author: BROSKY, Judge.

text:
    647 A.2d 915
    COMMONWEALTH of Pennsylvania v. Darryl BLACKWELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 5, 1994.
    Filed Sept. 12, 1994.

      Thomas G. Wolpert, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before CAVANAUGH, DEL SOLE and BROSKY, JJ.
   BROSKY, Judge.

Darryl Blackwell appeals from the March 5, 1993 order of the trial court denying his petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541 et seq. The trial court order also granted PCRA counsel’s motion to withdraw as counsel, and, informed appellant that he could proceed pro se or retain private counsel. On April 2,1993 appellant filed a pro se notice of appeal and on March 9, 1994 present counsel entered his appearance on behalf of appellant; counsel filed an appellate brief on appellant’s behalf.

Appellant and the victim, June Lane, who was his former girlfriend, lived in separate residences in West Philadelphia. On November 16, 1986 appellant lured Ms. Lane into his house on the false pretext that he was repaying a loan owed to her. Once appellant had Ms. Lane in his home he punched her, dragged her to the second floor, bound her with an electrical cord, taped her mouth shut, wrapped a tie around her neck and raped her. Appellant threatened to hurt Ms. Lane and members of her family if she told anyone about the crimes.

Ms. Lane returned to her grandmother’s home in a hysterical state and told her grandmother that appellant had raped her. The grandmother called her son, who was the victim’s uncle, and told him about the rape. He took the victim to a police station and then to the hospital.

Appellant was arrested and when the police searched his house they found the electrical cord, the tape and the tie. Appellant was charged with rape.

Appellant was released on bail on November 21, 1986. After his release he admitted to a friend, Robert Belk, that he had raped the victim. He also told Belk that he should have killed the victim and disposed of the physical evidence that had been subsequently seized by the police. N.T., 2/26/87, at 18.

The victim moved from her grandmother’s home to her uncle’s home. She appeared at the November 26, 1986 first listing of appellant’s preliminary hearing but the case was continued pursuant to appellant’s request. On December 7, 1986 the victim spent the night at her grandmother’s house. The next morning she left to go to work. Appellant was sitting on his front porch, which was located two houses away from the grandmother’s home. Appellant confronted the victim on the sidewalk and grabbed her arm. He ordered her not to testify against him. She ran toward her grandmother’s porch and appellant followed her. Appellant produced a .22 caliber revolver and pointed it at the victim. N.T., 5/9/89, at 50. He shot the victim three times, in her head, her face and her hand. Appellant then fled into his home. The victim then staggered to her grandmother’s porch and her grandmother helped her into the house.

Appellant barricaded himself in his house and police arrived. Over several hours police negotiators and a minister attempted to get appellant to surrender. Appellant was on a second floor landing and threw the .22 caliber revolver to the base of the staircase leading to the second floor. Police then entered the house and found appellant lying at the top of the staircase; police subsequently determined that appellant had apparently shot himself twice in his head. Upon discovering appellant an officer asked him if he was hurt. Appellant replied, “I f — ked up.” N.T., 5/8/89, at 64. The police began to assist appellant and appellant stated, “How’s the girl?” Id. at 65. An officer asked appellant to whom he was referring. Appellant replied, “The girl I shot.” Id. Appellant was eventually charged with retaliation against a witness, aggravated assault, possessing an instrument of crime and related charges.

The victim was eventually discharged from the hospital. Because of the seizures resulting from the emergency brain surgery the doctors prescribed Dilantin in an attempt to control any possible future seizures. The victim began to have severe headaches and re-entered the hospital. The victim died on January 26, 1987. The medical examiner determined that the cause of death was fulminating hepatitis (with liver failure) caused by the gunshot wounds, the craniotomy (which is a surgical opening of the skull) performed upon her during emergency surgery immediately after the shooting, and, the Dilantin therapy; the manner of death was determined to be homicide. N.T., 5/9/89, at 52.

Appellant was charged with homicide. All of the charges (for the rape and for the subsequent shooting) were consolidated for trial. Appellant attempted to suppress the items seized in the search subsequent to the rape, the gun used in the shooting, and statements made after his arrest for the shooting. After a suppression hearing on May 8, 1989 the trial court suppressed appellant’s statement to police regarding the shooting of the victim (in which appellant replied, “The girl I shot.” N.T., 5/8/89, at 65), since appellant was not given his Miranda warnings before he made the statement. The trial court denied all other defense requests to suppress evidence.

Appellant then entered into a negotiated plea bargain. On May 9, 1989 the trial court conducted a lengthy and thorough guilty plea colloquy. N.T., 5/9/89, at 1-65. Appellant then pled guilty to first-degree murder, possession of an instrument of crime, retaliation against a witness and rape. Appellant also agreed to the sentence, which was determined pursuant to the negotiated plea agreement; he was sentenced to a mandatory life sentence for the first-degree murder, and consecutive sentences of ten-to-twenty years for the rape, three and one-half to seven years for retaliation against a witness and two and one-half to five years for possession of an instrument of crime. During the plea colloquy appellant was told by the trial court that he was going to be bound by the answers that he gave and the statements that he made at the hearing; he was also told that he would not be allowed to subsequently contradict his answers and statements. N.T., 5/9/89, at 11. Appellant responded that he understood those points. Id. at 11-12.

Appellant did not seek to withdraw his guilty plea; he filed no motion for reconsideration of sentence. He filed no direct appeal. On September 18, 1989 he filed a pro se PCRA petition and counsel was appointed to represent him. Before court-appointed counsel could file an amended PCRA petition appellant moved to withdraw the petition without prejudice so that he could retain private counsel. The PCRA petition was withdrawn on March 12, 1992. Appellant did not retain private counsel and filed another pro se PCRA petition on June 9, 1992. The trial court appointed another attorney to represent appellant. After counsel reviewed the record and found all of appellant’s issues to be without merit he filed a petition to withdraw as counsel, pursuant to Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). The trial court dismissed appellant’s PCRA petition and granted counsel’s motion to withdraw. Appellant filed the instant appeal. Appellant’s fifth attorney is now representing him in this appeal.

Appellant claims on appeal that,

I. The only basis of the plea bargain was the threat of the death penalty, which would not have been imposed, and if imposed, could not have withstood Pennsylvania Supreme Court review.

A. The statutory mens rea requirement for the only aggravating circumstance the prosecution could have presented is totally inconsistent with the facts as presented by the prosecution’s own witnesses.

B. Case law decided by the Supreme Court of Pennsylvania available at the time of the plea demonstrates that the death penalty was not sustainable in this case.

II. The defendant should be permitted to withdraw his guilty plea because trial counsel had no rational strategy in counseling defendant to forego defenses of arguable merit and counseling a plea bargain that provided no benefit to the defendant.

A. The defendant had fact issues of arguable merit as to the cause of the victim’s death and premeditation which were surrendered without a quid pro quo.

B. A plea colloquy, even if performed conscientiously, is not a substitute for constitutionally mandated effective assistance of counsel.

III. The sentencing scheme was an abuse of discretion not justified by any finding of aggravated circumstances and not justified by the one-sided plea bargain.

A. The protection against double jeopardy was violated when sentences for the homicide and retaliation failed to merge.

B. The trial court disregarded mitigating circumstances, unreasonably hindering the defendant’s excellent chances for rehabilitation and possible pardon.

IV. The Finley letter and opinion of the lower court fail to address central issues as to ineffectiveness of counsel which vitiate the basis of the defendant’s plea.

A. Both the opinion of Judge Papalini and the Finley letter assume, without stating reasons, that the only or central issue for ineffective assistance of counsel is whether first-degree homicide is sustainable on the facts.

B. The Finley letter is a superficial review of issues the defendant raised pro se, not a legal analysis of the claims the defendant had if properly presented.

C. The defendant’s decision to plead guilty was made under mistakes of law so destructive to the exercise of basic rights that his plea cannot be deemed knowing and intelligent.

D. Defendant had a right to a trial attorney who would ensure that the verdict reached was the [Sic] either the product of adversarial testing, or who would obtain something of legal value for the defendant in the plea bargain. V. Ineffective assistance of counsel at both the PCRA and trial level has deprived the defendant of any meaningful review of the legality of his plea bargain.

