author:
OLSZEWSKI, Judge:
      CIRILLO, President Judge,

text:
    537 A.2d 883
    COMMONWEALTH of Pennsylvania, Appellee, v. Thomas McEACHIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1987.
    Decided Feb. 11, 1988.

      Thomas J. Turner, III, Philadelphia, for appellant.
    Deborah Fleisher, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence entered after appellant’s conviction by jury of two counts of involuntary deviate sexual intercourse and three counts of corrupting the morals of a minor child. Appellant complains on appeal that: (1) the trial court erred in finding child witnesses competent to testify; (2) the trial court erred in permitting repeated re-examination of one child witness and counsel was ineffective for failing to object; (3) the trial court erred in denying appellant’s motions for a mistrial; (4) the trial court erred in permitting testimony as to prior consonant statements of two children and trial counsel was ineffective for failing to object; and (5) the trial court erred in not permitting evidence of prior inconsistent statements by two child witnesses. We find appellant’s claims to lack merit and, accordingly, we affirm the order of the trial court.

Evidence presented at trial established that between late 1985 and early 1986, appellant, while employed as a maintenance worker at a day school in Philadelphia, sexually molested three pre-school aged children. With each victim, appellant pretended to play various children’s games which culminated in his penis being placed in each child’s mouth and/or rectal or genital area.

After conviction, post-trial motions were filed and denied. The trial court sentenced appellant to six to twenty-four years plus five years probation. This appeal followed.

Appellant first maintains that the trial court erred in finding the complainant children competent to testify. At the time of trial, the victims, R.J. E.J., and K.H., were aged five, five, and three and one-half, respectively. When evaluating the competency of children to testify, we are guided by the following principles:

A witness is presumed competent to testify unless proven otherwise. Commonwealth v. Riley, 458 Pa. 390, 326 A.2d 384 (1974). When a proposed witness is under fourteen years of age, however, there must be a searching judicial inquiry as to mental capacity. Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694 (1980). This inquiry will probe the capacity to communicate, observe and remember, and a consciousness of the duty to speak the truth in proportion to the witness’s chronological immaturity. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959)____ [T]he judge holds the superior opportunity to evaluate the competency of a proposed child witness____ Commonwealth v. Bailey, 322 Pa.Super. 249, 469 A.2d 604 (1983).

Commonwealth v. Stohr, 361 Pa.Super. 293, 522 A.2d 589 (1987).

Our Supreme Court has mandated that in evaluating competency, the trial court must be satisfied that the witness has:

“(1) such capacity to communicate, including as it does both an ability to understand questions and to frame express and intelligent answers; (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that [the witness] is called to testify about; and (3) a consciousness of the duty to speak the truth.”

Rosche v. McCoy, 397 Pa. 615, 620, 156 A.2d 307, 310 (1959) (emphasis in original). See also Commonwealth v. Baker, 466 Pa. 479, 485, 353 A.2d 454, 457 (1976).

Commonwealth v. Hart, 501 Pa. 174, 177, 460 A.2d 745, 747 (1983). Determination of competency will not be disturbed on appeal absent a clear abuse of discretion. Id.

Instantly, the trial court made the following observations regarding the competency of the three children: each knew his/her name, age and where he/she went to school; each could distinguish colors; each articulated why he/she was in the courtroom; and each knew the difference between the truth and a lie and the consequences of telling a lie. In conclusion, the trial court stated:

Although the witnesses sometimes gave inconsistent answers and occasionally gave answers which could not possibly be correct, on the whole they demonstrated consistently that they knew the concept of truth, that they could understand the questions and that they could give intelligent, relevant answers. This was in contrast to the witness the Court found incompetent who, when asked a very concrete question about the weather that day, indicated that it was snowing (not a correct answer). Under the circumstances of this case, this Court did not commit error in finding witnesses [K.W.], [E.J.] and [R.J.] to be competent.

Opinion at 6.

The trial court’s inquiry, therefore, reflects a careful and guided determination as to whether each child was competent to testify. We find no abuse of discretion by the trial court.

Appellant next contends that the trial court erred in permitting the Commonwealth to re-question K.H. and in acting favorably towards the child. We note that appellant has preserved the issue of re-questioning the witness by objecting on the record and, therefore, we need not address the ineffectiveness alternative in this regard. Because appellant’s specific objection was that the question was “asked and answered,” however, appellant’s assertion on appeal that the trial court’s behavior towards K.H. improperly influenced the jury is waived. See Commonwealth v. Berry, 355 Pa.Super. 243, 255-56, 513 A.2d 410, 416 (1986). Nonetheless, because appellant has cloaked this issue in an ineffectiveness assistance of counsel claim, we are constrained to address it. See infra.

Regarding the re-questioning of a witness, we adhere to the following principles:

The trial judges of this Commonwealth exercise broad powers while presiding at the trial of cases assigned to them. These powers include ruling on the admission or exclusion of evidence and controlling the scope of examination and cross-examination of witnesses. Such matters are committed to the sound discretion of the trial judge. Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980).

Commonwealth v. Pittman, 320 Pa.Super. 166, 172-73, 466 A.2d 1370, 1373 (1983).

In the instant case, the trial court admitted that the child was re-questioned. The court noted, however, that the requestioning was warranted because the child was tired. Opinion at 11. The court further observed that the child appeared intimidated by the jury. Id. The witness, nonetheless, indicated that she had something to tell the judge. In the interest of arriving at the truth, the trial court’s control of the examination was not an abuse of discretion.

Appellant’s counsel claims his own ineffectiveness for failing to preserve a challenge to the trial court’s favorable treatment of K.H. Our Supreme Court has recently mandated:

When appellate counsel asserts a claim of his or her own ineffective assistance of counsel on direct appeal, the case should be remanded for the appointment of new counsel except (1) where, it is clear from the record that counsel was ineffective or (2) where it is clear from the record that the ineffectiveness claim is meritless.

Commonwealth v. McBee, 513 Pa. 255, 261, 520 A.2d 10, 13 (1986) (emphasis in original). We find that appellant’s claim is meritless and, therefore, need not remand for the appointment of new counsel.

When determining whether counsel rendered ineffective assistance, we must determine, first, whether the underlying claim has arguable merit. Only if the claim is determined to be of arguable merit do we inquire as to the reasonableness of counsel’s action or inaction. Finally, appellant must have been prejudiced by counsel’s performance such that the trial outcome would likely have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Griffin, 357 Pa.Super. 308, 515 A.2d 1382 (1986).

Instantly, counsel’s allegations concerning his performance do not surmount the arguable merit hurdle. There was simply no impropriety by the trial court to which counsel should have objected. Scrutiny of the record indicates that the trial court did not display its opinion as to the credibility of K.H. nor did the court question the witness in a way which reflects bias. As the court indicated, it was merely concerned with the comfort of the three and one-half year old victim:

In the instant case, this Court did not question the witness or in any way indicate an opinion as to the guilt or innocence of the defendant or the truth or untruth of witness’ testimony____ This Court merely stated to the witness, after the district attorney elicited that the witness was tired, “Would you like to go and have lunch now and come back later” to which the witness answered, “Yes” and the Court stated, “All right you can do that, dear, you can step down and go with your Grandmom”. This remark may show some appropriate solicitousness for the witness’ well being but certainly does not indicate any opinion by the Court as to the truthfulness or untruthfulness of the witness’ testimony. Later on that day, after the witnss [sic] had been on the stand for some period of time, the witness indicated to the assistant district attorney that she was tired. After a sidebar conference requested by the district attorney the Court merely said, “[K.H.] you can step down now, you can go home with Daddy. All right?” It is difficult to see how this comment can be interpreted as expressing an opinion of the Court to either the witness or the jury concerning anything about the witness’ testimony. The defense also complains that the court displayed solicitude during the witness’ testimony for her, “fatigue, comfort and the number of people watching her” citing N.T. 193-4. As the Notes of Testimony indicate, this Court merely asked the witness if she would rather sit on her father’s lap and then asked defense counsel if he had any objection to the witness sitting on her father’s lap to which he replied, “No”. This Court also indicted to the witness that she should speak into the microphone and that if she did not want to look at the jury she could just look at counsel or at the Court and talk into the microphone. These actions and statements by the Court were totally within the bounds of propriety and did not prejudice the defendant in any way.

Opinion at 8-9.

In light of the foregoing, we find appellant’s ineffective assistance claim to be meritless.

Next, appellant maintains that the trial court erred in not granting appellant’s motions for mistrial made after two witnesses testified concerning the arrest of appellant for sexually assaulting D.R. First, appellant protests the following testimony of Officer Tufo elicited during the Commonwealth’s case in chief:

Q. And in regards to [D.R.], did you also show him photographs, including the photograph of the defendant? A. Yes, ma’am.

Q. And did you also take with you and use when you spoke to [D.R.] the anatomically correct dolls?

A. Yes, ma’am, I did.

Q. Detective, as a result of that interview, did you obtain any arrest warrants?

A. Yes, ma’am.

Mr. Turner: Objection.

The Court: I’m going to sustain the objection and ask that the jury disregard that answer.

Ms. Muldrow: Now, Detective, as part of your investigation then you obtained warrants as far as [K.H.], as far as [R.J.] and as far as [E.J.], and as far as [D.R.]; is that correct?

Mr. Turner: Objection.

The Court: Objection sustained. May I see counsel at sidebar, please.

Trial transcript at 400-401.

