author: CERCONE, President Judge:

text:
    459 A.2d 1
    COMMONWEALTH of Pennsylvania v. Charlie Will CLEMMONS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 24, 1982.
    Filed March 11, 1983.
    Reargument Denied May 20, 1983.
    Petition for Allowance of Appeal Granted Nov. 16, 1983.

      Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WICKERSHAM and ROWLEY, JJ.
   CERCONE, President Judge:

This is a direct appeal by appellant, Charlie Will Clemmons, from a judgment of sentence entered after his conviction by a jury for murder of the first degree. Post-verdict motions were denied and appellant was sentenced to life imprisonment. Now, on appeal, appellant is represented for the first time by counsel different from trial counsel. He presents for our review two challenges to the sufficiency of the evidence and nine allegations of ineffectiveness of trial counsel. We are able to reach the merits of the sufficiency arguments and two of the ineffectiveness contentions on the record as it presently exists. However, we vacate the judgment of sentence and remand this case for the conducting of an evidentiary hearing on the question of trial counsel’s ineffectiveness as outlined by appellant in arguments three and four.

The instant appeal arose out of the shotgun killing of one Dale Hershey by appellant on June 8, 1980. The shooting occurred on interstate highway 81 near Harrisburg. By his own admission, it was the act of appellant, age thirty-one. Appellant was a long distance truck driver of large tractor trailer trucks. He was traveling north on 1-81. Rose Marie Swelfer, the girlfriend of the victim, testified that the truck which appellant was driving made a sharp return to the lane in which the victim and she were traveling, thereby causing them to veer off the highway. This act upset Hershey, the driver, so much so that he activated his C.B. radio and addressed the following to the driver of the offending truck, who happened to be appellant. (There was no evidence that appellant and victim had ever seen each other prior to this incident.) “You son of a bitch, if you don’t know how to drive that thing, you pull over and I’ll show you how to drive it.”

Both vehicles pulled off onto the shoulder of the highway with appellant’s truck parked in front of Hershey’s. Hershey, the victim, exited his small pick-up truck immediately and walked quickly to the cab of appellant’s tractor trailer. Only Swelfer, the deceased Hershey’s girlfriend, then witnessed both men walk to the back of the tractor trailer. She stated that Hershey’s hands were at his sides and that the two men were exchanging remarks, but that she was unable to hear what they said. She then saw appellant lift a shotgun which he had carried from the cab, point it at Hershey, and fire. Hershey died almost immediately as a result of a wound in the lower neck area.

Appellant walked over to Swelfer, laid the gun in the grass, put his hands in the air “as if to say I’m not going to hurt you.”

Passers-by stopped. When asked by one Phillip Kockler, a retired Pennsylvania State Police Officer, why he shot Hershey, appellant replied, “I told him to stop, he didn’t stop and so I shot him.” A John Scott testified that he heard appellant say several times, “Ain’t nobody going to kill me” upon Scott’s arrival on the scene.

One half hour after the shooting, appellant told Pennsylvania State Trooper Gibson that he pulled his truck off the road so that he could hit the other driver. Appellant stated that Hershey had his hand in his pocket and because appellant thought he might have a gun, he got his own shotgun from the back of his truck cab; and that Hershey told appellant as they got to the rear of the truck, “Just do what you have to because I am going to do what I have to do.” It was at that point that appellant shot Hershey. No weapon was found on Hershey.

Appellant argues that the evidence was insufficient to convict him of murder in the first degree. He asserts that the evidence does not show that he acted with the requisite specific intent to kill Hershey, and that the element of malice was negated by his belief that he was in imminent danger of death.

The task of the appellate court in reviewing the sufficiency claim is to determine whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which, if believed, the jury could probably have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Williams, 455 Pa. 539, 547, 316 A.2d 888, 892 (1974).

The law in Pennsylvania is clear that the deliberate use of a deadly weapon upon a vital area of the body of the victim is sufficient to allow the jury to infer a specific intent to take life, absent any circumstances that might negate such an intention. See Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976) and cases cited therein; Commonwealth v. Gibbs, 366 Pa. 182, 76 A.2d 608 (1950); Commonwealth v. Drum, 58 Pa. 9 (1868), in Commonwealth v. Crowson, 488 Pa. 537, 543, 412 A.2d 1363, 1365 (1979).

This presumption was developed in recognition of the impossibility for the Commonwealth to meet its burden of establishing a requisite frame of mind without resort to circumstantial proof. Because a state of mind by its very nature is subjective, absent a declaration by the actor himself, we can only look to the conduct arid the circumstances surrounding it to determine the mental state which occasioned it. O'Searo 466 Pa. at 236, 352 A.2d at 37.

While it is true that almost every other case in which specific intent was inferred from the use of deadly weapons upon the vital area of the bodies of victims contains other circumstances corroborative of such intent, in this case, the jury could reasonably conclude from the facts presented that appellant possessed the specific intent to kill Hershey. This is so, especially in light of the principle that no specific length of time is necessary before premeditation will be found to have entered into a defendant’s act of killing. Commonwealth v. Thornton, supra, at fn. 3.

In the instant case, it was established at trial that appellant, from a distance of between two and six feet, fired a pump action shotgun at Hershey, thereby critically injuring him. While appellant maintained that he feared for his own life and that the gun went off accidentally, the jury evidently did not believe him. Nevertheless, sufficient evidence was presented to enable the jury to find beyond a reasonable doubt that appellant had committed the crime of murder in the first degree.

Appellant further contends that the Commonwealth failed to prove beyond a reasonable doubt that he did not act out of self defense.

Where an accused raises a defense of self-defense, the burden of the prosecution is to prove beyond a reasonable doubt the killing was not done in self defense____ The Commonwealth sustains its burden if it proves any of the following: that the slayer was not free from fault in provoking or continuing the difficulty which resulted in the slaying; that the slayer did not reasonably believe that [he] was in imminent danger of death or great bodily harm, and that it was necessary to kill in order to save [him]self therefrom; or that the slayer violated a duty to retreat or avoid the danger.
Commonwealth v. Burns, 490 Pa. 352, 354, 416 A.2d 506, 507 (1980) in Commonwealth v. Watson, 494 Pa. 467, 471, 431 A.2d 949, 951 (1981).

