author: TAMILIA, Judge:

text:
    559 A.2d 42
    In re Heather Marie QUICK, Shawn Michael Quick and Stacey Lynn Quick, Minors. Appeal of Dolores Marie Smith QUICK, Mother of the Above Named Children.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1989.
    Filed May 11, 1989.

      Edward A. Olds, Pittsburgh, for appellant.
    James A. Hickey, Pittsburgh, for appellees.
    Timothy W. Pawol, Pittsburgh, for Children and Youth Services of Allegheny County, participating party.
    Before CIRILLO, Presiding Judge, and BROSKY and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant appeals an Order entered on August 2, 1988 which made final a decree nisi terminating her parental rights. Appellant is the natural mother of Heather, age 13, Shawn, age 11, and Stacey, age 10, who were first removed from the home in 1979, and were later returned, only to again be removed in 1985 when husband and another man were arrested for sexually abusing them. On February 27, 1985, the children were adjudicated dependent because of physical and sexual abuse by husband and other adults while in the care of mother and husband, resulting in their placement in foster or institutional care. Both appellant and her husband were convicted of three counts of endangering the welfare of children. Appellant was sentenced to serve one to two years imprisonment and she was released from jail on July 8,1987. On March 17, 1987, a petition for involuntary termination of parental rights was filed by appellee Allegheny County Children and Youth Services, (CYS), seeking termination of the rights of appellant, her husband Kenneth Quick, and an alleged unknown natural father. The rights of the father were terminated by a June 3, 1987 Order by Judge Nathan Schwartz. (Memorandum and Decree, 2/16/88, p. 1.) By an August 11, 1987 Order, Judge R. Stanton Wettick, who had presided over the dependency proceedings, was assigned to Orphan’s Court Division at the request of the Administrative Judge of the Orphan’s court, for the purpose of hearing the contested termination of mother’s rights. On January 4, 1988, mother presented a motion seeking recusal of Judge Wettick, urging that having previously presided as juvenile court judge, he would have formed opinions based on the evidence, thus depriving her of a fair and impartial termination hearing; this motion was denied the next day. After a hearing, Judge Wettick entered a decree nisi on February 16, 1988 terminating mother’s rights pursuant to 23 Pa.C.S. § 2511(a)(5), to which mother filed exceptions. Following argument before the court en banc, the Order in question was issued, and mother timely filed an appeal with this Court.

Appellant first contends the court erred in finding clear and convincing evidence supporting termination was established by CYS. Section 2511(a)(5) provides as follows:

§ 2511. Grounds for involuntary termination
(a) General rule.- — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

23 Pa.C.S. § 2511(a)(5).

We recently discussed our standard of review of parental termination in In re Adoption of Hamilton, 379 Pa.Super. 274, 549 A.2d 1291 (1988), stating:

The evidentiary standard for terminating parental rights was formulated by the United States Supreme Court which established that parental rights may not be terminated in the absence of clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In In re: T.R., 502 Pa. 165, 465 A.2d 642 (1983) our state supreme court adopted the reasoning of Santosky as a matter of state law applicable to all termination proceedings. This principle requires evidence which is “so clear, direct, weighty, and convincing as to enable the [factfinder] to come to a clear conviction without hesitancy of the truth of the precise facts in issue.” In re Shives, 363 Pa.Super. 225, 227-28, 525 A.2d 801, 802 (1987) (citation omitted). In assessing whether the trial court’s determination is based on clear and convincing evidence, we review the chancellor’s findings. In the Matter of Adoption of G.T.M., 506 Pa. 44, 46, 483 A.2d 1355, 1356 (1984), quoted in In re Adoption of Faith M., 509 Pa. 238, 240, 501 A.2d 1105, 1106 (1985); In re J.G.J., Jr., 367 Pa.Super. 425, 532 A.2d 1218 (1987). “Absent an abuse of discretion, an error of law or insufficient evidentiary support for the findings of the Orphans’ Court, an appellate court will not reverse a hearing court’s order to terminate.” Shives, supra, 363 Pa.Super. at 227-28, 525 A.2d at 802.
We review the facts, with all conflicts resolved in favor of the Orphans’ Court as trier of fact and sole judge of credibility. In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986).

Hamilton, supra, 379 Pa.Superior Ct. at 278, 549 A.2d at 1293.

A review of the evidence in this matter supports the factual findings of the orphan’s court regarding the family:

Shawn is seriously retarded. He will always require a living situation that includes adult supervision. Following his removal from his parents’ home, he was returned to the foster home where he had lived from 1979 to 1982. He has resided in this home since April 1985. The foster parents have made a long-term commitment to Shawn.
Stacy is a mildly retarded and hyperactive child. She has resided in her current foster home since July 1985. This is a specialized foster home supervised by the PRYDE program.
Heather is a moderately retarded and emotionally disturbed child. Following her removal, she was placed for approximately one year at Holy Family Institute, a residential treatment program for seriously disturbed children. Thereafter, she spent approximately two months at the John Merck Program which provides intensive treatment to children with serious acting out behavior. From the fall of 1986 to the spring of 1987, she was placed in a specialized foster home supervised by the PRYDE program. This placement failed because of Heather’s acting out behavior. In June 1987, she was placed in the PRYDE foster home where her sister Stacey is residing. She continues to reside in this home.
The foster parents of Stacey and Heather have made a long-term commitment to raise Heather and Stacey if they are not returned to a natural parent. Also, they are prepared to adopt both children if the rights of the mother are terminated.
The mother is an intellectually limited woman who comes from a very deprived background. She has an I.Q. of approximately 60 and does not read nor [sic] write. She was one of ten children raised in a home that did not provide structure or nurturing. While growing up, she was sexually abused in her home. Witnesses described her as having extremely low self-esteem and chronic dependency needs.
Following the children’s removal, she attended the Mon-Yough MH/MR Base Service Unit for counseling for her immediate needs. She visited her children regularly but did not become involved in any counseling that addressed issues concerning their needs or ways in which she could improve herself as a parent. At that time, criminal charges were pending against her and she was extremely depressed over the events in her life.
On March 14, 1986, the mother was convicted of three counts of endangering the welfare of her children and sentenced to jail. She was released from jail on July 8, 1987. Following her release, she first lived with her sister, then by herself, and since October 1987 with a boyfriend and his family. She has not begun counseling on any regular basis. However, approximately four weeks prior to trial, she obtained a complete psychological evaluation at the Mon-Yough MH/MR Base Service Unit. Expert witnesses who testified on behalf of the mother said that at some time in the future there is a possibility that she would be capable of raising her children. These witnesses testified that this would require intensive counseling (perhaps on a daily basis) for at least two to three years. Even then, her prognosis is guarded according to these witnesses.

(Slip Op., Wettick, J. and Zavarrella, J. per curiam, 8/2/88, pp. 2-4.)

Mother argues the court erred in concluding the conditions which led to the removal of the children continued to exist at the time of trial. She urges the abusive conduct of her husband and her inability to protect the children from the conduct while she lived with husband led to the removal, and she argues she remedied this prior to trial by leaving her abusive husband, filing for divorce, and setting up a safe new life. Mother further contends her own testimony on cross-examination and the testimony of caseworker Cynthia Cook was not sufficient to sustain the burden of CYS of proving the continued existence of the conditions which led to removal, and the court erred by considering the generalized testimony of her own expert witness regarding attributes of women whose children are sexually abused in the home.

After a careful and comprehensive review of the record, testimony, and briefs, we perceive no abuse of discretion on the part of trial court in finding the condition which led to the removal of the children continues to exist. We agree with the trial court’s conclusion that the condition was the mother’s inability to protect her children, and that she had not undergone counseling or been involved in any other treatment program that would make her a more responsible parent. Moreover, as recognized by the trial court, mother continues to operate under the belief that she was in no way responsible for the mistreatment of the children, contrary to the findings of the criminal court and to statements she made to Detective James Heyl to the effect that the abuse had occurred for years and she felt she could do nothing to stop it.

Mother next urges the court erred in finding she could not or would not remedy the conditions which led to the removal within a reasonable period of time, and she argues CYS did not produce clear and convincing evidence the conditions could not be remedied.

We are not persuaded by appellant’s argument or the cases cited by her (which involve factual circumstances distinguishable from those at hand) that the court abused its discretion in finding clear and convincing evidence existed as to her inability or unwillingness to remedy the conditions which led to removal of the children. The following finding of the trial court was based on competent evidence.

We accept the testimony of the mother's witnesses (Dr. Hayes and Mr. Rahls) that appropriate treatment must include intensive therapy designed to alter drastically the mother's personality traits, that if the mother became involved in intensive therapy, any changes would probably not occur for at least two to three years, that with this treatment it is possible that the mother would make these changes over this time, and that even if the mother became involved in treatment, there is a substantial likelihood that the treatment would not be successful.

(Slip Op., pp. 8-9.)

