author: BROSKY, Judge: VAN der VOORT, Judge,

text:
    441 A.2d 1263
    COMMONWEALTH of Pennsylvania v. Michael L. DOHNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 10, 1980.
    Filed Feb. 19, 1982.

      John F. Pyfer, Jr., Lancaster, for appellant.
    Ronald L. Buckwalter, District Attorney, Lancaster, for Commonwealth, appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

Appellant, Dohner, was convicted of simple assault, aggravated assault, recklessly endangering the life of another, and criminal mischief. Dohner was tried before a jury along with his codefendant, Stanley Roger Gainer. Dohner was sentenced to not less than six months nor more than twenty months for aggravated assault. For the convictions of simple assault and recklessly endangering the life of another, Dohner was placed on probation for two years. For the conviction of criminal mischief, Dohner was placed on probation for one year. The two probationary sentences were to run concurrently with each other and consecutively with the aggravated assault sentence. Motions for a new trial and in arrest of judgment were made and subsequently denied. This appeal followed. We affirm in part and reverse and remand portions of the trial court’s decision.

On March 5, 1978, Marlin McConnell, the owner of the Railroad House, a restaurant in Marietta, Pennsylvania, saw Dohner and Gainer at the front of his building knocking down a porch railing. McConnell approached Dohner and Gainer in an attempt to stop their actions. McConnell testified that at sometime during the altercation which followed he was struck on his cheek. He said that he saw Gainer pick up a ballaster, presumably one torn from the fence around the porch, shortly before he was initially struck. Gainer, could not have delivered the first blow as McConnell testified that he was holding Gainer at the time he was struck. McConnell stated also that Dohner and another man, Jeffrey Garner, were behind him, out of his sight, when he was struck. McConnell never stated that Garner or Dohner hit him.

The trial court’s opinion points out that as a result of all the physical abuse inflicted upon McConnell, that he:

sustained a fracture of the right zygomatic arch and floor of the right orbit [out of his eye socket]. He suffered immediate effects of numbness of his right cheek and double vision in his right eye. His eye dropped out of place. Surgery was performed in which the bones were replaced and wired in place in one area where the fragments would not hold position. General anesthesia was required. Dr. Levin described the injuries (letter exhibit) as “fairly severe.” He opined that it would take a “significant blow” to cause such a fracture and dislocation.

(Trial court’s opinion at page two.)

The only evidence which tied Dohner to the crime of aggravated assault was given by McConnell who stated that he saw Dohner walk behind him shortly before he was struck, that shortly after he lost sight of Dohner he was struck on his cheek. He was uncertain whether he was struck by a fist or some object. He also states he did not see Garner until the end of the fracus. The record does not clearly indicate where Garner was during the incident though Garner states that he was some distance from McConnell when the initial blow was struck.

Garner testified at trial that he had no recollection of Dohner’s actions during the incident. Gainer stated at trial that he hit McConnell once with his hand and never saw Dohner or Garner strike McConnell. Dohner stated that he never hit McConnell. He testified:

Q. At any time on this night did you hit Mr. McConnell?
A. No.
Q. Did you hit him with your fists?
A. No.
Q. Did you hit him with the posts?
A. No.
Q. Did you hit him with anything?
A. No, sir.

The record discloses that, Dohner and Gainer and Garner went to the office of Dohner’s attorney, John M. Smith, Esquire, some time after the trial had concluded. Mr. Smith testified at the evidentiary hearing regarding Dohner’s post-trial motions that Gainer and Garner substantially altered their testimony regarding Dohner’s involvement in the incident during their conversations with him. Smith stated that the altered testimony placed Dohner completely separate from the incident at the time McConnell was struck. However, the record indicates that Gainer and Garner did not substantially alter their trial testimony at the evidentiary hearing. In fact, Gainer went so far as to categorically deny the statements attributed to him by Smith when he testified at the evidentiary hearing.

In Commonwealth v. Mosteller, 446 Pa. 83, 88, 284 A.2d 786, 788 (1971), our Supreme Court stated the standard by which a court shall determine whether a new trial should be granted because of the existence of after-discovered evidence. The court said:

This Court has often reiterated that: “. . .
‘A new trial in a criminal case will be awarded on the ground of after-discovered evidence where the evidence in question (1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted.’ ” Commonwealth v. Coleman, 438 Pa. 373, 376-377, 264 A.2d 649, 651 (1970).

Dohner essentially claims that Gainer committed all the offenses and that he was in no way responsible. Nevertheless, Gainer, whom Dohner claimed originally planned to recant his testimony, did not recant his testimony at the evidentiary hearing. Thus, the trial court had to weigh the testimony of Attorney Smith who testified as to what manner Gainer would recant his testimony against that given by Gainer at the evidentiary hearing and determine which version of the evidence was credible.

We recognize that recanted testimony is extremely unreliable. As our Supreme Court said in Commonwealth v. Nelson, 484 Pa. 11, 13, 398 A.2d 636, 637 (1979):

Recantation testimony is considered extremely unreliable. The trial court is to deny a new trial unless satisfied that the recantation is true and an appellate court is not to disturb the decision unless there is clear abuse of discretion. Commonwealth v. Coleman, 438 Pa. 373, 264 A.2d 649 (1970). It is up to the trial court to judge the credibility of the recantation. Commonwealth v. Sanabria, 478 Pa. 22, 385 A.2d 1292 (1978). We find that it was proper for the court to discredit Hagans’ recantation and that there was no abuse of discretion. The trial court’s decision is also supported by the other evidence linking appellant to the scene of the crime. See Commonwealth v. Wilcox, 481 Pa. 284, 392 A.2d 1294 (1978).

There was no actual recantation by Gainer in the instant case rather a statement by Attorney Smith that Gainer described to him evidence which if placed on the record would amount to a recantation. Without any discussion of potential hearsay problems related to Smith’s testimony, the evidence regarding the substance of Gainer’s statements is very unreliable.

When we review Garner’s testimony. He said:

Q. Your testimony at trial was—and correct me if I am wrong—that you really didn’t know where Michael Dohner was during the course of this altercation.
A. During trial?
Q. Yes. When you testified at the trial, didn’t you basically state you didn’t know where Dohner was?
A. Yes, that’s right. At the time I was prying them apart—yes.
Q. Okay. I believe you also stated you didn’t see anybody hit the victim with the post or ballaster, is that right?
A. No.
Q. Are you saying you didn’t see that?
A. No, I didn’t see anybody hitting him with anything. I saw him and Roger exchanging fists.
Q. You saw them hitting each other with fists?
A. They were battling it out—that’s what I seen.
Q. Now according to Mr. Smith, in December when you spoke to him, you told him you didn’t know where Dohner was when the fight was going on. Is that what you told him?
A. At what time that the fight was going on? When I was splitting the two, or between the time it started?
Q. The time it started and the time you broke it up.
A. At that time we were parked up the street, and Mr. Dohner, instead of getting in the car, he walked around the back as we drove off. He saw everything going on and so did I. The fight was heading towards the corner. So I figured we would go around the corner and I could grab Roger and put him in the car quick.
When we got around, Dohner was walking over. As he was walking over, that’s when I got out of the car. So in other words he wasn’t there right in that vicinity when I was trying to get the two apart. It wasn’t a four man argument—it was only three of us. At that time Dohner must have walked over around the back of Mr. Sears and we all jumped in the car then.
Q. That’s consistent with what you said at trial.
A. Yes.
Q. The only thing you’re saying now that you didn’t say at trial was that you touched McConnell when you broke them apart.
A. Well at trial I told him I was shoving the two apart—touching and shoving. What’s the difference realty-
Q. You’re saying the same thing now as what you said at trial.
A. Yeah, more or less—yeah.
This testimony was essentially unchanged from that Garner gave at trial.
The one and only apparent change in his testimony appears in Garner’s statement:
Q. And just so I’m clear, as far as Mr. Smith’s recollection of Gainer’s statement to him on December 26th, 1978, Mr. Smith is talking about the same witness you are, is that correct?
A. Yes.

Certainly, if this evidence is used to prove Gainer’s statements to Attorney Smith it serves only to further cloud the testimony. This in turn strengthens the trial court decision that Gainer’s statements were unreliable. Therefore, if any after-discovered evidence existed, it was very unreliable and would not result in a changed verdict if a new trial was granted. The trial court did not abuse its discretion in denying the motion for a new trial.

