author: BROSKY, Judge:

text:
    491 A.2d 1374
    CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY v. William CHORGO, Appellant.
    Superior Court of Pennsylvania.
    Argued June 19, 1984.
    Filed April 19, 1985.

      David M. Priselac, Pittsburgh, for appellant.
    Alida J. Kornreich, Pittsburgh, for appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   BROSKY, Judge:

This appeal is from an order denying credit toward a support order for Social Security payments made to appellant’s children. Appellant contends that his child support obligation should be reduced by the amount of the Social Security retirement payments. We agree, but not as to the arrears which accumulated before the Social Security payments began. Accordingly, we reverse.

Children and Youth Services (CYS) commenced this action to enforce a support order and to compel the payment of arrearages. The court below held that the support order should continue at the prior rate; that no credit should be given towards the support obligation for Social Security benefits of the appellant paid directly to the children; and that arrearages should be paid at the rate of $50 per month.

Two broad issues are before us on this appeal. First, whether, and under what conditions, the support obligation should be reduced by the amount of Social Security retirement benefits paid to the children. Second, whether, and under what conditions, the arrearages should be reduced as a result of these payments. Each issue will be treated in turn.

Credit for Social Security Payments

Within this issue there are three questions to be answered. Why should credit be given or not given? If credit is to be given, when? Finally, if credit is to be given, how much? Again, these questions will be treated in turn.

First, why should credit be given? The first cases we will quote seem to answer this question with, “Why not?” The Vermont Supreme Court noted that: “These payments are, in a sense, a substitute for the wages the obligor would have received but for the disability, and from which the court ordered payments would otherwise have been made.... In theory, at least, the actual source of payments is of no concern to the party having custody as long as they are in fact made.” Davis v. Davis, 141 Vt. 398, 401, 449 A.2d 947, 948 (1982).

The same practical approach was taken in Binns v. Maddox, 327 So.2d 726, 728 (Ala.Ct.App.1976).

An order of support is for the benefit of the children, even though directed to be paid to the mother or other custodian. If the sum directed to be paid by the father is paid by the government through social security benefits derived from the account of the father, the purpose of the order has been accomplished. The father is entitled to be credited with such payments against his liability under the decree.

In a similar vein, the Missouri Court of Appeals wrote the following: “The use of social security payments to satisfy a child support obligation is merely a change in the manner of payment; the nature of the funds is the same.” McClaskey v. McClaskey, 543 S.W.2d 832 (Mo.Ct.App.1976).

None of the foregoing provides an extremely persuasive rationale for the acceptance, vel non, of credit. A more cogent rationale oft-quoted by other jurisdictions, is presented in Andler v. Andler, 217 Kan. 538, 542-3, 538 P.2d 649, 653 (1975). Andler focuses on the “earned” character of Social Security benefits. Since the person obliged to pay support has, in effect, paid for those benefits in advance, he should, it is argued, receive credit for them.

Social Security benefits paid to the appellee for the benefit of the parties’ minor children as the result of the appellant’s disability may not, however, be regarded as gratuitous. On the contrary, the payments received by the appellee are for the children as beneficiaries of an insurance Policy. The premiums for such policy were paid by the appellant for the children’s benefit. The purpose of Social Security is the same as that of an insurance policy with a private carrier, wherein a father insures against his possible future disability and loss of gainful employment by providing for the fulfillment of his moral and legal obligations to his children. This tragedy having occurred, the insurer has paid out benefits to the beneficiaries under its contract of insurance with the appellant, and the purpose has been accomplished.
The United States Congress has seen fit to place the federal government in the role of insurer in order to afford members of the work force the protection and security of insurance against future disability. The fundamental nature of the Social Security system is a form of insurance in every sense of that word.
Benefits paid out by a governmental insurer, under a policy of insurance for which the insured has paid premiums, are no more gratuitous than benefits paid out by a private insurance company.
The insurance company here in issue was considered by the federal district court in Schmiedigen v. Celebrezze, 245 F.Supp. 825 (D.D.C.1965) where the court said:
[The] payments prescribed by them [the Social Security Act] are not gratuities or matters of grace; they are not public assistance; they are not welfare payments. On the contrary, the law created a contributory insurance system, under which what in effect constitute premiums are shared by employees and employers. Consequently, in spirit at least, if not strictly and technically, the employee, who throughout his working life has contributed part of the premiums in the form of deductions from his wages or salary, should be deemed to have a vested right to the payments prescribed by the statutory scheme, which in effect comprises the terms of his insurance policy. He has earned the benefits; he is not receiving a gift____” (p. 827.)