We have concluded, as did the lower court that there was ample support for the jury’s rejection of defendant’s contentions as to self-defense. As the court said in its opinion,

The elements of self-defense were not present and the jury could reasonably have concluded that the defendant could have avoided the encounter by (1) not stopping initially; (2) by remaining in the cab of his vehicle; (3) by not exiting with a weapon; or, (4) once outside the vehicle, avoiding the altercation by retreating. Moreover, since Hershey was wearing slacks and a short sleeve pullover shirt, the jury also had ample basis for rejecting defendant’s claim of a concealed weapon on the victim’s person.

Therefore, the evidence presented did establish the lack of a self-defense evidence on appellant’s part.

Appellant asserts the ineffectiveness of trial counsel for failing to take exception to the court’s refusal to permit him to discuss the elements of the various degree of homicide in his closing argument to the jury. Closing arguments were not recorded in this case. Thus, the tenor of defense counsel’s remarks cannot be reviewed from the record. It reveals only that the court interrupted defense counsel and asked him not to talk to the jurors about the elements of the various offenses as the court would do so later.

It is true, as appellant contends, that counsel is not compelled to refrain from any discussion whatever of applicable law, Commonwealth v. Glenn, 321 Pa. 241, 183 A. 763 (1936); Commonwealth v. Renzo, 216 Pa. 147, 65 A. 30 (1906) cited in Commonwealth v. Gwaltney, 479 Pa. 88, 387 A.2d 848 (1978). On the other hand, it is the responsibility of the trial judge to restrain improper conduct on both sides in order to insure a fair trial. Appellant has not explained how the lower court’s intervention prejudiced him, except insofar as it deprived the jury of hearing trial counsel’s recitation of the elements of the varying degrees of homicide. And, keeping in mind that the court did explain these elements to the jury twice we decline to find that counsel was ineffective in failing to preserve an objection to the court’s action.

In applying the standard of review for claims of ineffective assistance to this contention, Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), we find that for all of the reasons enumerated above, to have taken exception to the court’s interruption would not have had arguable merit. Therefore, our inquiry ceases here. Common wealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Finally, appellant argues that his trial counsel was ineffective because he did not object to the court’s charge on voluntary manslaughter. He contends that, in derogation of Commonwealth v. Scaramuzzino, 485 Pa. 513, 403 A.2d 82 (1979), the court failed to (1) inform the jury of its power to return a verdict of voluntary manslaughter, whether supported by the evidence or not. Id., 485 Pa. at 518, 403 A.2d at 84. Our review of the court’s charge persuades us that the court did include this element in its voluntary manslaughter charge.

That the jury may return a verdict of voluntary manslaughter, whether supported by the evidence or not, is contained in the following excerpt from the court’s charge:

[T]he current state of the law under decisions of our higher courts in Pennsylvania does provide a jury with the option of returning a verdict of voluntary manslaughter even though a murder verdict would also be appropriate under your factual findings. This permits a jury latitude in those cases where a jury might elect to exercise such latitude.
Though a homicide may in fact be done with a specific intent to kill or with malice, the law has traditionally recognized that there may be certain factors which together mitigate the defendant’s culpability and justify lowering the offense to voluntary manslaughter.

Because we find that the court’s instruction adequately conveyed the law as challenged by appellant on voluntary manslaughter and jury verdicts, we cannot find that counsel was ineffective for failing to object to the charge, Commonwealth v. Hubbard, supra. As we commented above in footnote 2, the court did not instruct the jury that it could return a guilty verdict of voluntary manslaughter based on unreasonable self defense. However, since appellant has not objected to this omission either at trial or on appeal, this aspect of voluntary manslaughter is not included in our consideration.

As for appellant’s remaining assertions of ineffectiveness of trial counsel, we are constrained to remand this case for an evidentiary hearing by the lower court.

The judgment of sentence is vacated and the case is remanded for a hearing consistent with this opinion. If the lower court determines that trial counsel was effective, it shall reinstate the sentence. If the court determines that counsel was ineffective, it shall grant appellant a new trial. We do not retain jurisdiction.

WICKERSHAM, J., files a concurring and dissenting statement.

WICKERSHAM, Judge,

concurring and dissenting:

I concur in the majority opinion as far as it goes; I would not remand for an evidentiary hearing on the question of trial counsel’s ineffectiveness since the reasons assigned therefor are palpable nonsense.

      . 18 Pa.C.S.A. § 2502(a).

      . These allegations include:
      3. Whether counsel rendered ineffective assistance in failing to pursue a number of different trial issues on appellant’s behalf? These issues include: (1) the possibility of accidental discharge of the gun; (2) the possibility that appellant was unlawfully detained at the scene; (3) the possibility that appellant was subjected to unlawful one-on-one identifications; (4) the possibility of prior inconsistent statements by Commonwealth witnesses; (5) the possibility of locating witnesses who might have been favorable to the defense; (6) the possibility that the victim had such an aggressive personality that appellant was justified in fearing for his life.
      4. Whether counsel rendered ineffective assistance in failing to exercise his right to discovery as to Commonwealth witness Phillip J. Kockler?

      . We note that this aspect of voluntary manslaughter based on an unreasonable apprehension of the threat of serious bodily harm, Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. White, 492 Pa. 489, 424 A.2d 1296 (1981), was not presented to the jury by the court, at any rate. However, appellant has not raised this omission as error either as ineffectiveness of counsel for failing to request such a charge, or as error of the Court.