A. The defendant has not previously litigated his claims and has not waived appellate review of the legality of his plea bargain, a cognizable claim under the PCRA.

B. The standard of review for the withdrawal of the defendant’s plea should be the presentencing standard of “any fair and just reason.”

Appellant’s Brief at i-iii.

Our Court stated in Commonwealth v. Granberry, 434 Pa.Super. 524, 644 A.2d 204 (1994) (No. 1170 Pittsburgh 1992; filed February 7, 1994),

Our scope of review, when examining a post-conviction court’s grant or denial of relief is limited to determining whether the court’s findings were supported by the record and the court’s order is otherwise free of legal error. Commonwealth v. McClucas, 378 Pa.Super. 202, 548 A.2d 573 (1988). The findings of the post-conviction court will not be disturbed unless they have no support in the record. Id.

To be eligible for relief under the Post Conviction Relief Act, an appellant must plead and prove by a preponderance of evidence that his conviction resulted from ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Dukeman, 388 Pa.Super. 469, 565 A.2d 1204 (1989); 42 Pa.C.S. § 9543(a)(2)(ii). In establishing a claim of ineffectiveness an appellant must initially demonstrate that the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988). Next, if appellant’s claim does have arguable merit, we must determine whether counsel’s failure to pursue the matter had some reasonable basis designed to serve the interests of his client. Id. Finally, if the record reveals that counsel was ineffective, it must be determined whether appellant has demonstrated that counsel’s ineffectiveness so prejudiced the appellant’s case that it is likely that the result would have been different absent the errors. Commonwealth v. Tyson, 363 Pa.Super. 380, 526 A.2d 395, appeal denied, 518 Pa. 618, 541 A.2d 745 (1987).

The burden of establishing ineffective assistance of counsel rests upon the appellant since counsel’s representation is presumed to be effective. Commonwealth v. Jones, 389 Pa.Super. 159, 566 A.2d 893 (1989). Appellant must demonstrate that counsel’s omission or commission was arguably ineffective and the likelihood that appellant was prejudiced as a result thereof. Id.

A claim of ineffectiveness of trial counsel must be raised at the first opportunity at which the counsel whose ineffectiveness is being challenged no longer represents the defendant. Commonwealth v. Miller, 388 Pa.Super. 7, 564 A.2d 975 (1989). “For the purposes of [the PCRA], an issue is waived if the petitioner failed to raise it and if it could have been raised ... on ... appeal or [in any] other proceeding actually conducted or in a prior proceeding actually initiated under [the PCRA].” 42 Pa.C.S. § 9544(b). Appellant must also prove by a preponderance of the evidence that the allegation of error has not been previously litigated. 42 Pa.C.S. § 9543(a)(3).

Pa.R.Crim.P. 1507(a) states, in pertinent part, “The [trial] judge shall promptly review the [PCRA] motion---- If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the motion ... [without a hearing][.]”

The right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Box, 305 Pa.Super. 81, 451 A.2d 252 (1982). A hearing may be denied if a petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence. Id. A post-conviction petition may not be summarily dismissed, however, as “patently frivolous” when the facts alleged in the petition, if proven, would entitle the petitioner to relief. Id.

A defendant is only entitled to counsel during his or her first petition under the Post Conviction Relief Act. Pa. R.Crim.P. 1504(a).

Id. 434 Pa.Super. at 529-531, 644 A.2d at 207-08.

Appellant first claims that the only basis for his plea bargain was a threat that the death penalty could be imposed for a first-degree murder conviction. Appellant avers that the death penalty could not have been imposed in the instant case since the evidence would not have shown that appellant killed Ms. Lane in order to prevent her from testifying against him (i.e., the “aggravating circumstance” that the Commonwealth would have relied upon would not have been supported by the facts in the instant case).

The PCRA states, in pertinent part,

(a) To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:
(2) That the conviction or sentence resulted from one of more of the following:
(in) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty.

42 Pa.C.S. § 9543(a)(2)(iii).

Appellant did not challenge his guilty plea prior to his sentencing. “An attempt to withdraw a plea of guilty after sentencing will only be granted where the defendant is able to show that his plea was the result of manifest injustice.” Commonwealth v. Holbrook, 427 Pa.Super. 387, 394, 629 A.2d 154, 158 (1993). To establish manifest injustice, a defendant must show that his plea was involuntary or was given without knowledge of the charge. Id. The decision to plead guilty must be personally and voluntarily made by a defendant. Commonwealth v. Fluharty, 429 Pa.Super. 213, 632 A.2d 312 (1993). Pa.R.Crim.P. 319 mandates that the guilty plea be offered in open court, and, in order to determine the voluntariness of the plea and whether the defendant acted knowingly and intelligently, the trial court must, at a minimum, inquire into the following six areas:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he has the right to trial by jury?

(4) Does the defendant understand that he is presumed innocent until he is found guilty?

(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Commonwealth v. Fluharty, supra at 218, 632 A.2d at 314; Comment to Pa.R.Crim.P. 319. The trial court must determine if there is a factual basis for the plea [i.e., whether the facts acknowledged by the defendant constitute the offense(s) charged]. Commonwealth v. Fluharty, supra. The aforementioned constitute the only required inquiries regarding a guilty plea. Id.

The determination of whether the defendant understood the connotations of the plea and its consequences is made by an examination of the totality of the circumstances surrounding the plea. Id. Even if there is an omission or defect in the guilty plea colloquy, the guilty plea will not be deemed invalid if the circumstances surrounding the entry of the plea reveal that the defendant fully understood the nature and consequences of his or her plea and that he or she knowingly and voluntarily decided to plead guilty. Id. A defendant may knowingly and voluntarily plead guilty as a matter of strategy or expedience even though he or she is unable or unwilling to admit guilt regarding the crime(s) charged. Id. The bottom line is whether the defendant understood what he or she was doing, and our Court will look to the colloquy to determine whether he or she did. Id.

If a defendant has pled guilty to first-degree murder the trial court must conduct a separate sentencing hearing, before a jury, to determine whether the defendant shall be sentenced to death or life imprisonment. 42 Pa.C.S. § 9711(a)(1) and (b). At the hearing evidence regarding aggravating or mitigating circumstances shall be presented. 42 Pa.C.S. § 9711(a)(2). Aggravating circumstances must be proved by the Commonwealth beyond a reasonable doubt. 42 Pa.C.S. § 9711(c)(iii). The trial court must give a jury instruction on aggravating circumstances if “there is some evidence” regarding one or more aggravating circumstances. 42 Pa.C.S. § 9711(c)(i). The verdict must be a death sentence if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance, or, if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. 42 Pa.C.S. § 9711(c)(iv). In all other cases the verdict must be a sentence of life imprisonment. Id. If the victim was a prosecution witness to a murder or other felony committed by the defendant and was killed for the purpose of preventing his or her testimony against the defendant in any grand jury or criminal proceeding involving such offenses, then at least one aggravating circumstance exists. 42 Pa.C.S. § 9711(d)(5).

In the instant case Robert Belk, who had known appellant all of his life, testified at appellant’s preliminary hearing. Belk testified that he met with appellant after appellant’s release from jail subsequent to the rape of Ms. Lane. Belk testified that appellant told him that he raped Ms. Lane in his house and that “he should have killed her ... and disposed of certain items that were in the house at the time” (the items that appellant mentioned to Belk were bed sheets, underwear and all of the items that were utilized to bind Ms. Lane during the rape). N.T., 2/26/87, at 18. Immediately before appellant shot Ms. Lane three times at point blank range he ordered her not to testify against him. When she ran from him he gave chase and shot her.

Appellant now argues that he was “psychologically disturbed, [and] non-rational,” and that his confrontation with Ms. Lane on the morning of the shooting was unplanned and that the shooting was “impulsive.” Appellant’s Brief at 16.

