.
    Superior Court of Pennsylvania.
    Argued March 30, 1989.
    Filed Aug. 23, 1989.

      David G. Ridge, Erie, for appellant.
    Douglas J. Wright, Asst. Dist. Atty., Girard, for Com., appellee.
    Before WIEAND, DEL SOLE and MELINSON, JJ.
   WIEAND, Judge:

Terry Neal was tried by jury and was found guilty of theft by unlawful taking. Post-trial motions were denied, and Neal was sentenced to serve a term of imprisonment for not less than one (1) year nor more than two (2) years. On direct appeal from the judgment of sentence, Neal contends that the trial court committed reversible error by: (1) requiring him to stand trial while wearing prison clothing; (2) refusing to suppress an inculpatory statement which he had made to police; and (3) denying his motion to dismiss pursuant to Pa.R.Crim.P. 1100. His principal argument, however, is that he was denied his constitutional right to counsel when the trial court dismissed his public defender and required him to proceed pro se with standby counsel.

The criminal complaint, signed on October 6, 1986, charged appellant with removing a bank bag containing seven hundred seventy-nine ($779.00) dollars while making a delivery to Lawson’s convenience store, Erie, Pennsylvania, on July 9, 1986. Trial began on Friday, May 8, 1987, when a jury was selected to hear evidence, the presentation of which was to begin on Monday, May 11, 1987. At a pre-trial hearing on May 4, 1987, the court had found that the period between February 17, 1987 and March 24, 1987, a period of thirty-six (36) days, was excludable because of a continuance of the preliminary hearing granted on motion of the defense. When this period was excluded, it became clear that the trial against appellant would be commenced within one hundred eighty (180) days after the filing of the complaint. Therefore, the court denied appellant’s motion to dismiss the prosecution. We find no error therein.

Appellant’s contention that the trial court erred when it refused to suppress an inculpatory statement which he had made to Trooper Lamont King while in custody is also without merit. During a separate suppression hearing, Trooper King testified and the trial court found that appellant had been fully advised of his rights under Miranda. This finding is binding upon a reviewing court. See: Commonwealth v. Neely, 298 Pa.Super. 328, 341, 444 A.2d 1199, 1205 (1982) (“It is ... exclusively the province of the suppression court to determine the credibility of the witnesses and the weight to be accorded their testimony.”). See also: Commonwealth v. Reynolds, 300 Pa.Super. 143, 446 A.2d 270 (1982); Commonwealth v. Butch, 257 Pa.Super. 242, 390 A.2d 803 (1978). Appellant’s contention that Trooper King’s testimony should not have been received because it was not corroborated by other evidence suggests a misunderstanding of the law. The testimony was properly received, and its credibility was for the trial court. There is here no basis for an appellate court to disturb the finding of the trial court.

Appellant next contends that he was forced to go to trial in prison clothing. Concerning such a claim, the United States Supreme Court has said that “the courts have refused to embrace a mechanical rule vitiating any conviction, regardless of the circumstances, where the accused appeared before the jury in prison garb. Instead they have recognized that the particular evil proscribed is compelling a defendant, against his will, to be tried in jail attire.” Estelle v. Williams, 425 U.S. 501, 507, 96 S.Ct. 1691, 1694-1695, 48 L.Ed.2d 126, 132-133 (1976). See also: Bent ley v. Crist, 469 F.2d 854 (9th Cir.1972); Turner v. State, 473 So.2d 639 (Ala.Cr.App.1985); People v. Roman, 35 N.Y.2d 978, 365 N.Y.S.2d 527, 324 N.E.2d 885 (1975).

In Commonwealth v. Keeler, 216 Pa.Super. 193, 264 A.2d 407 (1970), the Superior Court granted a new trial where the trial court had refused to grant a continuance to permit a defendant to obtain street clothing for trial. The defendant had been transferred from a state facility to a county prison on the night prior to trial and was unable to obtain civilian clothing prior to the start of trial. Consequently, he was required to wear prison clothing during the selection of a jury. In holding that the trial court had committed reversible error by refusing a defense motion for a continuance to obtain street clothing, the Superior Court reasoned as follows:

Under our system of criminal justice, defendants are presumed innocent until proven guilty. The burden is on the state to bring forth evidence to overcome that presumption and to prove defendant guilty beyond a reasonable doubt. Such evidence, however, must be competent and probative. It cannot rely for its value upon prejudice and fear. It cannot insinuate without rationale. See, e.g., Commonwealth v. Trowery, 211 Pa.Super. 171, 235 A.2d 171 (1967); Commonwealth v. Bruno, 215 Pa.Super. 407, 258 A.2d 666 (1969).
“A defendant in prison garb gives the appearance of one whom the state regards as deserving to be so attired. It brands him as convicted in the state’s eyes. It insinuates that the defendant has been arrested not only on the charge being tried but also on other charges for which he is being incarcerated.
The presumption of innocence requires the garb of innocence, and regardless of the ultimate outcome, or the evidence awaiting presentation, every defendant is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man, except as the necessary safeguard and decorum of the court may otherwise require.” [Eaddy v. People, 115 Colo. 488], 174 P.2d [717] at 718-719 [(1946)]. See also: Commonwealth v. Reid, 123 Pa.Super. 459, 467-468, 187 A. 263 (1936).

Commonwealth v. Keeler, supra, 216 Pa.Superior Ct. at 195-198, 264 A.2d at 409-410. See also: Commonwealth v. Kellum, 339 Pa.Super. 513, 489 A.2d 758 (1985).