In Craver v. Craver, 649 S.W.2d 440, 443 (Mo.1983), the high court of Missouri rejected the holding of McClaskey, viewing the matter strictly and technically, rather than in spirit.

We must reject the notion that a contributor possesses any significant property interest in Social Security funds in the hands of the government, for it ignores both the theory behind, and the reality of, the Social Security system. First, the relationship between the government and the contributor is not contractual. Flemming v. Nestor, 363 U.S. 603, 610 [80 S.Ct. 1367, 1372, 4 L.Ed.2d 1435] (1960). Second, Congress has always specifically reserved the “right to alter, amend, or repeal any provision” of the Social Security Act. See 42 U.S.C. § 1304 (1975). Consequently, whatever equitable interest a contributor might possess is only contingent. It does not rise to the level of a vested property interest.

It appears that the court in Craver lost sight of the question presented by this type of case. The issue is not whether, technically speaking, a Social Security recipient has a vested right in the nature and amount of the benefits. Rather, the enquiry should be whether it is fair and just that the support obligor be given credit for these benefits. Part of this enquiry would certainly go to the nature of his investment in the program — as in Andler. Another, essential part of the determination would be the difference, if any, to the obligee — as in Davis, Binns and McClaskey.

Both portions of this dual enquiry are resolved in favor of allowing credit. First, since the obligor has paid in advance for these benefits over the years (albeit mandatorily), they should be recognized as the fruits of his labor. Second, since the child will still receive the same amount of support which the court has decided he should have, it does not matter to that party that the obligor is given credit.

Accordingly, we hold that credit should be given for social security payments made directly to the child when the obligor’s employment occasioned the benefits. As a consequence, the amount of child support directly payable by appellant should be reduced by the amount of the social security benefits.

Second, when should credit be given? Four options are before us: that credit must always be given; that credit will not be given unless special requirements are met; that the court may in its discretion award credit; and finally, that there is a presumption that credit will be applied, which is rebutted only by articulated reasons supporting a conclusion to the contrary in the court’s support order.

Research has revealed no case which clearly adopts the first option of mandatory application.

The second of these options is illustrated by the following quotation from Joachim v. Joachim, 57 A.D.2d 546, 547, 393 N.Y.S.2d 63, 64 (1977): “We hold that the Social Security payments to plaintiff for the benefit of the child do not relieve defendant, even pro tanto, from his obligation to pay for the support of his child in the absence of a showing of financial inability.”

The third option is followed in Chase, supra, 74 Wash.2d at 259, 444 P.2d at 149.

The disability and resulting entitlement to social security are changes in condition of the parties to be considered in a modification proceeding but do not give rise to a modification or deduction without affirmative action by the court for they are not necessarily determinative. The father may be independently wealthy; or he may, in the interim, have inherited property. Benefits from private or public retirement systems may have accrued and become payable to him. In short, many developments affecting the economic condition of the parties may have occurred which would not permit or warrant a modification of the decree to the extent of deducting the social security benefits for dependent children from the child support ordered in a divorce.
The fourth option was chosen in Davis, supra, 141 Vt. at 401, 449 A.2d at 948-49.
The cases from other jurisdictions which have considered this question are not uniform in their approach to the problem. Some courts appear to hold that credit for government benefits paid to the party having child custody should be applied as a matter of law; others hold that credit indicates expressly that the amounts payable under its order are to be in addition to government benefits. See Annot., 77 ALR3d 1315 (1977). We think the latter is the better rule and hereafter should be observed by the trial courts in these cases.

We adopt the last of these options. The first option, invariable mandatory credit, is insufficiently flexible for the trial court’s needs. While general rules and guidelines are desirable for consistency of results, the trial court must have the ability to fashion its orders around the contours of specific fact situations.