      . Cf. Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981) (After four hours of searching for victim, whom defendant knew, defendant approached victim with shotgun and from distance of five feet away shot him in back.); Commonwealth v. McAndrews, 494 Pa. 157, 430 A.2d 1165 (1981) (Defendant pressed muzzle of gun against victim’s cheek and pulled trigger; victim was paramour of defendant; defendant fled); Commonwealth v. Green, 493 Pa. 409, 426 A.2d 614 (1981) (Wife inflicted multiple stab wounds on husband whom she suspected of being unfaithful); Commonwealth v. Bishop, 489 Pa. 96, 413 A.2d 1031 (1980) (defendant entered victim’s grocery store with firearm, pointed gun at victim and fired three times) Commonwealth v. Bricker, 458 Pa. 367, 326 A.2d 279 (1974) (Defendant shot victim twice from two feet away, pushed victim from car and dragged body two hundred feet before it became dislodged.)

      . "This court has said that a willful, deliberate and premediated killing is one where the actor had the specific intent to bring about the death of the victim.” (citations omitted) Commonwealth v. Meredith, 490 Pa. 303, 416 A.2d 481 (1980).


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    459 A.2d 5
    COMMONWEALTH of Pennsylvania v. Richard Patrick JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1982.
    Filed March 31, 1983.

      Arthur R. Sagoskin, Bristol, for appellant.
    William F. Merz, Assistant District Attorney, Doylestown, for appellee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   HESTER, Judge:

This is an appeal taken from a judgment of sentence entered by the Court of Common Pleas of Bucks County on October 3, 1980. Appellant, Richard P. Johnson, was found guilty by a jury of various counts of possession of a controlled substance, rape, involuntary deviate sexual intercourse, aggravated assault, simple assault, indecent assault, theft and criminal conspiracy. Appellant was sentenced to concurrent terms of total confinement of not less than five (5) nor more than twelve (12) years in a State Correctional Institution on two counts of rape and two counts of involuntary deviate sexual intercourse; sentence was suspended on the remaining charges of the information. Motions in arrest of judgment and new trial were denied.

The charges stemmed from a repugnant and extenuating ordeal involving one victim and three co-defendants from October 30, 1977, through November 2, 1977. On October 30, 1977, the victim, Betty Jane Vaughan, was living with her mother at 14 Elmer Street, Warminster, Pennsylvania. At approximately 9:30 a.m., Betty Jane’s brother, John Graveley, arrived at his mother’s residence and asked the victim for gasoline money. In return for receiving the cash, Graveley agreed to take the victim apartment hunting.

As the victim entered the automobile transporting her brother, she discovered appellant and Barbara Graveley waiting inside. Appellant was occupying the driver’s seat; the victim took the front passenger seat beside him and John and Barbara Graveley sat in the rear seat. The three co-defendants were related. John Graveley was married to Barbara Graveley and Barbara was appellant’s sister.

The victim entered the automobile with a purse containing, inter alia, prescribed valium. When she removed the vial from her purse so that she could ingest one of her daily prescribed allotments, John wrested the valium pills from her grasp and generously distributed them to himself, appellant and Mrs. Graveley. Appellant compelled the victim to swallow three more valium pills. Shortly thereafter, the victim became confused and disoriented, a mental condition in which she remained for four days due to co-defendants’ forcible injection of narcotics into her.

Instead of finding an apartment for Mrs. Vaughan alone, co-defendants drove the automobile for hours in the Philadelphia area in search of either an apartment or motel room for the four people to reside. Following an unsuccessful bid to locate an apartment, Mrs. Vaughan was compelled to approach the registration desk of the Willow Grove Motel Lodge in Willow Grove, Pennsylvania, pose as appellant’s wife and pay for one day’s lodging. Shortly thereafter, the foursome assembled in the motel room.

John and Barbara departed in order to purchase narcotics, while appellant and the victim remained behind in the motel. Appellant’s request for sex with the victim was rejected; however, he persisted with force. He called Mrs. Vaughan his “bitch” and more crudely instructed her to submit to his sexual whims. The victim was frightened and succumbed to his demand to remove her clothing.

Upon entirely removing her clothing, appellant grabbed her shoulder-length hair and pulled her to the bed. She then became the unwilling object of vaginal, anal and oral intercourse.

When John and Barbara returned with a “tannish powder” in a “cellophane bag”, they directed the victim to sit on the commode. Despite her resistance, the victim was unable to free herself from John’s grasp and from the injection of heroin with a hypodermic needle into her forearm. During this narcotic injection, appellant continued to verbally abuse Mrs. Vaughan. This injection of drugs was forcibly inflicted upon her two or three times that day. Her resistance became weaker as the number of dosages increased.

Later that day, John Graveley left the motel after engaging in fisticuffs with appellant. The other three left shortly thereafter for fear that their riotous behavior would cause the summoning of police officers. They drove, without John, to the residence of appellant’s mother; however, they promptly returned to the motel where they were instructed to leave due to the chaotic condition of the room. When two police officers arrived, the threesome departed without further incident. Appellant threatened to “kill” the victim if she informed the officers of her plight.

They returned to appellant’s mother’s residence; Barbara slept inside the home while appellant held the victim as an overnight captive in the automobile. The following morning, a man residing with appellant’s mother drove the automobile to work, with appellant and victim as passengers. Mrs. Vaughan was again warned not to disclose her abduction to the driver. When the man left the vehicle at his place of employment, appellant drove the victim back to his mother’s house to get Barbara and then onto the Salvation Army to get John Graveley.

When their attempt to acquire a welfare check under an alias failed, the foursome drove to J.M. Fields, a Philadelphia department store. A scheme was designed whereby Barbara would shoplift goods from the store and the victim, under compulsion, would return them and seek a refund. This scheme produced money on five or six occasions. More narcotics were then purchased and the victim again forcibly injected.

On the final evening, Mrs. Vaughan was forced to acquire a single room at the American Motel in Trevose, Bucks County, Pennsylvania, and permit her three abductors to enter surreptitiously. Once the- foursome was inside the room, appellant repeated his acts of nonconsensual vaginal, anal, and oral intercourse with the victim. He pulled her hair, struck her face, and threatened to promote her for prostitution if she did not perform to his sexual satisfaction.