In the instant case, appellant had ample opportunity to obtain civilian clothes but failed to do anything to obtain them. In fact, when civilian clothes were made available to appellant by Erie County Prison officials, he declined to accept them. In finding that there was no merit in appellant’s claim that he had been forced to stand trial in prison clothes, the trial court observed:

Here, the defendant was not supplied with civilian clothes when he was transferred from Western Penitentiary. The Erie County Prison officials attempted to provide civilian clothes for the defendant, but the defendant refused to try them on. The defendant and his then defense counsel were given three days advance notice of the date of jury selection but did not make any arrangements to obtain civilian clothes. [Pre-Trial Colloquy Transcript, May 8, 1987, pp. 2-7; Motion to Dismiss Counsel Transcript, May 11,1987, pp. 16-18]. Additionally, even though jury selection began on May 8, 1987, the trial did not actually begin until May 12, 1987 thereby affording the defendant four more days to obtain other clothing.
Finally, we determined on the record that clothing worn by the defendant was not denotive of prison garb, was not similar to Erie County Prison uniforms, and was equivalent to ordinary work clothes. [Pre-Trial Colloquy Transcript, May 8, 1987, pp. 10-11].

(Trial Court Opinion at p. 6).

The trial court’s observations are supported by the record. We conclude, therefore, that a defendant who has had ample opportunity to obtain civilian clothing prior to trial, and who has refused to wear such clothing offered to him, may not complain post-trial that he was compelled to stand trial in prison garb. This is particularly so where, as here, the trial judge who was present and observed appellant concluded that the clothing worn by appellant did not appear to be prison garb and, in fact, appeared to be ordinary work clothes. We perceive in these circumstances no basis for setting aside the jury’s verdict because of appellant’s attire during trial.

After the jury had been selected on Friday afternoon but before the opening of court on the following Monday morning, the trial judge received a letter from appellant in which he requested that his public defender be dismissed and new counsel appointed. Upon the opening of court, therefore, a hearing was held outside the presence of the jury to determine appellant’s request for new counsel. At this hearing, appellant complained that his counsel had met with him infrequently and had failed to file pre-trial motions for the discovery and suppression of evidence. His counsel testified in rebuttal that she had had extensive conversations with appellant about the case and was thoroughly familiar with it and prepared to proceed to trial. She said that she had obtained all discoverable material but that there was no basis for suppressing the inculpatory statement which appellant had made to Trooper King.

After the testimony had been received, the following colloquy was conducted:

THE COURT: ....
Mr. Neal, what we now come down to, then, is your determination to be made. If you still insist that you did not wish to be represented by Attorney Moffett, I’ll honor that request. I’ll tell you, however, that on the basis of what I have received here, Fm not amenable to continuing this matter or to appoint other counsel for you. I may very well appoint second counsel, someone to assist you, should you determine to proceed by yourself in this case, which is your absolute right, of course, but Fm not going to remove Attorney Moffett from the case without your direction to do so and I’m not going to appoint someone else to represent you under these circumstances. I’ll leave that to you as to what you wish to have done.
THE DEFENDANT: As I clearly stated in the letter, Your Honor, I don’t have the confidence that Miss Moffett is going to represent me correctly. The times we have encountered each other, I don’t know if my assertive personality intimidated her, because it was not intending that. It was only due to the seriousness in which I see the situation. I don’t feel that she has my best interest at heart and I’m in a situation now where, as I said, I feel that I still have my rights to have pretrial motions placed and I have no knowledge of how to be able to do this in writing and I do need counsel. I don’t feel confident with her or the Public Defender’s office now, especially after— as a result of my allegations here today in the letter. I’m totally afraid of being able to go to trial with her and any effort to try to defend me as — even as second or just to be present so that my rights are observed. And I think that I have some strong issues that should be pursued before I even have to go to trial, specifically that Miranda — where I said my rights weren’t given to me whatsoever. I never signed anything, there was never a discussion I ever had with Trooper King.
THE COURT: You have the right to have a determination made on the question of Miranda rights being afforded you and would so do that if that occurs and I’ll do that prior to trial.
THE DEFENDANT: Yes, sir.
THE COURT: The question now is whether or not you wish to dismiss Miss Moffett as your attorney and accordingly, the entire Public Defender’s office and—
MS. MOFFETT: You can go right ahead, I'd be more than happen [sic] to withdraw from this case.
THE DEFENDANT: See, this is what I’m saying, you heard. Her attitude is belligerent and I’m feeling I don’t have any rights.
THE COURT: I don’t find her attitude to be belligerent, but responsive to the accusations you have made. I’m going to honor your request, I’m going to relieve Miss Moffett of her representation in this case. It makes no sense to have her represent you if you don’t have confidence in her, but I’m following up with what I just told you, I’m not going to appoint other counsel to represent you. I will attempt to locate counsel to serve in assistance to you, but it’s going to be your place to try—
THE DEFENDANT: But I have no knowledge of how, Your Honor, I’m not able to defend myself. I have no knowledge of how to put any motions, how to do anything along these lines.
THE COURT: Mr. Neal, you have come in the day of the trial after a jury has been selected saying you want to dismiss your counsel.
THE DEFENDANT: Yes, sir.
THE COURT: If you have had these problems of long standing, as you have indicated that you have had, then you could have presented this motion a long time ago.
THE DEFENDANT: That’s just the point I was trying to make in this letter, that this isn’t an effort on my part, some tactic to try and delay anything. As you can see, the letter was dated the 5th, it was right after the jury selection itself. I have been hoping all the way up to this point that I would be seeing some effort or some good faith effort on her part to really try to defend me in this case, because I’m not testifying to this, but even up to the point of the selection of the jury, I’m trying to make points too, because I see that I’m not going to see her after this, I’m going to see her the day of the trial, which is just happening now. She is telling me it’s Friday afternoon, the Courts are closed. Can I speak with you for at least a half an hour upstairs before you leave? She tells me no, I’ll see you Monday. I said the trial is Monday. She said, well, I’ll see you before the trial; that like was the last that I could see that I’m being taken to Court by an attorney who I feel hasn’t properly made the effort to defend me. Even though she says she understands the case, I feel she is not looking at the correct points.
THE COURT: Well, of course, you may well have that problem with any attorney who represented you, but from what Attorney Moffett states about her familiarity with the case, beginning with the preliminary hearing up through all of the other proceedings on this, I don’t see anything to indicate that she has not represented you properly in this thing.