The second option — financial inability — puts too much of an obstacle in the way of recognizing the government benefits. For the same reasons that credit should be given at all, it should not be too difficult for that credit to be activated.

While the third option — discretionary credit — presents less of an obstacle to according credit than the second option, it does not go far enough. The court must affirmatively choose to give credit.

Thus, it is the last option which strikes the right balance. Credit is given as the default value; it need not be chosen. In the other direction, the court still has the ability to alter the presumption and give partial or no credit, should the circumstances justify it.

The last question in this section remains. Since credit is to be given, and given absent reasons articulated by the court to the contrary, can amounts in excess of the support obligation be applied prospectively to reduce future support payments? We do not believe such an application should be allowed. It would ignore the children’s need for regular, periodic support payments. We agree with the holding in Andler, supra, 217 Kan. at 544, 538 P.2d at 654: “The father is entitled to credit, however, only up to the extent of his obligation for monthly payments of child support, but not exceeding it. Here the excess of $61.10 paid each month must be regarded under the divorce decree as a gratuity to the children. While the $61.10 is not a gratuity in the sense that it represents the children’s vested right under the insurance concept of the Social Security system, it nevertheless is a gratuity under the divorce decree to the extent it exceeds the amount ordered in the divorce decree.” See also Mask, supra, 95 N.M. at 231, 620 P.2d at 885; Mooneyham v. Mooneyham, 420 So.2d at 1074; Potts v. Potts, 240 N.W.2d 680 (Iowa 1976).

Arrearages

The next issue for our disposition is whether the social security payments can be applied to arrearages in the support payments. Three distinct types of arrearages can arise and each requires separate consideration. First, there are arrearages which accrued prior to the start of the disability or retirement. Second, there are arrearages which accrued after the start of retirement or disability eligibility (and concurrent application for benefits), but before benefits were received. Governmental bureaucracies like the courts, often move with exceeding slowness; it is not unheard of for it to take a year for an application for benefits to be processed. Third, there are arrearages which accrued after the benefits were being received by the obligee and which exist by virtue of those payments not being applied to the support obligation. We have come to different answers for each of these types of arrearage.

A. Arrearages accrued prior to start of disability or retirement.

We do not hesitate in declaring unequivocally that, when support payments are not made prior to the start of disability or retirement, that any excess in the benefits over the amount needed for current support cannot be applied to those arrearages. Once again we quote McClaskey, supra, 543 S.W'.2d at 835.

During this time — from the divorce until the monthly benefits began — the wife was entitled prima facie to look to the husband for full and prompt payment of his obligation. This, because a child’s need for food, clothing, lodging and other necessary expenses is current — today, this week, this month — and the expectation of a future payment does not meet those needs. To allow the lump-sum payment to be credited against the father’s delinquencies, as he urges us to do, could permit him to deliberately create those delinquencies, thereby depriving his children of support, all in the hope that some accrued benefit would cancel his growing default. When the windfall comes, equitably it should inure not to the defaulting husband’s benefit, but to his bereft children.

We approve of, and adopt, this cogent and concise treatment of this issue.

On this same issue, but using a different analysis, our sister state of Ohio came to the same result.

The mother’s first assignment of error is well taken. The Social Security Act, Title 42 U.S.Code, Section 401 et seq., provides that every dependent child of an individual who is entitled to Social Security benefit shall be entitled to a child’s insurance benefit. See, 42 Title 42, U.S.Code, Section 402(d)(1). We determine from this that the benefit inures directly to the child notwithstanding the prerequisite status of the parent.... Thus, the court is, in effect, ordering the children to pay the accrued arrearages for their own support.

B. Arrearages accrued after start of disability or retirement but before the start of benefit payments.

For the reasons stated in the quotation above from McClaskey, we are loath to conclude that excess benefits subsequently received can be applied to retroactively erase this type of arrearage. On the other hand, we are also mindful that the very existence of the retired status, or even more so, the disability, gives rise to the real possibility that the obligor may not be financially able, pending receipt of the benefits, to comply with the support order.