Arguendo, assuming that appellant may have been able to present evidence at trial that may have shown him to have been psychologically impaired when he shot Ms. Lane, the state of the evidence at the time that appellant entered into the plea agreement (i.e., evidence regarding his rape of Ms. Lane, appellant’s comments to Mr. Belk and appellant’s confrontation with, comments to, and shooting of Ms. Lane coupled with her resulting subsequent death) revealed that there was certainly a strong possibility that appellant could have been convicted of first-degree murder, and that a jury (or the trial court) could have found, beyond a reasonable doubt, at least one aggravating circumstance (i.e., that appellant shot Ms. Lane, who eventually died as a result of her wounds, in order to prevent her from testifying at his trial). 42 Pa.C.S. § 9711(d)(5). We can not speculate whether any mitigating circumstances would have been established at a sentencing hearing. However, if no mitigating circumstances were established or if the aggravating circumstance or circumstances were found to outweigh the mitigating circumstance or circumstances, then appellant may have been sentenced to death for the lolling of Ms. Lane. 42 Pa.C.S. § 9711(c)(iv).

We have established that there was a real possibility that appellant could have received the death penalty since the Commonwealth possessed, at the pre-trial stage of the proceedings, a considerable capability for proving beyond a reasonable doubt that one aggravating circumstance existed. We must now decide if appellant’s guilty plea was involuntary. Since appellant has appealed from the denial of his PCRA petition he must prove, by a preponderance of the evidence, that his guilty plea was unlawfully induced. 42 Pa.C.S. § 9543(a)(2)(iii). We must look to the guilty plea colloquy in order to determine whether appellant’s guilty plea was voluntary. Commonwealth v. Fluharty, supra.

During the colloquy appellant admitted that the Commonwealth agreed that it would not seek the death penalty if appellant pled guilty to first-degree murder, possession of an instrument of crime, rape and retaliation against a witness. N.T., 5/9/89, at 44. This concession by the Commonwealth was the major inducement that prompted appellant to plead guilty, and appellant was satisfied with the plea agreement. Id. The Commonwealth also agreed to nol pros several of the charges against appellant. The concessions by the Commonwealth were not the only reasons that appellant pled guilty; he also appeared to feel remorse for his crimes as he stated to the trial court,

I would like to express my sorrow to the family [of the victim, June Lane] and anybody else that was hurt through these offenses.... Iam more than sorry and today will not end [Sic]. It’s something that I will carry with me for the rest of my days because June [Lane], she was a good person. She tried to help me, but I had a problem.

Id. at 71. As our Court stated in Commonwealth v. Fluharty, supra, it really does not matter why a defendant pleads guilty (it can be for strategic reasons or out of remorse), so long as the plea is voluntary. Id.

The colloquy was lengthy and thorough. The trial court insured that appellant understood the nature of the charges to which he pled guilty: The trial court explained each element of each crime to appellant and related to appellant exactly how each of appellant’s actions (committed during the commission of the crimes) conformed to each element. N.T., 5/9/89, at 55-65. There was a factual basis for the plea: The Assistant District Attorney outlined the facts regarding all of the crimes that appellant was pleading guilty to. Id. at 48-52. The trial court explained to appellant that he had a right to a jury trial and explained all of the rights and privileges appurtenant thereto. Id. at 12-21. Appellant repeatedly stated that he understood all of the trial court’s points regarding a jury trial. The trial court explained to appellant, and appellant indicated that he understood, his presumption of innocence. Id. at 12-14. The trial court insured that appellant was aware of the permissible range of sentences and/or fines for the offenses to which appellant was pleading guilty; appellant stated that he understood the range of sentences and/or fines. Id. at 33-37. The trial court also informed appellant that it was not bound by the terms of any plea agreement unless it chose to accept the agreement; appellant indicated that he understood that fact. Id. at 46^8. Therefore, pursuant to Commonwealth v. Fluharty, supra, and the Comment to Pa.R.Crim.P. 319, the trial court conducted all of the required inquiries regarding whether appellant’s plea was voluntarily, knowingly and intelligently made. Additionally, appellant stated that he understood all that the trial court explained to him during the colloquy, that he was not under the influence of drugs or alcohol at the time of the plea and that he was not suffering from any mental or emotional disability that prevented him from understanding everything that the trial court had stated to him. Appellant also stated that he was satisfied with his trial counsel’s representation. Appellant further stated that he understood that he would be bound by any statements made or answers given during the colloquy, and, that he would not be permitted to, at some future time, contradict those statements and answers. Id. at 11-12. The trial court also explained appellant’s post-plea rights.

Our review of the totality of the circumstances surrounding the aforementioned colloquy assures this Court that appellant’s guilty plea was voluntarily, knowingly and intelligently made. All of the requisite inquiries were conducted and appellant made clear that he understood the connotations of the plea and its consequences. Hence, the trial court did not err in accepting appellant’s guilty plea. Additionally, appellant has not shown that his guilty plea was unlawfully induced or that it was the result of manifest injustice; therefore, he is not entitled to relief under the PCRA. Commonwealth v. Holbrook, supra; 42 Pa.C.S. § 9543(a)(2)(iii).

Appellant next claims that his guilty plea counsel had no rational strategy in counselling him “to forego defenses of arguable merit”, and, in counselling him to accept a plea bargain that provided no benefit to appellant. Appellant’s Brief at i. Appellant specifically alleges that he may have been able to prove that the proximate cause of Ms. Lane’s death was not the shooting, and, that his “attempted suicide” (and subsequent statements) cast doubt upon the theory of his premeditated murder of Ms. Lane.

First, we note that the acceptance of the plea bargain provided a clear benefit to appellant. We have already determined, supra, that there was a genuine possibility that appellant could have received the death penalty had the instant case gone to trial. Hence, his acceptance of the Commonwealth’s offer not to seek the death penalty did not constitute an entrance into a bargain from which he derived no benefit.

Appellant also avers that the physicians who prescribed Dilantin for Ms. Lane, after she was shot by appellant, were responsible for her death: He avers that she died as a result of her reaction to the medication rather than the three gunshot wounds received from appellant.

In support of his claim that Ms. Lane died solely as a result of the medication Dilantin he relies upon a May 29, 1989 letter from Emanuel Rubin, M.D. to appellant’s trial attorney. Dr. Rubin, at the request of appellant’s counsel, examined Ms. Lane’s medical records. He opined in the letter that the cause of Ms. Lane’s death was massive hepatic necrosis with liver failure, caused by the Dilantin (Dilantin-induced hepatotoxicity). Dr. Rubin’s letter did not state that there was a direct link between the gunshot wounds and Ms. Lane’s death.

Dr. Rubin’s letter was not included in the official record submitted on appeal. However, what was included in the official record was an unrefuted statement, made by the prosecutor during a summarization of the facts at appellant’s guilty plea colloquy, which quoted the pathologist who performed the autopsy upon Ms. Lane. The pathologist had stated that the cause of Ms. Lane’s death was fulminating hepatitis (with liver failure) caused by the gunshot wounds to her head, the craniotomy performed upon her immediately after being shot by appellant and the Dilantin therapy; the pathologist found that the manner of death was homicide. N.T., 5/9/89, at 52. Hence, the evidence of record at the time of the guilty plea and at present discloses that appellant’s shooting of Ms. Lane set into motion an interconnected chain of events that led to her death. Moreover, the conclusions reached by the pathologist and Dr. Rubin are not necessarily inconsistent since Dr. Rubin did not state that Ms. Lane’s treating physicians were negligent or that the effects of the gunshot wounds did not necessitate Dilantin therapy. Hence, appellant’s plea counsel did not advise appellant to forego a defense that possessed arguable merit.

Appellant also avers that his “attempted suicide” after shooting Ms. Lane and a statement to police that he did not mean to shoot Ms. Lane should have been utilized by his trial counsel as evidence tending to negate a premeditated murder.

As we stated, supra, appellant’s “attempted suicide” could just as easily have been interpreted as evidence of his guilt after shooting Ms. Lane, and, his statement to the police that he did not plan to shoot Ms. Lane had to be considered in tandem with evidence that he did intend to shoot her since she would have testified at his trial for rape (i.e., appellant told Mr. Belk that he should have killed Ms. Lane immediately after the rape and destroyed evidence, appellant possessed a loaded handgun when he approached Ms. Lane, he grabbed her and ordered her not to testify, she broke free and ran, and he chased her and shot her three times and then fled). Trial counsel, who was apprised of all of these facts, made a tactical decision that the instant plea bargain was the most advantageous course for appellant since the risk of a jury verdict of first-degree murder and a finding of one aggravating circumstance (and, hence, the imposition of the death penalty) was too great. Given the facts available to trial counsel, and even considering a hindsight approach, we find that trial counsel had a reasonable basis for his advice to appellant to accept the instant guilty plea; hence, trial counsel was not ineffective for failing to raise a defense of arguable merit. Commonwealth v. Granberry, supra.