(N.T. May 11, 1987 at pp. 19-23).

The court thereafter dismissed appellant’s counsel from the case, directed that appellant proceed to trial pro se, and appointed standby counsel to assist appellant by answering questions pertaining to procedure and evidentiary matters. During trial, it was appellant who conducted examination and cross-examination of witnesses and who addressed the jury.

“Both the United States Supreme Court and the Pennsylvania Supreme Court have consistently ruled that legal counsel ‘is an absolute necessity in a criminal trial....’” Commonwealth v. Atkins, 233 Pa.Super. 202, 206, 336 A.2d 368, 371 (1975), quoting Commonwealth v. Kennedy, 451 Pa. 483, 488, 305 A.2d 890, 893 (1973). See also: Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Therefore, an indigent defendant has an absolute right to free counsel. However, he is not entitled to free counsel of his choice. Commonwealth v. Olivencia, 265 Pa.Super. 439, 447, 402 A.2d 519, 522 (1979). See also: Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976); Commonwealth v. Johnson, 428 Pa. 210, 236 A.2d 805 (1968); Commonwealth v. Knapp, 374 Pa.Super. 160, 542 A.2d 546 (1988); Commonwealth v. Person, 345 Pa.Super. 341, 498 A.2d 432 (1985); Commonwealth v. Fleming, 332 Pa.Super. 118, 480 A.2d 1214 (1984). The “right to counsel does not give [a defendant] the right ‘to delay the trial indefinitely because he is dissatisfied with competent counsel appointed by the court, ready and willing to represent him.’ ” Commonwealth v. Stiles, 229 Pa.Super. 411, 417, 323 A.2d 841, 844 (1974), quoting Commonwealth v. Puntari, 198 Pa.Super. 70, 71, 181 A.2d 719, 720 (1962). Even where a defendant has attempted to use his right to counsel in such a manner as to delay the administration of justice, “a court is still not empowered to require a defendant to proceed without counsel at a critical stage of a criminal prosecution without first ascertaining that the defendant is aware of the dangers of pro se representation and then affording him the opportunity to reconsider his decision to proceed pro se.” Commonwealth v. Fowler, 271 Pa.Super. 138, 144 n. 6, 412 A.2d 614, 616 n. 6 (1979).

Pa.R.Crim.P. 316(c)(ii) provides that “[a] motion for change of counsel by a defendant to whom counsel has been assigned, shall not be granted except for substantial reasons.” Whether to grant a defendant’s petition to replace court appointed counsel is a decision which is left to the sound discretion of the trial court. Commonwealth v. Segers, 460 Pa. 149, 154, 331 A.2d 462, 465 (1975). See also: Commonwealth v. Williams, 514 Pa. 62, 522 A.2d 1058 (1987); Commonwealth v. Person, supra; Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984); Commonwealth v. Tuck, 322 Pa.Super. 328, 469 A.2d 644 (1983). As a general rule, however, a defendant must show irreconcilable differences between himself and his court appointed counsel before a trial court will be reversed for abuse of discretion in refusing to appoint new counsel. See: Commonwealth v. Knapp, supra (defendant’s allegation that he and counsel had a strained relationship was not sufficient to justify appointment of new counsel); Commonwealth v. Chew, 338 Pa.Super. 472, 487 A.2d 1379 (1985) (mere difference of opinion concerning trial strategy or brevity of pre-trial communications does not compel the appointment of new counsel); Commonwealth v. Johnson, 309 Pa.Super. 117, 454 A.2d 1111 (1983) (defendant’s asserted lack of confidence in court appointed counsel’s attitude was not sufficient reason for appointment of new counsel). Compare: Commonwealth v. Tyler, supra.

“Of course, a criminal defendant also has a constitutional right to dispense with counsel altogether and to defend himself.” Commonwealth v. Szuchon, 506 Pa. 228, 250, 484 A.2d 1365, 1376 (1984). See also: Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978). In such a case, however, “the waiver of the right to counsel must appear from the record to be a knowing and intelligent decision made with full understanding of the consequences.” Commonwealth v. Szuchon, supra 506 Pa. at 250, 484 A.2d at 1377. See also: Faretta v. California, supra; Commonwealth v. Davis, supra; Commonwealth v. Tyler, supra; Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964); Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964). Cf. Argersinger v. Hamlin, supra 407 U.S. at 37, 92 S.Ct. at 2012, 32 L.Ed.2d at 538 (“[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense ... unless he was represented by counsel at his trial.”). Therefore, “[w]hen the defendant seeks to waive the right to counsel ... the judge shall ascertain from the defendant, on the record, whether this is a knowing, voluntary and intelligent waiver of counsel.” Pa.R.Crim.P. 318(c).