The following morning, on November 2, 1977, Mrs. Vaughan left the motel room under the pretense of purchasing soda and food. Instead, she went to the motel manager and reported her captors. Police officers were promptly summoned and appellant and his two co-defendants were taken into police custody. As a result of their four-day spree, appellant and his co-defendants were charged with various counts of possession of a controlled substance, possession of a controlled substance with intent to deliver, delivery of a controlled substance, rape, involuntary deviate sexual intercourse, indecent assault, simple assault, aggravated assault, kidnapping, felonious restraint, theft by unlawful taking or disposition, receiving stolen property and criminal conspiracy.

Appellant argues that the nineteen month delay between the conclusion of trial and the hearing on post-trial motions unduly prejudiced him. Appellant would have us apply Rule 1100(e)(i) of the Pa.R.Crim.P., whereby new trial must be commenced within 120 days following an Order for new trial, to the instant matter. Moreover, the speedy trial interests of circumventing oppressive imprisonment, minimizing the accused’s anxiety and preserving fresh evidence are, according to appellant, applicable here also.

Neither our courts nor the United States Supreme Court has decided whether post trial proceedings are part of trial for Sixth Amendment purposes, Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980); Pollard v. U.S., 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); however, these earlier decisions have assumed arguendo that post trial proceedings are part of the trial to the extent of an accused’s speedy trial rights. Consequently, whether speedy trial rights have been infringed depends upon the circumstances. Commonwealth v. Pounds, supra; Pollard v. U.S., supra. These circumstances include the length of delay, reason for the delay, assertion of the speedy trial right, and resulting prejudice of the delay. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

In the instant case, the jury returned its verdict on March 17, 1978. Despite the timely filing of post-trial motions, a hearing on said motions did not occur until October 9, 1979. This nineteen month delay does not, in itself, constitute a violation of constitutional safeguards because it did not surpass the maximum term of appellant’s imprisonment. Commonwealth v. Rutherford, 252 Pa.Super. 348, 381 A.2d 952 (1977); Commonwealth v. Giovengo, 188 Pa.Super. 220, 146 A.2d 629 (1958).

The reason for the delay cannot be found in the record. Without some explanation of record, we are unable to justify or denigrate a delay of nineteen months between conviction and argument on post trial motions.

Next, whether appellant asserted his right to a speedier post trial motions hearing sparks an inquiry whose answer does not favor him. The record reveals no petitions by appellant seeking a speedier disposition of his post trial motions. Nor do we find evidence of any other form of request, formal or informal, urging the court to commence argument on his motion.

Finally, we consider any prejudice resulting from the delay. Under Pa.R.Crim.P. 4010(A)(1), a trial judge is empowered to release a convicted defendant on bial where there is an unreasonable delay in disposition of post-trial motions. Appellant did not petition for his release on bail; consequently, it cannot be held that any prejudice was imposed by the delay in post-trial proceedings. Commonwealth v. Pounds, supra.

Our application of the “circumstances” test directs a finding that the delay was neither intentional nor prejudicial. Appellant’s rights to a speedy post-trial disposition went unscathed.

Next, appellant avers that the trial judge erred by usurping the prosecutor’s role and, in so doing, assuming the role of an advocate. Although a court’s power to interrogate witnesses should be used sparingly and with extreme caution, it remains the right and, at times, the duty of the trial judge to examine witnesses. Commonwealth v. Seabrook, 475 Pa. 38, 379 A.2d 564 (1977); Commonwealth v. Laws, 474 Pa. 318, 378 A.2d 812 (1977); Commonwealth v. Brown, 438 Pa. 52, 265 A.2d 101 (1970). So long as the trial court examines witnesses for clarification of confusing facts in a brief manner not indicative of bias, no trial error exists. Commonwealth v. Brown, supra.

Appellant does not direct us to any specific incidents during either party’s case in chief in which.the trial judge questioned a witness without purpose and with undue zeal and bias. The record discloses incidents of the trial judge instructing counsel to inquire what a particular witness observed instead of how that witness felt; instructing counsel to ask specific, pinpointed questions rather than summarize previous testimony; clarifying testimony on overlooked matters before counsel examined on the next set of facts; asking a witness to speak louder; and instructing both attorneys on proper methods of examination. The trial judge’s precise language in making the above inquiries, clarifications and instructions did not reflect any bias, nor were his interruptions unduly protracted.

Appellant’s next contention is that trial and post-trial counsel were ineffective in failing to request that both opening and closing arguments be recorded. Appellant argues that absent a record of counsel’s address to the jury, potential issues, such as prosecutorial misconduct, were unavailable for appeal.

In its charge to the jury, the trial court issued the following instruction:

“You have just finished listening to argument of counsel and of course, you have already heard me tell you that their arguments are not evidence and must not be taken by you as evidence, nor must any of their references to their recollection of the evidence in any way bind you as to the facts of the case. You are the sole triers of the facts of this case. It’s your sole exclusive and collective recollections which will determine the outcome of this case.” N.T., March 17, 1978, p. 540.

A similar cautionary instruction was given to the jury at the outset of trial. Appellant does not refer to any specific prosecutorial remarks; nevertheless, had a harmful one been made, any prejudice may have been alleviated by the two cautionary instructions. Commonwealth v. Linder, 284 Pa.Super. 327, 425 A.2d 1126 (1981).

It seems, however, that appellant does not dispute the remedial effect of the cautionary instructions. Instead, he would have us categorically rule that the mere failure alone to request stenographic notes of opening and closing statements, without evidence of any prejudicial remarks made during such statements, constitutes ineffectiveness. Appellant cites Commonwealth v. Shields, 477 Pa. 105, 383 A.2d 844 (1978), in support of this proposition.

The issue of ineffectiveness of counsel here does not quite fall within the mold cast by Shields, supra. In Shields, supra, tapes of the prosecutor’s closing argument were lost and never transcribed. It was held that the unavailability of the tape or transcript deprived defendant of a meaningful appeal; therefore, a new trial was the appropriate relief. The Shields court further opined that defendant’s failure to allege specific prosecutorial remarks amounting to misconduct or prejudice was inconsequential; if defendant could allege with specificity the prejudicial portions of the prosecutor’s closing statement, no record would be necessary.