The trial court further found, based upon the evidence, that Mon-Yough MH/MR was available to provide the appropriate treatment to appellant, and that appellant was aware of these services which could be provided and knew how to arrange for them, yet did not. Further, the court found she had been advised of her eligibility to participate in parent counseling and training through the PRYDE Program, yet she did not attend parenting programs. We perceive no abuse of the trial court’s discretion regarding the determination that mother cannot or will not remedy the conditions within a reasonable time, because as she admits, it was her inability to protect the children from abusive conduct which led to the removal (see Appellant’s Brief at p. 17), and, even if she would participate in an intensive day parent therapy program, the chances are slim that she would be fit to resume parental care within a reasonable time. This complies substantially with the requirements laid down by the Supreme Court in In re Adoption of Michael J. C., 506 Pa. 517, 486 A.2d 371 (1984), that where the parent has demonstrated a continued inability to care for the child in a safe environment and the evidence is clear and convincing that the behavior is irremediable, termination of parental rights is justified.

Mother additionally argues the court’s finding that termination would meet the needs and welfare of the children is not based on clear and convincing evidence. To the contrary, the trial court Opinion sets forth all of the testimony which clearly weighed in favor of termination when examining the needs of the children. The court pointed to the testimony which pertained to the special needs of the children, and was particularly concerned about their need for stability and certainty. It was convinced termination would best accommodate their special needs, especially in light of their very satisfactory progress in foster homes which meet their needs. Again, we find no abuse of discretion on the part of the trial court.

Mother next contends she was denied her constitutional right to a fair hearing because the judge who presided over the dependency and dispositional hearings of the children in Juvenile Division was assigned to Orphans Division to decide the termination matter. She argues the juvenile court, in dispositional hearings, routinely admits and relies upon hearsay and other prejudicial, inflammatory evidence, which would not be competent evidence in a termination proceeding, and this information could prejudice a judge’s decision on the termination.

This argument is without merit. First, although dispositional proceedings may have a lesser evidentiary standard than adjudicatory hearings under the Juvenile Act, the decision to intervene must be based on clear and convincing evidence and only then can the court consider what is in the best interest of the child, which is the proper function of the dispositional hearing. During that proceeding, the court must find clear necessity to remove the child before custody is placed elsewhere. The fact that a lesser standard is applied for admission of evidence does not obviate the rigorous requirement of finding clear necessity. We fail to see how being party to a dispositional hearing in which removal from the parents’ custody was required by clear necessity would prejudice the parent some years later, when the evidence in a termination proceeding establishes the conditions requiring removal have substantially been uncorrected. Secondly, adoption and termination procedures are logically and traditionally construed to be family matters. The consistent thread, over many years flowing through the management of family cases, has been that so far as possible the judge who initially heard the family matter should remain with it to its conclusion. Indeed, one of the most disruptive and disconcerting factors in multi-judge jurisdictions is the fragmentation of different aspects of a family case resulting from the hearing by several judges of different stages of a particular proceeding. Family problems are complex but intricately intertwined so that the best treatment so far as the parties are concerned, particularly in regard to children, as well as the most consistent and efficient approach from the judicial point of view, is for the same judge to remain involved with the family along the continuum of the particular case. Unless it was unavoidable, it would be self-defeating for the judge assigned to the termination case to be a different judge than the one who heard the dependency case. The argument by appellant that a de novo hearing was necessary, so that bias emanating from prior hearings on dependency would not infect the termination proceedings, is unmerited unless it can be established that bias actually existed in fact. It is not uncommon, but rather the rule, that children involved in juvenile and custody matters over many years, return to the same judge. Most children are not removed from home permanently nor are the parental rights terminated. The procedure permits the establishment of a baseline, as in medicine, for a determination of progress or deterioration of the child’s stability and well being. With the commitment to Permanency Planning under federal and state guidelines, the Juvenile Court Judge becomes the key to monitoring the progress of the child and the effectiveness of the Child Welfare Agency and in determining whether legal mandates have been met in assisting the family toward reunification. No one is in a better position to determine whether the parties have fulfilled their mutual responsibilities toward these goals than the Juvenile Court Judge who was involved with the child from the beginning. A new judge will not have the benefit of recall of hearings, reports and directions not fully detailed in the cold or abbreviated reports and records presented at the termination proceeding. That is not to say these recollections will be the basis for the termination decision, which must stand on its own evidence and be established by clear and convincing evidence. Rather, it will assure the record is full and complete so that termination will not be granted if the agency is overreaching, or termination won’t be denied because of a pro forma presentation. Indeed, to assure this continuity, discussion is being had and movement in favor of including termination proceedings in the Juvenile Act is underway in some states.

In support of her position appellant cites a Washington state case, In re Dependency of Hiebert, 28 Wash.App. 905, 627 P.2d 551 (1981), for the proposition that a parent at a termination proceeding should have a right to a judge different from the one who presided over the dependency proceeding. There, the judge at the dependency disposition proceeding considered termination. Because that case was decided under a state statute which is dissimilar to that in Pennsylvania, it is inapposite to her argument. Appellant also argues grounds for recusal exist in situations where a judge has heard inflammatory and prejudicial testimony in a prior proceeding which would not be admissible in a subsequent proceeding, and she contends that in the current situation, there is an “underlying unfairness to the parent whenever the judge in the termination proceeding has been exposed to a lengthy period of prior dispositional hearings.” (Appellant’s brief at p. 44.)

The judge in a disposition hearing under Pennsylvania law must focus on the preservation of the family, which is in concert with the best interest of the child, whereas in a termination case, the shift is to an acknowledgement that when the unity of the family cannot be preserved, despite the efforts of private county and state assistance and support, the best interest of the child is best served by freeing the child for adoption and providing a home which meets the requirements for proper parental care. In re Angry, 361 Pa.Super. 180, 522 A.2d 78 (1987). It is unsupportable that an experienced trial judge is incapable of making factual determinations and legal findings in regard to the same child at different hearings, based on separate statutory and philosophic considerations, without being subject to bias or prejudice. Appellant was afforded ample opportunity by the trial judge to produce any allegation of prejudicial or inflammatory matter which was offered to the court during the dependency hearing which might have been inadmissible in a termination proceeding, but her counsel could produce none nor does she point to any on appeal.

Quoting Commonwealth v. Lewis, 314 Pa.Super. 298, 460 A.2d 1149 (1983), our Court, in Commonwealth v. Bristow, 372 Pa.Super. 48, 538 A.2d 1343 (1988), discussed the circumstances under which a trial judge should recuse himself:

The determination of whether a trial judge should recuse himself depends upon the following:

... “the type of evidence that the judge hears; if the evidence is inadmissible and is of a highly prejudicial nature, the judge should recuse himself or declare a mistrial if it is too late for recusal.” The judge should also recuse himself whenever there is substantial doubt as to his ability to preside impartially. The burden to show prejudice, however, is on the party seeking recusal. “If the evidence is admissible, or not of a highly prejudicial nature, recusal is not required,” and while it may be the better practice to have a different judge preside over trial than preside over pre-trial proceedings, such a practice is not constitutionally required and has not been made the basis for setting aside a verdict reached in an otherwise proper trial. This principle appears to be based on “the prevailing view that judicial fact-finders are capable of disregarding prejudicial evidence.

Id., 372 Pa.Superior Ct. at 52, 538 A.2d at 1345 (emphasis added). As we noted above, appellant does not point to any highly prejudicial or inadmissible evidence which was placed before the trial judge at the dependency and disposition proceedings. She does, however, urge Judge Wettick should have recused himself because a serious doubt as to his impartiality has been raised. The “serious doubt” she points to is an alleged excerpt from a report of a CYS caseworker made after a June 1986 review hearing.

At the 6-4-86 Consolidated Review Hearing before Judge R. Stanton Wettick, C & YS presented recommendations that parental rights to all C’N be terminated, that the C’N be placed for adoption, and that visitation with the NM be reduced from twice a month to once a month. It was apparent from the outset that Judge Wettick was very much in favor of his C & YS recommendation for termination of rights. Throughout the hearing, he cut off questioning from the Ps’ attorneys whenever they were attempting to make a point critical of the C & YS’ recommendation____ [I]t is certain that Judge Wettick will take his first opportunity to terminate rights of [parents] involved and allow the [children] to be placed for adoption.

(Appellant’s brief at 45.)

In his Opinion the trial judge states that to the best of his knowledge he had no discussions or contacts with the caseworker or other CYS officials regarding the Quick matter aside from the court proceedings, and, since the caseworker was not called by mother as a witness at the recusal hearing, he was not able to discover what the caseworker meant by the statement. The court then explains his belief that he could render an impartial decision in this matter. Slip Op. at 26-27. Because appellant failed to sustain her burden of demonstrating any inability on the trial judge’s part to render an impartial decision, we find no error in his refusal to recuse himself.