At a subsequent proceeding in chambers, the Commonwealth indicated that they did not have any substantive evidence regarding the D.R. charge. The trial court declared, therefore, that it would not permit testimony that an arrest warrant was obtained and that charges were brought on the basis of something done to D.R. The court then cautioned the jury:

Members of the jury, I have sustained defense counsel’s objection to the question asked by the Distric Attorney, and I am instructing you that you are to disregard anything that you may have heard about a warrant or [D.R.]. That’s not part of this case and you are to totally disregard that. And if you have anything in your head about that, put that out of your mind. You are not to be concerned with this in anything that you have to do with this case. If there is anyone that doesn’t understand what I just told them, please raise your hand and I will try to make it more clear. I see that no one raised their hand, therefore, everybody has understood my instructions.

Trial transcript at 406-407.

Second, appellant complains of comments made by D.R.’s mother who was called in rebuttal to testify that a teacher at A.B. Day School had, asked her to watch a classroom while she left for a few minutes. When questioned about this event, however, D.R.’s mother unexpectedly mentioned that her son had been molested. During an immediate conference in chambers, both counsel stated that the Commonwealth had not intentionally elicited the comment. Trial transcript at 692. The court then instructed the jury to

... totally disregard the last witness and anything that she said. Her testimony had nothing to do with this case. It is to be totally disregarded by all of you. Just forget that she was ever called to the witness stand. Nothing that she said is relevant here.

Trial transcript at 698.

Appellant contends that the comments by Officer Tufo and D.R.’s mother were so prejudicial that the trial court should have granted a mistrial. When evaluating whether the introduction of irrelevant evidence requires a new trial, we are guided by the following principles:

Our review of the grant or denial of a new trial is limited to determining whether the trial court abused its discretion or committed an error of law. Commonwealth v. White, 482 Pa. 197, 393 A.2d 447 (1978).... As a general rule, evidence of crimes unrelated to the charge for which the defendant is being tried, is inadmissible. Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978); Commonwealth v. Turner, 454 Pa. 439, 311 A.2d 899 (1973). There is no per se rule that requires a new trial for a defendant every time there is reference to prior criminal activity. Commonwealth v. Heaton, 504 Pa. 297, 472 A.2d 1068 (1984). “[W]e have never ascribed to the view that all improper references to prior criminal activities necessarily require the award of a new trial as the only effective remedy.” Commonwealth v. Williams, 470 Pa. 172, 178, 368 A.2d 249, 252 (1977).... An immediate curative instruction to the jury may alleviate any harm to the defendant that results from reference to prior criminal conduct, [citations omitted] ... “[W]hether the exposure of the jury to improper evidence can be cured by an instruction depends upon a consideration of all the circumstances.” Commonwealth v. Richardson, [496 Pa. 521, 526, 437 A.2d 1162, 1165 (1981) ].

There are exceptions to this general rule. [E]vidence of other crimes is admissible when it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial____ Commonwealth v. Peterson, 453 Pa. 187, 197-198, 307 A.2d 264, 269 (1973).... [We determine that the instant situation does not fall into any of the enumerated exceptions].

Commonwealth v. Morris, 513 Pa. 169, 175-77, 519 A.2d 374, 377 (1986)

We have further mandated that two considerations are particularly pertinent in determining potential prejudice: (1) the nature of the reference; and (2) whether the testimony was intentionally elicited by the prosecutor. Commonwealth v. Satzberg, 358 Pa.Super. 39, 49, 516 A.2d 758, 762 (1986) citing Richardson, supra. In the present case, it is apparent that the comments were not intentionally elicited; in fact, the court discovered that the Commonwealth had cautioned D.R.’s mother not to mention the incident or arrest.

Additionally, the trial court thoroughly and immediately instructed the jury that the statements had nothing to do with the case and should be disregarded. Appellant is entitled to a fair trial, not a perfect one. Morris, supra 513 Pa. at 178, 519 A.2d at 378, citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We have reviewed the circumstances and conclude that any prejudice to appellant because of the reference to the arrest was effectively neutralized by the cautionary instruction to the jury. The trial court did not abuse its discretion in denying the motion for a mistrial.

Appellant next challenges the introduction or prior consonant statements of two of the victims. First, appellant claims that the court erred in permitting RJ.’s mother to testify as to statements made by R.J. between four to eight hours after one incident. The trial court admitted the mother’s statements as res gestae under the excited utterance exception to the hearsay rule.

To qualify as an excited utterance, a statement must be:

“A spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of having emanated in whole or in part from his reflective faculties.”

Commonwealth v. Stohr, supra 361 Pa.Super. at 297, 522 A.2d at 592, quoting Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942).

A time lapse between an assault and the statement does not necessarily negate the indicia of reliability which underlies the res gestae rule. Commonwealth v. Bailey, 353 Pa.Super. 390, 510 A.2d 367 (1986) (plurality). The requirements of spontaneity is a question which turns on the circumstances of each case and is relaxed when the child declarant is the victim of a sexual assault. Commonwealth v. Stohr, supra 361 Pa.Super. at 298, 522 A.2d at 592. We noted in Stohr:

“Such a relaxation of the rule recognizes both the likelihood of a young child’s inability to comprehend ... the assault and the possibility of the child’s hesitancy to discuss the matter for fear of incurring punishment.” Commonwealth v. Pronkoskie, [477 Pa. 132] at 142 n. 9, 383 A.2d [858] at 863 n. 9 [ (1978) ].

Id., 361 Pa.Superior Ct. at 298, 522 A.2d at 592.

Instantly, the trial court opined:

[T]he sexual attack on [R.J.] occurred sometime between the hours of 7:30 A.M. when he was dropped off at the A.B. Day School and 4:30 P.M. when he was picked up by his mother [A.J.]. She observed that he was visibly upset and had been crying. At that time, R.J. refused to discuss what was upsetting him. Later, at approximately 7:00 P.M. that evening he asked his mother if he could take a bath; a very unusual occurrence. Upon being asked why he wanted to do such an unusual thing, he replied, “because the bumble bee stung me.” His mother, thinking that a real bumble bee had stung him, continued to ask him questions about the sting. In answer to her questions, he indicated that he had been stung in the rectum. He kept insisting he wanted to take a bath because he was dirty. In response to questions about where it happened and what size the bumble bee was he indicated that it happened in the bathroom and that the bumble bee was, “tall, big like my daddy.” He also stated that the bumble bee stung him with his tail which he further indicated was the penis. As he spoke about the incident, he was visibly fearful and nervous.

Opinion at 15-16.

We have held that a six-hour delay is not enough to cast doubt on the spontaneous nature of the statement as res gestae. Commonwealth v. Norwalk, 160 Pa.Super. 88, 50 A.2d 115 (1946). As long as the statement was clearly a product of overpowering emotion caused by a traumatic and humiliating experience, an even greater delay would not preclude introduction. Bailey, supra. We find, therefore, that the statements by the victim were sufficiently reliable and were properly permitted as spontaneous declarations.

Appellant also complains of the testimony by Officer Tufo and the victims’ mothers as to other prior consonant statements of the victims. The record reflects that counsel’s request for a continuing objection as to such questions was denied and counsel failed to subsequently object to the challenged testimony. The issues are, therefore, not preserved for our review.

Counsel, however, resurrects the claims by alleging once again his own ineffectiveness. We proceed according to the principles discussed supra, and again find the ineffectiveness claim to be meritless.

A careful reading of the record and applicable case law indicates that the statements not objected to were admissible as prior consonant statements offered to negate the inference by appellant that the victims’ testimony was recently fabricated. Commonwealth v. Clark, 355 Pa.Super. 200, 512 A.2d 1282 (1986). We have stated that:

Prior declarations of a witness which are consistent with his present testimony may be admitted to corroborate his testimony at trial if impugned, expressly or impliedly, as the product of recent fabrication, particularly when improper influence of the witness is implicated. See Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980). Commonwealth v. Clark, 355 Pa.Super. 200, 512 A.2d 1282 (1986). As noted in Commonwealth v. Gore, 262 Pa.Super. 540, 550, 396 A.2d 1302, 1307 (1978), “it is not necessary that the impeachment be explicit, i.e., that an actual allegation of recent fabrication be made, but only that a jury be able to reasonably infer that such is occurring.” See also Commonwealth v. Bailey, 322 Pa. Super. 249, 469 A.2d 604 (1983); Commonwealth v. Kjersgaard, 276 Pa.Super. 368, 419 A.2d 502 (1980).

Commonwealth v. Cain, 358 Pa.Super. 198, 201-02, 516 A.2d 1252, 1254 (1986).

An examination of the record indicates that while appellant did not expressly assert fabrication, the following line of questions implies fabrication:

Q. You love your mommy don’t you?

A. Yes.

Q. And you love your daddy, don’t you?

A. Yes.

Q. And, [R.J.], when they tell you to do something you do it.

A. Yes.

Trial transcript at 178. In addition, appellant’s counsel asked questions on cross-examination emphasizing that R.J. and E.J. had gone over their testimony numerous times before trial with the district attorney’s office.

These areas of inquiry could cause a jury to infer that the recollection of the young victims was influenced by family and conviction-oriented individuals. See Cain, supra, 358 Pa.Superior Ct. at 202, 516 A.2d at 1254. Hence, the testimony of the victim’s mothers and Officer Tufo relating what R.J. and E.J. had said was admissible to rebut an inference of fabrication. Therefore, appellant’s claim of ineffectiveness for a failure to object to such testimony is meritless.

Finally, appellant contends that the trial court erred in refusing to permit appellant to read to the jury testimony of two of the victims from preliminary hearings. Appellant alleges that he was denied the right to confront witnesses with alleged prior inconsistent statements.