Here, no record of opening and closing statements was made; therefore, none existed to be misplaced or lost. Shields, supra, and its progeny ruled only on those circumstances where some record was made at trial but later became unavailable for review. We cannot, then, construe Shields, supra, to dictate a finding of ineffectiveness due only to counsel choice not to have a record made. Unless appellant alleges prejudice resulting from the failure to assert some particular trial error occurring during opening and closing statements, we will not reverse. Mere conjecture will not advance appellant’s position. See Commonwealth v. Sanford, 497 Pa. 442, 441 A.2d 1220 (1982); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).

Appellant’s next argument is that the portion of the prosecutor’s opening statement referring to appellant’s involvement in shoplifting at J.M. Fields’ Department Store, a crime for which he was not charged, unfairly prejudiced him. References during trial to the defendant’s unrelated criminal acts may be grounds for a new trial; however, where they are mere passing references and the court issues a cautionary instruction to the jury, a mistrial will not be granted. Commonwealth v. Corbin, 268 Pa.Super. 526, 408 A.2d 1128 (1979); Commonwealth v. Irwin, 475 Pa. 616, 381 A.2d 444 (1977). Testimony on the shoplifting spree and the obtaining of a refund upon return of the stolen articles was not elicited for the purpose of proving appellant guilty of an act for which he was not charged. It was a mere passing reference for the ostensible purpose of proving that appellant and co-defendants had the financial means to purchase narcotics, possession of which they were charged. We agree that the second prong test of the Corbin and Irwin test was not met in that no jury instruction was given to disregard the shoplifting incident; however, where such evidence is introduced for a more complete understanding of the natural course of events, no prejudice ensues and no curative instruction is necessary. See Commonwealth v. Funke, 306 Pa.Super. 542, 452 A.2d 857 (1982).

The final issue we must address is whether both trial and post-trial counsel were ineffective in not requesting a polling of the jury. Although the jury must be polled at the request of any party, Pa.R.Crim.P. 1120(f), and the polling is the defendant’s right to make certain that each juror decided voluntarily, without coercion or the influence of fatigue, Commonwealth v. Martin, 379 Pa. 587, 109 A.2d 325 (1954), we do not find ineffectiveness here for either counsel’s choice not to request a polling. Following the jury’s return from deliberations, each charge was read aloud by the court’s clerk and responded to by the foreman. There was no hint of any juror’s dissatisfaction with the foreman’s verdict announcements, nor does appellant allege any other incidents reflecting a particular juror’s dissatisfaction with the verdicts. Without more, we must not find ineffectiveness of counsel for the choice not to poll the jury. See Sanford, supra; Pettus, supra.

Appellant also advances these remaining arguments: 1) counsel was ineffective in not petitioning for separate counsel for each co-defendant, in not requesting a severance and in not conducting a multi-representation colloquy; 2) trial court erred in denying testimony from two witnesses capable of impeaching the prosecutrix; and 3) trial court erred in sending verdict slips to the jury for deliberations. Upon further research of the law and a finding of sound rationale and application of the law by the lower court, we reject these arguments and adopt the lower court opinion to that extent.

Judgment of sentence affirmed.

POPOVICH, J., concurs in the result.


author: HOFFMAN, Judge:

text:
    459 A.2d 11
    COMMONWEALTH of Pennsylvania v. Milton JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 19, 1983.
    Filed April 22, 1983.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the evidence was insufficient to support his conviction for burglary, theft by unlawful taking, receiving stolen property, and conspiracy. Because we find that the Commonwealth showed nothing more than appellant’s mere presence at the crime scene, we must reverse the judgments of sentence of the lower court and order appellant discharged.

Appellant was arrested on June 10, 1980 and charged with various offenses arising out of the burglary of his neighbor’s home. Following a non-jury trial, appellant was found guilty of all charges. The lower court denied post-trial motions and sentenced appellant to two years non-reporting probation, prompting this appeal.

In reviewing challenges to the sufficiency of the evidence, the test is whether, “viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.” Commonwealth v. Keblitis, 500 Pa. 321, 323, 456 A.2d 149, 150 (1983). So viewed, the facts are as follows:

On June 10, 1980, at approximately 12:45 p.m., Reverend Harold Wallis left his locked Philadelphia rowhome. Forty-five minutes later, his adjoining neighbor, Beatrice Woodall, resting upstairs in her front bedroom heard a “heavy thump” toward the rear of her home. She went downstairs to investigate, found nothing out of the ordinary in her backyard, and returned to bed. Shortly thereafter, she heard footsteps emanating from the second floor of Wallis’ house. She went to her front window and saw that Wallis’ car was not there. She then proceeded to her back window and observed appellant, Wallis’ adjoining neighbor on the other side, and another young man, walking in Wallis’ enclosed back yard toward the rear fence. Ms. Woodall noticed that appellant was carrying something under his arm. Both men climbed upon the concrete fence separating all the properties from the rear alley, jumped into appellant’s yard and walked into appellant’s house. Wallis returned home at 2:30 p.m. and discovered that his rear basement window had been knocked in and that two movie cameras, several bottles of whiskey, jewelry, and a coin collection were among the items missing.