Appellant also avers that during the colloquy the trial court made an incorrect statement during its discussion of specific intent in the context of premeditated murder. The trial court stated, inter alia, “They have a rule in Pennsylvania that the specific intent to kill can be formulated by the killer’s use of a deadly weapon to a vital part of a victim’s body.” N.T., 5/9/89, at 64. Appellant avers that the trial court’s statement was misleading since it conveyed to appellant that “his intent, ... as to premeditation for first[-]degree homicide ... was a foregone conclusion.... ” Appellant’s Brief at 26.

We disagree. The trial court properly informed appellant of the burden of persuasion that the Commonwealth carries in attempting to prove premeditated murder. A proper jury charge would be that a jury could infer an intent to kill from the use of a deadly weapon upon a vital part of the body of the victim. Commonwealth v. Ly, 528 Pa. 523, 599 A.2d 613 (1991). This type of statement does not shift the burden of persuasion to a defendant. Id. The statement made by the trial court in the instant case is almost identical to a proper jury charge on the subject matter. The statement conveys that a jury “may” find specific intent, and not that it must find specific intent; hence, the matter of specific intent to kill in the instant case was not “a foregone conclusion”. This is especially true, when, as in the instant case, appellant was repeatedly informed that he was presumed innocent and that each element of each crime charged had to be proven beyond a reasonable doubt.

Appellant next claims that his sentences for rape, retaliation against a witness and possession of an instrument exceeded the Sentencing Guidelines, and, hence, the trial court abused its discretion in sentencing him and all of appellant’s attorneys were ineffective for failing to raise the issue.

Our Court, in Commonwealth v. Decker, 433 Pa.Super. 402, 640 A.2d 1321 (1994), quoting from Commonwealth v. Murphy, 405 Pa.Super. 452, 592 A.2d 750 (1991), stated,

The imposition of a proper sentence is a matter vested in the sound discretion of the trial court whose determination must be respected unless it involves a manifest abuse of discretion. However, the trial court must exercise its discretion in accordance with the applicable provisions of the Sentencing Code, 42 Pa.C.S. §§ 9701 et seq. The Code provides, in pertinent part, that the trial court “shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any [relevant] guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing. In every case where the court imposes a sentence outside the sentencing guidelines the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.” 42 Pa.C.S. § 9721(b).

[A] sentencing court is not required to adopt the recommendations in the Sentencing Guidelines but it must at least consider them. The sentencing guidelines do not preclude judicial discretion.

Commonwealth v. Decker, supra, 433 Pa.Super. at 407, 640 A.2d at 1323; Commonwealth v. Murphy, supra, 405 Pa.Super. at 458, 592 A.2d at 753.

The trial court should also consult a pre-sentence report, if available, where, as in the instant case, incarceration for one year or more is a possibility. Id. Further, the trial court must state on the record its reasons for the imposition of the particular sentence. Commonwealth v. Fetzner, 372 Pa.Super. 469, 539 A.2d 890 (1988). If the trial court examines a pre-sentence report and is aware of the relevant factors to be considered in sentencing a particular defendant we will assume that it meaningfully weighed the various factors, and, we will not disturb the sentencing court’s discretion to sentence that defendant as it did. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988).

Appellant’s claim that his sentences exceeded the Sentencing Guideline ranges is a challenge to the discretionary aspects of his sentence. Such a claim is not cognizable under the PCRA Commonwealth v. Lewis, 430 Pa.Super. 336, 634 A.2d 633 (1993). The only sentencing issue that is subject to PCRA review is whether the sentence imposed is greater than the lawful maximum. 42 Pa.C.S. § 9543(a)(2)(vii); Commonwealth v. Lewis, supra. Counsel cannot be deemed ineffective for failing to raise a baseless claim. Commonwealth v. Lewis, supra. Hence, this claim is without merit.

Appellant also claims that the sentences other than that imposed for first-degree murder were inappropriate since the trial court failed to refer to the Sentencing Guidelines when sentencing appellant outside of the Guidelines, and, that appellant should not have been given consecutive sentences. Again, appellant is not alleging that his sentences were greater than the lawful maximum. Hence, his claim is meritless. Commonwealth v. Lewis, supra. Moreover, the plea bargain was specific regarding the length of each sentence and in stating that the sentences were to run consecutive to each other. The trial court merely imposed the sentences agreed to by appellant, the Commonwealth and the trial court. Hence, appellant, having voluntarily, intelligently and knowingly entered into the plea agreement, cannot now complain that the sentences were improper.

Appellant next claims that his plea counsel was ineffective for failing to argue that his sentences for first-degree murder and retaliation against a witness should have merged.

Merger for sentencing purposes occurs only when the same facts are used to support convictions for crimes having different elements, and, these same facts support convictions for a greater offense and a lesser included offense. Commonwealth v. Huckleberry, 429 Pa.Super. 146, 631 A.2d 1329 (1993); Commonwealth v. Jones, 427 Pa.Super. 345, 629 A.2d 133 (1993). One of the crimes must be a lesser included offense of the other. Id. A lesser included offense is a crime having elements which are a necessary subcomponent but not a sufficient component of elements of another crime, the greater offense. Commonwealth v. Huckleberry, supra. The elements in the lesser included offense are all contained in the greater offense; however, the greater offense contains one or more elements not contained in the lesser included offense. Commonwealth v. Jones, supra.

In order to be convicted of first-degree murder a defendant must have intentionally killed another human being. 18 Pa.C.S. § 2502(a). An intentional killing is one “by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). A person is guilty of retaliation against a witness or victim if he or she “harms another by any unlawful act in retaliation for anything lawfully done in the capacity of witness or victim.” 18 Pa.C.S. § 4953(a).

While some of the same facts were used to support appellant’s convictions for first-degree murder and retaliation against a witness, the two crimes are not greater and lesser included offenses. The intention to retaliate against a witness or victim is an element of retaliation against a witness, and said element is not a required element of first-degree murder; hence, retaliation against a witness is not a lesser included offense of first-degree murder. Moreover, since the death of the victim is an element of first-degree murder, and that element is not present in the crime of retaliation against a witness, first-degree murder is not a lesser included offense of retaliation against a witness. Hence, pursuant to Commonwealth v. Huckleberry, supra, and Commonwealth v. Jones, supra, the two crimes do not merge for sentencing purposes. Accordingly, appellant’s plea counsel was not ineffective for failing to raise the issue. Commonwealth v. Lewis, supra. Furthermore, as we stated, supra, the sentences for the various crimes were agreed to by appellant when he accepted the plea bargain. If he had decided to reject the Commonwealth’s offer the case could have proceeded to trial and appellant would have been exposed to a possible death sentence. Therefore, his plea counsel was not ineffective for advising appellant to enter into the plea agreement. Commonwealth v. Granberry, supra.

Appellant’s next claim is that the “no-merit” letter filed by appellant’s fourth attorney pursuant to Commonwealth v. Finley, supra, and the instant trial court opinion, “fail[ed] to address central issues as to ineffectiveness of counsel which vitiate the basis of’ his guilty plea. Appellant’s Brief at 30.

Even if the “no-merit” letter and trial court opinion failed to address ineffectiveness of counsel issues, appellant’s current counsel has raised (in a forty-nine page appellate brief) all of the ineffectiveness issues that appellant wished to have raised. We have reviewed and addressed, in this opinion, all of the ineffectiveness issues and found them to be without merit. Hence, appellant has suffered no prejudice as a result of the alleged omissions of PCRA counsel and omissions in the trial court opinion. Therefore, this claim is without merit.

Appellant’s final claim is that trial and PCRA counsel’s ineffective assistance “has deprived [him] of any meaningful review of the legality of his plea bargain.” Appellant’s Brief at 43. He avers that due to ineffectiveness of counsel we should find none of his claims waived, and, that his request to withdraw his guilty plea should be reviewed by this Court under a pre-sentencing standard.

We note that we have not found waiver regarding any of appellant’s issues; we have addressed all of his claims and found them to be without merit.