Regarding R.J., appellant contends that various parts of the boy’s preliminary hearing testimony exemplified prior inconsistent statements warranting admission for impeachment purposes. We have declared that:

[M]ere dissimilarities or omissions in prior statements, even when the statements are the verbatim words of the victim, do not suffice as impeaching evidence; the dissimilarities or omissions must be substantial enough to cast doubt on a witness’s testimony to be admissible as prior inconsistent statements. See Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976); In re Silverberg, 459 Pa. 107, 327 A.2d 106 (1974); Commonwealth v. Ryan, 253 Pa.Super. 92, 384 A.2d 1243 (1978); M. Greenberg & A. Bocchino, Pennsylvania Evidence 88 (1983); G. Lilly, An Introduction to the Law of Evidence § 83 at 303 (1978).

Commonwealth v. Bailey, 322 Pa.Super. 249, 263, 469 A.2d 604, 611 (1983).

A perusal of the preliminary hearing transcript indicates that the trial court correctly assessed the child’s negative answers therein as mere reluctance to testify rather than affirmative denials. We hold, accordingly, that the trial court did not err in refusing to permit the prior testimony.

Regarding the preliminary hearing testimony of E.J. which appellant sought to use for impeachment purposes, we first note that some of the testimony is relevant to the issue of competency only. Competency is a collateral issue and is not a matter for consideration by the jury at trial. Bailey, supra.

Appellant also sought to introduce prior statements which were omitted at trial. It is well settled that an omission is not the same as an inconsistency. Commonwealth v. Hammond, 308 Pa.Super. 139, 454 A.2d 60 (1982). The trial court properly exercised its discretion by not allowing cross-examination as to an omission. Id., 308 Pa.Superior Ct. at 148, 454 A.2d at 64. None of appellant’s remaining proffered preliminary hearing statements establish substantial inconsistencies such that they should have been permitted. Bailey, supra.

The judgment of sentence is affirmed.

CIRILLO, President Judge, dissents.

CIRILLO, President Judge,

dissenting:

I disagree with the majority’s assertion that the testimony of D.R.’s mother that her child had been molested resulted in no prejudice to McEachin because a curative instruction had been given by the trial judge. For this reason, I respectfully dissent.

In the instant case, the mother of a child whom the trial court had declared to be incompetent was to testify on rebuttal that she had taken over a teacher’s classroom for a period of time. That teacher had testified that she had never left her classroom with anyone else, and that she had never allowed McEachin to accompany the children to the bathroom. Although the prosecutor did not intentionally elicit the response, the mother stated on direct examination that her child had been molested at the school. At that point, the trial judge called both counsel into his chambers, determined that the prosecutor did not ask intentionally for that response, and then issued an instruction to the jury that they were to disregard all of the testimony of that witness.

The decision to grant or deny a motion for mistrial is within the sound discretion of the trial court. Its decision will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Thomas, 346 Pa.Super. 11, 17, 498 A.2d 1345, 1348 (1985). The majority holds that because the prosecution did not deliberately elicit the statement, and because the trial judge instructed the jury to disregard the statements of the mother, no prejudice inured to McEachin, and the trial court therefore did not abuse its discretion in refusing to grant a mistrial. Regardless of the fact that the prosecution did not elicit the testimony purposefully, or that an attempt was made by the trial court to give curative instructions, I would find that the prejudice that arose under the circumstances was too great to be cured by the instructions of the trial court.

The majority quotes Commonwealth v. Morris, 513 Pa. 169, 519 A.2d 374 (1986), at some length in setting out the standards by which we may measure the trial court’s grant or denial of a mistrial. While I agree that no per se rule exists which requires a new trial for a defendant every time a prior criminal offense is mentioned by a witness, and that an immediate curative instruction may remove the necessity for a new trial, id., 513 Pa. at 176, 519 A.2d at 377, I do not find that to be the case here.

The supreme court in Morris recognized that whether the admission of improper evidence can be cured involves a consideration of all the circumstances under which the evidence has been offered. Id. (quoting Commonwealth v. Richardson, 496 Pa. 521, 526, 437 A.2d 1162, 1165 (1981)). In Commonwealth v. Richardson, supra, the supreme court held that “whether the admission of irrelevant evidence can be cured by an instruction to disregard it ‘involves a consideration of the circumstances under which the irrelevant evidence was given and its probable effect on the jury.’ ” Id. (citations omitted). In Richardson, the court found that the remark made by a witness that the appellant had not been on the scene he burglarized in a case involving murder, burglary, and robbery it did not require a mistrial. The court held that a proper curative instruction had been given considering the nature of the reference, and that the remark was not intentionally elicited by the Commonwealth. Id. In Morris, the supreme court reached the same result, stating that “[possession of a firearm without a permit is not the type of crime, the nature of which is likely to cause a jury to lose sight of the ultimate question before them— whether appellee shot the victim.” Morris, 513 Pa. at 177, 519 A.2d at 378.

In cases where the crime is likely to cause the jury to lose sight of the ultimate question, however, a curative instruction would be ineffectual, and a mistrial should be granted. Where the evidence presented to the jury is unduly inflammatory, or where such evidence, if presented at trial, would so compromise the fact finder that it would be unable to remain impartial, a curative instruction cannot provide a defendant with a fair trial:

It should be noted that the nature of the improper reference is critical in a decision as to whether prompt curative instructions may be adequate. We can conceive of specific reference to prior unrelated criminal conduct which would be so offensive as to mandate a mistrial. In such a situation, immediate curative instructions would obviously be inadequate.

Commonwealth v. Williams, 470 Pa. 172, 179 n. 4, 368 A.2d 249, 252 n. 4 (1977). See also Commonwealth v. Dean, 300 Pa.Super. 86, 91, 445 A.2d 1311, 1313 (1982); Commonwealth v. Green, 287 Pa.Super. 220, 227, 429 A.2d 1180, 1183 (1981). Such evidence can only be said to strip a defendant of the presumption of innocence that is fundamental to our concept of a fair trial. Commonwealth v. Laughman, 306 Pa.Super. 269, 272, 452 A.2d 548, 549 (1982).

Consideration of the facts and evidence surrounding the instant case lead me to conclude that this is a case involving an alleged crime which would cause the jury to lose sight of the question before it — whether McEachin was guilty of the molestation of three other children. In the instant case, McEachin was accused of child molestation. From the witness stand, an obviously distraught mother announced that her son was molested at the school at which McEachin worked, and where the charges of molestation for which he was convicted arose. The clear inference for the jury was that McEachin had also molested her son. I fail to see how, in such an emotionally charged situation, any instruction from the trial judge could dissipate the aura of guilt that is bound to rise from those charges and envelop the appellant. In the climate which surrounds child abuse and molestation today, I would be hard pressed to accept the argument that any defendant could have been acquitted after such a statement. The similarity of the crime complained of by D.R.’s mother to the actual crimes for which appellant was tried was too inflammatory for its prejudicial effect to be cured by any instruction from the trial judge.

Further, I echo this court’s concerns in Commonwealth v. Durant, 268 Pa.Super. 191, 407 A.2d 1311 (1979). In that case, a witness for the Commonwealth stated on cross-examination that appellant had been in jail before. The court found this to be prejudicial, and held that curative instructions from the trial judge could have in no way alleviated that prejudice. As in the instant case, the guilt or innocence of the appellant rested on his credibility; the statement of the witness destroyed that credibility and exhausted his conviction. Id., 268 Pa.Superior Ct. at 194, 407 A.2d 1312. I also note that the Durant court found that the response of the witness could only have arisen from her desire to convict the appellant:

The conduct of a fair trial cannot permit such testimony by a Commonwealth witness. It demonstrated her animosity towards the appellant. This is understandable, as the witness was the mother of the four-year old girl involved. However, the reference to appellant’s prior criminal record is prejudicial to the presumption of innocence. We note that this case is distinguishable from Commonwealth v. Whitman ... and Commonwealth v. Cannon. The defense witnesses in those cases had no motive for intentionally testifying unresponsively and contra to the defendant’s interests.

Durant, 268 Pa.Super. at 194, 407 A.2d at 1312 (citations omitted). I do not see that the reference to the prior conviction in that case could be any more prejudicial than the denunciation of McEachin by the mother of a small child here, although no mention was made of any prior conviction. Obviously the mother involved had a motive for making the statement in question. While the desire of a mother to aid in the conviction of a man she believes is responsible for the molestation of her child and other children is at least understandable, it is also, however, inimical to appellant’s right to a fair trial.

In my opinion, appellant hot only did not receive a perfect trial, he received far from a fair one. For this reason, I would grant appellant a new trial.

      . We note that appellant’s brief is ninety-six pages long, well in excess of the fifty-page limit imposed by Pa.R.A.P. 2135. Pursuant to Pa.R. A.P. 2101, it is within our discretion to quash appeals when defects in the brief are substantial. Commonwealth v. Drew, 353 Pa.Super. 632, 510 A.2d 1244 (1986). We will not quash the instant appeal since the brief is not so defective as to preclude effective appellate review.

      . A fourth victim was declared incompetent to testify and a demurrer was sustained as to this charge at the close of the Commonwealth’s case.

      . We emphasize, however, that appellate courts in Pennsylvania have long suspected the possibility of “built-in” ineffective assistance by clever counsel. Commonwealth v. Crowley, 502 Pa. 393, 404, 466 A.2d 1009, 1015 (1983), and have looked with disfavor on trial counsel’s raising his own ineffectiveness. See Commonwealth v. Lobel, 514 Pa. 163, 523 A.2d 304 (1987).

      . We note that sexual crimes and nonsexual crimes must be treated alike in deciding whether evidence of prior criminal conduct should be admitted. Commonwealth v. Green, 290 Pa.Super. 76, 434 A.2d 137 (1981).

      . Appellant asserts that the improper comments were elicited by the Commonwealth and this fact carries enough weight to mandate a new trial. We note, however, that only in extreme cases of repeated prosecutorial misconduct is a new trial required. See Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985).