“Although the Commonwealth does not have to establish guilt to a mathematical certainty, and may in the proper case rely wholly on circumstantial evidence, the conviction must be based on more than mere suspicion or conjecture.” Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973) (footnotes omitted). See Commonwealth v. McCormick, 304 Pa.Superior Ct. 321, 323, 450 A.2d 701, 702 (1982). “It is well established that a showing of mere presence at the scene of a crime is insufficient to support a conviction: evidence indicating participation in the crime is required.” Commonwealth v. Keblitis, supra, 500 Pa. at 324, 456 A.2d at 151. See Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976) (defendant emerging from common doorway of meatstore and apartment late at night shortly after man carrying box of frozen meat, and then fleeing at sight of police—held insufficient); Commonwealth v. Roscioli, supra (police responding to burglary call find defendant and two youths by phonebooth next to store window with glass removed who flee at sight of police—held insufficient); Commonwealth v. Beauford, 286 Pa.Superior Ct. 297, 428 A.2d 1000 (1981) (defendant and two males facing jimmied door with smashed window at closed beer distributor at 1:30 a.m. flee at sight of police— held insufficient); Commonwealth v. Johnson, 272 Pa.Superior Ct. 375, 415 A.2d 1246 (1979) (defendant facing freshly jimmied door with screwdriver still wedged tight and brother facing opposite way, both walk away upon sight of police—held insufficient); Commonwealth v. Smith, 264 Pa.Superior Ct. 303, 399 A.2d 788 (1979) (defendant observed standing near apartment window seconds after it had been smashed and then walking away—held insufficient). Here, there is no direct evidence that appellant pushed in the window, entered the house and stole the various items. The Commonwealth’s evidence merely places appellant and another individual in his neighbor’s enclosed yard at the approximate time of the burglary. The Commonwealth has failed to offer any evidence indicating that appellant participated in the crime and thus, has failed to prove his guilt beyond a reasonable doubt. Accordingly, we must reverse the judgments of sentence and order appellant discharged.

Judgments of sentence reversed and appellant discharged.

CAVANAUGH, J., notes dissent and would affirm on the opinion of the lower court.

      . That appellant held an unidentified object under his arm while leaving the yard does not dispel the reasonable doubts. Ms. Woodall testified that appellant held the item under one arm while scaling a five foot high concrete wall, but his companion was empty-handed. Appellant’s actions are more consistent with his entering the yard to retrieve something dropped over the wire fence separating the yards than with carrying away the bottles, cameras and other fragile and bulky items taken in the burglary.

      . The lower court's reliance upon Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972) and Commonwealth v. Viall, 278 Pa.Superior Ct. 613, 420 A.2d 710 (1980) is misplaced. In Cimaszewski, police responding to a "burglary-in-progress" call heard noises inside a real estate office. Two men ran from the rear of the building into an alley. The police captured defendant’s brother coming from the alley, heard defendant climbing over fences behind the office, and then discovered him atop a shed three lots away. The Supreme Court held that the relationship of the suspects, and defendant’s presence at the scene and flight to a nearby roof were sufficient to remove any reasonable doubt. In Viall, an officer responding to a “burglary-in-progress” call heard footsteps on the roof of the store and went back outside to investigate. He saw the defendant trying to lower himself from the roof. Upon seeing the officer, however, the defendant fled over the rooftops. This Court held that the defendant’s late night presence on the roof of a closed store, his flight from police and the large hole cut in the store’s roof were sufficient for the factfinder to infer guilt. Here, however, no evidence indicates either flight or presence in a particularly unusual place at a suspicious time. Rather, appellant was seen walking from his next door neighbor’s yard during broad daylight. Accordingly, we find Cimaszewski and Viall inapposite.


author: LIPEZ, Judge:

text:
    459 A.2d 14
    COMMONWEALTH of Pennsylvania v. Rodney SIMMONS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 9, 1981.
    Decided March 4, 1983.
    Reargument Denied May 16, 1983.
    Petition for Allowance of Appeal Granted Oct. 4, 1983.

      Kenneth L. Mirsky, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   LIPEZ, Judge:

Appellant Rodney Simmons was convicted of third degree murder, 18 Pa.C.S. § 2502, and possession of an instrument of crime, 18 Pa.C.S. § 907, on October 2, 1975, after a jury trial. Still represented by trial counsel, he took a direct appeal to the Supreme Court, which affirmed the judgment of sentence. He then filed a petition for relief under the Post Conviction Hearing Act (PCHA), represented by new counsel. The petition was denied and Simmons, now represented by a third attorney, appeals.

He makes two arguments in this appeal. First, he claims that his trial counsel was ineffective on the ground that he failed to preserve for appellate review the contention that appellant’s statement to police, given after a break in interrogation and not preceded by a rewarning of his constitutional rights, was erroneously admitted at trial. Second, he contends that his original post-conviction hearing counsel was ineffective because, he failed to assert the ineffectiveness of trial counsel in failing to preserve for appellate review a claim that the court’s charge was erroneous because it unconstitutionally placed the burden of proving self-defense on the defendant. We reject appellant’s first claim, but agree that his argument that original post-conviction hearing counsel was ineffective has merit.

In assessing appellant’s claims of ineffective assistance of counsel, we are governed by the oft-cited principles set out by our Supreme Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967): we will find counsel to have been constitutionally effective so long as we are able to conclude that the course that he took had some reasonable basis designed to effectuate his client’s best interests, id., 427 Pa. at 604, 235 A.2d at 352; ineffectiveness with regard to a failure to take a course of action will be found only if “the alternative not chosen offered a potential for success substantially greater than the tactics actually utilized, id.. 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8. Thus counsel will not be found ineffective for failing to raise a baseless claim, and it is only when the claim foregone is of arguable merit that we will make an inquiry into the basis for the decision not to pursue it. Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977).

I

Appellant’s first contention, viz., the ineffectiveness of counsel in failing to preserve for appellate review the claim that his statement to police should have been suppressed because it was obtained in violation of his rights as set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), we find to be without merit and hence affirm the order of the lower court denying relief on that ground. This claim is based on the fact that, although he was given Miranda warnings at the outset of interrogation, the statement in which he admitted having committed the shooting was given after a break in interrogation of approximately two and one-half hours and was not preceded by a rewarning of his constitutional rights.

In Commonwealth v. Bennett, 445 Pa. 8, 282 A.2d 276 (1971), the Supreme Court set forth guidelines to be used in determining when a defendant must be rewarned of his constitutional rights:

There is no prophylactic rule that a suspect must be rewarned of his constitutional rights each time custodial interrogation is renewed. Instead, we must view the totality of circumstances in each case to determine whether such repeated warnings are necessary.
Pertinent to such an inquiry are the length of time between the warnings and the challenged interrogation, whether the interrogation was conducted at the same place where the warnings were given, whether the officer who gave the warnings also conducted the questioning, and whether statements obtained are materially different from other statements that may have been made at the time of the warnings.