Regarding the standard of review pursuant to which we scrutinized appellant’s request to withdraw his guilty plea, we utilized the post-sentencing “manifest injustice” standard. Commonwealth v. Holbrook, supra. We did so because appellant’s request to withdraw his guilty plea was not raised prior to sentencing. Id. However, as we have explained in this opinion, appellant’s trial counsel was not ineffective for advising appellant to accept the instant plea agreement; hence, trial counsel could not have been ineffective for failing to advise appellant to withdraw the plea prior to sentencing. Since appellant has demonstrated no ineffectiveness of counsel prior to sentencing, we properly employed the post-sentencing “manifest injustice” standard of review in determining whether appellant should be permitted to withdraw his guilty plea.

In summation, we find all of appellant’s issues to be without merit. Accordingly, we affirm the March 5, 1993 trial court order denying appellant’s PCRA petition.

Order affirmed.

      . The victim initially lived in her grandmother's house in West Philadelphia.

      . The police took the victim to the hospital where she underwent emergency brain surgery; she suffered seizures as a result of the surgery.

      . Appellant underwent emergency surgery and was hospitalized for two weeks. He was then sent to the Psychiatric Unit of Holmesburg Prison in Philadelphia.

      . The victim had no history of liver problems prior to being shot by appellant.

      . The Commonwealth agreed to drop its request for the death penalty and all other charges were nol pressed (recklessly endangering another person, terroristic threats, violation of the Uniform Firearms Act and intimidation of a witness).

      . Appellant also filed a pro se direct appeal to our Court but said appeal was quashed on June 4, 1992 since the PCRA petition was dismissed without prejudice.

      . For purposes of this appeal we will treat appellant's current PCRA as his first PCRA, since his initial PCRA petition was withdrawn without prejudice.

      . The issues reviewed by counsel included a Rule 1100 claim, an alleged breach of the plea agreement and ineffectiveness of counsel for failing to (a) present a defense of involuntary intoxication to the charge of first-degree murder, (b) challenge the sentences, (c) promptly investigate the possibility of presenting an insanity defense and (d) raise a challenge to the Commonwealth evidence showing that appellant’s conduct caused Ms. Lane’s death.

      . The jury requirement may be waived by the defendant with the consent of the Commonwealth. 42 Pa.C.S. § 9711(b).

      . The felonies committed by appellant against Ms. Lane included rape and related charges.

      . It is not unreasonable to assume that Mr. Belk would have offered similar testimony had appellant's case proceeded to trial.

      . Appellant refers to his "attempted suicide”, in his house as police negotiators were attempting to persuade appellant to disarm and exit the house, as further evidence that he was not attempting to silence a witness when he shot Ms. Lane. However, appellant’s "attempted suicide” could also be interpreted as an act that was conceived only after appellant had shot Ms. Lane and realized the desperation of his situation (i.e., he had shot and possibly killed a woman and his house was surrounded by armed police).

      . However, the psychiatric report of Timothy J. Michals, M.D., who examined appellant for the defense during the pre-trial stage of the instant proceedings, indicated that at the time appellant shot Ms. Lane he was not suffering from any mental illness.
      We do note that the psychiatric report did state that appellant had a history of alcohol and drug abuse.

      . As mentioned, supra, the burden upon appellant is to show that he is entitled to withdraw his guilty plea since it was allegedly the result of manifest injustice. Commonwealth v. Holbrook, supra.

      . Our Court stated in Commonwealth v. Iseley, 419 Pa.Super. 364, 615 A.2d 408 (1992), “A criminal defendant who elects to plead guilty has a duty to answer questions truthfully.” Id. at 375, 615 A.2d at 414.

      . This Court cannot consider any material that has not been certified in the record transmitted to us. In Re Estate of Brown, 422 Pa. Super. 448, 619 A.2d 762 (1993); Starr v. Zdrok andZdrok, P.C., 419 Pa.Super. 60, 614 A.2d 1209 (1992). A document not filed of record does not become part of the certified record by merely making a reproduction and placing that reproduction in the reproduced record portion of the appellate brief. In Re Estate of Brown, supra.

      . Even if we were able to consider Dr. Rubin’s letter it does not discount a link between the gunshot wounds and Ms. Lane’s death; the letter simply focuses upon the immediate cause of death rather than an analyzation of whether the prescription of the Dilantin was a proper course of treatment for Ms. Lane’s medical problems following her emergency brain surgery for the gunshot wounds.

      . In any future colloquies the trial court may want to substitute the word “proven” for the word “formulated”.

      . Moreover, our Court stated in Commonwealth v. Murphy, 405 Pa.Super. 452, 592 A.2d 750 (1991), that a sentencing court is not required to adopt the recommendations in the Sentencing Guidelines; it need only consider the recommendations. Id. "The Sentencing Guidelines do not preclude judicial discretion.” Id. at 458, 592 A.2d at 753. Hence, the trial court was well within its authority when it sentenced appellant outside of the Guidelines.

      . We note that the trial court, when sentencing a defendant, has the discretion to choose whether the sentences for separate crimes shall run consecutively or concurrently. 42 Pa.C.S. § 9721(a).

      . Appellant cites a quotation from Commonwealth v. Huckleberry, supra, which states that "if a person commits one act of criminal violence, and that act is the only basis upon which he may be convicted of another crime, the act will merge into the other crime. [Emphasis added.]’’ Id., 429 Pa.Super. at 153, 631 A.2d at 1332. Appellant argues that the shooting and subsequent death of Ms. Lane was the only act of criminal violence committed, and, hence, the crimes must merge for sentencing purposes. We disagree. The crime of retaliation against a witness involves any unlawful act which harms the witness or victim. There was more than one act of criminal violence (or unlawful act that caused harm) committed against Ms. Lane that was used to support the charge of retaliation against a witness, and, the additional criminal acts were not germane to a conviction for first-degree murder. The multiple criminal acts included the gunshot wounds to Ms. Lane’s face and head (which eventually caused her death and resulted in a charge of first-degree murder), plus appellant’s prior act of grabbing Ms. Lane while he ordered her not to testify against him, and, his act of shooting her in her hand (this gunshot wound did not contribute to or cause her death). Hence, appellant did not engage in only one act of criminal violence when he committed the crime of retaliation against a witness, and, therefore, the crime of retaliation against a witness would not merge with the crime of first-degree murder. Commonwealth v. Huckleberry, supra.

      . Before a motion to withdraw will be granted, there must be an independent review of the record by competent counsel. Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). Proof is required of each of the following:

        (1) A "no-merit” letter by [PCRA] counsel detailing the nature and extent of his review;
      (2) The "no-merit” letter by [PCRA] counsel listing each issue the petitioner wished to have reviewed;
      (3) The [PCRA] counsel’s “explanation”, in the "no-merit” letter, of why the petitioner’s issues were meritless;
      (4) The [PCRA] court conducting its own independent review of the record; and
      (5) The [PCRA] court agreeing with counsel that the petition was meritless.

        Id. at 393, 550 A.2d at 215.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    647 A.2d 928
    COMMONWEALTH of Pennsylvania v. Darryl BUTLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 1, 1994.
    Filed Sept. 15, 1994.

      James S. Bruno, Philadelphia, for appellant.

      Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before OLSZEWSKI, JOHNSON and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

Darryl Butler appeals his life sentence for the first-degree murder of Shadrack Townes. On May 21, 1992, Butler and two other men drove to 3449 North Orianna Street, where they encountered Shadrack Townes and Yolanda Watson. Butler and Townes were acquainted with each other, and began to argue about an earlier incident where Townes had apparently insulted the wife of one of Butler’s friends. The argument lasted several minutes, but the two stayed reasonably calm. Butler suddenly pulled out a semi-automatic pistol and shot Townes twice in the abdomen. Townes collapsed on the sidewalk. Butler began to walk away, but then turned around and shot Townes another dozen or so times. Butler put the gun to Townes’ head to administer the coup de grace, but the gun merely clicked when Butler pulled the trigger— the ammunition was spent. Butler fled with his two friends.