In order for a waiver of counsel to be valid, it must be the voluntary and intelligent act of the accused. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938). To be intelligent, a
waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to an understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.
Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 69-70, 202 A.2d 303, 305 (1964), quoting Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309, 321 (1947). See also: Commonwealth v. Baker, 318 Pa.Super. 19, 24, 464 A.2d 496, 499 (1983). Although Rule 318(c) does not instruct trial judges regarding the extent of the inquiry to be made of the accused, the comment of the Criminal Rules Committee contains a recommendation that, at a minimum, a judge should elicit the following information:
(1) That the defendant understands that he has the right to be represented by counsel, and the right to have free counsel appointed if he is indigent.
(2) That the defendant understands the nature of the charges against him and the elements of each of those charges.
(3) That the defendant is aware of the permissible range of sentences and/or fines for the offenses charged.
(4) That the defendant understands that if he waives the right to counsel he will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules.
(5) That the defendant understands that there are possible defenses to these charges which counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently.
(6) That the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by the defendant, these errors may be lost permanently.
See also: Commonwealth v. Charlett, 282 Pa.Super. 28, 422 A.2d 659 (1980). See generally: Commonwealth v. Palmer, 315 Pa.Super. 601, 608-609, 462 A.2d 755, 758 (1983).

Commonwealth v. Roman, 347 Pa.Super. 528, 534-535, 500 A.2d 1182, 1185-1186 (1985). See also: Commonwealth v. Thier, 354 Pa.Super. 7, 510 A.2d 1251 (1986), cert. denied, 484 U.S. 846, 108 S.Ct. 142, 98 L.Ed.2d 98 (1987); Commonwealth v. Dooley, 332 Pa.Super. 227, 481 A.2d 336 (1984); Commonwealth v. Hauser, 265 Pa.Super. 135, 401 A.2d 837 (1979).

It is not difficult to empathize with the trial court’s frustration when appellant, after a jury already had been selected, sought the dismissal of his lawyer and the appointment of new counsel. Appellant was unable to demonstrate irreconcilable differences between himself and his lawyer, and his request to replace counsel may well have been calculated to delay the trial. Under the circumstances, the trial court would not have abused its discretion by denying appellant’s request to dismiss his public defender. The trial court committed error, however, when it excused counsel from representing appellant and forced appellant to proceed pro se. That appellant did not want to proceed pro se is clear. He told the court that he did not know how to defend himself and had no knowledge regarding “motions, how to do anything along these lines.” In the face of this, it is clear that appellant did not voluntarily waive the right to be represented by counsel. Instead, he was literally forced by the court to represent himself without being apprised of the consequences and pitfalls thereof. This, the courts have refused to countenance.

In Commonwealth v. Grant, 229 Pa.Super. 419, 323 A.2d 354 (1974), the defendant appeared on the date set for trial and expressed a desire to dismiss the public defender who had been appointed to represent him. The trial court told the defendant to fire his counsel, which he did. Although the defendant requested that new counsel be appointed to represent him, the trial court denied the request and informed him that he would have to represent himself. Under these circumstances, the Superior Court determined that the defendant had been denied his constitutional right to representation by counsel. In reaching this conclusion, the Superior Court determined that an adequate colloquy had not been conducted to ensure a voluntary and intelligent waiver, and further reasoned as follows:

It is also evident from the record that appellant’s waiver of right to counsel was not voluntary. Waiver may not be found from the appearance of appellant without counsel, Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367 (1945), or from the failure to request counsel. Carnley v. Cochran, [369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962) ], supra. See Commonwealth ex rel. Goodfellow v. Rundle, 415 Pa. 528, 204 A.2d 446 (1964). The colloquy indicates that appellant merely informed the court that he wanted private counsel appointed, and did not make a precise request to represent himself. When appellant’s request was denied, he was directed by the trial judge, without further advice, to fire the public defender and represent himself. When appellant hesitated in confusion, the court pressed him: “Go ahead and tell him he is fired.” As a result of this colloquy, the appellant did not voluntarily waive his right to counsel, but rather appellant acquiesced in the waiver only after prodding by the trial judge. Cf. Commonwealth v. Evans, 434 Pa. 52, 252 A.2d 689 (1969).
Appellant may not frustrate or obstruct the orderly procedure of the court and the administration of justice by continual insistence o[n] representation by private counsel, even though unable to afford such representation, or the continual refusal of the services of the public defender. See United States ex rel. Fletcher v. Maroney, 280 F.Supp. 277 (W.D.Pa.), cert. denied, 393 U.S. 873, 89 S.Ct. 164, 21 L.Ed.2d 142 (1968); Commonwealth v. Puntari, 198 Pa.Super. 70, 181 A.2d 719 (1962). However, as in the instant case, the intransigent behavior by the appellant does not negate the requirement for a full and complete colloquy in order that appellant may make a competent and intelligent waiver of his right to counsel.

Commonwealth v. Grant, supra 229 Pa.Super. at 426-427, 323 A.2d at 358-359 (footnote omitted).

A similar determination was made by the Superior Court in Commonwealth v. Roman, supra. There, the public defender who had been appointed to represent an indigent defendant was permitted to withdraw from the case prior to trial because of a disagreement between him and the defendant. On the date set for trial, the defendant appeared without counsel and, although clearly expressing that he did not wish to proceed pro se, the trial court refused to appoint new counsel and informed the defendant that he would have to proceed immediately to trial without counsel. Noting that neither the trial court nor dismissed counsel had informed the defendant of his right to have free counsel appointed to represent him, the Superior Court held that the defendant had been denied his constitutionally guaranteed right to counsel. The Court determined additionally that the trial court had failed to conduct an adequate colloquy to ensure that the defendant’s waiver of the right to counsel was being knowingly and voluntarily made.