The entire period for which the adjudicated support obligation accrued was a period during which plaintiff was unable to work and hence the Social Security payments here must be regarded as fully substitutionary for the lost earning power. It does not appear that plaintiff had any other income sufficient to meet the support obligation or that his failure to provide support was in any way willful or contumacious. In our view, therefore, the receipt by defendant of the lump sum payment is equitably required to be deemed in full satisfaction of any outstanding obligation of plaintiff which had accrued as of that time.

Potter v. Potter, 169 N.J.Super. 140, 149, 404 A.2d 352, 356-7 (1979).

In the interest of securing support payment when due, whenever possible, the obligor should go to court with the excuse of inability to pay at the time of that inability. It may be that failure to do so would result in a waiver. However, we need not decide that at this time, since, even if there were such a requirement, it would be inequitable to hold appellant to it. The injustice would be the result of appellant having no notice of the requirement. Accordingly, on remand appellant may demonstrate that he was unable to pay during the period in question in this section.

C. Arrearages accrued after the start of benefit payments.

Again, we emphasize that the arrearages considered herein are those which arose by virtue of the non-discretionary non-application of the benefits to the support obligation. This type of arrearage will cease to exist over time as the Courts of Common Pleas apply the law in this case to the cases before them.

We have already held that credit as to ongoing support obligations should be given absent a provision in the support order to the contrary. With the scales so weighed in favor of credit, it follows that credit should also be given for benefits paid against arrearages which exist solely as the result of such credit not being explicitly granted. See Binns v. Maddox, supra; Mooneyham, supra; Freshour v. Freshour, 567 S.W.2d 176 (Crt.App.Tenn. 1977).

Some cases have held that such credit should not be given until the court enters an order to that effect. Zirkle v. Zirkle, 304 S.E.2d 664 (West Va.1983); Cope v. Cope, 291 Or. 412, 631 P.2d 781 (1981); Nakaerts v. Nakaerts, 106 Ill.App.3d 166, 61 Ill.Dec. 950, 435 N.E.2d 791 (1982); Thompson v. Thompson, 254 Ark. 881, 496 S.W.2d 425 (1973); Chase, supra. We do not accept that approach. Since, under our above stated holding, the court will be deemed (unless it specifically articulates reasons to hold otherwise), to have granted, credit, it would not be consistent to require an extra proceeding of the obligor as a consequence of the court not following our mandate.

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To summarize, we hold that appellant should not be given credit from excess benefits to be applied to arrearages which accrued prior to his application for retirement benefits; that credit should be applied to arrearages which accrued between his application and the commencement of benefits if appellant can show that he was financially unable to make payments during that period, that credit should be applied to arrearages which accrued after the receipt of benefits; that credit should be given on an ongoing monthly basis; and that credit should not be given prospectively out of excess benefits.

Reversed and remanded for evidentiary and computational proceedings consistent with this opinion. Jurisdiction relinquished.

      . The case of Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983), is the only reported appellate case in this jurisdiction to treat this matter. However, both of the above stated issues are ones of first impression in this Commonwealth. The first issue was not treated in Vogelsong. The second issue was treated in the inverse from its posture here. Vogelsong held that it was not error for the trial court to have granted credit on arrearages. We must decide if it was error for the trial court to not have granted such credit.

      . To the same effect see Chase v. Chase, 74 Wash.2d 253, 444 P.2d 145 (1968).

      . Several cases from other jurisdictions have arrived at the same conclusion. In re the Marriage of Robinson, 651 P.2d 454 (Colo.Crt. App.1982); Horton v. Horton, 219 Ga. 177, 132 S.E.2d 200 (1963); Mooneyham v. Mooneyham, 420 So.2d 1072 (Miss.1982); Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348 (1962); Mask v. Mask, 95 N.M. 229, 620 P.2d 883 (1980); Cohen v. Murphy, 368 Mass. 144, 330 N.E.2d 473 (1975).

      . The facts as set out in a number of opinions do not make this sort of distinction and cannot, therefore, be used for guidance in coming to our resolution of the issue. Perteet v. Sumner, 246 Ga. 182, 269 S.E.2d 453 (1980); Newton v. Newton, 622 S.W.2d 23 (Mo.Crt. of App.1981); Schulze v. Jensen, 191 Neb. 253, 214 N.W.2d 591 (1974); Robinson, supra.