Appellant additionally contends the Pennsylvania legislature has mandated that juvenile and termination proceedings be conducted separately, and to permit the same judge to preside over the dispositional proceedings and the involuntary termination proceedings violates the statutory scheme devised by the Pennsylvania General Assembly. She argues the Orphans’ Court Division in Allegheny County has been given exclusive jurisdiction over termination proceedings under 20 Pa.C.S. § 711, whereas the Juvenile Section of the Family Division has jurisdiction over dependency and dispositional proceedings under the Juvenile Act, 42 Pa.C.S. § 6301 et seq., and juvenile proceedings are to be conducted separately from other proceedings, citing 42 Pa. C.S. § 6336(a).

In this assertion appellant is not correct. A historical review of this matter discloses no determination by the legislature that the Orphans’ Court or Orphans’ Court judges are exclusively mandated to hear termination proceedings. The Pennsylvania constitutional amendments of 1968 provided at Article 5, Schedule to Judiciary:

ALLEGHENY COUNTY
§ 17. COURTS
(b) Until otherwise provided by rule of the court of common pleas, the court of common pleas shall exercise jurisdiction in the following matters through the family court division:
ii) Juvenile Matters: All matters now within the jurisdiction of the juvenile court.
iii) Adoptions and Delayed Birth Certificates.

Const. sched. art. 5 § 17 (emphasis added). This section brought Allegheny County into conformity with the law and practice that had heretofore applied only to Philadelphia. See 20 Pa.S.C. 713, and const. sched. art. 5 § 16, Schedule to Judiciary Article. By rule of the Common Pleas Court soon after adoption of the 1968 amendments, the Allegheny County Common Pleas Court returned jurisdiction in these matters to the Orphans’ Court Division. The Probate, Estate and Judiciary Code, 20 Pa.C.S. § 711(7), requires jurisdiction in adoptions be exercised in Orphans’ Court (exception, Philadelphia). The procedure adopted by the Administrative Judge of Orphans’ Court in its Administrative Order of July 13, 1987, as to termination proceedings, recognizes, at least in respect to the cases involving adjudicated dependent children subject to termination proceedings, the wisdom of section 17(b)(iii) and section 16 as it applies to Philadelphia. While the alignment of subject matter jurisdiction by Article 5, Schedule to Judiciary, to the various divisions established by the Constitution cannot be ignored, Posner v. Sheridan, 451 Pa. 51, 299 A.2d 309 (1973), this does not prevent the assignment of judges to the division exercising jurisdiction for the purpose of hearing some or all of the matters heard in that division. This Order prevented the problems posed by Baskin Sears v. Edward J. Boyle Co., 506 Pa. 62, 483 A.2d 1365 (1984), which held that pursuant to the Judicial Code, 42 Pa.C.S. § 952, while divisions of a court are administrative units in which is vested the full jurisdiction of the whole court, the business of the court may be allocated to divisions by general rule. No contrary rule has been promulgated in Allegheny County, pursuant to the Schedule to Judiciary, to remove this matter from Orphans’ Court.

Thus it appears that while Orphans’ Court has been allocated the business of determining adoption (termination) proceedings pursuant to law, there is no infringement of that allocation by the assignment of a Family Division Judge, by court Order, to hear a termination case. The Schedule to Judiciary, Article 5, Section 20, and Rule 702(2) of the Pennsylvania Rules of Judicial Administration provide for such assignments to expedite the business of the court.

We find the statutory scheme is not compromised by the Administrative Order in question; rather, as detailed by the trial court’s well-reasoned Opinion, permitting the judge who presided over the dependency and dispositional proceedings in Juvenile Division to sit in the termination proceeding is an effective and expeditious way to process these matters.

Finally, in a related argument, mother contends that because she relied on the belief a de novo termination proceeding would be held, she believed she did not have to be vigilant in monitoring the admissibility of evidence and preserving issues in the Juvenile Court proceedings. She argues the “retroactive effect” of the Administrative Order is fundamentally unfair and violative of due process considerations, because the statutory scheme creates a reasonable expectation of a de novo termination proceeding before a judge other than the one who presided at the Juvenile Court proceedings. As we decided in the preceding argument, the statutory scheme does not provide for a different judge to sit at the two proceedings, so that any expectation that she did not have to object to certain evidentiary offers or preserve certain issues in the dependency proceeding, based upon such a belief, was unreasonable and unfounded. Moreover, the juvenile hearings were recorded and the files of the Children and Youth Service contained all of the reports, psychological data and service plans which were available on demand to support any contention that the conclusion to proceed to termination under section 2511 of the Adoption Act was unwarranted. Appellant does not point to any evidence or issues she would have preserved, but merely makes this general argument. Further, the Administrative Order is not retroactive in effect but requires a present finding on evidence adduced in the termination hearing of the failure or inability of the mother to adequately parent. It does not rely on the juvenile hearings per se. Thus, we find the contention to be without merit.

Order affirmed.

      . According to appellee’s brief:
      On July 13, 1987 an administrative order was issued by the President Judge of the Court of Common Pleas of Allegheny County which provided that in contested parental termination proceedings involving a dependent child currently placed outside the home of a natural parent, the Administrative Judge of the Orphan’s Court Division may request the appropriate Administrative Judge to assign the judge presiding over the dependency proceedings to hear the termination proceedings. Pursuant to this order, the case was transferred to the Honorable R. Stanton Wettick who was presiding over the Quick Dependency matter.
      (Appellee's brief at p. 1.) See also Administrative Order of Court, 7/13/87, Appendix 1 to Order of Court dated 8/2/88.

      . Permanency Planning is a concept whereby children are not relegated to the limbo of spending their childhood in foster homes, but instead, dedicated effort is made by the court and the children’s agency to rehabilitate and unite the family within a reasonable time, and failing in this, to free the child for adoption. See Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272, June 17, 1980.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    559 A.2d 50
    COMMONWEALTH of Pennsylvania v. Roy SLOCUM, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 29, 1988.
    Filed May 22, 1989.

      Anne M. Nelson, New Jersey, for appellant.
    Amil M. Monora, Assistant District Attorney, Scranton, for Com., appellee.
    Before McEWEN, MONTEMURO and KELLY, JJ.
   KELLY, Judge:

Appellant was convicted of rape and related offenses with regard to his sexual abuse of his teenage daughter. On appeal he contends: counsel was ineffective in failing to adequately question prospective jurors regarding whether they, or friends, or relatives had been victims of similar crimes, or whether they had been exposed to movies or other media presentations relating to incest; prosecutorial misconduct required a new trial; and juror misconduct required a mistrial. We find no merit in the contentions and affirm judgment of sentence.

Facts and Procedural History

Between June of 1983 and January of 1984, appellant engaged in a continuous course of sexually abusive conduct toward his fourteen year old daughter. The abuse occurred after appellant had been granted custody of his daughter, who had previously resided with his former spouse and in a foster home. The assaults, which involved non-consensual sexual fondling, usually occurred late in the evening after he closed the bar he operated in Gouldsborough, Pennsylvania. On January 3, 1984, appellant called his daughter into his bedroom and proceeded to forcibly rape her. No one else was home at the time.

The victim made no report of any of the incidents of incestuous abuse to anyone until ten days after the rape. After watching a television movie about incest entitled “Something About Amelia” she confided to a friend that she too had been incestuously abused. The next day she told her school counselor, and later she repeated the same information to case workers from the County Children and Youth Services Offices.

At trial appellant contended that his daughter had fabricated the charges because of conflicts between him and her regarding her poor grades, misconduct in school, and dating relationship with a male 10 years her senior. Despite extensive efforts to impeach her testimony as not credible on these and other grounds, the jury credited the victim’s testimony and convicted appellant of rape, indecent assault, and indecent exposure.

Post-verdict motions were filed, evidentiary hearings were conducted, and eventually the post-verdict motions were denied. Appellant was sentenced to a two to four year term of imprisonment. This timely appeal followed.

I. Ineffective Assistance/Voir Dire

Appellant first contends that counsel was ineffective in failing to conduct adequate voir dire relating to potential bias based on the nature of the charges. Appellant argues that counsel was ineffective in failing to question jurors individually on voir dire as to whether they, or their friends, or relatives had been victims of similar abuse, and whether they had viewed any movies or other media presentations relating to incest. We cannot agree.

Counsel is presumed competent. In order to establish ineffectiveness, appellant must establish that: an act or omission was arguably ineffective; no objectively reasonable basis designed to effectuate appellant’s interests could exist for the act or omission; and, but for the act or omission challenged there is a reasonable probability that the result would have been more favorable to appellant. See Commonwealth v. Davis, 381 Pa.Super. 483, 554 A.2d 104 (1989); Commonwealth v. Carelli, 377 Pa.Super. 117, 546 A.2d 1185 (1988) (allocatur denied). In assessing appellant’s claim that counsel was ineffective during the conduct of voir dire we must consider the limited role counsel plays in voir dire in non-capital trials in Pennsylvania.