Next, Dohner claims the trial court improperly refused to grant his demurrer to the Commonwealth’s case, with regard to his convictions for aggravated assault and recklessly endangering the life of another.

In Commonwealth v. Petrie, 277 Pa.Super. 239, 243, 419 A.2d 750, 752 (1980) we said:

To avoid a demurrer in a criminal prosecution, the Commonwealth must come forward with evidence which establishes beyond a reasonable doubt each element of the crime charged. Commonwealth v. Mason, 483 Pa. 409, 397 A.2d 408 (1979). Therefore, the test to be applied in ruling on a demurrer to evidence by a defendant is whether the Commonwealth’s evidence and all reasonable inferences arising therefrom are sufficient to support a verdict of guilty beyond a reasonable doubt of the crime under consideration. Commonwealth v. Smith, 262 Pa.Super. 258, 396 A.2d 744 (1978).

Thus, the standard by which we review the trial court’s decision is very similar to that we apply in cases where the sufficiency of the evidence is challenged. There our review tests:

Whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime charged.

Commonwealth v. Martin, 481 Pa. 515, 518, 393 A.2d 23, 25 (1978).

The elements of the offense “aggravated assault” include: (a) Offense defined.—A person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
(2) • ■ .
(3) . . .
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.

“Serious bodily injury” is defined as: “Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C. S.A. § 2301.

In Commonwealth v. Alexander, 477 Pa. 190, 194, 383 A.2d 887, 889 (1978) our Supreme Court stated:

While there can be no dispute about the physiological significance of the head, where the victim did not actually sustain the requisite serious bodily injury, we cannot say that the mere fact that a punch was delivered to that portion of the body [the head] is sufficient, without more, to support a finding that appellant intended to inflict serious bodily injury. Where the injury actually inflicted did not constitute serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury. Criminal intent may be proved by direct or circumstantial evidence. Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975); Commonwealth v. Fostar, 455 Pa. 216, 317 A.2d 188 (1974).

The injury sustained by the victim in Commonwealth v. Alexander, supra., consisted of a broken nose, two black-eyes and lacerations on the head. The victim was treated at an emergency ward. Alexander was found to have caused the injuries by striking the victim with a closed fist. The Supreme Court held these facts were insufficient upon which to base a conviction of aggravated assault. In adopting this view, the Supreme Court accepted the dissenting opinion in Commonwealth v. Alexander, 237 Pa.Super. 111, 346 A.2d 319 (1975) by Judge Spaeth.

This court has followed the view expressed by Judge Spaeth in Commonwealth v. Dessus, 262 Pa.Super. 443, 396 A.2d 1254 (1978), where we found facts indicating the appellant had:

went far beyond the single blow delivered in Alexander. Witnesses testified that appellant approached Mr. Moskal from behind and struck him at least five or six times,

knocking him off a chair and rendering him unconscious. We held that these facts presented the court with sufficient evidence to convict Dessus of aggravated assault.

We have analyzed the question of the sufficiency of the evidency to prove aggravated assault in numerous other cases. A review of several of them is helpful. In Commonwealth v. Kibe, 258 Pa.Super. 353, 358, 392 A.2d 831, 833 (1978) we said:

Where a lone woman is approached at a late hour from the rear without warning by a male, ordered into her car, put in fear of an impending rape, and upon her refusal, struck with such force in the face as to fracture her nose, we hold that evidence sufficient to support a conviction for aggravated assault.

And in Commonwealth v. Bullock, 259 Pa.Super. 467, 473, 393 A.2d 921, 924 (1978) we stated:

As a result of the assault Miss Kirby received several months of medical attention and was contemplating plastic surgery at the time of trial. Coupled with appellant’s attempts to strangle her and his threat to kill her, this assault was clearly aggravated within the meaning of the Crimes Code, 18 Pa.C.S. §§ 2702 and 2301. Compare Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978).

Then, in Commonwealth v. Moore, 261 Pa.Super. 92, 100, 395 A.2d 1328, 1332 (1978) we opined:

Appellant next contends that the evidence was insufficient to sustain a guilty verdict for aggravated assault because there was no evidence that he caused or attempted to cause serious bodily injury. The Crimes Code defines “serious bodily injury” as: “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S. § 2301. In Commonwealth v. Stancil, 233 Pa.Super. 15, 334 A.2d 675 (1975), we held that evidence that the victim was beaten, stomped and left semi-conscious but not permanently injured was sufficient to prove an attempt to cause serious bodily injury.

Also, in Commonwealth v. Gregory, 267 Pa.Super. 103, 108, 406 A.2d 539, 542 (1979) we said that where a policeman was masquerading as an elderly person was attacked:

Appellant led the attack, forcing the victim against a wall while his confederate struck him. After the victim fell to the ground, and while the confederate searched his pockets, the appellant aimed kicks at the victim’s head. Appellant was stopped only by the fortuitous appearance of the back-up officers, whose presence, of course, was unknown to him. We believe this picture frames sufficient evidence to support a finding of intent to inflict serious bodily injury, and that under the test required in Alexander, supra, the conviction is proper.

Then, in Commonwealth v. Davis, 267 Pa.Super. 370, 375, 406 A.2d 1087, 1089 (1979) we stated:

In the instant case, the force of appellant’s blow to Mrs. Amos’ face caused her to black-out and to sustain multiple fractures of the jaw. She was hospitalized for four days and suffered six weeks with her jaw wired closed. Clearly, this was a serious bodily injury within the intendment of Section 2301 of the Crimes Code, involving as it did “protracted loss or impairment of the function of [a] bodily member or organ.” Additionally, appellant’s overall conduct, including his frenzied pursuit of Ms. Putt in order to beat her more seriously, supports the conclusion that appellant acted with extreme disregard of the value of human life as required by Section 2702(a)(1) of the Crimes Code. See Commonwealth v. Bullock, 259 Pa.Super. 467, 393 A.2d 921 (1978). Hence, the evidence was more than sufficient to support the jury’s verdict of guilty for aggravated assault.

However, in Commonwealth v. Bryant, 282 Pa.Super. 600, 607, 423 A.2d 407, 411-412 (1980) we held on facts somewhat similar to those in Commonwealth v. Davis, supra:

After reviewing the record, we are led to the conclusion that appellant’s actions do not even evidence an attempt to inflict serious bodily injuries upon any of the victims. One isolated kick does not reflect an intent to cause permanent disfigurement nor does it create a substantial risk of death. Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978). Likewise, the act of throwing someone to the ground is insufficient evidence of an intent to commit serious bodily injury as defined above. As to the charge of aggravated assault against Jean Daley, the Commonwealth concedes the charge is baseless, and an examination of the record corroborates this.

Finally, in Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 545, 420 A.2d 674, 675 (1980) we stated:

It may be granted that appellant did not cause “serious bodily injury” to Harris. See Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1977). The evidence that he repeatedly struck Harris with a tire iron, once on the head, that he was much larger than Harris, and that he told Harris that “next time” he would kill him, was nevertheless sufficient to support an inference that he attempted to cause serious bodily injury to Harris.

The facts in the instant case are weaker than those found in cases where we affirmed a conviction of aggravated assault. First, the only evidence that Dohner hit McConnell came from the testimony of McConnell. Secondly, there was no clear evidence whether McConnell was struck with a fist or open hand or some object. Thirdly, the record indicates no other witnesses saw Dohner hit McConnell. Fourthly, the record indicates McConnell was struck on the head several times by Gainer or Garner. Fifthly, while the injuries the victim sustained were serious, McConnell never lost consciousness, and the record does not indicate how lengthy a hospital stay he had to endure. Most importantly, the record does not supply evidence which indicates the appellant intentionally caused appellant’s injuries. The seriousness of the injuries, which we do not hold were or were not sufficiently serious to result in a conviction of aggravated assault were they inflicted by one person, were caused by the actions of three persons. The record does not even indicate the appellant was the primary inflictor of the injuries. Furthermore, the record gives no indication that the appellant “intentionally, knowingly, or recklessly” caused the injuries “under circumstances manifesting extreme indifference to the value of human life.”