      . This treatment would also apply to those situations in which the obligor delayed after he became eligible in submitting his application for benefits. The cases of other jurisdictions reveal this set of events.

      . An entirely different situation would be presented by an arrearage which came into being simply because the benefits were less than the support obligation and the difference was not made up by the obligor. This would be a "run of the mill” arrearage, and not the subject of this opinion.

      . To the same effect see Fowler v. Fowler, 156 Conn. 569, 244 A.2d 375 (1968); Mask v. Mask, supra.


source: Caselaw Access Project

license: Public Domain

text:
    491 A.2d 1381
    Petition of Terry MAGLISCO. Petition of Helen I. MOORE.
    Superior Court of Pennsylvania.
    Argued Nov. 20, 1984.
    Filed April 19, 1985.

      Gary M. Lang, Pittsburgh, for appellants (at 350 and 528).
    Before BROSKY, ROWLEY and JOHNSON, JJ.
   BROSKY, Judge:

These consolidated appeals are from the forfeiture of a pistol and several rifles. Appellant contends that the forfeiture was improper. As to the rifles, we agree and reverse; as to the pistol, we affirm.

The relevant facts are as follows. Appellant Maglisco shot her husband with a .38 caliber revolver. The pistol was seized by the police when they arrived on the scene to arrest her. A few hours later, the police returned and confiscated several rifles in her possession. Charges were later dropped. At the forfeiture proceeding, it was alleged that the rifles belonged to Maglisco’s mother, appellant Moore. Both the pistol and the rifles were forfeited and this appeal followed.

Common law forfeiture

There is no specific statutory provision which would support the instant forfeitures. It therefore must be determined whether there is a common law power to effect these forfeitures. In 1961, this court concluded that, while some pornography was forfeitable under the terms of a statute, a camera used in the production of that pornography was not forfeitable. See Commonwealth v. Schilbe, 196 Pa.Super. 361, 175 A.2d 539 (1961). “Obviously, in the absence of any statute providing for the forfeiture of a camera and its accessories used for the purpose of taking obscene pictures, there is no authority to do so.” Id., 196 Pa.Superior Ct. at 361, 175 A.2d at 541; see also Commonwealth v. Spisak, 69 D & C2d 659 (Somerset 1974); Commonwealth v. Stimer, 8 D & C3d 317 (Somerset 1977). Thus, Schilbe held that while contraband per se is forfeitable, derivative contraband is forfeitable only if there is statutory authority making it so.

The difference between these types of contraband was explained in Commonwealth v. Fassnacht, 246 Pa.Super. 42, 46, 369 A.2d 800, 802 (1977):

In this evolution, two distinct classifications of contraband have been developed; contraband per se and derivative contraband. Contraband per se is property the mere possession of which is unlawful. One 1958 Plymouth Sedan, [v. Commonwealth of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) ], supra; United States v. One Lot of Eighteen Firearms, 325 F.Supp. 1326 (D.N.H.1971). Heroin and “moonshine” whiskey are examples of contraband per se. Derivative contraband is property innocent by itself, but used in the perpetration of an unlawful act. An example of derivative contraband is a truck used to transport illicit goods.

While reference to a statute is necessary even vis-a-vis derivative contraband, it need not be a reference to the specific item (as it would be in contraband per se) but need only be to the outlawed activity in which the item was used. “In order to determine whether property is contraband, therefore, reference must be made to the statute that outlaws the property or the particular use of the property. ” Commonwealth v. Landy, 240 Pa.Super. 458, 463, 362 A.2d 999, 1001 (1976) (emphasis added). Both Landy, supra, and Commonwealth v. Coghe, 294 Pa.Super. 207, 209, 439 A.2d 823, 824 (1982) affirmed the forfeiture of items involved in the perpetration of a crime without any statutory authority for that forfeiture, thus implying, contrary to Schilbe, that “contraband”, whether per se or derivative, is forfeitable without statutory authority.