In the instant case, not only is it clear that appellant did not wish to proceed pro se, but it is also clear that the trial court did not explain to appellant the rights he was relinquishing by proceeding to trial without counsel. Under these circumstances, it cannot be said that appellant knowingly and voluntarily gave up his right to be represented by counsel. We are constrained to hold, therefore, that appellant was denied his constitutional right to counsel. Although appellant did not have the right to choose his court appointed counsel, he could not be compelled to proceed pro se after the trial court had granted his request to dismiss the public defender appointed to represent him.

Appellant’s constitutional right to counsel was not met by the last minute appointment of a lawyer to sit with appellant but not participate in the trial. Appellant was forced to represent himself during the trial, and standby counsel, who was previously unfamiliar with the case, did not play a significant role. His mere presence did not fulfill the right to counsel which the Constitution guarantees. To correct the erroneous denial of appellant’s right to counsel, a new trial is necessary.

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

      . The record does not disclose that appellant filed a motion to dismiss pursuant to Rule 1100. However, he did file a motion in opposition to the Commonwealth’s petition to extend the time for trial in which he contended that the time period prescribed by Rule 1100 had expired.

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


text:
    563 A.2d 1244
    COMMONWEALTH of Pennsylvania v. Clyde GIBBS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 3, 1989.
    Filed Aug. 29, 1989.
    Petition for Allowance of Appeal Denied Feb. 28, 1990.

      Steven G. Zorbaugh, York, for appellant.
    C.N. Patterson, Jr., Asst. Dist. Atty., York, for Com.
    Before WIEAND, MONTEMURO and CERCONE, JJ.
   WIEAND, Judge:

Clyde Gibbs was tried by jury and was found guilty of rape, robbery and a violation of the Uniform Firearms Act. Post-trial motions were denied, and Gibbs was sentenced to serve a term of imprisonment for not less than eleven (11) years nor more than twenty-two (22) years. No timely appeal was filed. Defense counsel, however, filed a P.C. H.A. petition; and thereafter new counsel was appointed to represent Gibbs. A supplemental P.C.H.A. petition was then filed, and an evidentiary hearing was held. The P.C. H.A. court vacated part of Gibbs’ sentence and allowed him to file a direct appeal nunc pro tunc, but in all other respects denied relief. This appeal followed in which Gibbs avers numerous trial errors and instances of ineffective assistance of counsel.

The Commonwealth’s evidence showed that on December 30, 1986, appellant had entered the Swinger’s Adult Book Store in York, Pennsylvania, where at one time he had been employed. Armed with a .22 caliber pistol, he forced Jody Heist, the store attendant, into the basement where he raped her several times. Before leaving, he also removed the sum of $282 from the store’s cash register. Heist called the police after appellant had gone, but gave an intentionally inaccurate description of the robber and did not mention that she had been raped. This she attributed to threats made to her by appellant before he left the store. When police produced a suspect who fit the description which she had given, Heist conceded that she had given the police incorrect information. She then told the police that she had been raped and that appellant had been her assailant. She also gave police the address where she thought appellant was living.

Two police officers thereafter went to appellant’s home where, as they approached, they observed a male quickly enter the house and close the door. They went to the door and knocked, but, hearing running footsteps and fearing that appellant was escaping, they forced open the door and apprehended appellant. A search of the premises was not then conducted. Instead, a search warrant was obtained on the basis of information supplied by the victim, and the premises were searched pursuant thereto. During the subsequent search, police found a .22 caliber revolver, loose change and a pair of sneakers with a tread which matched markings found in the dirt of the store basement.

Appellant’s contention that these items of evidence were fruits of an unlawful arrest must fail. Even if we assume for purposes of argument that appellant’s arrest was illegal because it was without warrant and there were not exigent circumstances (a fact which we do not decide), the evidence was seized during a lawful search conducted pursuant to a warrant issued on probable cause supplied by an independent source. This independent source was the victim. The information regarding the crime and the address of the perpetrator had been supplied by her prior to appellant’s arrest, but police had determined that a prompt arrest should be made without the delay inherent in obtaining a prior search warrant. After the arrest, however, and without conducting any search at the time of the arrest, police obtained a search warrant and thereafter conducted a search of the home in which appellant was living. The issue, therefore, is whether this search was so tainted by the allegedly unlawful arrest as to be fruit of a poisonous tree and inadmissible at appellant’s trial.

The mere fact that there has been an unlawful arrest does not cause all evidence thereafter obtained to be inadmissible. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). “The ‘fruit of the poisonous tree’ doctrine excludes evidence obtained from or as a consequence of lawless official acts, not evidence obtained from an ‘independent source.’ ” Costello v. United States, 365 U.S. 265, 280, 81 S.Ct. 534, 542, 5 L.Ed.2d 551, 561 (1961). Where, as here, the police found nothing at the time of the arrest which aided them in obtaining a search warrant and the warrant was issued on the basis of probable cause supplied by an independent source, to wit, the victim, the evidence seized during the subsequent search is not rendered inadmissible by the earlier arrest, even if that arrest were unlawfully made. See: Nebraska v. Smith, 207 Neb. 263, 298 N.W.2d 162 (1980); State v. Fenin, 154 N.J.Super. 282, 381 A.2d 364 (1977); 4 La Fave, Search and Seizure § 11.4(d). See also: People v. Brumfield, 100 Ill.App.3d 382, 55 Ill.Dec. 687, 426 N.E.2d 1012 (1981). Cf. Commonwealth v. Mancini, 340 Pa.Super. 592, 490 A.2d 1377 (1985). Because the search was independent of the arrest, the evidence obtained thereby was admissible and not subject to suppression. Therefore, it is unnecessary to decide whether exigent circumstances were present which warranted police in forcing open the door and arresting appellant without a warrant.