Thus, when we compare the facts in the instant case to those in our decisions which interpret Commonwealth v. Alexander, supra, we are persuaded that the assault was not inflicted by a single blow. Commonwealth v. Gregory, supra; Commonwealth v. Davis, supra. Second, these facts do not involve a surprise attack on a person who has no reasonable defense. Here, the victim interjected himself into the situation. Commonwealth v. Kibe, supra. Third, the injury was not so severe in and of itself to evidence the intent required to prove aggravated assault. The record does not provide any certainty as to whether the injuries and to what extent the injuries were caused by Dohner, Gainer or Garner, Commonwealth v. Davis, supra; Commonwealth v. Moore, supra; Commonwealth v. Bullock, supra. Therefore, as we found in Commonwealth v. Bryant, supra, on facts indicating a single blow was struck and no severe disfigurement resulted, we must hold that the evidence was not sufficient to support a conviction for aggravated assault.

In light of these decisions, we do not believe the trial court acted properly in denying appellant’s demurrer because the evidence was not sufficient for a jury to conclude that every element of the crime had been proven beyond a reasonable doubt. Accordingly, we reverse the aggravated assault conviction.

The elements of the offense of recklessly endangering the life of another include:

A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

18 Pa.C.S.A. § 2705. While we clearly hold that the injury inflicted by Dohner was not in fact one which placed McConnell “in danger of death or serious injury,” it certainly was conduct which may nevertheless have placed him in such danger. Commonwealth v. Cavanaugh, supra. Accordingly, the trial court’s decision denying appellant’s demurrer to this charge was proper.

Dohner raises four other issues. They are:

1. The Trial Court erred in refusing to sustain Defendant’s objection to the introduction into evidence of a wooden post with protruding nails where no evidence showed the victim’s injuries were caused by a sharp object.
2. The Trial Court erred in refusing Defendant’s offer to recall Pam Paris as a witness to testify as to a Res Gestae statement made to her by the Defendant about one-half hour after the incident.
3. Defendant received ineffective assistance of counsel since trial counsel failed to move for severance of the trials of Defendants Dohner and Gainer to the prejudice of his client.
4. Defendant received ineffective assistance of counsel since trial counsel failed to cross-examine Pam Paris, witness for Commonwealth, precluding Defendant the Opportunity for attack on credibility and for impeachment purposes, knowing Paris had information exculpating Defendant.

The first two of these issues concern Dohner’s conviction for aggravated assault. We see no reason to discuss these issues in light of our decision to reverse the aggravated assault conviction.

Finally, Dohner asserts that his trial counsel was ineffective. These claims have not been properly presented to this court. Trial counsel filed a motion for new trial and arrest of judgment on the 24th of July, 1978. This motion was supplemented on the 8th of March, 1979. Trial counsel withdrew his appearance on the 5th of April, 1979. On the 10th of May, 1979, a hearing was held on Dohner’s after-discovered evidence. And, on the 17th of July, 1979, a hearing on his other post-verdict motions was held. All motions were denied in the trial court’s opinion dated the 24th of July, 1979. Dohner has raised his ineffectiveness claims for the first time on this appeal.

In Commonwealth v. Stoner, 284 Pa.Super. 364, 371, 425 A.2d 1145, 1148 (1981), we said:

The effectiveness of trial counsel should be raised in the first proceedings in which the defendant is represented by counsel other than the one whose stewardship is challenged. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

See also, Commonwealth v. Jennings, 285 Pa.Super. 295, 298 n.2, 427 A.2d 231, 232 n.2 (1981). It is clear that failure to raise an ineffectiveness claim at the first opportunity available when represented by new counsel results in a waiver. Commonwealth v. Alberts, 285 Pa.Super. 10, 11-12, 426 A.2d 678, 679 (1981). Accordingly, Dohner has waived his ineffectiveness claims he raises for the first time on appeal because his appellate counsel represented him at his post-verdict motions hearings and did not raise the ineffectiveness claims at that time. Commonwealth v. Seachrist, 478 Pa. 621, 387 A.2d 661 (1978); Commonwealth v. Smallwood, 465 Pa. 392, 350 A.2d 822 (1976).

The judgment of sentence of the trial court is affirmed in part and reversed in part. Dohner is ordered discharged and he shall be deemed to have commenced from the date he was first incarcerated serving his probationary sentences imposed for convictions of simple assault, recklessly endangering the life of another, and criminal mischief. That date being more than two years before the date of this order, Dohner has therefore completed serving his sentence.

SPAETH, J., concurs in result.

VAN der VOORT, J., files dissenting opinion.

VAN der VOORT, Judge,

dissenting:

The majority finds that the evidence was insufficient to support a conviction for aggravated assault. I respectfully disagree. Accepting the Commonwealth’s evidence and all reasonable inferences arising therefrom, as the majority correctly holds we must, I believe the evidence was sufficient.

The victim, one McConnell, testified that while he was restraining co-defendant Gainer, he observed appellant Dohner, who had left the immediate area, approaching in back of him.

At that time the victim was dealt a blow to his right cheek area and heard bone shattering (N.T. pp. 51-52). McConnell further testified that after he observed Dohner moving behind him and to his right, he was immediately struck from behind or from the side on the right side of his face. (N.T. p. 77). The victim also stated that he saw Gainer approaching but that he was still across the road when the initial blow was struck. (N.T. p. 53). Dohner was the only one around to inflict the blow (N.T. p. 81). McConnell did not know what was used to strike him. (N.T. p. 80). Another Commonwealth witness, Hess, testified that appellant later told her that he had hit the victim at least three times (N.T. p. 12). Mr. McConnell testified that the initial blow was the only one inflicted to his right cheek. (N.T. p. 52). Accordingly, the jury could have found beyond a reasonable doubt that appellant was responsible for the injury to the right part of the victim’s face.

The victim testified as to his injuries. His right cheek was completely caved in. The blow fractured the orbit of the right eye, that is the bony structure around the eye; part of which was still wired together on the day of trial. The fracture caused the eye to drop down so that the surgeon had to return it to its socket. (N.T. p. 53). The Commonwealth also had a letter from an examining physician, read into the record. The doctor confirmed the above injuries and stated that the damage was “fairly severe”. He noted “that it takes a significant blow to cause a fracture and dislocation of this solid body of bone which, in effect, is a buttress to protect injury to both the eye and temporal skull”. The victim underwent reconstructive surgery requiring general anesthesia. (N.T. pp. 87-89).

I believe the majority incorrectly places this case in the category covered by Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978). Alexander held that a mere blow to the head, resulting in a fractured nose without more was insufficient to demonstrate an intent to inflict serious bodily injury; the victim there was treated in an emergency room and released. The current appeal differs greatly in that both, a serious injury was inflicted and an intent to inflict such could be reasonably inferred.

I believe this case is controlled by such cases as Commonwealth v. Davis, 267 Pa.Superior Ct. 370, 406 A.2d 1087 (1979) and Commonwealth v. Kibe, 258 Pa.Superior Ct. 353, 392 A.2d 831 (1978). In Davis, the defendant punched a woman in the face causing her to black out. She suffered multiple fractures of her lower jaw. She spent four days in the hospital and six weeks with her jaw wired shut. This court held that “a jury could find beyond a reasonable doubt that serious bodily injury occurred, and that appellant either intended or acted recklessly so as to manifest an extreme indifference to the value of human life.” 267 Pa.Superior Ct. at 375, 406 A.2d 1087. Alexander was distinguished; there the prosecution conceded that no serious injury occurred; and the Commonwealth failed to show that the defendant’s behavior demonstrated an extreme indifference to life.

In Kibe, a woman was approached at a late hour from the rear, by a man, without a warning. Fearing a rape the woman refused to cooperate with the man who then struck her in the nose, fracturing it. This court affirmed the conviction of aggravated assault, finding sufficient additional circumstances distinguishing it from Alexander.

Alexander also requires that factors other than the degree of injury be considered when determining the intent of the assailant. “Thus any evidence of [a defendant’s] intent must be gleaned from the other circumstances . . . . ” 477 Pa. at 194, 383 A.2d 887. Here, appellant was attacked from the rear or from the side but beyond his field of vision. Alexander confronted his victim head on. Appellant’s involvement in the disturbance created a two against one situation in favor of appellant and his co-defendant. One of the circumstances listed in Alexander was the disproportionate size between victim and aggressor. I “conclude that a jury could find beyond a reasonable doubt that serious bodily injury occurred, and that appellant either intended that result or acted recklessly so as to manifest an extreme indifference to the value of human life.” Davis, 267 Pa.Superior Ct. at 374, 406 A.2d 1087.