The Supreme Court of West Virginia wrote at the turn of the century:

We cannot believe that it was the design of the state Constitution or of the fourteenth amendment to the national Constitution, in declaring that no one shall be deprived of property without due process of law, to enervate and emasculate government of powers so essential and deeply rooted in the social fabric long before the adoption of American Constitutions. They effect no repeal of such inherent common-law powers.

Woods v. Cottrell, 55 W.Va. 476, 47 S.E. 275, 277-8 (1904). Similarly, we cannot believe that the passage of statutes providing for specific types of contraband per se forfeitures can be assumed to inferentially invalidate the common law forfeiture of derivative contraband.

Derivative Contraband

The law of derivative contraband is ancient, much criticized and the subject of reform. All three of these characteristics spring from the same definitional quirk: “In a forfeiture proceeding, the object is treated as the wrongdoer____” Wayne L.Rev., supra, 83. The Biblical and medieval application of what we might now view as a superstitious attribution of an animus to an inanimate object was transformed into the legal fiction that the action was against the object.

In the overwhelming number of cases of this category— which revolve upon the question of the interests of innocent third parties who stand to be penalized, in effect, by the impending forfeitures — the federal courts, including the United States Supreme Court, have upheld the government’s right to enforce the forfeiture, thereby sacrificing the interests of parties who by no stretch of any definition could be said to have contributed to the offence for which the forfeiture was being exacted. This is candidly acknowledged by the courts who have for this purpose alone resorted to the rationale that in such forfeiture actions, it is the thing itself which is the offender, not its owner. The current interpretation of such an action is that it is a proceeding undertaken by the government in a civil action in rem. But this is hardly more than an attempt to put an ostensibly respectable disguise on an action which is at bottom nothing else than the deodand “updated.”

The Goring Ox, supra, 215.

The very source of its ancient impulse — the attribution of fault to the object — was also the focus of the criticism of this doctrine and of its reform. Although somewhat modified in our application, this source has left some results critical to the resolution of the case before us.

Prime among these is that there need not be an underlying conviction of a crime to support the forfeiture.

Thus, conviction of a crime is not necessary to support forfeiture proceedings; the Commonwealth need simply prove by a preponderance of the evidence that a vehicle was involved in, as here, the sale or transport of a controlled substance.

Commonwealth v. 1978 Toyota, 321 Pa.Super. 549, 552, 468 A.2d 1125, 1126 (1983). The initial criminal proceeding can be nol prossed, as in Toyota, supra, or can result in an acquittal. See United States v. One 1976 Lincoln Mark IV, 462 F.Supp. 1383 (W.D.Pa.1979). Thus, the lack of a conviction here is not fatal to the forfeiture proceeding.

Another long-lasting consequence is that the proceeding, initially held to be civil and in rem is, even now, considered only quasi-criminal. As a result, the object’s connection with the crime need only be proved by a preponderance of the evidence, not beyond a reasonable doubt. See Landy, Fassnacht and 1978 Toyota, supra.

In the instant case, the pistol was uncontrovertibly fired by appellant Maglisco with a bullet lodging in the leg of her husband. We do not hesitate to conclude that, by a preponderance of the evidence, a crime was committed with the pistol and it is, therefore, derivative contraband.

This conclusion cannot be reached with regard to the rifles. There was no evidence presented at the forfeiture hearing that the rifles had been used in the commission of any crime. Nor has extensive research disclosed a single case where the “guilt” of one object of derivative contraband was held to attach by association to other similar, but non-culpable objects owned by the same person. Such a theory has certain common-sense validity, which is well-illustrated by this very case. The court below was, by its own statements, seeking to avoid the recurrence of another firearm incident through the removal of the rifles from appellant Maglisco’s possession. But, if derivative contraband is defined only as those objects used in the commission of a crime, then the rifles cannot be so labelled, and, thus, cannot be forfeited. In an effort to resolve this issue, we will step back and view the traditional justifications for this doctrine and the modern safeguards which have risen around it.

One of the primary justifications for in rem forfeiture is that it imposes a penalty. Notwithstanding the legal fiction which gives rise to actions against automobiles and not their owners, the United States Supreme Court, in according Fifth Amendment protection to forfeiture actions, remarked most sensibly that, “[w]hen the forfeiture statutes are viewed in their entirety, it is manifest that they are intended to impose a penalty. . . .” United States v. United States Coin and Currency, 401 U.S. 715, 721-22, 91 S.Ct. 1041, 1044-45, 28 L.Ed.2d 434 (1971).