Yolanda Watson and another eyewitness who observed the shooting later identified Butler from a photo array. Townes also noticed that Butler wore a necklace with the name “Darryl,” and told police as he lay bleeding on the sidewalk that Darryl had shot him. Townes died within hours of the shooting. The next morning detectives arrived at Butler’s girlfriend’s apartment with an arrest warrant. There they discovered in plain view a box for a rare, heavier than normal type of nine-millimeter ammunition which matched casings found near Townes’ body.

Butler chose not to testify at his jury trial. His girlfriend provided an alibi, claiming that she, Butler and their children had spent the day at the zoo. Butler specifically did not dispute the events surrounding Townes’ death; he simply claimed that he couldn’t have been the shooter since he wasn’t there. The jury found otherwise and convicted Butler of first-degree murder and possessing an instrument of crime. Butler received the mandatory life sentence for the murder, and a concurrent one to two years for the PIC charge.

I.

Butler has shifted tactics and now disputes the events surrounding Townes’ death. He acknowledges having shot Townes, but argues that he did so in self-defense when Townes stepped towards him during their argument. Alternatively, Butler argues that the homicide should be considered either voluntary manslaughter or murder in the third degree, rather than first degree.

Butler offers absolutely no citation to the record to support his current theory that Townes suddenly came at him. This is not surprising, considering that no such evidence was ever introduced at trial, where Butler offered an alibi defense instead. Since Butler did not raise the issue of self-defense at trial, the Commonwealth had no burden to disprove it. Nor can Butler argue self-defense for the first time on appeal; the claim is waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). ■

Nor did Butler mention his alternative theories of voluntary manslaughter and third-degree murder below, so they are likewise waived. Butler merely claims that “it is possible [he] was acting under serious provocation when the decedent was shot.” Appellant’s brief at 13. If so, then Butler should have argued this claim at his trial. Such a bald assertion, without any development or support, is unreviewable. It also contradicts the testimony from the Commonwealth’s witnesses that Butler and Townes argued without any shouting or threatening gestures. N.T. 3/22/93 at 33-34.

Butler’s entire third-degree murder argument is that his “actions showed an intent to inflict bodily injury, and maybe even serious bodily injury but it never showed a specific intent to kill.” Appellant’s brief at 14. The Commonwealth’s evidence proved that after Butler dropped Townes with two shots to the abdomen, Butler began to leave, but then returned, pumped about a dozen more bullets into Townes, and would have finished Townes off with a round through the skull if he’d had any bullets left. We cannot imagine how one could possibly demonstrate a more specific intent to kill. In sum, the evidence amply sustains Butler’s conviction for first-degree murder, and none of Butler’s novel and undeveloped sufficiency arguments have the slightest merit.

II.

Butler also challenges the weight of the evidence. The decision to grant a new trial based on a challenge to the weight of the evidence is within the sound discretion of the trial court. Absent abuse of discretion, we will not reverse the trial court’s ruling. Commonwealth v. Eddowes, 397 Pa.Super. 551, 580 A.2d 769 (1990), alloc. denied, 529 Pa. 631, 600 A.2d 951 (1991). A trial court may award a new trial on this basis only where a verdict is so contrary to the evidence so as to shock one’s sense of justice and make the award of a new trial imperative. Commonwealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111 (1991), alloc. denied, 529 Pa. 668, 605 A.2d 333 (1992).

Butler points to discrepancies between eyewitnesses Yolanda Watson’s and Devin Boomer’s trial testimony and statements they made to police after the shooting. Butler claims that the discrepancies show these witnesses to be incredible. Appellant’s brief at 15. Assessing the credibility of a witness, however, is within the province of the jurors, who are entitled to believe all, part, or none of the evidence. Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987), alloc. denied, 516 Pa. 640, 533 A.2d 712 (1987). Moreover, the disputed testimony goes only to how long Yolanda Watson remembered seeing Butler in the neighborhood before the shooting, and whether Devin Boomer attended junior high school with Butler. These issues are wholly collateral to the central evidence supporting the verdict: how carefully the witnesses observed the shooting itself and the soundness of their identification. Hence, the verdict was not against the weight of the evidence.

III.

As Shadrack Townes lay dying on the sidewalk, Police Officer Gaul informed him that he didn’t look too good, might not make it, and asked him who had shot him. Townes repeated several times that “Darryl did it.” N.T. 3/19/93 at 77-78. The trial court allowed Officer Gaul to testify to this hearsay statement as a dying declaration. Butler asserts that this ruling was error, because before Townes made the declaration to Officer Gaul, he told Yolanda Watson’s sister not to worry, that he wasn’t going to die. N.T. 3/22/93 at 54. The trial court reconsidered the testimony concerning the grave extent of Townes’ injuries, the imminence of his death, and the timing of his declarations (ie., his initial response that he wasn’t going to die, followed by the poor prognosis from Officer Gaul and subsequent declaration that Darryl did it) and decided that the statement was properly admitted as a dying declaration. Trial court opinion, 3/18/94 at 7. Like all evidentiary matters, we will not reverse this ruling absent an abuse of discretion. Commonwealth v. Frederick, 508 Pa. 527, 498 A.2d 1322 (1985).

We agree with the trial court that the statement satisfied the requirements for the dying declaration exception to the hearsay rule. The medical examiner testified that Townes’ wounds were so grave that he could have died in a matter of minutes, although he lasted for three hours. Considering all of the relevant factors, the trial court properly concluded that Townes believed his own death was at hand, and his forceful, repeated declarations that “Darryl did it” bore the solemn reliability of this most grim occasion. One isolated remark, in all likelihood made to comfort a concerned bystander, will not automatically remove Townes’ identification of Butler from the purview of the dying declaration exception. See Commonwealth v. Hawkins, 448 Pa. 206, 292 A.2d 302 (1972) (admissibility of dying declaration depends on all surrounding circumstances).

IY.

The court instructed the jury in the usual manner that the value of eyewitness identification testimony depends upon the witness’ capacity to observe and recollect events. N.T. 3/29/93 at 100-02. Butler claims that the trial court should have gone further and given a Kloiber instruction, which would have admonished the jury to view especially weak identification testimony with added caution. See Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820, cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954). Butler asked for the special instruction for the same reasons he claims his conviction is against the weight of the evidence: because eyewitness Yolanda Watson claimed to have seen Butler around the neighborhood for a longer period than Butler was actually there, and eyewitness Devin Boomer was mistaken about attending junior high school with Butler.

A Kloiber instruction is only required where the witness did not clearly observe the defendant, or where the identification is equivocal, or the witness has had past problems identifying the defendant. See Commonwealth v. Johnson, 419 Pa.Super. 625, 615 A.2d 1322 (1992), alloc. denied, 533 Pa. 657, 625 A.2d 1191 (1993). The trial court correctly observed that no such factors were present in the instant identifications; both witnesses observed the murder close up, and had no trouble identifying Butler afterward. The issues Butler raises have nothing to do with the quality of the identification testimony, and did not require a Kloiber instruction.

V.

Butler’s final issue concerns allegedly inflammatory remarks in the prosecutor’s closing argument. Because his trial counsel did not request a mistrial for these remarks, Butler raises the issue in terms of ineffective assistance of counsel. After carefully reviewing the trial transcript and arguments, we find that Butler’s trial counsel was not ineffective because none of the remarks merited a mistrial. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) (claim of ineffectiveness must have arguable merit, no reasonable basis for promoting defendant’s interests, and must prejudice defendant).

Butler identifies three passages from the prosecutor’s closing argument which he claims had the unavoidable effect of poisoning the jurors’ minds with hostility and bias, rendering them incapable of objectively weighing the evidence and rendering a true verdict. See Commonwealth v. Ragan, — Pa.-, 645 A.2d 811 (1994) (describing prosecutorial misconduct standard). None of the prosecutor’s remarks constitute misconduct, and Butler’s ineffectiveness claims thus lack merit.

A.

The first allegedly improper remark came in response to the questions defense counsel raised about the photo array used to identify Butler. During the trial, the prosecution was about to introduce the array into evidence, but the defense objected. After a sidebar conference, the court sustained the defense objection and decided not to allow the prosecution to introduce the array. The defense did not introduce the photo array into evidence either. N.T. 3/22/93 at 87-90.