The sole legitimate purpose of voir dire is to ensure selection of a competent, fair, and impartial jury. Commonwealth v. Drew, 500 Pa. 585, 588-89, 459 A.2d 318, 320 (1983); Commonwealth v. Hathaway, 347 Pa.Super. 134, 142-43, 500 A.2d 443, 447 (1985); Commonwealth v. Bullock, 384 Pa.Super. 269, 273-274, 558 A.2d 535, 537 (1989); Commonwealth v. Newman, 382 Pa.Super 220, 237, 555 A.2d 151, 159 (1989). While the trial court must provide reasonable latitude for counsel to discover and expose grounds to challenge members of the venire for cause, the court must also consider the countervailing privacy interests of the members of the venire. The United States Supreme Court explained in Press Enterprise Co. v. Supe rior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), that:

The jury selection process may, in some circumstances, give rise to a compelling interest of a prospective juror when interrogation touches on deeply personal matters that person has legitimate reasons for keeping out of the public domain. The trial involved testimony concerning an alleged rape of a teenage girl. Such questions may have been appropriate to prospective jurors that would give rise to legitimate privacy interests of those persons. For example a prospective juror might privately inform the judge that she, or a member of her family, had beén raped but had declined to seek prosecution because of the embarrassment and emotional trauma from the very disclosure of the episode. The privacy interests of such a prospective juror must be balanced against the historic values we have discussed and the need for openness of the process.
To preserve fairness and at the same time protect legitimate privacy, a trial judge must at all times maintain control of the process of jury selection and should inform the array of prospective jurors, once the general nature of sensitive questions is made known to them, that those individuals believing public questioning will prove damaging because of embarrassment, may properly request an opportunity to present the problem to the judge in camera but with counsel present and on the record.

464 U.S. at 511-12, 104 S.Ct. at 825, 78 L.Ed.2d at 639-40 (emphasis added); see generally Note, The Right to Privacy of Prospective Jurors During Voir Dire, 70 Cal.L.Rev. 708, 712-23 (1982); Comment, Voir Dire Limitations as a Means of Protecting Juror’s Safety and Privacy, 93 Harv. L.Rev. 782, 782-92 (1980); Note, The Defendant’s Right to an Impartial Jury and the Rights of Prospective Jurors, 48 U.Cin.L.R. 985, 985-98 (1979). The appropriate scope of voir dire will consequently depend upon the peculiar facts of particular cases. Commonwealth v. DeHart, 512 Pa. 235, 247, 516 A.2d 656, 662 (1986); Commonwealth v. Richardson, 504 Pa. 358, 362, 473 A.2d 1361, 1363 (1984).

While voir dire related to the discovery of grounds for challenges for cause will certainly aid counsel in exercising peremptory challenges, counsel is not entitled under Pennsylvania law to ask questions intended solely to aid the exercise of peremptory challenges. Commonwealth v. England, 474 Pa. 1, 6-7, 375 A.2d 1292, 1295 (1977); Commonwealth v. Hathaway, supra, 500 A.2d at 447; Commonwealth v. DeMarco, 332 Pa.Super. 315, 331, 481 A.2d 632, 640 (1984); see also Gaskins, “Jury Selection in Pennsylvania,” in How to Pick a Jury, at 36 (PBI 1986). Moreover, it is well settled that the scope and manner of voir dire is left to the sound discretion of the trial court, and the trial court’s decisions relating to the scope of voir dire will only be reversed in exceptional cases when an abuse of that broad discretion occurs. Commonwealth v. Abu-Jamal, 521 Pa. 188, —, 555 A.2d 846, 852 (1989); Commonwealth v. Richardson, supra, 504 Pa. at 362, 473 A.2d at 1363; Commonwealth v. Drew, supra, 500 Pa. at 589, 459 A.2d at 321; Pa.R.Crim.P. 1106(d).

Appellant contends that trial counsel erred in failing to seek more extensive individual voir dire designed to uncover possible bias based on the nature of the charges. The transcript of voir dire proceedings reveals that the following question by defense counsel was the only question related to such potential bias asked on voir dire;

The charges are rape, indecent assault, indecent exposure, and another count of indecent assault. Does anybody because of the nature of these offenses have an inability to serve as a member of this jury because they would be prejudiced against the Defendant by these charges?

(N.T. 8/5/85 at 10). At a post-verdict evidentiary hearing on appellant’s claim of ineffective assistance of counsel following appellant’s retention of new counsel for post-verdict proceedings and appeal, appellant’s prior counsel testified that he felt that voir dire in this area was a delicate matter and that the question he asked during voir dire was adequate to elicit a response, if there had been any potential for prejudice in that regard. The trial court agreed, and we concur as well.

In support of his contention that voir dire was inadequate appellant notes the following: the estimated incidence of sexual abuse of females in America is as high as one in three women; men have also endured significant incidence of sexual abuse; and, the proportion of that abuse which goes unreported is also estimated to be quite high. Appellant reasons from those facts that there is a significant likelihood that one or more of the members of a given venire may have been the victim of some form of sexual abuse. This is a quite tenable suggestion. Indeed, it might also be noted that it is also likely that one or more perpetrators of some form of sexual abuse may also be members of the venire.

Appellant then collects various authorities for the general propositions that: people tend to minimize their prejudices; people tend to conform to perceived group norms; people are reluctant to disclose embarrassing or demeaning facts in front of large groups; highly offensive crimes like rape or incest tend to elicit emotional responses from victims of similar abuse; direct specific questioning of a particular individual is more likely to result in the disclosure of embarrassing or demeaning facts than general group questioning. On the basis of these propositions, appellant concludes that counsel’s tactics on voir dire were unreasonable.

Though the avowed purpose of voir dire is to select an impartial jury, it can hardly be questioned that both defense and prosecution generally seek this end by attempting to identify anyone perceived to be likely to be unfavorable. The immediate goal for counsel during voir dire has generally been the selection of a favorable rather than a fair jury. Moreover, it has long been assumed that the more information counsel had regarding the prospective jurors the more “effectively” counsel could exercise peremptory challenges to secure a favorable jury. The venerable trial advocate Clarence Darrow explained:

Choosing jurors is always a delicate task. The more a lawyer knows of life, human nature, psychology, and the reactions of the human emotions, the better he is equipped for the subtle selection of his so-called ‘twelve men, good and true.’ In this undertaking, everything, pertaining to the prospective juror needs to be questioned and weighed: his nationality, his business, religion, politics, social standing, family ties, friends, habits of life and thought; the books and newspapers he likes and reads, and many more matters that combine to make a man; all of these qualities and experiences have left their effect on ideas, beliefs and fancies that inhabit his mind.

Darrow, “Attorney for the Defense: How to Pick a Jury,” Esquire Magazine (May 1936), reprinted in Darrow, Verdicts Out of Court, at 311-24 (1963). (Emphasis added). Darrow found virtually every aspect of a juror’s life relevant to the “intelligent” exercise of peremptory challenges and challenges for cause.

Jury selection techniques have “progressed” in recent years from reliance on the stereotype driven “conventional wisdom” of experienced members of the bar, to increased reliance upon the expert assistance of social scientists aided by computer analysis of “characteristic based statistical probabilities.” Compare Darrow, supra, at 13-24 (providing stereotype driven jury selection pointers) and Schwartz & Fleming, To Know Your Jurors, Know Their Community, 1 Crim. Justice 21, 21-3 & 47-8 (1988) (discussing the use of sophisticated studies and surveys in jury selection); Roberts, Is This a Case That Warrants a Jury and Trial Consultant, 10 Trial DiplJ. 15, 15-23 (1987) (same); Winston & Winston, The Use of Sociological Techniques in the Jury Selection Process, 6 J.Crim.Def. 79, 79-97 (1980) (same).

Social scientists aided by computer analysis, manage to find meaning in facts even Clarence Darrow would have rejected as irrelevant. For example, a recent study suggested that significant statistical probabilities regarding jurors’ views toward capital punishment could be gauged by such seemingly innocuous factors as how much television jurors watched, or how well they liked their neighbors. See Winston & Winston, supra, 6 J.Crim.Def. at 81. Voir dire as intrusive and protracted as a social scientist aided by computer analysis might desire in order to assist counsel to “intelligently” exercise peremptory challenges and to “effectively” elicit disclosures “necessary” to make challenges for cause, would be likely to leave the venire without a stitch of privacy or a shred of dignity.

However, in Pennsylvania, neither the prosecution nor the defense have a “right” to voir dire on matters addressed solely to the “intelligent” or tactical use of peremptory challenges. See Commonwealth v. England, supra; Commonwealth v. Hathaway, supra. Rather, voir dire may properly be limited to questions reasonably designed to uncover bias or prejudice harbored by individual members of the venire.