However, this justification for in rem forfeiture has been subject to much criticism. “Civil in rem forfeitures ... should not be used as tools for imposing punitive sanctions for criminal violations because they do not utilize sufficiently protective procedures.” Duke L.J. supra, at 831. See also Cornell L.Rev., supra, at 801. Most importantly, double jeopardy is held not to attach to forfeiture proceedings precisely because they are not punitive. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). Thus, any extension of the derivative contraband doctrine in order to impose an additional penalty would be a rather dubious proposition.

The other, and more acceptable rationale is simply stated: “to remove the operating tools of crime from criminals.” Lincoln, supra, at 1391. See also Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 686, 94 S.Ct. 2080, 2093, 40 L.Ed.2d 452 (1974); Comparative Law, supra, at 640; Duke L.J., supra, at 831. This deterrent function would probably be quite well served here by forfeiture of the rifles.

Two major reforms have ameliorated the harshness of in rem forfeiture. The first of these requires at least a minimal showing of blameworthiness — albeit not necessarily criminal culpability — on the part of the object’s owner. While we recognize that trend to be a salutary one, incorporated into the common law of this Commonwealth, it would not limit us here. Appellant Maglisco is quite blameworthy and the trial court did not find it credible that appellant Moore really owned the rifles.

The other major reform — which we also endorse — is proportionality. That is, even if the requisite minimum of blameworthiness is present, is the value of the forfeited item in any reasonable way commensurate or proportional to the offense? Again, this requirement would pose no bar to the forfeiture of the rifles; such a forfeiture would be quite reasonable in light of the seriousness of appellant’s offense. However, other considerations result in the conclusion that the rifles were improperly forfeited.

The question before us is whether objects can acquire “guilt by association” with other objects which are derivative contraband — simply by virtue of being owned by the same person and being a type of similar object. If the answer to this question is in the affirmative it would appear that we would have taken a giant backward step toward forfeiture of estates.

In medieval law, the entire estate of certain classes of felons were forfeited to the crown. Foremost among these felonies was treason. This was the basis of the forfeiture of the estates of Loyalists during the American Revolutionary War. Notably, that was the last time that this doctrine was used in our country. Admittedly, a “guilt by association” theory would not subject the entire estate to forfeiture — only those objects in the estate which are similar to the derivative contraband. Nevertheless, permitting objects to be defined as derivative contraband under a “guilt by association” rule would be a distinct move toward the forfeiture of entire estates, and, as such, we reject it.

The practical problems of applying such a standard would also be considerable. To what degree would items have to be similar in order to justify their “guilt by association”? Even identical items could pose problems. If a crime is committed using a vehicle, are the other vehicles owned by the defendant also to be forfeited?

It also weighs heavily in our determination of this issue that extensive research has not disclosed a single application of this “guilt by association” doctrine. Therefore, we conclude that while the pistol was properly forfeited, the rifles were not.

Accordingly, we affirm in part and reverse in part ordering the return of the rifles to appellant Maglisco.

      . This was conducted pursuant to Pa.R.Crim.P. 324 which provides the following:
      (a) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he is entitled to lawful possession thereof. Such motion shall be filed in the Court of Common Pleas for the judicial district in which the property was seized.
      (b) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
      (c) A motion to suppress evidence under Rule 323 may be joined with a motion under this rule.

      . Both cases involved money: in Landy the proceeds of illegal activity and in Coghe the "blood money” used to hire a murderer. That this was money and not another type of instrumentality does not bar the latter being similarly forfeited. The principle is the same.

      . Federal forfeiture proceedings cannot be instituted absent an applicable statute. This Commonwealth need not be similarly constrained, as there is no Federal Constitutional basis for this stricture. United States v. Lane Motor Co., 199 F.2d 495 (10th Cir.1952).