I would affirm appellant’s conviction for aggravated assault.

      . 18 Pa.C.S.A. § 2701(a)(1).

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 3304(a)(2).

      . The trial court’s opinion does not specifically discuss this issue even though it was properly raised in appellant’s motion for a new trial and in arrest of judgment. Commonwealth v. Dussinger, 478 Pa. 182, 386 A.2d 500 (1978).

      . While we realize that the trial court relied upon evidence that the injury resulted in a fracture of the cheekbone which caused the victim’s eye to drop out necessitating surgery, the record indicates that after the initial and only blow attributed to Dohner was struck that the victim did not lose consciousness. McConnell was asked:
      Q. In fact, did you see anything coming at you before you were hit using your peripheral vision?
      A. No, I just suddenly felt a blow and felt bones or teeth or something rattling in my mouth.
      This evidence alone appears to us to be similar to that in Commonwealth v. Alexander, supra, where the single blow resulted in a broken nose, and was held insufficient. The evidence given by McConnell indicates that he was initially struck about his head by Dohner. However, the record appears to us to indicate that the seriousness of the initial blow was greatly exaggerated by a subsequent blow inflicted by Gainer. Thus, we do not consider the medical evidence was sufficient to justify the court’s denial of the demurrer.

      . While Commonwealth v. Dessus, 262 Pa.Superior Ct. 443, 396 A.2d 1254 (1978) appears to be on point, as one victim suffered a fractured cheek and was hospitalized for several days, it is not. There the court affirmed a finding of serious bodily injury as to a second more severely injured victim.

      . The majority states that the victim interjected himself into the situation. Actually, the victim had every right to “interject” as appellant and his co-defendant were in the process of destroying property of the victim.

      . I also believe the majority improperly releases the appellant: if the conviction for aggravated assault is reversed, I believe the better procedure would be to direct the lower court to resentence appellant on the remaining convictions. See Commonwealth v. Lezinsky, 264 Pa.Superior Ct. 476, 400 A.2d 184 (1979).


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    441 A.2d 1273
    COMMONWEALTH of Pennsylvania v. Chester E. SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 22, 1981.
    Filed Feb. 19, 1982.

      Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.

      Marion E. MacIntyre, First Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BROSKY, Judge:

Appellant was charged with simple assault by physical menace, aggravated assault, and carrying a firearm without a license. On November 15, 1979, appellant appeared, accompanied by his privately retained counsel, before the Honorable William Caldwell. Counsel told the court that his client indicated to him that he wished to plead guilty to the charges; to which the court responded:

Under those circumstances if you wouldn’t mind I would like to conduct the colloquy now and I am willing to continue the matter until later.

At this point, a guilty plea colloquy was conducted, following which the court stated that it accepted the plea. The District Attorney then stated that the prosecution had no testimony, but would be willing to bring the witnesses in at a later date. Defense counsel indicated that he did not desire to cross-examine any witnesses. The District Attorney then stated that he did wish to bring in one of the victims to testify, and the court continued the case until January 18, 1980 for this purpose.

On January 18, 1980, appellant again appeared before Judge Caldwell. The District Attorney informed Judge Caldwell that appellant’s attorney, Mr. Federico, had indicated to him that he would not be available for some time due to his involvement in a lengthy trial. Stating that the two victims were present in court, the District Attorney requested that he be permitted to call them to the stand to testify “because I have been advised it will be a guilty plea.” The court then asked appellant:

Mr. Smith, is it correct that you intend to plead guilty when your attorney gets here? [Appellant]: Yes, sir, I do, your Honor. The Court: All right, I am going to hear the testimony of the victims so that they don’t have to sit around until this afternoon when your attorney comes here. We will start over again if you have any quarrel with what they have to say, you can tell him about that so if you will just take a seat there at the table, I will hear the victims at this time.

The victims then testified, but were not cross-examined. Thereafter, court was adjourned so that the District Attorney could locate appellant’s counsel. Approximately two hours later, court resumed. The District Attorney stated for the record that appellant was present and represented by Mr. Federico, and that he wished to enter a plea of guilty to the charges. A guilty plea colloquy then took place, following which the court accepted appellant’s guilty plea to each of the charges. The District Attorney then provided the court with additional factual background to the incident from which the charges arose. Following this, the court asked appellant some questions concerning his prior record of incarceration and the offenses involved. Appellant then attempted to give his version of what had actually happened on the day in question, by way of defense. The court then ordered that appellant be placed in jail temporarily pending a pre-sentence investigation. On April 18, 1980, appellant was sentenced to a term of imprisonment of not less than four nor more than ten years on the aggravated assault charge; to a term of imprisonment of not less than six months nor more than one year on the simple assault charge, to run concurrently; and to a term of imprisonment of not less than two and one-half nor more than five years, on the firearms charge, to run concurrently.

On April 23, 1980, appellant’s counsel filed a “Petition for Modification of Sentence” and a “Petition for Withdrawal of Guilty Plea,” both of which were denied by order dated May 13, 1980. On May 13,1980, notice of appeal to our court was filed by the Public Defender, appellant’s present counsel. On July 18, 1980, a Post-Conviction Hearing Act petition was filed on appellant’s behalf. On August 5, 1980, a “Praecipe to Discontinue Appeal” was filed with our court. On August 7, 1980, a “Petition to Vacate Discontinuance of Appeal” was filed, which petition was granted by our court on August 21, 1980.

In this appeal, appellant raises the following issues: whether his guilty plea was voluntarily, knowingly and intelligently entered; whether trial counsel rendered ineffective assistance; whether the court erred in denying appellant’s motion to withdraw his guilty plea without a hearing; and whether the court erred in denying appellant’s motion for modification of sentence.

Appellant argues that the colloquy of November 15, 1979 was defective and that as a result, he cannot be found to have pled guilty voluntarily, intelligently, and knowingly. He contends that the only colloquy which may be examined is the one conducted on November 15, 1979, because he actually entered a plea of guilty on that date and that such plea was accepted by the court at that time.

Although it is unclear from our examination of the record why the court below conducted a second colloquy on January 18, 1980, the fact that two colloquys were performed is immaterial in this instance, since we find that both complied with the requirements of Pa.R.Crim.P. 319 and Comment thereto. The six areas of inquiry made mandatory by Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977), and Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976), were covered by both the November 15 and January 18 colloquys. Appellant was informed that he had a right to trial by jury which right was explained to him and that he is presumed innocent until found guilty. The possible sentences for each charge were also outlined. With respect to the nature of the charges, appellant was first read the Commonwealth’s information, containing the elements of each offense. The factual background of each charge was then stated to appellant by the District Attorney. At the conclusion of the first colloquy, appellant was asked, “Are you pleading guilty voluntarily and of your own free will?” Appellant responded: “I am pleading guilty of my own free will.” Following an off-the-record discussion between appellant and his attorney, the court then asked whether appellant was satisfied “that the guilty plea is in your best interest?” to which appellant responded affirmatively. Similarly, appellant indicated on January 18, 1980 that he understood the nature of the charges, the presumption of innocence, and the penalties he could receive. There is nothing in the record to indicate that appellant did not understand these elements, or that his plea was not knowing, intelligent or voluntary. Therefore, we hold that appellant’s first contention is without merit.

Appellant also argues that his counsel was ineffective in several respects. To begin with, appellant contends that trial counsel should have challenged in a timely motion following the entry of appellant’s guilty plea on November 15,1979, the inadequacy of that plea. Since we find that the plea colloquy was adequate and proper, and that appellant’s plea was knowingly, voluntarily and intelligently made, we must reject this argument.

Second, appellant argues that counsel was ineffective for failing to investigate the charges against his client before trial to determine the existence of any defenses. The charges arose out of the following set of facts: On the afternoon of April 21, 1979, appellant stopped his car behind a parked car from which a man was carrying on a conversation with another man who was standing in the street. Appellant stepped out of his car, brandished a handgun, and told the driver of the parked car to “get moving or else.” He then turned to the man standing in the street and asked, “You want some, too?” Approximately one hour later, appellant entered the Fireplace Bar. The bartender asked him if he had received the three dollars he owed appellant. Appellant responded in the negative. He then sat down at the bar, reached into his jacket and pulled out a handgun. He held the gun in his right hand and placed his left hand on the top of his right. In the course of this movement, the gun fired, striking James Smith, who was seated next to appellant.