Moreover, appellant’s argument to the contrary notwithstanding, we find that general questioning regarding the potential of personal prejudices arising from the nature of the charges in cases involving sexual abuse in general, or intrafamilial sexual abuse in particular, has a strong tactical basis. Any member of this venire could have easily answered affirmatively to the general question asked by defense counsel on voir dire in this case, without any sense of shame or embarrassment, as no personal disclosure would necessarily be implied by such a response. If further examination was then deemed necessary to determine whether a valid basis for a challenge for cause actually existed, that examination could then have been made by the court, with counsel present, out of the view or hearing of the full venire. See Press Enterprise Co. v. Superior Court, supra. Thus, any shame or embarrassment experienced by the prospective juror could be effectively limited. In a group, and even in a more limited setting, members of a venire who have been victims of sexual abuse may be unwilling or unable to bring themselves to disclose the fact of their prior victimization by similar abuse. General questions, especially in an initial group voir dire, provide a degree of insulation which may permit disclosures otherwise not forthcoming. In that manner the likelihood of the disclosure of potential bias is enhanced.

Some members of a venire may never disclose their prejudices fully. For some, their own denial of the past events may be so strong as to prevent conscious awareness of the events, or of their potential prejudice. Whether the general questioning employed here, or the specific questioning appellant claims ought to have been employed, would actually have been more effective in eliciting disclosures from those who might eventually make disclosures of their potential prejudices is wholly a matter of conjecture at this late date.

Regardless of the precise balance struck between the merits of the different tactical approaches to voir dire discussed above, however, it is enough for us to say that the course chosen by trial counsel was reasonable. Like cross-examination, the conduct of voir dire is primarily a matter of individual style and highly subjective tactics; counsel’s decisions regarding either will rarely give rise to a legitimate claim of ineffective assistance. Cf. Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987). No legitimate claim exists here.

II. Prosecutorial Misconduct

Appellant contends that the prosecutor’s closing argument was intemperate and highly animated and that it inflamed the juror’s passions and prejudices. He concludes that the declaration of a mistrial was therefore required. Upon careful review of the transcript of both closing arguments, including the particular comments challenged by appellant, we find no merit in the contentions.

Appellant objects to the prosecutor’s references to incest as “insidious,” “evil,” and “secret.” The facts of this case, and the common opinion of decent society, fully sustain and justify those characterizations. While prosecutor’s may not be permitted to use outrage at the type of crime committed as a substitute for the evidence of guilt necessary to convict, a prosecutor is nonetheless permitted, and even expected, to breath life with all its outrage, shame, and trauma, into otherwise sterile words like “rape” and “incest” during closing argument. To do otherwise would be to deny the full truth which those words imply, and to withhold from the jury a true image of the facts from the prosecution’s perspective. Those references were not properly objectionable.

Appellant also objects to argument by the prosecution which suggested that conviction in this case would bring “the beginning of the end” of child sexual abuse in their county. This argument was improper. However, an immediate objection was sustained, and a clear, forceful and direct curative instruction was given by the trial court. We have no reason to doubt the trial court’s estimation of the efficacy of its curative instruction.

Appellant also objects to argument by the prosecutor which suggested the prosecutor’s personal beliefs, rather than his professional argument. This is a common error which counsel for both sides in hotly contested cases often fall into in the heat of the argument. Such argument is unquestionably improper and objectionable. Again, however, an objection was made immediately, was sustained, and was followed by an appropriate curative instruction. Again, we have no reason to question the trial court’s estimation of the efficacy of its curative instruction.

Viewed together, the prosecution and defense both pulled hard on the rein which the trial court held during closing arguments. Both sides were reined in when they began to go too far. We see no likelihood that the arguments stampeded the jury into verdict based on passion and prejudice rather than fact. Hence, we reject appellant’s second contention. See Commonwealth v. Howard, 375 Pa.Super. 43, 543 A.2d 1169 (1988); id., 375 Pa.Superior Ct. at 62-64, 543 A.2d at 1179-80 (Kelly, J., joining and concurring).

III. Juror Misconduct

Appellant alleges two instances of juror misconduct which he claims require a new trial. We find no merit in the contentions.

First, appellant contends that, prior to deliberations, a juror met and questioned his daughter (not the victim) out of court. The daughter testified at a post-verdict evidentiary hearing that the juror had questioned her regarding the case. A second teenage girl partially corroborated this testimony by indicating that she had seen the juror talking with the daughter sometime during the general time period when the trial had occurred, but that she could not remember the date of the incident nor did she hear any part of the conversation. The juror in question testified and denied that any such contact had occurred. The trial judge sitting as finder of fact at the evidentiary hearing assessed the credibility of the witnesses and resolved the conflict in favor of the juror. Though the juror had been warned of the potential consequences of any self-incriminating evidence she might give, the judge was aware of that proper warning (U.S. Const.Amend. 5), and presumably considered its potential effect on the juror’s candidness in assessing credibility. We find no basis to disturb the trial court’s finding that the alleged improper contact did not occur. See Commonwealth v. Syre, 513 Pa. 1, 518 A.2d 535 (1986).

The second allegation of juror misconduct was argued by appellant in support of his first contention of error and not set forth as a separate ground for relief. Nonetheless, in light of the unique and troubling context in which the claim arose, we find direct and separate discussion warranted.

It appears that during jury deliberations two friends of appellant “happened” to be loitering in the area outside the room where the jury was deliberating its verdict in this case and overheard a juror “exclaim,” “I was rape by my father too, and this bastard isn’t going to get away with it.” Both reported the incident to trial counsel. After the verdict was entered, trial counsel employed a private investigator to interview the jurors to check-out the claim. The investigator discovered that the statement had been made, but that it had been made in the context of a dramatic demonstration by the juror in question to her fellow jurors of how a false claim could be convincingly asserted. At the post-verdict evidentiary hearing the trial attorney indicated that he found no basis to pursue the matter further. The trial court agreed, and we concur.

The foregoing incident demonstrates, however, the need to ensure the privacy of juror deliberations, and the harm which can arise from permitting casual eavesdropping or even incidental access to the immediate area where such deliberations are conducted. An isolated comment taken out of context spawned a private investigation and has been suggested as a basis to impeach a jury’s verdict. As it turns out, the comment did not have the import first suspected, and in no way suggests that the juror answered falsely on voir dire, or that the verdict was otherwise compromised. It is hoped, however, that notice of this regrettable intrusion upon the privacy of jury deliberations will engender renewed vigilance in preventing such intru- ‘ sions in the future.

Conclusion

Based upon the foregoing judgment of sentence is affirmed.

MONTEMURO, J., concurs in the result.

      . The impact of the show was not peculiar to this victim. Rather, John Crewdson, then day metropolitan editor of the Chicago Tribune, has reported:
      Nearly half of those who watched television that night were watching Amelia, and when it was over, child-abuse telephone hotlines across the country began to ring. The callers numbered not in the hundreds or the thousands, but in the tens of thousands. They included children who said they were being sexually abused, children who thought their friends were being abused, teachers who thought their students were being abused, mothers who thought their daughters and sons were being abused, grown women and not a few men said they had been abused as children — even a handful of child abusers who wanted help.
      Crewdson, By Silence Betrayed: Sexual Abuse of Children in America, at ix (1988). What portion of the reports spawned by Amelia were well-founded evidence of a productive new awareness and what portion were merely the unfounded by-product of heightened sensitivities, is of course a matter of conjecture. In this case, a jury has been convinced that Amelia had its intended effect on an actual victim.

      . While it is not necessary to detail the other grounds here, it suffices to say that they were typical of the aggressive adversarial attempts commonly used to discredit victims of sexual assault by suggesting every possible defect of conduct, character, and reputation.

      . There is considerable disagreement among attorneys, judges and commentators, as well as diversity in the law of the various common law jurisdictions, regarding the proper scope of voir dire as it relates to the exercise of peremptory challenges. See Annotation, Right of Counsel in Criminal Case Personally to Conduct Voir Dire Examination of Prospective Jurors, 73 A.L.R.2d 1187, 1195-98 (1960), 73-75 A.L. R.2d Supp. 40, 40-41 (1986 & 1988 Supp.) (noting the split of opinion as to whether defendants have a right to voir dire on matters addressed solely to the exercise of peremptory challenges); cf. East, Jury Packing: A Thing of the Past, 48 MLR 518, 519-20 (1985) (contrasting the restricted inquiries permitted under English law with "wide-open” voir dire permitted in American courts). Pennsylvania’s policy of vesting the trial court with broad discretion to determine the appropriate scope of voir dire based upon the facts and circumstances of the particular case represents a middle grounds position which seeks to balance legitimate conflicting interests in the efficient administration of justice and the privacy of venire members, on one hand, with equally legitimate interests in the discovery and disclosure of grounds for challenges for cause on the other hand.

      . Appellant cites Mazur, Understanding the Rape Victim: A Synthesis of Research Findings, at 36 (1979) and Koss & Harvey, The Rape Victim, at 10 (1987). We note that thorough collections and analysis of the principle studies in this area may be found in Crewdson, By Silence Betrayed, at 24-33 (1988) and Warshaw, I Never Called it Rape, at 11-14 (1988). See also Attorney General’s Family Violence Task Force, Violence Against Children, at 5-8 (Pa. 1987) (discussing local and national child sexual abuse statistics). But see Besharov, “Unfounded Reports: The Newest Danger to Abused Children,” in Spiegal, A Question of Innocence: A True Story of False Accusation, at 265-71 (1986) (noting that public awareness has also resulted in a dramatic increase in reports of sexual abuse deemed "unfounded” after investigation). With respect to the incidence of unreported sexual assault, see Commonwealth v. Willis, 380 Pa.Super. 555, 574 n. 5, 552 A.2d 682, 691 n. 5 (1988) (collecting authorities). See also Crewdson, supra; Warshaw, supra.