      . We note that a number of courts and legislatures have created a specific tender years exception to the hearsay rule to accommodate the need for the victim’s testimony in child sexual abuse cases. See, e.g., Ind.Code Ann. Sec. 35-37-4-6 (1984); Kan.Stat.Ann. Sec. 60-460(dd) (1982); State v. McCafferty, — S.D. —, 356 N.W.2d 159 (1984); Bertrang v. State, 50 Wis.2d 702, 184 N.W.2d 867 (1971). The Commonwealth of Pennsylvania General Assembly, on November 29, 1984, passed Bill 1361 that provided for the admission of out-of-court statements made by a child victim; however, due to an unrelated amendment, the Governor vetoed the Bill on December 26, 1984.
      In light of the need for a child sexual abuse victim’s testimony and the inadequacy of the spontaneous declaration exception in meeting that need, we have opined that the tender years exception to the hearsay rule should be adopted as the law of this Commonwealth. Commonwealth v. Haber, 351 Pa.Super. 79, 88, 505 A.2d 273, 278 (1986) (Olszewski, J., dissenting.). The tender years exception would have rendered the instant testimony admissible. See id.


source: Caselaw Access Project

author: HESTER, Judge: BECK, Judge,

license: Public Domain

text:
    537 A.2d 1372
    COMMONWEALTH of Pennsylvania v. Nelson Charles MIKESELL, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1987.
    Filed Feb. 4, 1988.

      Charles E. Boyle, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com.
    Before BECK, JOHNSON and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the judgment of sentence imposed on February 8, 1982, following appellant’s conviction of two counts of first degree murder by a jury. Appellant alleges numerous trial errors, fourteen instances of trial counsel's ineffectiveness, and a claim that imposition of consecutive life sentences is a violation of due process of law. We reject appellant’s claims of error, and affirm the judgment of sentence.

On the night of September 18, 1974, appellant shot his estranged wife, Marilyn Mikesell, her companion, Joseph Malone, and his three-year-old daughter, Chris Mikesell, killing the two adults and wounding his daughter Chris. The shooting occurred outside the home of appellant’s wife when the three victims arrived at the residence a few minutes before midnight. Police arrested appellant at his home an hour after the murders, gave him Miranda warnings, and took him to police headquarters.

At the police station, appellant was again advised of his Miranda rights, which he waived. He was interrogated from 2:30 to 4:00 a.m. on September 19, 1974, and denied any involvement in the crimes. He was then arraigned before a deputy coroner, where he asserted his right to an attorney. Following his arraignment, he was held in jail. Several hours later, at approximately 8:00 a.m., appellant told the police he wanted to make a statement. He was again advised of his rights, then gave an inculpatory statement which was tape recorded.

Prior to trial, appellant moved to suppress his confession and other physical evidence. Following a lengthy hearing on March 10, 1975, the motion was denied. Appellant was tried before the late Judge Arthur Wessel and a jury and was convicted of two counts of first degree murder on March 14, 1975. Post-trial motions were assigned to the late Judge Albert J. Fiok due to the death of Judge Wessel. Judge Fiok granted a new trial on the basis of improper jury instructions at the first trial.

On May 19, 1976, a second jury trial commenced before the Honorable Joseph H. Ridge. The jury returned a guilty verdict on two counts of first degree murder on May 25, 1976. Appellant’s post-trial motions were denied, and Judge Ridge imposed two concurrent life sentences on August 6, 1976.

Appellant took an appeal, and on December 23, 1977, the Supreme Court of Pennsylvania reversed the judgment of sentence and remanded for a third trial. Commonwealth v. Mikesell, 475 Pa. 589, 381 A.2d 430 (1977). The court held that improper closing argument by the prosecutor had the unavoidable effect of creating in the jurors bias and hostility towards Mikesell and preventing an objective verdict. Id., 475 Pa. at 595, 381 A.2d at 434.

Following remand of the record, appellant moved to quash the indictment, alleging that the prosecutor’s misconduct in the second trial was calculated to provoke a mistrial, and that retrial would constitute double jeopardy. The court heard argument on the motion on April 10, 1978, and subsequently denied the motion on May 19, 1978. Appellant appealed from the denial of his motion, and this court affirmed on October 26, 1979. Appellant’s petition for allowance of appeal was denied by the supreme court on March 5, 1980, and the record was returned to the clerk of courts on March 19, 1980.

Prior to trial, appellant moved to dismiss the charges for violation of Pa.R.Crim.P. 1100, which requires that a new trial be commenced within 120 days after an appellate court remands the record for retrial. The trial court denied the Rule 1100 motion on June 27, 1980. Following several defense-requested continuances, appellant’s third trial commenced on May 12, 1981, before the Honorable Loran L. Lewis and a jury. The jury found appellant guilty of two counts of murder of the first degree. Post-trial motions were denied, and on February 8, 1982, Judge Lewis sentenced appellant to consecutive terms of life imprisonment. No appeal was taken in 1982.

Subsequent Post Conviction Hearing Act (PCHA) proceedings, reviewed twice by this court, resulted in the filing of post-trial motions nunc pro tunc on July 1, 1986, as well as this appeal from judgment of sentence which was filed on December 8, 1986, following the denial of post-trial motions.

Appellant raises seven issues: 1) whether the trial court erred in refusing to suppress his confession and other physical evidence; 2) whether the trial court erred in denying his motion to dismiss under Rule 1100; 3) whether the trial court erred in refusing to grant a mistrial when the prosecutor’s opening statement contained an allegedly prejudicial appeal to the emotions of the jury; 4) whether the court erred in permitting hearsay testimony from a Commonwealth witness; 5) whether the court erred in refusing to grant a mistrial after the prosecutor mentioned the “first trial” of appellant; 6) whether appellant was denied effective assistance of trial counsel; and 7) whether the court violated the double jeopardy clause when it imposed a more severe sentence following appellant’s successful appeal of his second conviction.

Appellant’s first argument is that the trial court violated the holding of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), when it refused to suppress his confession. Appellant asserts that during his preliminary arraignment before deputy coroner Phillips at 6:30 a.m. on September 19, 1974, he requested that an attorney be provided. N.T., 3/10/75, at 36-39. No counsel was provided, and appellant alleges that the police continued to interrogate him until appellant gave a tape recorded confession shortly after 8:00 a.m. the same morning. Edwards v. Arizona stated:

[W]hen 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.

Id. at 484-85, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386 (footnote omitted).

We reject appellant’s argument. The record clearly supports the trial court’s conclusion that appellant’s confession followed his request to make a statement about what happened, a conversation he initiated without any prompting by the police N.T., 3/10/75, at 9-16. There was thus no violation of Edwards, and the trial court correctly denied appellant’s suppression motion.

The second issue is whether there was a violation of the 120 day requirement of Rule 1100(e)(2) following appellant’s appeal from his second conviction. Following the grant of a new trial by the Pennsylvania Supreme Court on December 23, 1977, the record was remanded to the common pleas court on January 11, 1978. Trial should have commenced on or before May 11,1978, pursuant to Rule 1100(e)(2). The Commonwealth filed its first petition for extension on June 20, 1978, more than a month after trial should have begun. Although appellant’s third trial did not take place until May, 1981, the only period at issue is the time from April 10, 1978, to June 20, 1978.

On April 10, 1978, the trial court heard argument on appellant’s pretrial motions to suppress, to quash the indictment, and for recusal of the trial judge. Appellant was present at the argument, when his attorney, John H. Pope, informed the court that he intended to appeal to the supreme court if any of the several motions were denied. Appellant knowingly waived his rights under Rule 1100 to obtain appellate review prior to trial. The following colloquy took place on the record:

MR. POPE [DEFENSE COUNSEL]: Well, all right.

I believe, we have discussed, Mr. Mikesell, that in all probability the motion to quash would not be granted by court at this level and that there would be an appeal taken to Supreme Court. You and I discuss that?

THE DEFENDANT: Yes, we have.

MR. POPE: And you were aware that there was no possibility of your actual trial commencing within the hundred and twenty days. Is this right?

THE DEFENDANT: Right.

MR. POPE: So that, in effect, you knew that a continuance in some nature, either by this court or by the fact of an appeal was pending before the Supreme Court, will result in your trial not occurring within the prescribed hundred and twenty days?

THE DEFENDANT: Right, I understand that.

MR. POPE: And you were in agreement with that at that time and agreement occurring?

THE DEFENDANT: Yes, sir.

MR. POPE: Now, is there any change in your thoughts since we last discussed that?

THE DEFENDANT: Well, when this appeal goes up, if the court does deny it, then that is — is that like an automatic continuance? Is this what this is on the issue to quash?

MR. POPE: Obviously, you cannot have the trial until the court decides. whether you can have it or not.

THE DEFENDANT: The Supreme Court?

MR. POPE: The Supreme Court, yes.

The Supreme Court, assuming the lower court denies the motion and the Supreme Court affirms that denial, then it would be remanded back again and there would be another hundred twenty days within which to try you.

THE DEFENDANT: Yes. Okay.

THE COURT: All right. Do you believe you understand now?

THE DEFENDANT: Yes, Your Honor, I do.

N.T., 4/10/78, at 8-10. Further questioning by the assistant district attorney, Howard K. Hilner, made it abundantly clear that appellant agreed to an indefinite waiver of Rule 1100 to allow time for an appeal.

MR. HILNER: Yes.

I want to direct some questions to Mr. Mikesell on this point and just on this point alone.

Mr. Mikesell, you understand that the Constitution of the United States and also of Pennsylvania guarantees you a prompt and speedy trial?

THE DEFENDANT: Yes, I do.

MR. HILNER: Do you understand that in reference to the third trial of this matter, these homicide cases and the other crimes that are periphery to that occurrence, that the Commonwealth is prepared to try you right now? You understand that?

THE DEFENDANT: Yes, sir.