In the “Petition for Withdrawal of Guilty Plea” filed by trial counsel, it was alleged that at the time of the incident, appellant “had a license to carry a firearm.” In the “Petition For Modification of Sentence” filed by trial counsel, it was alleged that “the shooting was accidental not intentional.” Appellant argues that counsel was ineffective for not presenting some legal argument with respect to these allegations.

The record shows that these two “defenses,” as appellant would have us view them, were presented to the court on January 18,1980 by appellant, after the court had decided to place appellant in jail pending a pre-sentence investigation. It was at this point that appellant asked if he could “say one thing.”

[Appellant]: I will confess to you, it was really an accident, I had no purpose of shooting anyone. As far as having a gun, I am a hunter. I have a hunting permit.

The information filed in connection with the firearms charge stated that appellant “did intentionally, knowingly, or recklessly carry in a place not his abode nor his fixed place of business, a certain firearm, to wit: 6" 45 cal. revolver without having a permit to carry same as required by law.”

Therefore, the fact that appellant claims to have had a “hunting permit” does not provide a defense to the above charge, since appellant at no time alleged or offered proof that he possessed a permit to carry a 45 caliber revolver. Counsel was thus not ineffective for failing to pursue such defense. With respect to the aggravated assault charge, the information states that appellant

did intentionally, knowingly or recklessly cause serious bodily injury to James Smith in that he did remove from his left side a handgun weapon. As the weapon was being removed from his side, he placed his left hand over the top of his right hand which held the weapon as though he was attempting to cock the trigger of the weapon, when the weapon fired, thereby striking victim, which acts are a manifestation of extreme indifference to the value of human life.

Although appellant contends that it was an accident, the facts clearly indicate that his acts evidenced recklessness. Therefore, appellant’s argument that counsel was ineffective for failing to present legal argument in this regard is without merit.

Appellant also argues that counsel was ineffective for failing to investigate the possibility of raising a temporary insanity defense. There is nothing in the record to indicate that appellant’s act was the product of “temporary insanity.” Appellant’s own explanation of what occurred, as offered to the court on January 18, 1980, was that he was reaching into his jacket for change to purchase a package of cigarettes when the gun discharged. When asked about his past incarcerations, appellant indicated that he had been in Farview some ten years before, but had not been treated recently for any mental disorders. Therefore, we find no merit to appellant’s contention that counsel was ineffective for failing to investigate the possibility of a temporary insanity defense “given appellant’s mental health history,” and we dismiss this contention without further discussion.

Appellant also argues that the court erred in denying his motion to withdraw his guilty plea without a hearing. Pa.R.Crim.P. 321 does not, however, require that a hearing be held, but simply states that the trial court “may schedule a hearing on the motion. ...” Pa.R.Crim.P. 321(c). Accordingly, this contention is without merit.

Finally, appellant argues that the court erred in denying his motion for modification of sentence. He contends that the court sentenced him without a clear idea of what acts he actually committed and as such could not impose the minimum sentence required. There is no basis in the record for this contention. It is clear from the record that the court was fully apprised of the acts committed by appellant on April 21, 1979. In addition, the record indicates that the court considered not only the particular circumstances surrounding the charges, but also the character of the appellant, the protection of the public, the gravity of the offenses, and the rehabilitative needs of the appellant. See Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). The sentence imposed was the minimum punishment consistent with these elements. Commonwealth v. Martin, supra. Therefore, the court did not abuse its discretion.

For these reasons, we affirm the judgment of sentence of the court below.


author: McEWEN, Judge: WIEAND, Judge,

text:
    441 A.2d 1277
    COMMONWEALTH of Pennsylvania v. Kenneth WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 28, 1981.
    Filed Feb. 19, 1982.

      Buford Tatum, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   McEWEN, Judge:

Appellant, Kenneth Williams, was convicted of rape, solicitation to commit sodomy, assault with intent to commit sodomy and criminal conspiracy on December 16, 1975, following a jury trial before the Honorable Matthew J. Bullock, Jr. of the Court of Common Pleas of Philadelphia County. Bail, which had originally been set at one thousand dollars, was increased after the verdict to two thousand five hundred dollars pending disposition of post-trial motions. The appellant failed to appear in Court on May 7, 1976, the date scheduled for the argument upon those motions. The Court issued a bench warrant but appellant remained a fugitive for the next four years.

Police finally apprehended appellant in early 1980. Upon his return to custody, appellant renewed his post-verdict motions in his Brief in Support of Motion for a New Trial or Arrest of Judgment.

On June 4, 1980, Judge Bullock denied the post-verdict motions, revoked bail, and sentenced appellant to not less than three and one half nor more than seven years imprisonment on the rape conviction. Sentences on the accompanying convictions were suspended. This appeal followed.

Appellant contends that he should be granted a new trial alleging (1) that the Commonwealth denied him due process of law by concealing or destroying possibly exculpatory evidence and (2) that he was denied the right to a fair trial by virtue of improper remarks made by the prosecuting attorney during closing argument. We affirm the judgment of sentence of the trial court.

On the evening of March 18, 1972, appellant hosted a party in his West Philadelphia apartment which was attended by the complainant, Ms. Smith, in the company of her boyfriend Mr. Gary White. The complainant and her escort arrived at the party at about 10:00 or 10:30 p.m. Ms. Smith had never before seen appellant or any of the other people present at the party. Gary White left Ms. Smith at the party at one point in the evening to make a telephone call and did not return. During his absence, appellant requested Ms. Smith to accompany him, his brother, Richard Williams, a cousin, and another couple on some errands. The other couple soon left the group and, after several stops, Ms. Smith was driven to another West Philadelphia apartment which she entered at the urging of appellant and the two other men. A fourth man, Travis Hopson, was present in the apartment when they arrived. While there, the brother of the appellant knocked Ms. Smith’s head turban to the floor and as she went into the bathroom to replace it, the fourth male, Travis Hopson, put a meat cleaver to her throat and ordered her to remove her clothes. Appellant, along ■with his brother and his cousin, then entered the bathroom clad only in their shorts and the four men together watched as she undressed. At first she cried but then ceased when one of the men said, “You had better shut up and calm down because if you don’t I will show you what happened to the other women who don’t cooperate with us.” (N.T. 79-80). There then followed the acts of rape, attempted rape and oral sodomy by the four men, including an act of rape by the appellant. After the four men had finished, the appellant threatened to “put a contract out” on her if she informed police of the incident. (N.T. 80-87). The men finally released Ms. Smith at 5:00 a.m. the next morning and drove her to her apartment. Ms. Smith immediately proceeded to the apartment of a girlfriend in the same building, woke her, and told her, while crying hysterically, that she had been raped. (N.T. 87-88).

Ms. Smith reported the rape to the police department that same morning of March 19, 1972. The police, at that time, summarized her statement on a Police Department Incident Report form. She, subsequently, gave her formal statement to Sergeant George Craig which he then gave to Detective Joseph Brignola. Nearly three years elapsed before the appellant was arrested on the charges in question.

Appellant argues first that he was denied due process of law because the Commonwealth concealed or destroyed “possibly exculpatory evidence.” The evidence alluded to is the formal statement which the complainant gave to the police shortly after the incident took place. The testimony of the police officers involved indicated that three copies of the formal statement were made after it was recorded but, at the time of trial, none could be located. Detective Brignola testified at the trial that, although he, personally, had been in possession of one copy of the statement, he could not find it at the time of trial. Extensive efforts by the police to locate a record copy of the statement were unsuccessful. Despite the assertion of appellant that the formal statement was “possibly crucial to the defense,” he, nevertheless, concedes in his brief that the statement implicated him in the offenses, since an arrest warrant was sworn out against him shortly after the statement was taken. Appellant argues only that the statement could have been used to impeach the credibility of the victim on cross examination and that the inability of the Commonwealth to produce the statement constituted a violation of the principle established by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

It is undisputed that “[t]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution.” Commonwealth v. Lochman, 265 Pa.Super.Ct. 429, 438, 402 A.2d 513, 518 (1979) quoting from Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, 218 (1963); See Commonwealth v. Cain, 471 Pa. 140, 369 A.2d 1234 (1977). Even where defense counsel does not make a specific request, the prosecution has the duty to make ávailable to the defense evidence that is truly exculpatory rather than merely favorable. Commonwealth v. Lochman, supra; Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976). “Exculpatory evidence is that which extrinsically tends to establish the defendant’s innocence of the crimes charged as opposed to that which, although favorable, is merely collateral ór impeaching.” Commonwealth v. Lochman, supra, 265 Pa.Super.Ct. at 438, 402 A.2d at 518; Commonwealth v. Gee, supra.