      . While this will certainly be true in some cases, the mere fact that an individual or an individual’s close friend or relative may have been victimized, sexually or otherwise, in a manner similar to that alleged in a case to be presented to such a juror does not alone warrant their exclusion for cause. Rather, the controlling question is whether the trial court, assessing the venire member’s answers and demeanor, is or is not persuaded that the prospective juror will be able to set aside potential bias and render a true verdict solely on the evidence presented. See Commonwealth v. Lane, 521 Pa. 390, —, 555 A.2d 1246, 1249 (1989).

      . Appellant’s authority for this proposition is tenuous at best. He cites psychologists observations for the basic premise of reluctance to disclose, but shifts to articles by attorney advocates for expansive voir dire to support his particular conclusion that specific questions in individual voir dire were required. (Appellant’s Brief at 12-24). We note particularly appellant’s repeated reliance upon authorities discussing techniques to ensure elicitation of sufficient information to enable the "intelligent” or "effective” use of peremptory challenges. Such reliance is misplaced in that voir dire in Pennsylvania is simply not intended to permit inquires directed toward those broader and necessarily more invasive ends.

      . Though cloaked in the scientific garb of computer analysis, ‘‘characteristic based statistical probability” indicators for jury selection remain as conjectural as to particular members of the venire as the outdated "conventional wisdom” they have begun to replace. Neither tell us anything relevant to the disposition of a challenge to a particular member of a venire for cause.
      We note that a statistically significant correlation between belief in the jury system and the likelihood of conviction has also been reported. See Sealy, Another Look at Social Psychological Aspects of Juror Bias, 5 Law & Hum.Behav. 187, 187-200 (1981). Such “bias" is hardly likely, though, to impress trial or appellate courts as a legitimate basis upon which to question or challenge prospective jurors.

      . We note that it is a third degree misdemeanor to intentionally listen, by any manner, to the private deliberations of a jury. See 18 Pa.C.S.A. § 5103; accord 18 U.S.C.A. § 1508.


author: HESTER, Judge:

text:
    559 A.2d 58
    COMMONWEALTH of Pennsylvania v. James McFADDEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 30, 1989.
    Filed May 22, 1989.

      Aaron C. Finestone, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before DEL SOLE, KELLY and HESTER, JJ.
   HESTER, Judge:

Appellant, James McFadden, appeals from the judgment of sentence of seven-and-one-half-to-fifteen-years imprisonment imposed following his conviction by a jury of third degree murder and possessing instruments of crime. The charges arouse out of the strangulation, stabbing and axe murder of Vanessa Bailey in her apartment in Philadelphia on October 2, 1986. On appeal, appellant claims that: (1) the trial court erred in denying his motion to suppress his confession; (2) the trial court erred in permitting the admission of the murder weapons into evidence and in allowing the prosecutor to cross-examine him about his confession; and (3) the evidence was insufficient to support the third degree murder verdict. We will discuss these contentions seriatim and will review the evidence introduced at trial in conjunction with our disposition of the third issue. We affirm.

First, appellant argues that his confession should have been suppressed since his waiver of his Miranda rights was not knowing or voluntary. Specifically, he alleges that the waiver was involuntary due to the following circumstances: he was intoxicated, his intelligence and education are limited (he is unable to read or write, having received only a first grade education), and he was intimidated by the police when they confronted him with statements that he made to his friends.

The Pennsylvania Supreme Court has recently commented on our standard of reviewing a suppression court’s determination that a confession is admissible at trial. Commonwealth v. Edwards, 521 Pa. 184, 555 A.2d 818 (1989):

The suppression court, which hears the testimony, must decide whether the Commonwealth has established by a preponderance of the evidence that the statements of the accused were voluntary and the waiver of his constitutional rights was knowing and intelligent. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). “[T]he determination as to whether a knowing, voluntary and intelligent waiver was effected is to be made by viewing the totality of the circumstances.” Commonwealth v. Chacko, 500 Pa. 571, 583, 459 A.2d 311, 317 (1983).
Our responsibility on review is “to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” Commonwealth v. Goodwin, supra 460 Pa. [516] at 521, 333 A.2d at [892] 895; [(1975)] see Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974). In making this determination, this Court will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. See Culombe v. Connecticut, supra 367 U.S. [568] at 604, 81 S.Ct. [1860] at 1878 [6 L.Ed.2d 1037]; [ (1961) ] Commonwealth v. Goodwin, supra 460 Pa. at 521, 333 A.2d at 895; Commonwealth ex rel. Butler v. Rundle, supra 429 Pa. [141] at 149-50, 239 A.2d [426] at 430. [(1968)]
Commonwealth v. Kichline, supra., at 280-81, 361 A.2d at 290.

Id., 521 Pa. at---, 555 A.2d at 825-826.

Appellant’s first contention is that he was intoxicated at the time of his arrest. Initially, we note that “[t]he fact that the appellant had been drinking before his arrest does not automatically render his statements inadmissible.” Id., 521 Pa. at —, 555 A.2d at 826. Evidence of alcohol consumption does not render a confession inadmissible, it only affects the weight to be accorded to the confession. Id., 521 Pa. at —, 555 A.2d at 827. Furthermore, the suppression court specifically found that appellant was not intoxicated. Notes of Testimony (“N.T.”), 1/29/88, at 9-10. This finding is supported by the testimony of two police officers who observed appellant at the time of his confession. Their testimony established that appellant was speaking clearly, walking steadily, and did not act or appear to be drunk. N.T., 1/27/88, at 41, 44, 82-85, 109-110. See Commonwealth v. Stark, 363 Pa.Super. 356, 526 A.2d 383 (1987) (suppression court’s finding that appellant was not under influence of alcohol affirmed when it was supported by police officer’s testimony that appellant was alert, coherent and in control of his faculties).

Next, appellant claims that his statement should have been suppressed since he has only a first grade education and cannot read or write. Again, the suppression court rejected this claim, finding that appellant understood the Miranda warnings since they were given orally and that he voluntarily and knowingly waived his rights. N.T., 1/29/88, at 20-21, 29-30. This finding is supported by Detective Roger Harmon’s testimony that he advised appellant of his rights and that appellant answered seven questions indicating that he understood his rights and wanted to waive them. N.T., 1/27/88, 73-77. Since the warnings and appellant’s responses to the detective’s questions were admittedly given orally, the fact that he could not read or write was irrelevant. Commonwealth v. Stafford, 451 Pa. 95, 301 A.2d 600 (1973); see also Commonwealth v. Phillips, 273 Pa.Super. 321, 417 A.2d 669 (1979). Furthermore, after appellant’s statement was transcribed, Detective Archie Peay orally read it to him, and appellant, without requesting corrections, signed each page of it. N.T., 1/27/88, 108-09, 113-14. Since the record supports that appellant understood the contents of his confession prior to signing it, we affirm the suppression court’s determination that his limited intelligence did not render it unknowing.

Finally, appellant argues that the confession was the result of police intimidation, physical violence, and that police guided his signature. The suppression court specifically rejected appellant’s testimony as to police violence and appellant’s testimony that police had signed his name to the confession. N.T., 1/29/88, at 9, 30-32. In fact, appellant confessed once he was confronted with statements of two people, who told police that he had confessed. The police are permitted to confront a suspect with incriminating evidence. Commonwealth v. Rose, 483 Pa. 382, 396 A.2d 1221 (1979), and the confession appears to have been a result of this rather than any coercive police tactics. Since appellant’s allegations are meritless, we reject his claim that his confession was constitutionally tainted.

Appellant’s second issue relates to evidentiary rulings by the trial court. They are that the trial court erred in allowing 1) one of the murder weapons, a pen knife, to be introduced into evidence when the pen knife was not mentioned in the bill of information; 2) the jury to see the murder weapons; and 8) appellant to be cross-examined with his confession.

As to the pen knife, variance between information and proof at trial is harmless error unless a defendant could be misled at trial, prejudicially surprised in efforts to prepare a defense, precluded from anticipating the prosecution’s proof, or otherwise impaired with respect to a substantial right. Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983). Here, it is clear that appellant was not prejudiced since he had actual knowledge that the pen knife was going to be introduced at trial. At the suppression hearing, the admissibility of the pen knife was specifically litigated, N.T., 1/28/88, at 5-18; N.T., 1/29/88, at 26-27, and appellant did not raise his present objection. Accordingly, appellant anticipated the evidence and should have been prepared.

As to the murder weapons, it was within the trial court’s discretion to allow the jury to see them. Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726 (1970) (trial court properly admitted two sections of tile-covered floor on which appellant banged victim’s head); Commonwealth v. Allen, 239 Pa.Super. 83, 361 A.2d 393 (1976) (trial court properly permitted jury to examine blood-stained scissors used in assault).