Id., 445 Pa. at 15, 282 A.2d at 280 (citations omitted). Here, the record shows that appellant was informed of his rights by Detective Doyle at approximately 3:01 a.m. in an interrogation room at the Police Administration Building. Doyle interrogated him until approximately 3:35 a.m., during which time appellant gave a statement regarding the circumstances surrounding the shooting in question, but neither denied nor admitted having committed the shooting. Appellant was then left alone in the interrogation room except for breaks during which he was fed and taken to the bathroom, until about 5:10 a.m., when Doyle returned to administer a neutron activation test. The test, conducted in the interrogation room, lasted until approximately 5:30 a.m. When it was completed, Doyle, without re-administering the Miranda warnings, resumed interrogation and elicited from appellant a statement in which he admitted having actually committed the shooting.

Examining these facts in light of the Bennett guidelines, we conclude that appellant’s claim that rewarnings were required is without merit. Only two and one-half hours passed between the time when appellant was advised of his rights and the time at which he gave the challenged statements. The interrogation was conducted in the room where the warnings were given and appellant was questioned by the same detective who had warned him of his rights. Moreover, there were no significant interruptions, other than the passage of time, during the period between the warnings and the challenged statements.

Although the later statement differed from that given immediately following the warnings, it was not directly contradictory. Appellant had admitted knowledge of and involvement with the shooting in the original statement and did not deny having committed it. The second statement differed significantly only in the fact that it included an actual admission of guilt of the homicide. As the other Bennett factors indicate that the second statement was not impermissibly remote from the warnings, this difference in the two statements-is not sufficient by itself to establish the existence of circumstances that would require readministration of the Miranda warnings.

Since we have found this argument for suppression of appellant’s statement to be without merit, it follows that trial counsel was not ineffective in failing to preserve it for appellate review. Accordingly, we hold that the lower court properly denied appellant’s petition for a new trial on this basis.

II

Appellant’s second claim is that his original PCHA counsel was ineffective because he failed to raise trial counsel’s ineffectiveness in not properly preserving his challenge to the portion of the court’s charge that placed the burden of proving self-defense on the defendant. Trial counsel did attempt to make this challenge on direct appeal, but the Supreme Court held it waived because no specific objection had been made at trial. Simmons, supra, 482 Pa. at 514, 394 A.2d at 440-41.

In order to assess the effectiveness of original PCHA counsel, we must weigh the merit of the underlying claim of trial counsel’s ineffectiveness. That claim rests, in turn, upon the merits of the foregone challenge to the trial court’s charge. The charge read, in pertinent part:

Now, let me go into what the law of self-defense states and then I will discuss that with you. The law says that a defendant may use deadly force, and deadly force is force capable of causing death or serious bodily injury, he may use deadly force only if he reasonably believes it is necessary to protect himself from death, serious bodily injury, and kidnapping, which is not involved here. The defendant must show he has not provoked the use of force against the person he encountered with intent to cause death or serious bodily injury, and that his method of defending himself must also depend on whether he has an opportunity to retreat.

(N.T. 10/2/75, 499-500) (emphasis added). This charge places upon defendant the burden of proving at least some of the elements of self-defense.

Although such self-defense instructions had at one time been approved by our Supreme Court, Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970), both the United States Supreme Court and our Supreme Court had made it clear before the time of appellant’s trial that it is impermissible to place the burden of proving affirmative defenses such as self-defense on a criminal defendant. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (burden of proving that defendant acted in heat of passion may not be put on defendant); Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974) (burden of proving affirmative defense of intoxication may not be put on defendant). We thus conclude that a challenge to the charge for erroneously placing the burden of proof of self-defense on defendant would have been of at least arguable merit. It follows, then, that a claim that trial counsel was ineffective for failing to make that challenge is also of arguable merit.

Ill

Moreover, the record in this case demonstrates that there can have been no reasonable basis for trial counsel’s failure to preserve the issue for appeal or for original PCHA counsel’s failure to raise the manifest ineffectiveness of trial counsel in his petition for PCHA relief. Trial counsel was aware of the case law that rendered the court’s charge improper and had even submitted a proper point for charge, citing the pertinent cases. See supra note 5. Having done this, trial counsel could not reasonably have supposed that there could be any benefit to his client in omitting the challenge to the charge from post-verdict motions. There was no danger that, by pursuing the claim post trial, appellant would be prejudiced in the eyes of the jury, and since the issue was purely one of law, counsel could not have feared that by continuing the challenge he would emphasize facts unfavorable to appellant. Indeed, the fact that trial counsel, after abandoning the claim at the post trial stage, attempted to revive it on direct appeal, see Simmons, supra, 482 Pa. at 514, 394 A.2d at 440-41, is incontrovertible evidence that the omission of the claim from post-verdict motions was born, not of “a reasonable, calculated trial strategy,” Hubbard, supra, 472 Pa. at 285, 372 A.2d at 699, but rather of the type of “sloth or lack of awareness of the available alternatives,” Commonwealth v. Twiggs, 460 Pa. 105, 111, 331 A.2d 440, 443 (1975), which requires us to find counsel ineffective.

Faced with a record that so clearly makes out trial counsel’s ineffectiveness, original PCHA counsel could have had no reasonable basis for failing to raise it in his petition for post-conviction relief. Since the claim foregone by trial counsel was purely a question of law and involved no issues of trial strategy or tactical decisions, original PCHA counsel would not have been required to ascertain knowledge of facts, not contained in the record, to determine whether trial counsel was justified in acting as he did. We therefore conclude that original PCHA counsel was also ineffective. Since we are able to determine the ineffectiveness of both original PCHA counsel and trial counsel on the record before us there is no need to remand for further evidentiary hearings.

Order reversed and new trial granted.

      . Commonwealth v. Simmons, 482 Pa. 496, 394 A.2d 431 (1978).

      . Act of January 25, 1966, P.L. 1580, 19 P.S. 1180-1 et seq.