The Supreme Court further elucidated the standard of materiality it set forth in Brady in the case of United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2401-02, 49 L.Ed.2d 342, 354-55 (1979) stating:

The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated on the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create the reasonable doubt.

We believe that the trial court was presented with ample evidence to support the guilty verdict against appellant and we are satisfied that the principles of Brady were not violated where defense counsel was afforded the opportunity to examine the initial and preliminary report given to the police prior to the formal statement which was lost. Although the preliminary report was in briefer form and made before the formal statement was completed, it, nonetheless, was consistent with the testimony of the victim at the trial. The trial court found this report completely consistent with the testimony of the victim and the record reflects that it was further corroborated by the testimony of the girlfriend to whom Ms. Smith first reported the rape. By permitting defense counsel the opportunity to cross examine the victim and impeach her credibility with the aid of this preliminary report, the trial court eliminated any reasonable contention on the part of appellant that he was denied due process because of the inability of the Commonwealth to produce the formal statement at trial. Cf. Commonwealth v. Mace, 234 Pa.Super.Ct. 463, 341 A.2d 505, cert. denied, 423 U.S. 996, 96 S.Ct. 423, 46 L.Ed.2d 370 (1975) (no denial of due process where the effect of the inadvertent destruction by the Commonwealth of physical evidence was minimized by the fact that the Commonwealth in good faith made other relevant evidence available to the defense for use at trial).

Defense counsel chose not to use the preliminary report during his cross examination of Ms. Smith. His failure to use that report to impeach her recollection of the events of the evening, reflects a trial strategy which, as the District Attorney observed in his brief, was “an attempt to screen out the available indicia of the complainant’s truthfulness and, in turn, to highlight as much as possible the absence of her formal statement.” (Brief of Appellee at 7).

We concur with the finding of the trial court that the Commonwealth cannot reasonably be said to have concealed exculpatory evidence, where there was no evidence that the statement was exculpatory and where “it was in all probability favorable to the Commonwealth.” (Slip Op. at 9). Therefore, we do not believe that the appellant was denied due process by reason of the inability of the Commonwealth to produce the formal statement itself at trial.

In his second argument, appellant contends that a variety of the remarks of the prosecutor during closing argument were improper and violated the American Bar Association Standards for Criminal Justice Relating to the Prosecution Function [hereinafter ABA Prosecution Standard] which the Pennsylvania Courts have cited with approval in a number of decisions. See, e.g., Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173, cert. denied, 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979); Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978); Commonwealth v. Cherry, 474 Pa. 295, 378 A.2d 800 (1977).

Initially, appellant claims that the District Attorney in his summation improperly characterized the quality of the summation of defense counsel. He challenges (1) the District Attorney’s description of his summation as “vicious character assassination and vicious low-level argument,” and (2) the comment of the prosecutor that defense counsel was taking the “low-road” while he would follow the “highroad,” as well as (3) the statement of the prosecutor that the argument of defense counsel concerning the missing statement was “done to appeal to your emotions.” We do not consider these comments to be violative of the aforementioned ABA Prosecution Standards or to be so prejudicial as to warrant reversal and the grant of a new trial. Indeed, appellant does not specify or explain how the remarks violate the standards, but simply asserts that these types of remarks have been condemned by this Court, our Supreme Court and by the ABA Standards. Although the tenor of certain of these comments may be harsh, “not every intemperate or uncalled for remark by the, prosecutor requires a new trial.” Commonwealth v. Youngkin, 285 Pa.Super.Ct. 417, 430, 427 A.2d 1356, 1362 (1981). A new trial need only be granted where “the unavoidable effect [of the language] would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975) quoting Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968); Commonwealth v. Youngkin, supra. These remarks cannot be said to have had so prejudicial an effect.

Finally, the appellant sets forth a series of excerpts from the closing argument of the District Attorney in which he claims the District Attorney expressed his personal opinion as to the credibility of the complainant and the guilt of the appellant. The excerpts are as follows:

I will very candidly and plainly say to you her testimony is worthy of belief. And on the basis of her testimony defendant is clearly guilty as charged. (N.T. 384).
[B]ut the point is ladies and gentlemen, she was telling you the truth as honestly as she could. (N.T. 385).
[I]f you have a problem with Ms. Smith versus the defense in terms of reconcile [sic] who to believe, and I already believe in arguing to you that you should not have such a problem. (N.T. 398).
[B]ut I mention the results of what happened to Ms. Smith because I want you to understand, by golly, she is telling you the truth. (N.T. 402).

The law is clear that personal assertions of the guilt of a defendant or of the credibility of a witness’ testimony by the prosecutor during closing argument constitute reversible error and warrant the grant of a new trial. Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975). Commonwealth v. Gunderman, 268 Pa.Super.Ct. 142, 407 A.2d 870 (1979). During closing arguments, the prosecutor must limit his or her statements to the facts in evidence and legitimate inferences from those facts. Commonwealth v. Leymeister, 285 Pa.Super.Ct. 539, 428 A.2d 176 (1981). Where the remarks of the prosecutor so prejudice the jury as to prevent a fair trial, reversible error exists. Commonwealth v. Leymeister; supra; Commonwealth v. Van Cliff, supra.

Our examination of the contested statements does not reveal, however, that the prosecutor stated any personal opinion regarding the guilt of appellant or of the credibility of the complainant. These excerpts under review contain, rather legitimate arguments and reasonable inferences of the prosecutor based upon the facts in evidence.

Our system of jurisprudence not only relies but rests upon the notion that the scales of justice are evenly balanced and each party, not only the defendant but also the Commonwealth, must be afforded an equal opportunity to tip the scales. It, therefore, follows that the Commonwealth is entitled to a full measure of oral advocacy and the prosecutor has not only the privilege but the duty to exert his skills as an advocate in such manner as he deems the most likely to be persuasive. There is no sound reason why counsel for the Commonwealth should be expected to show any less fervor than counsel for the defendant during any portion of the trial, including the closing remarks, provided, of course, the statements do not fall afoul of the ABA Prosecution Standards. The trial court is the best monitor of the propriety of the remarks of counsel for the Commonwealth during argument and the appellate courts must be more than hesitant to disturb a determination of the trial court regarding propriety since the quiet, studied solemnity of the appellate court is a world apart from the charged atmosphere of the trial courtroom. Therefore, only such remarks as clearly and obviously violate the ABA Prosecution Standards may be determined to be improper. The remarks under review do not so violate and were not improper.

Judgment of sentence affirmed.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I concur that appellant is not entitled to a new trial. In so doing, I agree fully with the majority’s disposition of appellant’s contention that the prosecution deprived him of due process by “concealing or destroying possibly exculpatory evidence.” However, I am unable to agree when the majority says the prosecutor’s statements (1) that the alleged victim’s “testimony is worthy of belief;” (2) “she was telling you the truth as honestly as she could;” and (3) “I want you to understand, by golly, she is telling you the truth” were not expressions of opinion. In my judgment they were exactly that. They can be excused, however, as relatively mild responses to a highly improper and inflammatory argument by defense counsel. This argument included counsel’s opinion that the alleged victim was a “liar,” that she was a “perjurer” and that her testimony was, inter alia, “a cock and bull story,” “ridiculous,” “bunk,” “balogna,” “nonsense,” “made up,” “bull,” and “preposterous.” In view of defense counsel’s highly charged and improper, emotional tirade against the veracity of the prosecution witness, the District Attorney cannot be condemned for protesting that her testimony was “worthy of belief” and that “she was telling you the truth as honestly as she could.” Certainly, such responses do not require that appellant be awarded a new trial. See: Commonwealth v. Brown, 490 Pa. 560, 417 A.2d 181 (1980); Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); ABA Project on the Standards for Criminal Justice, Standards Relating to the Prosecution Function § 5.8 (Approved Draft, March, 1971) (commentary: prosecutor may be justified in making a reply to an argument by defense counsel which may not have been proper if made without provocation). See generally: Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980); Commonwealth v. Kjersgaard, 276 Pa.Superior Ct. 368, 419 A.2d 502 (1980); Commonwealth v. Baynes, 269 Pa.Superior Ct. 563, 410 A.2d 845 (1979).