During his closing argument, defense counsel questioned whether the photo array included a picture of Dwayne Fountain, the brother of Butler’s girlfriend, who the defense had suggested might be responsible for shooting Townes. Defense counsel argued, “In the pictures that Yolanda Watson reviewed, was Dwayne Fountain’s picture in there? Does anybody know? I don’t. We’ll never know that because nothing was presented.” N.T. 3/29/93 at 33. At this point the prosecutor objected, pointing out that the matter was the subject of a sidebar ruling earlier in the trial. The court overruled the objection, stating, “You may argue ... when it is your turn.” Id.

During his closing argument, the prosecutor tried to respond by pointing out that it was the defense which kept the photo array out of evidence. Clearly the prosecutor was galled by the defense tactic of blaming the prosecution for not introducing the photo array, because the prosecutor kept trying to make the point despite three separate defense objections. After sustaining the third objection, the court instructed the jury not to draw any unfavorable inference from the non-introduction of any particular piece of evidence. Id. at 48-50.

The trial court later concluded, and we agree, that the prosecutor’s comments were a fair response to the defense suggestion that the prosecution was trying to hide the photo array, when in fact it was the defense which kept the photo array away from the jury. Trial court opinion, 3/18/94 at 4. A prosecutor is entitled to respond to defense arguments. See Commonwealth v. McKendrick, 356 Pa.Super. 64, 514 A.2d 144 (1986), alloc. denied, 514 Pa. 629, 522 A.2d 558 (1987). Here, the response to defense counsel’s disingenuous tactic was appropriate and measured. The prosecutor concluded the episode by echoing the trial court’s instruction that the jury draw no unfavorable inference from the non-introduction of the photo array: “[Defense counsel] can’t stand up there and ask you to speculate about the photos in here when you never saw it, because the question was never asked.” N.T. 3/29/93 at 50. The prosecutor’s remarks did not merit a mistrial, and were not the least bit prejudicial or inflammatory.

B.

The next set of remarks were not as justified, but were completely non-prejudicial. At trial, Kimberly Gregory, Butler’s girlfriend, offered an alibi defense that she, Butler and their children went to the zoo the day of the shooting, and spent the rest of the evening at Butler’s aunt’s house. N.T. 3/23/93 at 30-31. The Commonwealth rebutted this alibi the next day by calling two police officers who went to Gregory’s apartment the evening of the shooting and found Gregory there — not with Butler at his aunt’s. N.T. 3/24/93 at 25. The defense called Tamika Bullock, a friend of Gregory’s, as a surrebuttal witness to testify that she was at Gregory’s apartment that evening, so the officers must have encountered her and not Gregory. Id. at 47-49.

At closing arguments, the prosecutor sought to show bias by implying that Bullock and Gregory must have gotten together and planned Bullock’s testimony in order to shore up the alibi defense. The trial court sustained defense counsel’s objection that when and why a witness appears is beyond the scope of the jury’s inquiry. Again, the prosecutor felt that he was entitled to hammer this point home in response to defense counsel’s earlier suggestion that the Commonwealth’s witnesses may have changed their stories when they learned that Butler hadn’t been in the neighborhood for as long as they thought. The prosecutor continued to argue about the amazing coincidence of Bullock’s appearance, and again the trial court took control after sustaining the third objection, saying:

THE COURT: ... The argument is totally and completely inappropriate and improper, members of the jury. The law is that witnesses are — can be called by either party. Nobody owns any witness.
You may listen to the testimony and decide the credibility based on what the witnesses said, any possible bias, how their testimony conforms to other testimony in the case.
Counsel have a right to comment about the witnesses, but how they got there, whether they talked to each other or anything like that is not appropriate for you to consider.

N.T. 3/29/93 at 71-73.

We cannot conclude that the prosecutor’s remarks were an appropriate response to a disingenuous argument by defense counsel. Defense counsel had pointed to the discrepancy between Yolanda Watson’s initial recollection that she had known Butler since the summer of 1991, and the fact that Butler was in jail until November of 1991. Id. at 21-24. This was a matter of fair comment. Defense counsel focused on this discrepancy in an effort to create reasonable doubt. Defense counsel did not suggest that the Commonwealth witnesses ever got together and arranged their testimony. But the prosecutor apparently felt that such an implication was made, because after the third objection and the court’s cautionary instruction, the prosecutor asked that a portion of the defense counsel’s closing be stricken. Id. at 73. The court stuck by its rulings, and closing arguments proceeded. Id. at 74.

We must acknowledge that this ineffectiveness argument has some slight merit, only because the prosecutor’s stubborn persistence in arguing an improper point despite three separate sustained objections cannot be taken lightly. But the material at issue, whether Tamika Bullock’s testimony was rehearsed, was a relatively minor matter — it merely reiterated the legitimate argument concerning Bullock’s interest in the case and potential bias. We agree with the trial court that it was not the sort of improper argument which could have justified a mistrial. Trial court opinion, 3/18/94 at 4-5. In any event, the comments would certainly not engender any fixed bias or hostility toward Butler, and thus were not the least bit prejudicial.

C.

The third remark sounds prejudicial, but is benign when taken in context. As discussed above, the defense harped on the discrepancy in Yolanda Watson’s testimony, since this was perhaps its most promising avenue to reasonable doubt. The prosecution had to acknowledge the discrepancy, but sought to put it in perspective:

You’re here to decide if she told the truth on the stand, not if she made a little mistake on a multi-page statement. And when she was asked about that at the preliminary hearing, when she was given the first opportunity to be specific about it when [defense counsel] asked her questions at that preliminary hearing, she said only for a couple of months have I been seeing him out there. Only for a couple of months.

And it’s the same thing she said on the witness stand. So how does that mak[e] a major league mistake? And when you think about it, we’re talking seven months versus 12 months.

If you figure from November the 6th to May 21st, that’s seven months. Big mistake. She was off on five months. Wow! Let’s acquit this man and have him gun down somebody and have him shoot them 15 times in cold blood. And that’s the only thing you can point to in terms of what she had to say. It’s that one little line. Because there’s an answer to everything else.

Like I said before, her friend was gunned down before her four hours before. She made that mistake in her statement. For that you’re going to disbelieve her? I would suggest to you not.

N.T. 3/29/93 at 79-81 (emphasis added).

Butler points to the emphasized sentence in isolation, and characterizes it as an appeal to convict, lest by acquitting, the defendant be loosed upon society to commit more murders. Such a reference to future dangerousness would indeed be improper. See Commonwealth v. Pate, 421 Pa.Super. 122, 617 A.2d 754 (1992), alloc. denied, 535 Pa. 656, 634 A.2d 219 (1993).

When considered in context, however, we see that the comment was not so intended, nor would it have been so interpreted. It was no more than a sarcastic attempt to juxtapose the magnitude of the instant crime against the one minor and collateral discrepancy in Yolanda Watson’s testimony. Not only does this interpretation emerge from a fair reading of the record, but at a post-trial effectiveness hearing the trial court recalled that it was not meant or taken as a prediction of future dangerousness. N.T. 2/16/94 at 30. The trial court’s recollection of the remark must be given great deference when deciding whether a mistrial was warranted. Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983). This remark also falls short of the standard for prosecutorial misconduct, and defense counsel was not ineffective for not requesting a mistrial.

Judgment of sentence is affirmed.

      . In Murray, this Court affirmed its right and duty to review a trial court’s refusal to grant a new trial on the basis that the verdict is against the weight of the evidence. But see 408 Pa.Super. at 442, 597 A.2d at 115 (Olszewski, J., concurring and dissenting) (appellate courts should not review of weight of the evidence challenges; to do so improperly invades the jury’s fact-finding province).

      . In discussing the discrepancy, defense counsel did use terminology suggestive of arranged testimony:
      ... Dartyl was in prison until November. They couldn’t have possibly known him that period of time. He wasn’t around to be known. That's easy. Let's huddle up and change our story. You can’t do that. I’m sorry. You can’t take the square peg and bite off the corner so it fits into the round hole and hope nobody will notice. That’s why once it was all learned that Darryl wasn’t available, everybody changed.

        Id. at 22 (emphasis added). At this point the trial court overruled the prosecutor’s objection, holding that the above argument was a fair reference to discrepancies in the Commonwealth’s witnesses’ testimony.