MR. HILNER: That to permit your counsel to explore these legal possibilities on your behalf and for him to prepare a brief and also for it to be considered by the court, it is necessary for you to waive your right for a speedy trial to give him sufficient time to act on your behalf. You understand that?

THE DEFENDANT: Yes, sir, I do.

MR. HILNER: This is what you want him to do, to protect your rights and represent you in the best possible way, you want him to take this additional time. Is that right?

THE DEFENDANT: Yes, sir.

MR. HILNER: Now, understand this, also, Mr. Mike-sell, that we are talking only about lower court arguments and that we are not talking about appeals to the Supreme Court because appeals to the Supreme Court are guided by the timing given them by the court. We can not control the Supreme Court. They set the dates for arguments, and they take as much time as they think appropriate to reach a decision.

Now, we can make no predictions on how long that will take. Now, that is talking just simply appeal to the Supreme Court.

THE DEFENDANT: I understand that.

Id. at 11-13.

The parties briefed the issues which had been argued on April 10, 1978, and the motions were denied on May 19, 1978. Appellant filed a notice of appeal to the supreme court on June 19, 1978. The following day, the Commonwealth filed a petition for extension under Rule 1100, which was granted the same day. Due to appellant’s waiver, we hold that the petition was seasonably filed and was properly granted.

Appellant’s third argument is that the prosecutor’s opening statement was improper and included prejudicial remarks appealing to the emotions of the jurors. He objects specifically to the statement that the evidence would prove that appellant waited in his car for the victims to arrive, then left the scene in a hurry after he shot the victims. Appellant argues that the evidence adduced at trial failed to support these assertions. Upon a careful review of the record, we reject appellant’s argument, for the record contains substantial evidence from which the jury could conclude that appellant lay in wait for the victims, then fled hurriedly after the killings.

Commonwealth witness Steven Gregor, Marilyn Mike-sell’s neighbor, testified that he heard noises which sounded like firecrackers, looked out the window, and within seconds, saw a big blue car spinning its tires in its haste to leave the scene. N.T., 5/12-22/81, at 46-55. Another neighbor, James Hubert, testified that when he arrived home on the night of the murders, he saw a big, dark car stopped at the scene, apparently waiting for someone. Hubert parked his car, and a minute or two later, as he was entering his house, heard sounds which sounded like firecrackers, then saw the waiting car screech away at a high rate of speed. Id. at 122-31. Another neighbor, Thomas Kunsak, testified that shortly before midnight, while walking his dog, he saw a dark colored Buick Electra parked at the intersection where the killings occurred. He returned home, and minutes later heard a succession of shots or bangs, went back outside, and found the victims lying on the sidewalk. Id. at 145-58. Though none of the witnesses identified appellant as the occupant of the Electra, there was abundant circumstantial evidence from which the jury could infer that appellant lay in wait for his victims, as the prosecutor had argued in his opening statement.

The fourth issue is whether the court erred in permitting hearsay testimony from Commonwealth witness Alverda Sutton. Mrs. Sutton, Marilyn Mikesell’s mother, testified about her daughter’s relationship with appellant at the time of the killings. She stated:

Well, she said that he told her, while they were separated, until they get the divorce, he better never catch her with anybody else, that you better look over your shoulder if he ever catches her with anybody else, you know, that it would be too bad for her.

Id. at 38. Appellant argues that the statement was inadmissible hearsay. We disagree. The testimony was probative of appellant’s ill will, motive, or malice towards his wife and was therefore admissible as an exception to the hearsay rule. Commonwealth v. Gibson, 363 Pa.Super. 466, 526 A.2d 438 (1987).

The fifth issue is whether the trial court erred in refusing to grant a mistrial when the prosecutor referred to appellant’s first trial. John Gualtieri, a Commonwealth witness at the first trial, died before the third trial. His transcribed testimony from the first trial was read into evidence at the third trial. In laying the foundation for this testimony, the prosecutor stated:

MR. DIXON: Away from the transcript now, I’ve handed this witness the same Commonwealth Exhibit A-4 that was introduced at the first trial.

THE COURT: All right.

Id. at 229. Appellant argues that the prosecutor’s statement breached his duty of fairness and was so prejudicial as to warrant a mistrial under Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975).

The record does not support this argument. Following the prosecutor’s reference to the first trial, defense counsel moved for a mistrial and the court entertained argument on the motion in chambers; Defense counsel acknowledged, “I’m certain that this was inadvertent____” N.T., 5/12-22/81, at 232. The record clearly supports the conclusion that the reference was inadvertent so that no breach of the prosecutor’s duty of fairness is in question. The question is whether the remark was so prejudicial as to deprive appellant of an impartial jury. Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984). The court considered the fact that the mere knowledge that a prior trial had taken place would not inform the jury of a prior conviction, as the prior trial might have ended with a hung jury or a mistrial. N.T., 5/12-22/81, at 234-39. The decision to grant or deny a mistrial is a discretionary one, and will not be reversed in the absence of a manifest abuse of discretion. Commonwealth v. Stoltzfus, supra. We hold that the decision to deny a mistrial under these circumstances did not amount to an abuse of the trial court’s discretion.

The next issue is whether appellant was denied his constitutional right to effective assistance of counsel at trial. Appellant argues fourteen specific instances of alleged ineffectiveness which we will address seriatim.

When reviewing the effectiveness of counsel, we determine first whether the underlying claim has merit. If it does, we then ask whether counsel’s handling of the matter had some reasonable basis designed to effectuate his client’s interests. Counsel is not ineffective unless there was no reasonable basis for the action, and counsel may not be faulted for failing to take baseless or merit-less action. Finally, a finding of ineffectiveness requires a showing that the course of action pursued by counsel was prejudicial to the defendant.

Commonwealth v. Blagman, 350 Pa.Super. 367, 371, 504 A.2d 883, 885 (1986) (citations omitted); see also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). Furthermore, appellant carries the burden of proving his counsel’s ineffectiveness. Commonwealth v. Durah-El, 344 Pa.Super. 511, 496 A.2d 1222 (1985).

Appellant first claims that his defense counsel was ineffective for failing to object to the prosecutor’s opening remarks that the Commonwealth would prove that appellant lay in wait for the murder victims. We have discussed this statement and concluded that it was proper opening commentary. Any objection thereto would have been meritless, and counsel cannot be deemed ineffective for failing to raise a meritless objection.

Appellant claims that counsel was ineffective for characterizing the hearsay testimony of Mrs. Sutton already quoted, supra at 1377, as a threat by appellant. This argument is frivolous. The statement was so obviously threatening that to call it a threat could not possibly have been prejudicial to appellant. It would have been difficult to refer to the statement as anything other than a threat.

Appellant next alleges that trial counsel was ineffective for referring twice to prior testimony of prosecution witnesses. This argument is frivolous, for in both instances defense counsel was attacking the credibility of the witnesses on cross-examination by establishing inconsistencies between their prior testimony and their testimony at the third trial. N.T., 5/12-22/81, at 73, 111-12. This was clearly a reasonable defense tactic. See Commonwealth v. Pierce, supra.

Appellant claims that counsel was ineffective for failing to object to testimony and photographs linking appellant’s Buick Electra to the scene of the crime. We have discussed this evidence previously, and have concluded that even though no witness positively identified appellant as the driver, the circumstantial evidence was clearly admissible. Any objection to its admission would have been meritless.

The fifth allegation of ineffectiveness is a reiteration of counsel’s failure to prevent the jury from learning that the 1981 trial was not appellant’s first trial, with a specific challenge to his decision to forgo a cautionary instruction following the prosecutor’s reference to the “first trial.” The record, however, clearly demonstrates that the decision was reached after extensive discussion in chambers, N.T., 5/12-22/81, at 232-47, that the decision was reasonable trial strategy, and that appellant personally participated in the decision. See Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979).

Appellant next contends that counsel was ineffective with respect to his cross-examination of Detective Swearingen. On direct examination, Commonwealth witness Swearingen explained where he found spent shell casings and spent pellets at the murder scene and in appellant’s automobile. Appellant claims that it was defense counsel’s cross-examination of Swearingen which first connected the casings found at the murder scene with appellant’s pistol. The record clearly establishes, however, that appellant could not have been prejudiced by Swearingen’s testimony. The subsequent testimony of criminalist Robert Levine proved conclusively that the ammunition found at the scene and in appellant’s automobile had been fired from appellant’s automatic pistol. Appellant is not entitled to relief. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1980).

Appellant challenges defense counsel’s failure to impeach police lieutenant Moffatt who testified that he did not remember appellant requesting an attorney at his preliminary arraignment. N.T., 5/12-22/81, at 441. Appellant again fails to demonstrate how he was prejudiced. He presented his contradictory version of how his statement had been obtained, and the jury was appropriately instructed to consider the voluntariness of appellant’s confession. N.T., 5/12-22/81, at 832-33.

Appellant claims that trial counsel was ineffective for failing to seek a second suppression hearing based on testimony by appellant’s friend, Anthony Cuda, that appellant was a “different person altogether” when taking pills, so that Cuda disbelieved what appellant said when he was under the influence. Id. at 481. This is a meritless assertion of ineffectiveness. Witness Cuda also testified that he did not know whether appellant had taken any pills the evening before appellant was arrested, id., so his testimony would not have justified a new suppression hearing.

Appellant’s ninth allegation of ineffectiveness is that trial counsel demurred to the prosecution case, then entered a defense, thus waiving appellant’s right to appeal the court’s denial of the demurrer. Appellant fails to suggest any possible prejudice this decision caused him. Trial counsel did not waive a challenge to the sufficiency of the evidence, yet appellant does not challenge the sufficiency of the evidence on this appeal, implying that an appeal of the denial of the demurrer would have been a baseless action.