For these reasons, I concur in the result achieved by the majority but do not join its opinion.

      . We have before us, in addition, the application of appellant to set bail which, in light of this Opinion, we have denied.

      . Appellant was not only an actual rapist but also a participant in the entire occurrence from the time the victim was initially assaulted until the time she was released. It is clear, therefore, that since he was a member of the conspiracy, the evidence was sufficient to convict him of all of the offenses committed and he does not otherwise contend.

      . The appellant does not in this appeal challenge the lengthy delay between the incident and his arrest in May of 1975.

      . The American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function, § 5.8(a), (b) (Approved Draft, March, 1971) state in pertinent part:
      (a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecution intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
      (b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.

      . Our review of the record indicates that perhaps these comments were fair responses to the arguments of defense counsel during his summation.


author: WIEAND, Judge:

text:
    441 A.2d 1283
    COMMONWEALTH of Pennsylvania v. Billy Dean COLLINS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 25, 1981.
    Filed Feb. 19, 1982.

      William H. Mitman, Jr., West Chester, for appellant.
    William H. Lamb, District Attorney, West Chester, for Commonwealth, appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

Is counsel ineffective for complying with his client’s instructions to withdraw an appeal without first advising the client that the appeal cannot thereafter be revived? The trial court concluded that counsel had not been ineffective when he followed his client’s instructions and discontinued the appeal. We affirm.

Billy Dean Collins was tried and convicted of arson. After guilty verdicts had been returned, trial counsel left the Public Defender’s staff, but Richard E. Moose, Esquire, undertook representation of Collins. He filed post-trial motions which were dismissed following argument. On November 23, 1977, Collins was sentenced to serve a term of imprisonment of not less than four nor more than ten years. After sentence had been imposed, the sentencing judge advised Collins that he had a right to appeal and to be represented by counsel for that purpose. An appeal to the Superior Court was filed by Moose on December 23, 1977. On or about January 3, 1978, however, Collins wrote to Moose instructing him to “drop the appeal.” Thereafter, on January 6,1978, Moose wrote to Collins advising him that he would comply with the latter’s instructions and withdraw the appeal. This was done on May 4, 1978. Two years later, on April 15, 1980, Collins filed a PCHA petition alleging that post-trial counsel had been ineffective because he had terminated the appeal. New counsel was appointed, and an evidentiary hearing was held. The hearing court concluded that counsel had not been constitutionally ineffective and denied relief. Collins appealed.

Appellant concedes that he was aware of his right to appeal and to be represented by counsel free of charge. He also concedes that he specifically instructed his attorney to “drop” the appeal which had been filed on his behalf. Ironically, he now alleges that counsel was ineffective for complying with his instructions. Counsel should have remonstrated with him, he argues, and should specifically have advised him that the right of appeal would be lost once the pending appeal was withdrawn.

Appellant’s argument is specious. A person convicted of a crime has a right to appeal, and if he is indigent he has the right to file his appeal without expense to himself. He also has a right to have his appeal perfected and prosecuted by counsel appointed by the court and paid for by the state. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 217, 220 A.2d 883, 884 (1966); Com monwealth v. Fareri, 271 Pa.Superior Ct. 174, 177, 412 A.2d 632, 633 (1979). A person convicted of a crime is not required to appeal, however, and may waive his rights in connection therewith. Commonwealth v. Maloy, 438 Pa. 261, 263, 264 A.2d 697, 698 (1970); Commonwealth v. Freeman, 438 Pa. 1, 9, 263 A.2d 403, 407 (1970) (Eagen, J., concurring). To constitute an effective waiver, it must appear that there was an “intentional relinquishment or abandonment of a known right.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); United States ex rel. Boyd v. Rundle, 308 F.Supp. 184, 186, aff'd 437 F.2d 405 (3rd Cir. 1970); Commonwealth v. Mack, 451 Pa. 319, 323-324, 304 A.2d 93, 96 (1973); Commonwealth v. Maloy, supra, 438 Pa. at 263, 264 A.2d at 698; Commonwealth v. Wilson, 430 Pa. 1, 3, 241 A.2d 760, 762-763 (1968); Commonwealth v. Ross, 289 Pa.Superior Ct. 104, 111, 432 A.2d 1073, 1076 (1981); Commonwealth v. Henderson, 231 Pa.Superior Ct. 190, 192, 331 A.2d 824, 825 (1974). When a defendant “deliberately and knowingly chooses to bypass the orderly state procedures afforded ... for challenging his conviction, [he] is bound by the consequences of that decision.” Commonwealth v. Coleman, 458 Pa. 324, 326, 327 A.2d 77, 78 (1974) quoting Commonwealth v. Wallace, 427 Pa. 110, 113, 233 A.2d 218, 220 (1967); Commonwealth v. Mika, 277 Pa.Superior Ct. 339, 342, 419 A.2d 1172, 1173 (1980).

In the instant case, appellant was aware of his Douglas rights, having been informed of them by the trial court at sentencing. At the PCHA hearing appellant conceded that he understood that he had only thirty days following sentencing in which to file an appeal. Appellant also testified that he had been aware that court appointed counsel had filed an appeal on his behalf. Appellant thus had been in possession of sufficient information to knowingly and voluntarily abandon his right to appeal. It was not essential to a knowing decision to discontinue the appeal that appellant be specifically instructed concerning his inability to revive the discontinued appeal two years thereafter.

Neither can it be said that counsel was ineffective for complying with appellant’s instructions to discontinue the appeal. In Commonwealth v. Robinson, 487 Pa. 541, 410 A.2d 744 (1980), it was argued that trial counsel had been ineffective for failing to file an appeal where the defendant, although fully advised of his right to appeal, had made no request that counsel file an appeal. The Court held that “once a client has knowingly and voluntarily waived an appeal, counsel’s failure to file an appeal does not constitute ineffective assistance to the client.” Id., 487 Pa. at 545, 410 A.2d at 745. See also: United States ex rel. Mandrier v. Hewitt, 409 F.Supp. 38, 47 (W.D.Pa.1976); Commonwealth v. Shore, 487 Pa. 534, 539-541, 410 A.2d 740, 743-744 (1980); Commonwealth v. Ross, supra, 289 Pa.Super. at 111, 432 A.2d at 1076 (1981); Commonwealth v. Ramsey, 259 Pa.Superior Ct. 240, 252-253, 393 A.2d 806, 812-813 (1978); Commonwealth v. Cotten, 266 Pa. Superior Ct. 141, 144, 403 A.2d 582, 584 (1979). Similarly, where a client has knowingly and voluntarily determined to abandon a perfected appeal and directs his attorney to discontinue the same, counsel is not ineffective for complying with the client’s instructions.

Order affirmed.

SPAETH, J., concurs in result.

      . The trial judge said: “You have a right to appeal to the Superior Court within thirty days of today’s date. You have the right to counsel for that appeal. In the event Mr. Moose is unable or unwilling to represent you, on application to us, we would appoint counsel to represent you.”

      . Post Conviction Hearing Act, Act 1966, Jan. 25, P.L. 1580 (1965), 19 P.S.Sec. 1180-1 et seq. Repealed 1978, April 28, P.L. 202, No. 53, Sec. 2(a) [1397], effective June 27, 1982, now implemented by Pa.R. Crim.P. 1501 through 1506.


author: BECK, Judge: WIEAND, Judge,

text:
    441 A.2d 1285
    Roger E. BUCHANAN and Dorothy Buchanan, et al. v. CENTURY FEDERAL SAVINGS & LOAN ASSOCIATION, et al. Appeal of EQUIBANK.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1981.
    Filed Feb. 19, 1982.
    Petition for Allowance of Appeal Denied June 30,1982.

      See also, 295 Pa. Super. 391,441 A.2d 1288.
    Joan Feldman, Pittsburgh, for appellants.
    Michael P. Malakoff, Pittsburgh, for appellees.