      . The Commonwealth contends that we should not consider this claim at all because the admissibility of the statement was finally litigated on direct appeal. Our inquiry here, however, is not into the merits of appellant’s argument that the statement should have been suppressed, but rather into the separate question of whether trial counsel was ineffective for failing to preserve that argument for appellate review. “Representation by ineffective counsel gives rise to an independent basis for relief even where, as here, assessment of the ineffectiveness claim may trigger review of facts examined earlier for entirely different reasons.” Commonwealth v. Hare, 486 Pa. 123, 128, 404 A.2d 388, 390 (1979). Moreover, as the Supreme Court found appellant’s Miranda -based claim for suppression to have been waived because it was not included in his motion to suppress or in post-verdict motions, Simmons, supra, 482 Pa. at 503-04, 394 A.2d at 434-35, this case is distinguishable from Commonwealth v. Jones, 488 Pa. 270, 412 A.2d 503 (1980) and Commonwealth v. Senk, 496 Pa. 630, 437 A.2d 1218 (1981). Both of those cases involved PCHA petitions alleging ineffectiveness of counsel for failure to make claims premised upon alleged procedural defects where the procedures in question had previously been examined and approved by the Supreme Court on direct appeal. Here, because the Supreme Court expressly refused to consider appellant’s Miranda claim, we cannot say that his allegations of ineffectiveness are merely new theories for re-examination of an issue already decided. See Jones, supra, 488 Pa. at 272-73, 412 A.2d at 504; Senk, supra, 496 Pa. at 634-35, 437 A.2d at 1220.

      . The Commonwealth asserts that this claim, too, has been finally litigated and thus cannot be raised as a basis for an allegation of ineffective assistance of counsel. As with appellant’s first claim, however, this challenge to the court’s charge was held by the Supreme Court to have been waived. Simmons, supra, 482 Pa. at 514, 394 A.2d at 440-41. It may thus properly be considered by this court in adjudicating an ineffectiveness claim. See supra note 3.

      . The Commonwealth contends that the Supreme Court did not find it impermissible to put the burden of proving self-defense on a criminal defendant until Commonwealth v. Lynch, 477 Pa. 390, 383 A.2d 1263 (1978), decided after appellant’s trial. It goes on to argue that the charge was thus in accordance with law at the time it was given and hence counsel cannot be deemed ineffective for failing to predict future developments in the law. See Commonwealth v. Triplett, 476 Pa. 83, 89, 381 A.2d 877, 881 (1977). The Lynch decision itself, however, indicates that the Court considered Winebrenner to have been overruled by Rose. Lynch, 477 Pa. at 394, 383 A.2d at 1265. Moreover, the United States Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, decided 6/9/75 (almost four months before appellant's trial), made it clear that it was a constitutional requirement that the burden of proving every fact necessary to constitute the crime be placed on the prosecution, even where the prosecution would thus be required to prove a negative, such as the absence of self-defense or defense of others, id. at 700-02, 95 S.Ct. at 1890-1891. Thus the objection to the charge contemplated in this case would not require counsel to predict future developments in the law, but rather to recognize developments which had already taken place. Indeed, the record indicates that trial counsel was aware of Mullaney v. Wilbur and its implications and had requested an appropriate point for charge specifically citing Wilbur (N.T. 10/1/75 426-31). That he failed either to object when his point for charge was denied and an instruction violative of the Wilbur holding was given, or to include it in his motion for a new trial, bolsters appellant’s argument that counsel was ineffective. (See Simmons, supra, 482 Pa. 514, 394 A.2d 431 "no specific objection having been made, the issue is not properly before the court.”) Furthermore, an examination of the trial court’s charge as a whole fails to disclose any instruction that the burden of proof of self-defense rested on the Commonwealth. See Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977).

      . The Commonwealth argues that, regardless of its merit, this claim cannot serve as the basis for a finding that trial counsel was ineffective because the defense’s trial theory, that there was insufficient proof that Simmons had committed the shooting, was inconsistent with a claim of self-defense, and hence Simmons was not entitled to a self-defense charge at all and could not have been prejudiced by an erroneous charge. However, a charge on self-defense must be given whenever the issue of self-defense is injected into the trial by either the prosecution or the defense. Commonwealth v. Powers, 484 Pa. 198, 204, 398 A.2d 1013, 1015-16 (1979); Commonwealth v. Gray, 441 Pa. 91, 271 A.2d 486 (1970). Here, the prosecution introduced appellant’s statement which, although it admitted commission of the shooting, also fairly raised an issue as to the shooting’s being in self-defense or defense of another. Appellant was thus entitled to have the jury correctly charged on self-defense and was prejudiced by any material errors in that charge.

      . In this regard, this case is distinguishable from Commonwealth v. Hubbard, supra. In Hubbard, the appellant claimed that his post-trial counsel was ineffective for failing to allege the ineffectiveness of trial counsel in not objecting to improper statements of the prosecutor in closing argument. The Hubbard court found that because the decision to object or not to object to such statements involves questions of trial strategy about which no record had been developed, it could not determine whether or not trial counsel had been ineffective. Because it could not make that determination, the Hubbard court also found it impossible to determine whether post-trial counsel had a reasonable basis for his actions, since he might, through investigation of trial counsel's actions, have discovered facts not of record establishing that the underlying claim had been foregone as part of a reasonable trial strategy. The court therefore remanded for an evidentiary hearing to determine the basis of post-trial counsel’s actions and directed that, if post-trial counsel were found to be ineffective, the appropriate remedy would be to allow appellant to file post-trial motions nunc pro tunc in order to get a determination of whether trial counsel had been ineffective in the first instance. Here, in contrast to Hubbard, the omission underlying the ineffectiveness claims is fully of record and is one that no conceivable trial strategy could render reasonable. Hence no issues of fact remain for determination in an evidentiary hearing. The fact that we are thus able to say as a matter of law that both original PCHA counsel and trial counsel were ineffective distinguishes this case from Hubbard, which involved mixed questions of law and fact, and obviates the need for further hearings or the filing of additional motions.