Regarding appellant’s cross-examination, we first note that a trial court’s decision on the permissible scope of cross-examination will not be disturbed absent an abuse of discretion. Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846, 854 (1989). In this case, the prosecutor utilized appellant’s confession to show inconsistencies between it and appellant’s trial testimony. This was permissible. Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977), overruled on different grounds, Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981) (trial court properly permitted prosecutor to cross-examine appellant as to inconsistencies between trial testimony and prior statements to police); see also Commonwealth v. Hussmann, 335 Pa.Super. 603, 485 A.2d 58 (1984) (trial court properly permitted prosecutor to cross-examine appellant as to inconsistencies between trial testimony and prior deposition testimony in civil case).

Appellant’s final request is that his conviction be overturned on the basis that the evidence was insufficient to support a conviction for third degree murder. His argument is that the police confession and his confession to a witness, James Irvin, demonstrate that he killed the victim in the heat of passion since she was unfaithful to him. Accordingly, he alleges, at most he was guilty of involuntary manslaughter.

Our standard of review on this issue is well-established:

The test for the sufficiency of the evidence in a criminal case is whether the evidence is sufficient to prove every element of the crime beyond a reasonable doubt. See Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979). In making this determination, the reviewing court must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder properly could have based its verdict. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980).

Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1267-1268 (1989).

The evidence introduced at trial established that on October 2, 1986, the victim, Vanessa Bailey, was struck twice in the head with an axe, stabbed with a knife in the throat, and strangled at her apartment. Philadelphia police officer Edward Heiser testified that he and his partner were called to the murder scene at 6:15 p.m. by James Irvin. Irvin, appellant, and a third man were waiting for them. Appellant was arrested in the hallway to the victim’s apartment. An axe and pen knife were removed from the murder scene, but they were not dusted for fingerprints due to their surface composition, which was not conducive to finger imprinting.

Veronique Fredericks was also a witness, and she said that she saw appellant outside the victim’s apartment at 5:30 p.m. on the day of the murder. Angela Boykins also testified. She was with the victim earlier that morning, helping to plan a party for the victim’s boyfriend. When Boykins returned to the victim’s apartment in early afternoon, appellant was with Vanessa. At that time, Vanessa displayed an axe which she apparently used for protection and wanted sharpened. Boykins stayed for fifteen minutes and left.

James Irvin testified that at around 4:30 p.m. on October 2,1986, he and appellant were drinking with William Moore, Irvin’s brother-in-law, at Moore’s apartment, when Irvin and Moore began teasing appellant about getting in trouble with his wife over his affair with Vanessa. Appellant responded that he would, “kick [his wife’s] ass,” that he already had “one body” and that he could do the same to his wife. N.T., 02/05/88, at 37-38. When the two men disbelieved the murder confession and taunted appellant further, appellant insisted that he had killed (former Miss America) Vanessa Williams. He said that “he had hit her three times with an axe,” id. at 45, because he “caught her wrong.” Id. at 47. Irwin and More then realized that appellant was talking about his girlfriend Vanessa. Irvin immediately sent his niece to check the victim’s apartment and, since there was no answer at the door, Irvin, Moore and appellant entered the victim’s apartment and discovered her body. Irvin summoned police after confronting appellant, who stated that he wanted to “turn himself in.” Id. at 42.

At the police station, appellant at first tried to blame Vanessa’s death on Veronique Fredericks who had argued with Vanessa earlier that afternoon about money missing from Vanessa’s apartment. When confronted with Irvin’s statement about his confession, appellant recanted and gave the following version of the events:

A “Question: Mr. McFadden, you indicated that you are willing to tell us the truth about this murder; is that correct?
“Answer: Yes.
“Question: Will you now go in your own words and tell us about this incident, the beating death of Vanessa Bailey?
“Answer: The first part is true up until the part when I said I went back to the apartment and found the body. I did go home after Vanessa and [Veronique] were arguing.
“When I went back to Vanessa’s house, I knocked on the door and Vanessa let me in. She was playing oldies but goodies records. She was playing the radio loud. I asked her who all the [expletive] liquor was for. She said she was giving her old man a party. I asked her if she was giving me a party. She said it damn sure wasn’t me. I asked her who [expletive] she think she was talking to. She went into the bedroom—
[A]nd got the axe and came back into the living room. I grabbed the axe out of her hand and popped her up side the head with it. I hit her one time with the handle part. Then I dropped the axe on the floor, turned around and walked out the door.
“Question: Did you see her fall?
“Answer: I don’t know. I didn’t care. I was so mad.
“Question: Where did you go after leaving Vanessa’s house?
“Answer: I went home to check on my kids and to see who was in the house. This was about three or four o’clock. I stayed there for about five minutes. Then I went around to [William Moore’s house] to get a drink. I told [Moore] that she was laying on the floor, that I hit her.
“Question: Why did you get mad over the party? “Answer: Because I was giving Vanessa a hundred dollars a week and she was spending it on another man.
“Question: Have you ever had any altercations with Vanessa before?
“Answer: I have been with her for five years and never laid a hand on her.”

Id. at 67-69.

We concur with the jury’s determination that the fact that appellant’s paramour was having a party for another man is not “serious provocation” under 18 Pa.C.S. § 2503. The jury’s convictions are based on sufficient evidence.

Judgment of sentence affirmed.


author: POPOVICH, Judge:

text:
    559 A.2d 63
    COMMONWEALTH of Pennsylvania, Appellee, v. Ronald EDWARDS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 7, 1989.
    Filed May 15, 1989.
    Petition for Allowance of Appeal Denied Oct. 19, 1989.

      Allen C. Welch, Clearfield, for appellant.
    Matthew R. Gover, Assistant District Attorney, Harrisburg, for the Com., appellee.
    Before McEWEN, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

In this case of first impression, Ronald Edwards appeals from the judgment of sentence entered on July 20, 1988, by the Dauphin County Court of Common Pleas, following his conviction under 75 Pa.C.S.A. § 3742, for failing to stop his vehicle after being involved in an accident resulting in serious bodily injury. Pursuant to one of the sentencing provisions of the statute, § 3742(b)(3), the court sentenced the appellant to a period of incarceration of ninety (90) days (the mandatory minimum) to one year and ordered him to pay a fine of one hundred ($100) dollars. However, we find that § 3742(b)(3) is inapplicable presently, and we remand for resentencing in accordance with this opinion.

This case was called to trial on October 5, 1987. Prior to trial on the charge sub judice, the appellant pleaded guilty to the charges of false report to law enforcement agency, 18 Pa.C.S.A. § 4906, and driving while operating privilege is suspended or revoked, 75 Pa.C.S.A. § 1543(a). On April 24, 1987, a five-car accident occurred on Interstate 83 in Dauphin County. At the time of the accident, traffic was heavy, and the road surface was wet from rain. Shortly after 1:30 p.m., the appellant was passing another vehicle when he lost control of the Pontiac Fiero he was driving. His car fishtailed on the wet road surface, hit the center guard-rail, spun across both lanes of the interstate and came to rest in the right hand lane perpendicular to the road, thus, causing the chain-reaction accident.

At trial, John Reinhart testified that he was on his way to work when a silver Fiero passed him in the left lane. After the Fiero completed the pass, he observed the car spin and hit the guard-rail; To avoid colliding with the Fiero, Mr. Reinhart was forced off the highway onto the right hand berm. After witnessing the multi-car collision that followed, Mr. Reinhart watched the appellant leave the accident scene. He took down the Fiero’s license plate number, and he then reported the incident to the police, describing both the Fiero and the appellant.

Carol Cardosi was operating the car behind the appellant. She testified that she saw the Pontiac Fiero spin out of control and, in an attempt to avoid being hit, slowed down. However, her car was hit from behind and pushed along the highway. She also testified that, after her car came to rest, she saw the Fiero leave the scene. While Ms. Cardosi could not remember if her car made contact with the appellant’s, Janice Roadcap, a State Police chemist, testified that traces of silver paint found on the door of the Cardosi car were “microscopically similar” to the top layer of paint on the Fiero driven by the appellant.

Professor Heinz Hosch, his wife and two daughters, Heidi and Pamela, were in the vehicle following Carol Cardosi. When Professor Hosch saw the appellant lose control, he applied his brakes. He testified that he “didn’t anticipate any problems until we were struck by a truck from behind.” (N.T., Vol. I, 79) A Volvo delivery truck struck the rear of the Hosch vehicle, pushing it into the Cardosi vehicle. The collision with the truck caused severe injuries to the Hosch daughters who were riding in the back seat of the car. Heidi Hosch suffered permanent damage to her left eye, and Pamela Hosch suffered permanent brain damage.

The investigating officer, Trooper Hare, testified that George Kujat was the operator of the delivery truck. At the scene, Mr. Kujat told Trooper Hare that, after seeing brake lights ahead of him, he attempted to stop but was unable to do so prior to colliding with the rear of the Hosch vehicle. He also told the officer that his truck was hit in the rear by another vehicle. The trooper testified that Mr. Kujat was cited for driving at an unsafe speed. Mr. Kujat later pleaded guilty to the charge.