      Before WICKERSHAM, WIEAND and BECK, JJ.
   BECK, Judge:

This appeal arises from the interpretation of a settlement agreement which settled an action by classes of mortgagors against several mortgagee banks in both the federal and state courts. The agreement was executed by all parties on January 22, 1976. By its terms, the settlement agreement was subject to, and contingent upon, court approval in both the state and federal actions. The hearing judge found as a fact that it was normal to, and the parties did in fact, contemplate that court approval would take a lengthy period of time. Final court approval was forthcoming on April 19, 1979.

The portion of the agreement giving rise to controversy necessitating a court ruling from which this appeal is taken reads as follows:

§ 3.03. Beginning on the date of final approval of this Agreement, but retroactive to January 1, 1976, the Defendants either

(a) Shall pay at least two (2) percent interest per annum to their Residential Mortgagors on sums paid to a particular Defendant equivalent to one-twelfth the annual hazard insurance premiums, annual real estate taxes and/or assessments or other charges;
(b) Shall credit such advance payments against the principal balances on such mortgage loans; or
(c) Shall grant, by writing separate from the mortgage and bond or note, such mortgagors the option either of paying their annual hazard insurance premiums, annual real estate taxes and/or assessments or other charges themselves, or of making such payments equivalent to one-twelfth of such amounts each month to Defendants, in which case, no interest need be paid by Defendants on such payments.

If interest is to be paid by a Defendant under Subsection (a) herein, it shall be calculated in a manner no less favorable to Plaintiffs than 2 percent simple interest, on the averages of the month-end escrow balances, paid or credited annually.

(emphasis supplied)

Following court approval of the agreement in 1979, appellant herein elected under § 3.03(c) to grant its mortgagors the option of either making insurance and tax payments themselves or escrowing such payments with appellant at no interest. Prior to such election, appellant had required its mortgagors to escrow such payments with appellant. On April 10, 1980, the “Plaintiffs at Equibank,” appellees herein, filed a Motion to Enforce Settlement Agreement alleging that the failure of appellant to pay two percent interest for the period of January 22, 1976 to the date appellant offered its mortgagors the settlement option as to escrow constituted a refusal to perform under the settlement agreement.

On July 15, 1980, the court below entered an order stating “[W]e find that Equibank has failed to comply with the terms of the Agreement, particularly Section 3.03 thereof, and it is ORDERED that Equibank pay 2% interest per annum to their Residential Mortgagors on sums paid to Equibank by said Residential Mortgagors equivalent to one-twelfth of the annual hazard insurance premiums, annual real estate taxes and/or assessments or other charges from January 1, 1976 to April 19, 1979; the sums due said Residential Mortgagors as calculated aforesaid shall bear interest at the rate of 6% per annum from the due dates thereof; . . . . ”

The parties’ briefs and the opinion of Judge Silvestri reflect general agreement as to the facts and as to the applicable law. Citing the same cases, all agree as do we that the principles of contract construction are applicable to interpretation of this settlement agreement: United States v. I.T.T. Continental Baking Co., 420 U.S. 223, 95 S.Ct. 926, 43 L.Ed.2d 148 (1976); Florida Educational Association v. Atkinson, 481 F.2d 662 (5th Cir. 1973). Appellant also recognizes, as pointed out in the opinion of Judge Silvestri, that the court may not alter the terms of the agreement, but must construe the entire agreement, giving effect to all parts of the agreement: G.A.G. Corporation v. Auritt, 226 Pa.Super. 118, 312 A.2d 441 (1973) citing Neal D. Ivey Co. v. Franklin Associates, 370 Pa. 225, 87 A.2d 236 (1952). Appellant, however, disagrees as to the application of these principles to the facts in this case.

Appellant asserts that court approval was a condition precedent to its performance under the terms of the contract and that no performance was required of it until this condition occurred on April 19,1979, citing National Products Co., Inc. v. Atlas Financial Corp., 238 Pa.Super. 152, 364 A.2d 730, 734 (1975). While this is undoubtedly true under both the law of Pennsylvania and the terms of the contract itself, the appellant’s further assertion that performance of the provisions relating to retroactivity became impossible because of long delay in court approval and its selection of an option which does not specifically require the payment of money is simply an attempt to read the retroactivity provision out of the contract. The phrase “retroactive to January 1, 1976” clearly applies to each of the subsections (a), (b) and (c). It is clear that a delay was contemplated and that it was intended that all of the class members receive a benefit effective the date set forth in the agreement.

We regret, as did the court below, that the parties did not more clearly spell out the means for making each of these provisions retroactive. However, class action settlement agreements are generally the product of heated adversary debate, the input of many, and the reluctance of those on all sides to delay final agreement on the basis of a phrase or a word. Appellant herein had as much opportunity as anyone else to seek clarification by amendment and did not do so. It may not now seek a windfall on the basis of this oversight.

Had appellant offered the option to its mortgagors to cease escrowing their payments with appellant on January 22, 1976, those mortgagors would have had the use of their money for the interim period to April 19,1979. A reading of the agreement as a whole reveals that the parties envisioned that the means for compensating mortgagors for the forcible escrowing of such moneys was negotiated at a settlement figure of two percent (2%) per annum based upon monthly escrow balances. The court below found it to be the intention of the parties that retroactivity be accorded by the payment of said two percent (2%) for the period from January 1, 1976 to the date appellant exercised its option under the agreement. We agree.

The order appealed from is affirmed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

Dissenting:

I respectfully dissent. The majority, by its interpretation of the settlement agreement, has effectively deleted therefrom and has rendered totally meaningless that portion of Section 3.03(c) which provides “. . . in which case, no interest need be paid by Defendants . . . . ”

This clause, in my judgment, refers to and modifies the mortgagors’ option immediately preceding it in § 3.03(c), i.e., “. . . of making such payments equivalent to one-twelfth pf such amounts each month to Defendants . . . . ” The clause defines the rights of the parties only if a defendant bank offers to mortgagors the option provided for in section 3.03(c) and only if a mortgagor elects to continue escrowing real estate taxes, insurance premiums and other charges. If the mortgagor so elects, the mortgagee bank need not pay interest to such mortgagor. On the other hand, if the mortgagor elects to withdraw moneys previously paid in escrow and to pay real estate taxes, insurance premiums and other charges himself, then the mortgagee bank is required to pay interest on escrow sums paid after January 1, 1976.

This interpretation gives effect to both the “retroactivity” provision and the “no interest” clause. Moreover, it provides a settlement that is reasonable and clearly consistent with the expressed intent of the parties. That it is consistent with the actual intent of the parties becomes apparent when we realize and appreciate that none of the parties anticipated or contemplated the tortuous path and three year delay required to obtain court approval of the settlement agreement. If court approval had been forthcoming in a year or less, the fairness and reasonableness of this interpretation, would be obvious.

1 would remand for the entry of an order consistent with this expressed intent of the parties.

      . Those class members who paid mortgages in full during the period January 1, 1976 to April 19, 1979 would receive no benefit whatsoever, for example, should appellant’s interpretation of the agreement be accepted.

      . Two amendments postdating the original Settlement Agreement were agreed to by the parties and were part of the agreement as approved by the respective courts.

      . Section 3.03 of the settlement agreement is as follows:
      § 3.03. Beginning on the date of final approval of this Agreement, but retroactive to January 1, 1976, the Defendants either:
      (a) Shall pay at least two (2) percent interest per annum to their Residential Mortgagors on sums paid to a particular Defendant equivalent to one-twelfth the annual hazard insurance premiums, annual real estate taxes and/or assessments or other charges;
      (b) Shall credit such advance payments against the principal balances on such mortgage loans; or
      (c) Shall grant, by writing separate from the mortgage and bond or note, such mortgagors the option either of paying their annual hazard insurance premiums, annual real estate taxes and/or assessments or other charges themselves, or of making such payments equivalent to one-twelfth of such amounts each month to Defendants, in which case, no interest need be paid by Defendants on such payments.

        If interest is to be paid by a Defendant under Subsection (a) herein, it shall be calculated in a manner no less favorable to Plaintiffs than 2 percent simple interest, on the average of the month-end escrow balances, paid or credited annually. At least annually, on or before the 15th day of each February subsequent to December 31, 1976, any Defendant, if it chooses to pay interest as aforesaid, at its option shall either issue and deliver a check for said interest to each mortgagor or shall credit the mortgage account or the mortgage escrow account for the amount of interest accrued to the end of the preceding calendar year.