After appellant had been arrested, he was taken to police headquarters where he was processed and advised of his rights under Miranda. Appellant asked if he could use the telephone and was given permission to do so. While working in the same area, a police officer overheard appellant say to someone on the other end of the line,

“Did you take care of everything,” in a low tone of voice, and then all of a sudden he came out with, “You stupid —,” in a higher voice. Then Appellant said, “What about the dough, at the clothes, the clothes, underneath, pull it back, pull it back harder, you find it, under the rug, Okay. Call Joe.”

Appellant contends that evidence of this conversation (1) was irrelevant, and (2) violated his right of privacy.

We reject appellant’s argument that an arrestee has a right of privacy with respect to statements made into a telephone at police headquarters where he is being detained as a suspect in criminal activity. See: Commonwealth v. Benedetto, 316 Pa.Super. 134, 462 A.2d 830 (1983) (statement of accused properly received where accused asked to speak with victim at police headquarters after having been advised of his Miranda rights and his statement was overheard by police officer standing within hearing distance).

Evidence is relevant if it tends to prove or disprove facts in issue. The determination of relevancy issues must necessarily be left primarily to the discretion of the trial court, whose rulings thereon will not be disturbed unless there has been an abuse of discretion. Commonwealth v. Jackson, 336 Pa.Super. 609, 619-620, 486 A.2d 431, 437 (1984). We find no abuse of discretion in the instant case. Appellant’s statements regarding the “dough” tended to show that there was money which had been hidden and which appellant wanted removed. Coming on the heels of an armed robbery for which appellant had been arrested, it cannot be said that appellant’s desire to use the telephone and his statements regarding the “dough” were irrelevant.

Clearly irrelevant, however, was appellant’s offer to prove that the victim of his crimes had on a prior occasion smoked marijuana. The trial court did not err in excluding such evidence. See: Commonwealth v. Yost, 478 Pa. 327, 337, 386 A.2d 956, 961 (1978); Commonwealth v. Gaddy, 468 Pa. 303, 311, 362 A.2d 217, 220-221 (1976).

Appellant next complains because the trial court questioned Jody Heist, the victim and a Commonwealth witness. It is always the right and sometimes the duty of a trial judge to interrogate witnesses. However, questioning from the bench should not show bias or feeling or be unduly protracted. Commonwealth v. Hammer, 508 Pa. 88, 100, 494 A.2d 1054, 1060 (1985), quoting Commonwealth v. Watts, 358 Pa. 92, 96, 56 A.2d 81, 83 (1948). The questions asked by the trial judge in the instant case appear to have been intended to clarify the significance of the gun and the locations where intercourse had occurred. The questioning was done impartially and was not protracted. We find therein no basis for awarding a new trial.

The next three assignments of error pertain to an incomplete question asked of appellant during cross-examination by the prosecuting attorney. The question asked was, “Isn’t it true that in the year 1981 in the State of New York____” The question was interrupted by a defense objection and motion for mistrial. After argument at sidebar, the question was withdrawn and the motion for mistrial was denied. Appellant contends that this was error. He also argues that the trial court (1) should have held a hearing to determine what the prosecuting attorney intended to ask and (2) should not have given cautionary instructions to the jury.

“The decision whether to declare a mistrial is within the sound discretion of the trial judge and will not be reversed absent a flagrant abuse of that discretion.” Commonwealth v. Riggins, 374 Pa.Super. 243, 251, 542 A.2d 1004, 1008 (1988), quoting Commonwealth v. Thomas, 361 Pa.Super. 1, 14-15, 521 A.2d 442, 449-450 (1987). Although a clear reference to unrelated criminal activity generally requires a mistrial, see Commonwealth v. Watson, 355 Pa. Super. 160, 167, 512 A.2d 1261, 1265 (1986), there was no clear reference to unrelated criminal activity in the instant case. On the contrary, the question was interrupted by defense counsel’s objection, and no reference was made to any prior criminal activity. Under these circumstances, the trial court did not abuse its discretion in denying a defense motion for mistrial.

Similarly, the trial court did not abuse its discretion when it refused to convene a separate hearing to determine what the remainder of the question would have included if it had not been interrupted by a defense objection. The simple fact was that the portion of the question heard by the jury had not contained prejudicial information. Whether the question, if completed, would have contained prejudicial information, therefore, was of no significance.

The jury was informed that the question had been withdrawn and was instructed that questions were not evidence and that only the testimony of the witnesses was to be considered as evidence. Even if a cautionary instruction was unnecessary, it seems clear that appellant was not prejudiced by the trial court’s instruction to consider only testimony given by the witnesses.