Appellant claims that defense counsel was ineffective for permitting appellant to demonstrate in court how the shootings occurred. It is clear, however, that once appellant had admitted the shootings and claimed that they were accidental, it was reasonable trial strategy to have appellant demonstrate his version of the events.

Appellant’s eleventh allegation of ineffectiveness is a reiteration of his second, which we have addressed supra at 1378.

Appellant next alleges that counsel was ineffective for stating in his closing argument that the jury “almost must draw” the conclusion that appellant’s wife, Marilyn, was afraid of her husband because witness Schindler testified that Marilyn had changed her locks shortly before her murder. N.T., 5/12-22/81, at 762. When taken in context, however, the statement represents the reasonable trial strategy of trying to anticipate the Commonwealth’s argument on the Schindler testimony. The statement appellant objects to was followed immediately by this argument:

I suggest to you that there is another reason why Marilyn Mikesell wanted the locks changed. If you are separated from your spouse and had another person visiting before the divorce, would you not perhaps have the locks changed so you wouldn’t get caught? Not because you were afraid, but because you were afraid to get caught, not physically afraid of your spouse. I don’t know. I’ve never been in that situation. It’s something to think about though, isn’t it? The Commonwealth is going to ask you to do a lot of conjecturing, they’re going to ask you to accept some things based on what probably happened. I suggest to you that it is as probable that those locks were changed because of fear of getting caught as it was for fear of any retaliation from a jealous spouse.

Id. at 762-63.

Appellant’s next allegation of ineffectiveness concerns defense counsel’s failure to object to the prosecutor’s closing argument which was allegedly inflammatory and which allegedly argued facts not in evidence. The substance of this argument has been addressed, supra at 1376-1377. We repeat that the evidence supported the prosecutor’s summation, and it would have been meritless to object to the closing argument.

Appellant’s last allegation of ineffectiveness is that trial counsel failed to object to the trial court’s allegedly erroneous instruction: “Now, the law says the fatal use of a deadly weapon against a vital part of another’s body when it is established as a fact warrants an inference that the act was done with the specific intent to take life.” N.T., 5/12-22/81, at 810. Appellant argues that the charge should have been: “The specific intent to kill necessary to support a conviction of first degree murder may be inferred from the intentional use of a deadly weapon on a vital part of the body of another human being,” citing Commonwealth v. Culmer, 463 Pa. 189, 344 A.2d 487 (1975). Appellant could not possibly have been prejudiced by the court’s correct statement of the law, worded slightly differently from appellant’s paraphrase of Culmer, supra. Counsel was not ineffective for failing to object to the charge. Commonwealth v. Pierce, supra.

The final issue raised by appellant is a challenge to the legality of the sentence imposed on February 8, 1982, following his third trial. He argues that North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), prohibits imposition of a more severe sentence following a remand for a new trial unless the more severe sentence is based on “identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Id. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670. Following appellant’s second trial, Judge Ridge had imposed a sentence of two life terms to run concurrently. Appellant successfully appealed, resulting in his third trial. Judge Lewis imposed a sentence of two life terms to run consecutively, and the only reason stated was that “two lives were taken by the defendant,” trial court opinion, 11/10/86, at 3, a reason obviously not based on conduct of the defendant which occurred after the original sentencing.

We hold, however, that appellant is not entitled to relief. The United States Supreme Court recently reinterpreted its holding in North Carolina v. Pearce. In Texas v. McCullough, 475 U.S. 134, 137-40, 106 S.Ct. 976, 978-80, 89 L.Ed.2d 104, 110-12 (1986), the Court stated:

In North Carolina v. Pearce, supra, the Court placed a limitation on the power of a sentencing authority to increase a sentence after reconviction following a new trial. It held that the Due Process Clause of the Fourteenth Amendment prevent increased sentence when that increase was motivated by vindictiveness on the part of the sentencing judge____ Beyond doubt, vindictiveness of a sentencing judge is the evil the Court sought to prevent rather than simply enlarged sentences after a new trial. The Pearce requirements thus do not apply in every case where a convicted defendant receives a higher sentence on retrial.
The presumption [of vindictiveness] is also inapplicable because different sentencers assessed the varying sentences that McCullough received. In such circumstances, a sentence “increase” cannot truly be said to have taken place.

Following appellant’s successful appeal, he was tried before, and sentenced by, a different judge than the one who had imposed the original sentence. McCullough, supra, makes it clear that no presumption of vindictiveness applies in these circumstances. In the absence of a presumption, “the defendant must affirmatively prove actual vindictiveness.” Wasman v. United States, 468 U.S. 559, 569, 104 S.Ct. 3217, 3223, 82 L.Ed.2d 424, 433 (1984). Appellant has not attempted to prove actual vindictiveness, and nothing in the record suggests that Judge Lewis was motivated by vindictiveness. We therefore hold that no due process violation occurred and that appellant is not entitled to resentencing.

Judgment of sentence affirmed.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I join in the majority’s insightful analysis of appellant’s allegations of trial errors and counsel ineffectiveness.

I dissent from the majority’s limited analysis of appellant’s sentencing issue: whether the lower court erred in imposing a more severe sentence on Mikesell and declining to modify that sentence on reconsideration. The majority considers appellant’s challenge as a challenge to the legality of sentence. I disagree. Legality of sentence relates to the court’s power to impose a particular sentence. The defect in an illegal sentence “will go to the power of the court to impose sentence.” Commonwealth v. Tolassi, 303 Pa.Super. 177, 181, 449 A.2d 636, 638 (1982). Since the court had the power to impose concurrent sentences under the Code, there is no question that the sentence was legal.

The challenge applies to a discretionary aspect of sentencing: i.e., upon resentencing, whether the court failed to give adequate reasons for imposing consecutive rather than concurrent sentences. I find that the court failed to give adequate reasons for imposing two consecutive life sentences.

Following his second conviction, appellant was sentenced to two concurrent life sentences. After a successful appeal, he was again convicted in a third trial. The sentencing judge, who was different from the previous sentencing judge, increased appellant’s total sentence by imposing two consecutive life sentences. See Commonwealth v. Hermankevich, 220 Pa.Super. 197, 286 A.2d 644 (1971). Appellant now claims the judge erred in imposing consecutive sentences instead of reimposing concurrent sentences. In his argument, appellant specifies that, “since no reasons affirmatively appeared in this Court’s enhanced sentence, Mikesell applied for modification believing the sentence was in error.” His motion to modify sentence states that no facts appear of record indicating why the defendant was given an increased sentence after this third trial. On appeal, his allegation of error is premised on the argument that the new sentencing judge abused his discretion by not stating on the record reasons for the enhanced sentence.

A challenge to the adequacy of a statement of reasons is an appeal of a discretionary aspect of sentencing. Commonwealth v. Osborn, 364 Pa.Super. 505, 520, 528 A.2d 623, 630 (1987). The right to appeal from a discretionary aspect of a sentence is not absolute. In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the Pennsylvania Supreme Court held that such an appeal should comply with the requirements of both Pa.R.A.P. 2119(f) and section 9781(b) of the Sentencing Code, 42 Pa.Cons.Stat.Ann. § 9781(b) (Purdon 1982). Appellant’s brief failed to raise this sentencing issue properly pursuant to Pa.R.App.P. 2119(f). However, this court can overlook this deficiency because the Commonwealth is silent as to this defect. Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc).

Before considering the merits of appellant’s challenge, the reviewing court must consider whether appellant has raised a substantial question under the Sentencing Code as a whole. Commonwealth v. Krum, 42 Pa.Cons.Stat.Ann. § 9781(b). Failure to state adequate reasons at an initial sentencing hearing raises a substantial question, Commonwealth v. Lapcevich, 364 Pa.Super. 151, 155 n. 2, 527 A.2d 572, 573 n. 2 (1987), because the Sentencing Code requires the sentencing judge to place on the record at the hearing reasons for the sentence imposed. 42 Pa.Cons.Stat.Ann. § 9781(b), Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), Pa.R.Crim.P. 1405.

The requirement to provide adequate reasons also applies to subsequent resentencing hearings. Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987); therefore, I conclude that appellant’s challenge to the adequacy of reasons on resentencing raises a substantial question.

The importance of requiring the judge upon resentencing to state adequate reasons on the record is brought into sharper focus when the applicable United States Supreme Court precedents are considered. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) established a presumption of vindictiveness when an appellant received a harsher sentence upon retrial after an appeal. This presumption assured not only the actual absence of retaliatory motivation but also the absence of the appearance of retaliatory motivation. Pearce also required that reasons for a more severe sentence appear on the record, “so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” More recently, Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986) modified Pearce by holding that the Pearce presumption was not applicable' where the resentencing judge was different from the original judge. McCullough did not specifically address the Pearce requirement that reasons be placed on the record where the sentence is increased.

If we assume, arguendo, that the instant case does not carry with it the Pearce presumption of vindictiveness, then it is all the more important that judges commit their reasons on the record in order to make clear that the judge was not motivated by vindictiveness but had sound reasons for the harsher sentence imposed. A defendant should not forgo his legitimate right of appeal because he fears that if he prevails on appeal and is retried, he will be exposed to a harsher sentence without good reason. Such a situation would chill a defendant’s decision as to whether to pursue an appeal.

Therefore I would review the merits of the adequacy of the statement of reasons. At the first day of the resentencing hearing, the judge indicated his intention to impose consecutive life sentences. When told that Judge Ridge, the previous sentencing judge, had imposed concurrent sentences, the sentencing judge stated:

I’m going to find out what the situation is. I’m going to ask Judge Ridge and we’ll do what he did____ I think we better have [appellant] come back for sentence because if Judge Ridge said one thing, I got to do the same thing. I feel I should do it anyway.