        Id. Although defense counsel used the words “Let’s huddle up,” he did so in passing. There was no actual suggestion that the Commonwealth witnesses pre-arranged their testimony, just that their testimony had changed.


text:
    647 A.2d 935
    COMMONWEALTH of Pennsylvania v. Harold ALEXANDER, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 5, 1994.
    Filed Sept. 16, 1994.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, DEL SOLE and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from a judgment of sentence imposed upon appellant after he was convicted on drug charges. Appellant argues that the court erred in denying his suppression motion. We agree and consequently vacate the judgment of sentence and remand for a new trial.

On March 31,1993, a task force comprised of U.S. Marshals, police officers and parole agents was detailed to apprehend fugitives or others sought in ten warrants and/or probation/parole detainers. One individual sought that day was appellant who was listed as an absconder from the Philadelphia probation/parole department. In attempting to arrest appellant, the group first went to appellant’s listed address on Reinhard Street in Philadelphia and spoke with appellant’s mother who indicated that appellant was not home. After searching the premises and satisfying themselves that appellant was not home, the agents left the premises. Later that day a confidential informant told the agents that appellant was living at an address on Woodland Avenue in Philadelphia. They were also told that appellant had drugs and weapons at that address. Arriving at that address, the group positioned two officers at the rear of the residence while knocking on the front door. After a few minutes without response, the officers stationed at the rear of the home radioed the officers at the front door and told them they had observed two black males peering out the window. The agents knocked again and, after a lack of response, they forced the door open.

As the agents made their way through a hallway they observed appellant coming down the stairs. Appellant was immediately arrested and handcuffed. After searching appellant’s person, they apprehended the other male on the premises and searched him also. After checking by radio to see if any warrants were issued on the other male and being informed to the negative he was released. The agents next went to the bedroom area of the residence and began searching. After a thorough search of the premises the agents seized a plastic bag continuing vials filled with a white chunky substance, a bag containing two hundred vials, other drug paraphernalia and some .44 caliber shells.

Appellant was charged with possession of controlled substances and drug paraphernalia and possession with intent to deliver. A motion to suppress was filed but denied after a hearing. On September 2, 1993, appellant was convicted after a non-jury trial of possession of a controlled substance and drug paraphernalia. Post verdict motions were filed and denied. This appeal followed.

It is important to note that in making its decision the suppression court did not consider the case of Commonwealth v. Pickron, 535 Pa. 241, 634 A.2d 1093 (1993). This is notable because Pickron essentially changed, or at least modified, the standards which pertain to the warrantless search which occurred in the present case. In Pickron our Supreme Court reviewed the Fourth Amendment rights of parolees and probationers. After a dissertation of the relevant law and recent cases on the issue the Supreme Court announced its holding. They stated “[w]e hold therefore that the Fourth Amendment prohibits the warrantless search of probationers or parolee’s residences based upon reasonable suspicion without the consent of the owner or without a statutory or regulatory framework governing the search.” Id. 535 Pa. at 249, 634 A.2d at 1098. Although the exact standard of protections afforded parolees or probationers prior to Pickron is not easily gleaned from the relevant decisions it appears that while parolees were recognized as possessing due process rights they were not similarly accorded “the full panoply of individual rights and liberties” normally afforded other citizens. Commonwealth v. Green, 405 Pa.Super. 24, 591 A.2d 1079 (1991).

In Green two members of a panel of this court found that a parole officer’s warrantless search of a parolee’s room after he was arrested/detained for a violation of a condition of his parole did not violate his constitutional rights because they had a reasonable belief that narcotics were being kept there. This decision relied in part upon the United States Supreme Court’s decision in Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), which upheld a similar search which was conducted pursuant to Regulations of the Wisconsin State Department of Health and Social Services. Those regulations allow a warrantless search when a probation officer has “reasonable grounds” to believe contraband was present and also has the permission of his supervisor to conduct a search. A central theme apparently running through both decisions is that a probationer or parolee’s right to be free from intrusion is lessened by the fact that he or she is still under court supervision and by the fact that their freedom is, to some extent, a function of the grace of the courts, resulting either through early release from prison or through a sentence of probation instead of incarceration. However, after Pickron, it cannot be said that probationers or parolees are totally without fourth amendment rights.

Our Supreme Court, in deciding Pickron, acknowledged both the Green and Griffin decisions yet chose not to allow a warrantless search of a parolee’s residence based upon reasonable suspicion without the consent of the owner or a statutory or regulatory framework governing the search. The Court explained its holding by stating “we recognize that there are no safeguards to protect the limited fourth amendment rights of probationers and parolees if their supervision is left entirely to the discretion of individual parole officers.” Pickron, 535 Pa. at 249, 634 A.2d at 1098. We note that since the Pickron decision there has not been passage or promulgation of a statute or regulation authorizing warrantless searches of parolee’s premises or setting forth the framework of when such a search can be conducted. Consequently, the search conducted here, even if supported by a reasonable suspicion that drugs would be found, violates the Pickron decision. As such, the suppression court erred in not granting appellant’s suppression motion.

The Commonwealth attempts to argue against the application of Pickron by pointing out that in Pickron the suppression court had concluded that the parole agents had switched hats and become “stalking horses” for the police, while in the present case the suppression court made the contrary conclusion. This assertion is correct. The suppression court in Pickron did conclude that the agents had become stalking horses for police, in effect searching for evidence of the commission of new crimes without a warrant and without probable cause, while the suppression court below concluded that the agents in this case had not become stalking horses for the police. However, we do not see the significance of this conclusion in light of the specific holding of Pickron. Our reading of Pickron does not lead us to conclude that the suppression court’s finding was an essential element of the decision. Such a conclusion may have been relevant prior to Pickron, but the court’s holding in Pickron states that warrantless searches of a parolee’s residence, even when supported by reasonable suspicion, are prohibited by the fourth amendment without the consent of the owner or passage of a statutory framework. Nowhere in this rather explicit holding does the Court include the requirement that the agents be found to have been “stalking horses” prior to the prohibition taking effect. As such, we are unpersuaded by the Commonwealth’s argument.

The Commonwealth next argues that the Philadelphia Adult Probation Department had an official policy requiring search of a parolee’s residence upon arrest when the arresting agent has information that contraband was present or if the subject has such a background. The Commonwealth apparently believes that this “official policy” meets our Supreme Court’s mandate that there be a statutory or regulatory framework in place. We cannot agree. Clearly, even the Commonwealth cannot argue that the “official policy” is statute. Reference to “statute” by the Supreme Court suggests to us legislation passed by the legislature and signed into law as well as publication in the Pennsylvania Statutes complete with a title and section number. Similarly, regulatory framework suggests to us similar introduction and passage by an appropriate state body along with publication. In Griffin v. Wisconsin, supra, the apparent genesis of this concept, regulations had been promulgated, pursuant to statute, by the Wisconsin State Department of Health and Social Services. The regulation in question was published at Wis.Admin.Code HSS §§ 328.21(4) and 328.16(1). See, Griffin, 483 U.S. at 871, 107 S.Ct. at 3167. Consequently, the “official policy” of the Philadelphia Adult Probation Department notwithstanding, we cannot conclude that the requirements stated by our Supreme Court in Pickron have been met. To prevent further confusion, we hereby hold that the “statutory or regulatory framework” referred to in Pickron requires the passage of a statute or regulation by the appropriate legislative process complete with publication in either the Pennsylvania Statutes or Pennsylvania Code. Since the search in question was without consent and not authorized by such statute or regulation, under Pickron, it must be deemed illegal.

For the above reasons we conclude that the suppression court erred in failing to suppress the evidence seized without a warrant. Consequently, the judgment of sentence must be vacated and the case remanded for a new trial.

Judgment of sentence vacated, remanded for new trial. Jurisdiction relinquished.

CAVANAUGH, J. concurs in the result.

      . The parole officer had received an anonymous phone call a few weeks previously indicating the parolee might be involved in drug trafficking. In response to the phone call the parolee was placed under surveillance and found to be driving a Cadillac vehicle, which fact he tried to conceal from the parole officer by parking a few blocks away when coming for his visits, and wearing what appeared to be expensive jewelry while supposedly earning only $150 to $200 per week.

      . Despite the Commonwealth's assertion that there was an "official policy” in place, when asked if this policy was in writing Agent Hesson replied "not yet."