Appellant’s friends told him that they had overheard a juror tell a tipstaff during the jury’s deliberations that the jury was experiencing difficulty in agreeing upon its verdict. Appellant contends that it was error for the tipstaff to allow the jury to continue its deliberations without communicating this information to the trial judge. He also complains because the trial court denied a subsequent request by defense counsel for an inquiry into the circumstances of the alleged communication. We find no merit in these arguments. Appellant does not contend that there was an improper communication between the tipstaff and the juror, and it appears, if appellant’s facts are correct, that the tipstaff ignored the juror’s comment and allowed the jury to continue its deliberations. This was entirely proper. There was, in any event, no intrusion into the jury’s deliberations and no communication from the jury requiring action by the trial court.

Finally, appellant contends that his trial counsel rendered constitutionally ineffective assistance. There is a presumption, however, that counsel has acted effectively, and the burden is on the defendant to show otherwise. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). In reviewing the stewardship of counsel, a court must first determine whether the underlying claim is of arguable merit. If so, it must then determine whether counsel’s conduct was reasonably calculated to serve the interests of his client. Finally, the defendant must demonstrate that he was prejudiced by counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Samuel Banks, a defense witness, failed to appear; and, therefore, a transcript of his testimony from a prior hearing was read to the jury. The Commonwealth, in rebuttal, called the York County Clerk of Courts to show the prior crimen falsi convictions of the witness. The clerk of courts testified, inter alia, that Banks had entered pleas of guilty to two counts of theft but that two counts of burglary had been “nol prossed.” Appellant contends that his counsel was ineffective for failing to object and for failing to elicit an explanation of the term “nol prossed.”

“[A]s a general rule, a witness must be convicted of an offense in the nature of crimen falsi before such evidence is relevant and admissible to impeach” the witness. Commonwealth v. Shands, 338 Pa.Super. 296, 302, 487 A.2d 973, 976 (1985). See also: Commonwealth v. Cragle, 281 Pa.Super. 434, 437, 422 A.2d 547, 549 (1980). Mere accusations are neither relevant nor admissible to impeach the witness. Thus, the fact that Banks had been charged with burglary offenses, which charges had been later nol prossed, was irrelevant to impeach his credibility as a witness. If defense counsel had objected thereto, this evidence would have had to be excluded. Counsel’s failure to object, however, did not cause prejudice to appellant. The burglary offenses had involved the same incidents which gave rise to the theft charges to which Banks had entered pleas of guilty and had been sentenced. These convictions were properly received to impeach his testimony. The testimony that burglary charges against Banks, a witness, had been nol prossed, therefore, did not deprive appellant of a fair trial. This testimony merely completed the total picture regarding Banks’ convictions for theft and told the jury that the burglary charges had been dropped. Under these circumstances, counsel was not ineffective for failing to elicit an explanation for the term “nol prossed.”

During the prosecuting attorney’s closing jury argument, he told the jury that Banks “was nothing but a liar and a thief.” Appellant contends that his counsel was ineffective for failing to object to this alleged impropriety.

It is improper for a prosecuting attorney to express a personal opinion regarding the credibility of a defense witness. Commonwealth v. Bricker, 506 Pa. 571, 580, 487 A.2d 346, 350 (1985) (plurality opinion); Commonwealth v. Toth, 455 Pa. 154, 314 A.2d 275 (1974). In the instant case, however, there was evidence that Banks had been convicted of several thefts and that he had given false testimony. Therefore, the prosecuting attorney’s remarks represented fair comment on the evidence. Defense counsel was not ineffective for failing to object to such comment.

Our review of the record discloses that the charges against appellant were well and fairly tried without error. Therefore, we will not disturb the jury’s verdict.

Judgment of Sentence affirmed.

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


author: OLSZEWSKI, Judge:

text:
    563 A.2d 1249
    COMMONWEALTH of Pennsylvania v. William THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 24, 1989.
    Filed Sept. 6, 1989.

      Carl J. Poveromo, Scranton, for appellant.
    Salvatore J. Nardozzi, Asst. Dist. Atty., Dunmore, for Com.
    Before ROWLEY, OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence imposed following appellant’s conviction of two counts of driving under the influence of alcohol, 75 Pa.C.S.A. § 3731(a) (hereinafter “DUI”). Appellant contends that the trial court abused its discretion in sentencing appellant to two consecutive terms of one-to-two years incarceration. For reasons that follow, we affirm the judgment of sentence.

As the result of an accident that occurred on July 10, 1987, appellant was charged on July 15, 1987 with DUI. Following another accident on October 1, 1987, appellant was again charged with DUI. On June 10, 1988, appellant plead guilty to both counts. The trial court imposed consecutive one-to-two year sentences on February 10, 1989, and denied appellant’s petition for reconsideration of sentence on February 15, 1989. This appeal followed.

Appellant raises one issue for our review: “Whether the sentencing court abused its discretion in sentencing the defendant due to its failure to consider the guidelines as an indicator of reasonability and by imposing an excessive and unreasonable sentence based solely upon the nature of the crime and defendant’s prior record?” Appellant’s brief at 3. Appellant challenges the discretionary aspects of his sentence. When challenging the discretionary aspects of sentencing, the courts of this Commonwealth require: (1) a timely notice of appeal; (2) setting forth of the challenge in the statement of questions presented; and (3) a concise statement of reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(c). Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987).