N.T. Feb, 5, 1982 at 7. On the second day of hearing, the judge stated,

“Well, we consulted with Judge Ridge. He gave two life sentences. One he didn’t specify. One was to be concurrent to the other. So, we’ll have to sentence him consecutively.

N.T. Feb. 8, 1982 at 8-9. The sentencing judge places no further statement of reasons on the record for imposing consecutive sentences.

In his subsequent opinion of November 10, 1986, denying post-trial motions, the sentencing judge states: “The imposition of consecutive life sentences was not inadvertant. This court imposed such a sentence because two lives were taken by the defendant.” The adequacy of this brief subsequent explanation is not at issue. An adequate statement of reasons must be placed on the record at the time of sentencing. Pa.R.Crim.P. 1405.

Here the resentencing judge failed to provide on the record that, in resentencing appellant, he did so in accordance with the standards established by the Code. In the final analysis, there is an unexplained imposition of consecutive sentences.

Therefore I would remand for resentencing.

      . Appellant does not argue, as the dissent suggests, that the sentencing judge abused his discretion by failing to state adequate reasons on the record for imposing an enhanced sentence. He argues, instead, that imposition of the more severe sentence constitutes double jeopardy, and violates North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Moreover, he does not seek resentencing accompanied by a statement of reasons, but argues that he is entitled to reimposition of his original concurrent life sentences. Brief for Appellant at 50-53.

      . It is not at all clear whether under state constitutional law the attenuated standard of McCullough would prevail over the stricter standard of Pearce.


author: KELLY, Judge:

text:
    537 A.2d 1383
    Mary Alice ALETTO, Appellee, v. Harold E. ALETTO, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1987.
    Filed Feb. 10, 1988.

      Frederick N. Frank, Pittsburgh, for appellant.
    Chris F. Gillotti, Pittsburgh, for appellee.

      Before BROSKY, TAMILIA and KELLY, JJ.
   KELLY, Judge:

This case involves an appeal by appellant/husband from an order equitably distributing the parties’ marital property. Because we find that the trial court improperly excluded from marital property the increase in value of certain premarital assets, we reverse and remand.

The parties were married in 1961 and separated in 1977. On July 23, 1981, appellee/wife filed the instant divorce proceedings, requesting equitable distribution under Section 401 of the Divorce Code, alimony, and counsel fees. Following a hearing, the trial court entered an order distributing the marital property and dismissing wife’s claims for alimony and counsel fees. Both parties filed exceptions; except for a slight modification of its previous order, the trial court dismissed the exceptions and entered a final order. This timely appeal followed.

On appeal, husband raises six issues: (1) whether the court erred in excluding from marital property the increase in value of stock owned by wife; (2) whether the court erred in valuing husband’s business interests as of the trial date, rather than the separation date; (3) whether the court erred in calculating the value of husband’s business interests; (4) whether the court erred in awarding wife fifty percent (50%) of husband’s business interests; (5) whether the court erred in formulating the structured equitable distribution award; and (6) whether the court erred in fixing the marital assets and liabilities. We find that the opinions of the trial court, dated March 27, 1986 and July 18, 1986, thoroughly address and properly dispose of the third issue. We shall address the remaining issues raised on appeal seriatim.

I.

In 1959, two years before her marriage to husband, wife received a 7.1 percent share in a Coca-Cola bottling company owned by her father and located in the Federal Republic of Germany. At the time the stock was given to wife, it was valued at $15,000; wife sold the stock in 1979, two years after the parties separated, for $100,000. The trial court held that the increase in the value of the stock which occurred during the marriage did not constitute marital property. The court reasoned that the stock was acquired before the marriage and that the increase in value did not occur as a result of any contributions by husband.

This Court recently held in Anthony v. Anthony, 355 Pa.Super. 589, 591, 514 A.2d 91, 92 (1986), that “the entire increase, during the parties’ marriage, in the value of premarital assets is marital property, and ... the increase is not reduced to reflect inflation.” In reaching this holding, we rejected the appellants’ assertions that an increase in the value of a spouse’s premarital property should not be regarded as marital property unless the appreciation of value is attributable to the joint efforts and/or financial contributions of both spouses. The court in Anthony reasoned:

Pursuant to section 401 of the Divorce Code, marital property includes all property, real or personal, acquired during the parties’ marriage by either spouse, whether titled individually or jointly. 23 P.S. § 401(e)-(f). Thus, the time, rather than the method, of property acquisition determines if an item of property constitutes marital property under the Code.
# * * * Sfs *
... [I]f accrued during the period of the parties’ marriage, an appreciation in the value of property belonging to either spouse represents, in and of itself, property acquired during the parties’ marriage, i.e., marital property. See 23 P.S. § 401(e)(1) and (3).

355 Pa.Superior Ct. at 593, 514 A.2d at 92-3 (emphasis in original). Accord Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987); Sutliff v. Sutliff 361 Pa.Super. 504, 522 A.2d 1144 (1987).

In the instant case, the trial court did not have the benefit of our decision in Anthony, supra. However, it is well-settled that changes in decisional law which occur during litigation will generally be applied to cases pending on appeal. McCloskey v. WCAB, 501 Pa. 93, 460 A.2d 237 (1983); Fairbanks v. Travelers Insurance Company, 337 Pa.Super. 39, 486 A.2d 469 (1984). As stated in Fairbanks, supra:

In Pennsylvania, decisions changing the law are usually applied to cases pending on appeal. If such decisions rely upon statutory interpretations, they relate back to the date the particular statute became effective, because they merely interpret existing legislation.

337 Pa.Superior Ct. at 42, 486 A.2d at 470-71. The Anthony decision relied upon interpretation of Section 401 of the Divorce Code; we therefore find that our holding in Anthony relates back to the date Section 401 became effective. Applying Anthony, we conclude that the trial court erred in excluding from marital property the increase in value of the stock held by wife.

Wife argues that the reasoning set forth in the trial court opinion requires us to find that the error in excluding the increase is harmless error. The trial court stated in its opinion:

... [Ejven if the increase in the value of the stock were marital property, we would award the increases in the value of the stock to the wife and would divide the remaining marital property evenly in the manner described in part II of this opinion. None of the parties’ activities during the marriage enhanced the value of the stock. The parties did not rely extensively on this asset during their marriage. This court’s decision to treat this asset as the wife’s separate property was a significant factor in this court’s decision to divide evenly the marital property and to deny the wife’s claims for alimony and counsel fees. Finally, since the husband has accumulated significant separate property, since he can without receiving any portion of this asset easily meet his present and future needs as defined by the standard of living that he had maintained during the marriage, and since the marriage benefited his economic position and capacity to acquire future assets, there is no reason why he should receive a share of an asset that the wife’s family gave to the wife for her benefit.

(Trial Court Opinion at 17). Wife asserts that, because the trial court stated that, assuming the increase to be marital property, the trial court would still award the increase to wife, and would make no changes in the distribution of the remaining assets, any remand would amount to an unnecessary judicial exercise. We disagree.

Husband presented evidence at trial that the actual increase in value of wife’s stock totaled over one million dollars ($1,000,000). Husband’s evidence tended to show that wife sold the stock for $100,000 in 1979, two years after the separation, to a Panamanian corporation, which was controlled by the wife’s father. Husband attempted to show that the Panamanian corporation resold the stock within weeks to a German corporation for one million, eighty-four thousand dollars ($1,084,000).

The trial court did not include the increase in value of the stock as marital property. It was therefore unnecessary for the court to make any fact-finding regarding the value of the increase. However, as indicated, supra, the court erred in excluding the increase from the marital estate; further, if the increase is as significant as husband claims, the exclusion of this increase from marital property (and, consequentially, awarding the entire increase to wife) would in fact warrant reapportionment of the assets. If the increase does in fact total over one million dollars, this asset would be worth more than all the remaining marital assets of the parties combined. We cannot accept the trial court’s statement that, even if the increase were included as marital property, it would continue to reach the same distribution, for if the trial court were to ignore such a substantial asset in shaping an equitable distribution plan, it would clearly constitute an abuse of discretion.

We conclude that the trial court erred in excluding from the marital estate the increase in value of the wife’s stock; we remand for the trial court to determine the value of the increase and direct the court to exercise its discretion by making adjustments to the entire equitable distribution scheme, if necessary.

II.

Husband next asserts that the trial court erred in valuing the parties’ business interests as of the trial date; husband claims that the date of separation should have been used. In Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986), this Court held that, absent a specific benchmark for valuation, the trial court is free to select the date which best serves to provide for economic justice between the parties. The date chosen by the trial court is reviewed under an abuse of discretion standard. Accord Sutliff v. Sutliff, supra; Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986); Winters v. Winters, 355 Pa.Super. 64, 512 A.2d 1211 (1986). In its opinion, the trial court explained in detail its reasons for valuing the business interests as of the trial date, rather than the date of separation. We find no abuse of discretion.

III.

In his next two arguments, husband contends that: (1) the trial court erred in awarding the wife fifty percent of the business assets; and (2) the court erred in framing the structured equitable distribution award. We find that, when dividing the business assets, the trial court erred in utilizing a fifty-fifty presumption; the court further erred in failing to consider all the factors set forth in Section 401(d) of the Divorce Code. Accordingly, we are compelled to set aside the equitable distribution plan and remand to the trial court with proper instructions.

In Fratangelo v. Fratangelo, 360 Pa.Super. 487, 520 A.2d 1195 (1987), this Court stated:

To the extent that the fifty-fifty starting point, without more, or with nominal consideration of the 401(d) factors is applied, it is for evidentiary purposes an unacceptable presumption. The far better procedure is to avoid any reference to the fifty-fifty starting point and to go direct-' ly to the factors contained in the legislative guidelines pursuant to section 401(d).