Linda Felo, the owner of the Fiero which the appellant was operating, testified that the appellant admitted to her that he had been involved in an accident on that date.

Based on the foregoing, the appellant was found guilty by a jury of the charge of accidents involving death or personal injury, 75 Pa.S.C.A. § 3742(a). The appellant filed timely post-trial motions which were denied. On July 20, 1988, the appellant was sentenced pursuant to 75 Pa.C.S.A. § 3742(b)(3). The appellant then filed a motion to modify sentence which was denied.

On appeal, the appellant raises the following questions which were properly preserved via his post-trial motions and his motion to modify sentence:

1. Is 75 Pa.C.S.A. § 3742 void for vagueness, due to its failure to define “material contribution” as found in § 3742(b)(3)?
2. Was the appellant denied due process when the issue of “material contribution” was not submitted to the jury?
3. Was the evidence sufficient to prove that the appellant was aware of an accident involving the Hosch vehicle?
4. Was the evidence sufficient to show that the appellant “materially contributed” to the injuries sustained by the passengers of the Hosch vehicle?

As previously stated, the appellant was found guilty by the jury of violating § 3742(a) of the Vehicle Code which provides:

(a) General rule. — The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid). Every stop shall be made without obstructing traffic more than is necessary.

The statute also contains a specific penalty section which, in pertinent part, provides:

(b) Penalties.—
(1) Except as otherwise provided in this section, any person violating this section commits a misdemeanor of the third degree.
(2) If the victim suffers a serious bodily injury or death, any person violating subsection (a) commits a misdemean- or of the first degree.
(3) If the violation of subsection (a) materially contributes to any serious bodily injury suffered by the victim, any person violating subsection (a) commits a misdemeanor of the first degree and shall, upon conviction, be sentenced to pay a fine of not more than $10,000 and to imprisonment for not less than 90 days nor more than five years. In response to the appellant’s brief, the Commonwealth

asserts that § 3742 is not unconstitutionally vague. However, the Commonwealth agrees that, when the Commonwealth plans to proceed pursuant to the mandatory sentencing subsection, § 3742(b)(3), “material contribution” becomes an element of the crime and must be presented to the jury. Presently, the Commonwealth concedes that the appellant’s violation of § 3742(a) did not “materially contribute to any serious bodily injury suffered by the victim[s].” In his reply brief, the appellant then withdrew issues three and four, regarding the sufficiency of the evidence.

Thus, we must first determine whether § 3742 is unconstitutionally vague because it does not define “material contribution.” If we find that the statute is not unconstitutionally vague, then we must determine whether the issue of “material contribution” must be submitted to the jury.

First, we find that the statute is not unconstitutionally vague. § 3742(a) is clear on its face. A person is guilty of the offense if he is involved in an accident which results in the injury or death of any person and thereafter does not stop and comply with the requirements of 75 Pa.C.S.A. § 3744 — Duty to give information and render aid.

Equally clear is the penalty section of the statute, § 3742(b). Pursuant to § 3742(b)(1), a violation of § 3742(a) is a misdemeanor of the third degree. However, if a victim suffers serious bodily injury, the grade of the offense is increased to a misdemeanor of the first degree, § 3742(b)(2). Instantly, the appellant stipulated to the fact that the Hosch daughters suffered serious injuries. (N.T., Vol. II, p. 2-3) The statute further delineates those situations which warrant mandatory minimum sentences, § 3742(b)(3), (4). In accordance with § 3742(b)(3), if the defendant’s act of violating subsection (a) “materially contributes” to any serious bodily injury of a victim, then the defendant is guilty of a misdemeanor of the first degree with a mandatory minimum sentence of ninety (90) days.

When interpreting a statute, the language must be construed according to its common and approved usage — in other words — its plain meaning, and interpreted in a manner to give effect to legislative intent. Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982); Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (1980); Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978); 1 Pa.C.S.A. § 1903 (“Words and phrases shall be construed according to the rules of grammar and according to their common and approved usage.”); Commonwealth v. Duncan, 456 Pa. 495, 321 A.2d 917 (1974); Commonwealth v. Hess, 270 Pa.Super. 501, 411 A.2d 830 (1979), appeal dismissed 499 Pa. 206, 452 A.2d 1011; 1 Pa.C.S.A. § 1921 (“The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.”).

Instantly, the appellant contends the words “materially contributes” are vague. Black’s Law Dictionary defines “material” as “Important; more of less necessary; having influence or effect; ...” 880 5th Ed.1979. Black’s defines “contribute” as “To lend assistance or aid, or give something, to a common purpose; to have a share in any act or effect; ...” 297 5th Ed.1979. Combining these two terms, “materially contributes” means having a necessary influence or effect. When applying this definition of “materially contributes” in the instant context, a person is guilty of violating § 3742(b)(3), if his act of fleeing the scene of the accident necessarily caused or influenced (exacerbated) the serious bodily injury suffered by the victim.

This interpretation of § 3742(b)(3) is supported by our review of the statute’s legislative history. During the House debate on § 3742, Representative Dennis O’Brien of Philadelphia, the amendment’s sponsor, stated:

Mr. Speaker, this amendment provides for stiffer penalties for leaving the scene of an accident involving death or serious bodily injury. The purpose of this amendment is not to punish the accident but to get tough with the hit and run drivers who leave mangled bodies along the roadside rather than secure the required medical attention____
The penalties are as follows: ... The third category would be where the driver’s failure to stop results in the victim not receiving immediate medical attention, and that would provide for a first degree misdemeanor with a mandatory 90 days in prison and a maximum sentence of 5 years and a maximum fine of $10,000.

31 Legislative Journal, 2003, 2004 (October 6, 1986). A review of the debate concerning the amendment of § 3742 into its present form clearly reveals the legislature’s intention to gradate the punishment for leaving the scene of an accident not only dependent upon the severity of a victim’s injuries (§ 3742(b)(1), (2)) but also in relation to the effect which the defendant’s flight from the scene had on those injuries (§ 3742(b)(3), (4)).

Having determined that § 3742 is not unconstitutionally vague, we turn our attention to whether the issue of “material contribution” should be submitted to the jury. Fundamental to our system of criminal justice is the proposition that a person charged with a crime is presumed innocent. Due process requires that the Commonwealth bear the burden of proving beyond a reasonable doubt each element of the crime of which the defendant is charged. If the Commonwealth does not sustain this burden then the defendant must be acquitted. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Commonwealth v. McGuire, 487 Pa. 208, 409 A.2d 313 (1979); Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974).

Applying these principles to a prosecution pursuant to § 3742 of the Vehicle Code, we are convinced that “material contribution” is an element of the crime if the Commonwealth plans to prosecute under § 3742(b)(3). Under those circumstances, the question of whether the defendant’s act of violating § 3742(a) materially contributed to the serious bodily injury suffered by the victim must be submitted to the jury. The Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant’s flight “materially contributed” to the victim’s serious injuries.

Instantly, there is no dispute that the victims suffered serious bodily injuries. Likewise, there is no dispute that the issue of “material contribution” should have been submitted to the jury but was not. While that would ordinarily require this court to vacate the judgment of sentence and remand for a new trial, it is not necessary to do so presently since the Commonwealth concedes that the appellant’s actions did not “materially contribute” to the serious bodily injuries suffered by the Hosch daughters. Consequently, we can simply vacate the appellant’s judgment of sentence and remand for resentencing pursuant to § 8742(b)(2), rather than the mandatory penalty subsection, § 8742(b)(8).

Judgment of sentence vacated. Remanded for resentencing in accordance with the provisions of this opinion. Jurisdiction relinquished.

      . 75 Pa.C.S.A. § 3744, Duty to give information and render aid, provides:
      (a) General Rule. — The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall give his name, address and the registration number of the vehicle he is driving, and shall upon request exhibit his driver’s license and information relating to financial responsibility to any person injured in the accident or to the driver or occupant of or person attending any vehicle or other property damaged in the accident and shall give the information and upon request exhibit the license and information relating to financial responsibility to any police officer at the scene of the accident or who is investigating the accident and shall render to any person injured in the accident reasonable assistance, including the making of arrangements for the carrying of the injured person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if requested by the injured person.
      As amended 1984, Feb. 12, P.O. 26, No. 11, § 4, effective Oct. 1, 1984.

      . We note that the Commonwealth must prove beyond a reasonable doubt that the victim actually suffered "serious bodily injury” as defined in § 3742(d), before the defendant can be convicted of a misdemeanor of the first degree pursuant to § 3742(b)(2) or (3), rather than a misdemeanor of the third degree pursuant to § 3742(b)(1). In addition, we note that this opinion does not directly address the situation when the victim is killed or the defendant’s flight “materially contributes” to the death of the victim, § 3742(b)(2) and (4). However, the analogy is obvious.