Finding that appellant has complied with these procedural requirements, we proceed to determine whether appellant has raised the appearance of a substantial question as to whether the sentence imposed is appropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b). Commonwealth v. Anderson, 381 Pa.Super. 1, 17, 552 A.2d 1064, 1072 (1988); Commonwealth v. Felix, 372 Pa.Super. 145, 151, 539 A.2d 371, 374 (1988). Our Supreme Court mandated that an appellant separately set forth the reasons relied upon for allowance of appeal in order to further the purpose of the Sentencing Code “of limiting any challenges to the trial court’s evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.” Tuladziecki, supra, 513 Pa. at 513, 522 A.2d at 20 (emphasis added). In determining whether a substantial question is presented, we must make a separate and distinct determination from any review of the merits of the petition. Darden, supra, 366 Pa.Super. at 603, 531 A.2d at 1147. “Consequently, we must accept appellant’s assertions of fact as a true and complete statement of the relevant facts for the limited purpose of determining whether appellant has raised the appearance of a substantial question.” Id.

What constitutes a “substantial question” under section 9781(b) must be evaluated on a case by case basis. However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: 1) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to the fundamental norms which underlie the sentencing process.

Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987).

Appellant’s statement of reasons relied upon for allowance of appeal provides in pertinent part:

As a general rule, when the sentence imposed is outside the sentencing guidelines, the Superior Court will conclude there is a substantial question that the sentence imposed is not appropriate under the statutory guidelines and will allow the appeal. Commonwealth v. Sheridan, 502 A.2d 699 [694], 348 Pa.[Super.] 547 [574] (1985). Although on the date of the instant offense, there were no sentencing guidelines in effect in the Commonwealth of Pennsylvania, the Probation Officer utilized the guidelines promulgated April 25, 1988 in preparing the pre-sentence report. On February 10, 1989, the Lower Court sentenced defendant on 87 CR. 995, Operating a Motor Vehicle While Under the Influence of Alcohol to a minimum of one (1) year and a maximum of two (2) years and on 87 CR. 1266, Operating a Motor Vehicle While Under the Influence of Alcohol, to a minimum of one (1) to a maximum of two (2) years at a state correctional institution to run consecutively; $300.00 fine on each of the charges and pay costs of prosecution. The sentence imposed is outside of the sentencing guidelines. Moreover, the Lower Court failed to advise the defendant what the sentencing guidelines provided as far as the range of sentence and failed to state why it deviated from the guidelines. Rather, to justify the imposition of an excessive sentence the Court focused solely on the defendant’s prior record.

Appellant’s brief at 5-6.

We find that appellant has failed to raise a substantial question as to the appropriateness of his sentence. Appellant’s contention regarding the sentencing guidelines is improper because the sentencing guidelines promulgated April 25, 1988 “apply only to sentencing for offenses committed after April 25, 1988.” Commonwealth v. Smicklo, 375 Pa.Super. 448, 452 n. 4, 544 A.2d 1005, 1007 n. 4 (1988). The trial court, therefore, had the prerogative to consult the guidelines but was in no manner bound by their recommendations nor the case law governing the failure to stay within applicable guidelines.

Further, appellant has failed to include in his statement a complete statement of factual assertions to support his bald allegation that the court focused only on his prior record. See Felix, supra, 372 Pa.Super. at 159, 539 A.2d at 378. In any event, appellant’s statement admits that the trial court was provided with a pre-sentence report upon which to base its sentencing decision. “It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.” Commonwealth v. Williams, 386 Pa.Super. 322, —, 562 A.2d 1385, 1388 (1989) (en banc), quoting Commonwealth v. Devers, 519 Pa. 88, 102, 546 A.2d 12, 18 (1988) (holding that where pre-sentence report exists, reviewing court will presume that sentencing court was aware of relevant information regarding defendant’s character and weighed those considerations). In effect, appellant asks this Court to substitute its judgment regarding an appropriate sentence for that of the trial judge. “Such a statement does not raise a substantial question that the sentence imposed was in fact inappropriate.” Williams, supra, 386 Pa.Super. at —, 562 A.2d at 1388, citing Commonwealth v. Billett, 370 Pa.Super. 125, 131, 535 A.2d 1182, 1185 (1988).

We find that appellant has failed to articulate reasons why his sentence “raises doubts that [the sentencing] scheme as a whole has been compromised.” Tuladziecki, supra, 513 Pa. at 515, 522 A.2d at 20. Accordingly, the petition for permission to appeal must be denied.

Petition for permission to appeal is denied. Judgment of sentence affirmed.

      . Appellant was also charged with driving while operating privilege was suspended or revoked, 75 Pa.C.S.A. § 1543, following the first incident. Pursuant to a plea agreement, however, this summary offense was nolle prossed at the time of sentence.

      . We note that, even if appellant had raised a substantial question, the record reflects that the trial court did not abuse its discretion in determining sentence. We will not disturb sentence when the trial court had a degree of awareness of sentencing considerations and that a weighing process took place in a meaningful fashion. Devers, supra. In this regard, the trial court, upon pronouncing sentence, declared:
      William, in passing sentence I am taking into consideration your pre-sentence investigation report and the seriousness of the charges and your criminal record and the possibility of your rehabilitation. And your drunken driving is serious and we are very concerned about it. And you know, your record reveals that you have been institutionalized before and you haven’t had the ability to take advantage of the programming, especially the alcohol and drug treatment.
      The conduct here — there is two separate cases where vehicles landed in the front lawn of properties in the south side area. And your blood alcohol was dangerously high. The criminal behavior that constitutes a serious threat and danger to the community, incarceration being — what I am going to do is incarcerate you and that is to serve as a punitive and a deterrent measure. I think that we have to — you’re 27 years old now. You are going to have to grapple seriously with your drug and alcohol addiction problem, you know, for you to get straightened out once and for all so you can ... enjoy your life and become a good citizen.
      Transcript at 4-5.