360 Pa.Superior Ct. at 496, 520 A.2d at 1199. We continued:

When a fifty-fifty starting point is utilized, this Court will scrutinize that process very carefully to determine whether the lower court proceeded in a presumptive fashion or properly and fully considered all 401(d) factors before making distribution.

Fratangelo, 360 Pa.Superior Ct. at 498, 520 A.2d at 1201.

In the instant case, the trial court appears to have begun its equitable distribution scheme with a presumption of equal distribution. In this regard, the trial court relied upon the analysis set forth in Paul W. v. Margaret W., 130 P.L.J. 6 (1981); we expressly disapproved the Paul W. approach in Fratangelo, supra. Furthermore, the portion of the trial court opinion which explains the division of marital assets analyzes, in a cursory fashion, only a few of the ten factors listed in Section 401(d). We therefore find that the distribution plan must be set aside. Upon remand, the trial court is directed “to first consider, before determining each share, all factors enumerated in section 401(d) as well as all other relevant factors, and thus equitably determine how much or how well each property became vested in each partner.” Fratangelo, supra, 360 Pa.Superior Ct. at 498, 520 A.2d at 1200.

IV.

Next, husband contends that “the lower court erred in its determination of the marital assets and liabilities, including the value thereof.” (Appellant’s Brief at 59). Although husband frames the issue as including only one contention, three separate arguments are presented.

A.

Husband first asserts that the trial court erred in considering two bank accounts, valued at $150,000 and $80,000, which husband holds jointly with his mother and uncle. Husband claims that he holds no interest in either account, and that his name appears on the accounts only so that he may act as his relatives’ agent in financial transactions. We find no reversible error.

First, we note that the trial court did not make a credibility assessment on whether husband’s testimony regarding his lack of any interest in the two accounts is worthy of belief. More importantly, however, the trial court “considered” the two bank accounts only in a very limited context; the trial court mentioned the two bank accounts after listing various other assets which husband had acquired since the separation date. The trial court considered all of these assets in rejecting husband’s claim that “since separation he has been forced to live almost from hand-to-mouth, while the wife has enjoyed a most luxurious standard of living.” (Trial Ct. Op. of 3/27/86 at 1). As stated by the trial court:

The husband claims that he has been able to obtain very-limited money from the businesses which he operates because of the significant investments required to maintain these businesses. But this claim is not consistent with his ability from the date of separation to the present to provide for his living needs, to make monthly support payments of $600 for the wife’s support, to make additional monthly support payments of $800 for child support until September 23, 1983, and to acquire ‘separate’ assets in excess of $250,000. These assets include two tax-free bonds of $75,000 and $50,000; stocks worth $67,000; equity in a house of $15,000; a tax-free fund of $47,000; and an IRA of $10,000. Also, the husband has a joint account of between $80,000 and $90,500 with his mother and a joint account of $150,000 with his uncle, and has recently acquired a third Burger King franchise which he claims to have no value at this time.
* * * if- * *
On the basis of the significant assets that the husband has acquired since separation, we find that his economic position has not deteriorated since separation. Consequently, we conclude that the dissolution of the marriage has not diminished the lifestyles which the parties achieved during the marriage and that the claims made in this case for equitable distribution, alimony, and counsel fees should be decided upon factors other than the financial needs of the parties.

(Trial Ct. Op. of 3/27/86 at 1-4). Considering the limited context in which the trial court considered the accounts, we find no reversible error.

B.

Husband also contends that the trial court erred in valuing the marital home.

At trial, wife’s real estate appraiser assigned the house a fair market value of $50,000 to $56,000, while husband’s expert testified to a fair market value of $70,000. Since the house had an outstanding mortgage balance of $15,000, husband argued that the equity in the house should be valued at $55,000, while wife set the net equity figure at between $35,000 and $41,000. The trial court assigned a net equity figure of $48,000 to the marital residence, apparently compromising the figures presented by the two realtors so as to reach a fair market value of $62,000.

On appeal, husband contends that his expert’s appraisal was more competent and reliable than the report offered by wife’s expert, and that the trial court should have therefore given more weight to the husband’s appraisal.

The Divorce Code does not include a specific method of valuing assets. We have previously held that the court must exercise its discretion, relying upon the estimates and inventories submitted by both parties, the records of purchase prices, and appraisals. Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983). In determining the value of marital property, the court is free to accept all of the testimony, portions of the testimony, or none of the testimony regarding the true and correct value of the property. See Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985); Gee v. Gee, supra. Here, the trial court acted within its discretion in assigning equal weights to the testimony of the two experts, and averaging the two figures to arrive at an estimated fair market value of the marital home.

C.

Lastly, husband contends that the trial court erred in excluding certain marital assets and liabilities from consideration. The trial judge stated in the original opinion explaining the equitable distribution award:

The parties presented evidence concerning other alleged marital assets and debts. These are not listed because the amounts involved are inconsequential in comparison to the other marital assets, and the manner in which these assets have been divided does not appear to favor significantly either party. For example, the husband retained a bank account of $6,179.50 while the wife retained Coca-Cola stock worth $7,140. The husband claims that he incurred a debt of $16,000 because of the wife’s failure to sign the 1976 tax return, while the wife claims that the husband received income in excess of $16,000 following the parties’ separation from an investment made prior to separation.

(Trial Ct. Op. of 3/26/86 at 4). Later, in response to exceptions filed by both parties, the trial judge explained further:

Each party has objected to this court’s handling these assets in this fashion. However, the nature and value of the assets depend to a large extent upon the parties’ credibility. Neither party was open or forthright. Consequently, we continue to conclude that it was proper to specifically address only those marital assets that are the most significant and can be documented.

(Trial Ct. Op. of 7/18/86 at 6).

The equitable distribution of marital property is within the sound discretion of the trial court, and the decision shall not be reversed on appeal absent an abuse of discretion. Gee v. Gee, supra; Kleinfelter v. Kleinfelter, 317 Pa.Super. 282, 463 A.2d 1196 (1983). Section 401(d)(8) of the Divorce Code, 23 P.S. § 401(d)(8), requires the court to equitably divide the marital property after considering all relevant factors, including “[t]he value of the property set apart to each party.” The trial court did not assign a value to certain of the assets, which included, in addition to the items listed in the trial court opinion, a Swiss Bank account, Georgian silver, and an oil lease. Based upon the testimony presented, the value of the property does not appear to be inconsequential. Since the trial court did not assign a value to these assets it is impossible for this Court to determine on appeal whether the trial court abused its discretion in dividing the marital property. See Gee v. Gee, supra. Accordingly, on remand the trial court is directed to assign a value to all marital assets and make adjustments to the equitable distribution scheme, if necessary.

Upon the foregoing reasoning, the order of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

      . The trial court entered its equitable distribution order on July 18, 1986, before a divorce decree had been entered. As a final divorce decree was entered December 30, 1986, we shall disregard this procedural misstep and hear the appeal on its merits. Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986).

      . Appellants filed their notice of appeal on August 1, 1986, and on August 7, 1986, the decision in Anthony was filed.

      . Although the trial court did not make a finding of fact regarding the amount of the increase in value, it would appear from the trial court opinion that the court found at least a portion of husband's evidence to be credible:
      The wife's father was unwilling to testify voluntarily and failed to attend a deposition for which he had been subpoenaed. The wife, who appeared to be unusually astute in other business matters, testified that she had no further knowledge of these transactions. ******
      On the basis of the evidence produced concerning the transactions involving the Coca-Cola bottling company, the wife’s failure to provide complete financial records, the wife's lack of candor, and the wife's lifestyle, we conclude that she has access to significant other assets____
      (Trial Court Opinion of 3/27/86 at 3).

      . The court valued the major marital assets at $944,800.

      . We recognize that the valuation of the increase may prove difficult because of the wife’s father’s failure to cooperate and because of wife’s claimed ignorance. However, we have reviewed the testimony presented, and we find that sufficient testimony was presented to enable the court to set an approximate value. See Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984). Moreover, it is an accepted principle of law that when evidence of a particular fact at issue is peculiarly within the control of a party, that party may be subjected to a burden of production. Thus, evidence having been presented of the value of the asset in question weeks after the separation, and all the evidence to establish the market value prior to that time being peculiarly in the control of wife, it would appear appropriate to impose a burden of production on wife.

      . Although we find it necessary to set aside the entire equitable distribution scheme, we specifically reject the argument made in husband’s brief that the award must be set aside because it "unnecessarily penalizes husband” and “husband simply cannot comply with the lower court’s order without liquidating his business interests____”. (Appellant’s brief at 54, 56). In addressing these arguments, we adopt the opinion of the trial court.

      . The trial court opinion states:
      We conclude that the marital assets should be evenly divided. As we discussed previously, there appears to be no significant disparity in the economic circumstances of the parties or their present and future needs. Each party made significant contributions to the marriage. The parties had a traditional division of responsibilities. The husband worked outside the home, and the wife assumed the day-to-day responsibility for raising the children and maintaining the home.
      (Trial Ct. Op. at 11).

      . Husband states that his testimony in this regard was uncontradicted. However, this fact alone would not require the trial court to accept husband’s testimony; the trial court is always free to independently assess the credibility of witnesses and to accept or reject the testimony presented. See Sergi v. Sergi, supra, 351 Pa.Superior Ct. at 597, 506 A.2d at 933; Baraff v. Baraff, 338 Pa.Super. 203, 210-211, 487 A.2d 925, 929 (1985).

      . Certainly, the trial court may determine on remand that the items are not marital property subject to equitable distribution.

      . As discussed in footnote 5, supra, we recognize the difficulty in valuating assets when the witnesses are evasive or lack credibility. However, the trial court must nonetheless assess the credibility of the parties and determine appropriate values for each item of marital property.