      . See Maxeiner, Jas.R., Constitutionalizing Forfeiture Law — The German Example, 27 The American Journal of Comparative Law 635 (1979); Maxeiner, Jas.R., Bane of American Forfeiture Law — Banished at Last?, 62 Cornell L.Rev. 768 (1977); Hughes, Wm. J., In Personam (Criminal) Forfeiture and Federal Drug Felonies: An Expansion of a Harsh English Tradition into a Modern Dilemma, 11 Pepperdine L.Rev. 613 (1984); Comment, Forfeiture of Derivative Contraband Under the Contraband Seizure Act and the Comprehensive Drug Abuse and Control Act of 1970; United States v. One 1975 Mercedes 280 S, 40 Ohio St.L.J. 007 (1979); Comment, Forfeiture Seizures and the Warrant Requirement, 48 U.Chi.L.Rev. 960 (1981); Comment, Forfeiture of Property Used in Connection with Criminal Acts, 25 Wayne L.Rev. 83 (1978). Comment, Constitutional Law— Fourth Amendment — Illegal Seizure of Derivative Contraband Bars Forfeiture. United States v. $38,394 U.S. Currency, 498 F.Supp. 1325 (N.D.Ill.1980), 60 Wash.U.L.Q. 705 (1982); Comment, Due Process Implications of Shifting the Burden of Proof in Forfeiture Proceedings Arising Out of Illegal Drug Transactions, 1984 Duke L.J. 822; Clark, Morris, Civil and Criminal Penalties and Forfeitures: A Framework for Constitutional Analysis, 60 Minn.L.Rev. 379 (1976); Finkelstein, Jacob J., The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures, Wrongful Death and the Western Notions of Sovereignty, 46 Temple L.Q. 169 (1973).

      . See Lincoln Mark IV, supra, at 1391 for an excellent interpretation of this requirement. See also United States v. One 1974 Mercury Cougar XR-7, 397 F.Supp. 1325 (C.D.Cal.1975); United States v. One 1971 Chevrolet Corvette, 393 F.Supp. 344 (E.D.Pa.1975); Calero-Toledo, supra, 416 U.S. at 689, 94 S.Ct. at 2094; Comparative Law, supra, at 635-7, 645-6.

      . One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700-01, 85 S.Ct. 1246, 1250-51, 14 L.Ed.2d 170 (1965); Utah v. One Porsche, 526 P.2d 917 (Utah 1974); Commonwealth v. One 1970 Lincoln Auto, 212 Va. 597, 186 S.E.2d 279 (1972); Comparative Law, supra, at 642-4.


author: WIEAND, Judge:

text:
    491 A.2d 1386
    Maurice BELL and Helen Schweiker, Appellants, v. CITY OF PHILADELPHIA and Police Commissioner Joseph O’Neill and Officer James W. Gamble, Appellees.
    Superior Court of Pennsylvania.
    Argued May 10, 1984.
    Filed April 19, 1985.

      See also 511 F.Supp. 1156.

      Irwin L. Gross, Philadelphia, for appellants.
    Gabriel L. Bevilacqua, Philadelphia, for appellees.

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

The principal issue in this appeal following a defense verdict in an action to recover damages for injuries caused by a shooting is whether it was error for the trial court to allow evidence of plaintiffs bad reputation for violence to show that he was probably the aggressor. Other issues raised in this appeal do not warrant lengthy discussion and will be disposed of summarily.

James W. Gamble, a police officer employed by the City of Philadelphia, completed his shift at the Juvenile Aid Division (JAD) about 3:30 a.m. and was standing on the corner at Castor and Frankford Avenues while waiting for his mother to pick him up and give him a ride home. Maurice Bell, who lived nearby, approached on foot after having spent several hours drinking at a neighborhood bar. He shouted a racial slur and told Gamble to get off his property. Gamble, in fact, was not standing on Bell’s property. Bell entered his residence and Gamble returned to the place of his employment to call his mother and find out why she hadn’t arrived. Learning that she was on her way, Gamble returned to the street corner to continue his wait. Bell emerged from his house, and an angry exchange between the men took place. Thereafter, Bell returned to his home, only to reemerge. This time he picked up a shovel and approached Gamble. The succeeding events are in dispute. Bell testified that Gamble swung at him with his nightstick, which he, Bell, parried with the shovel. Gamble, on the other hand, said that Bell had swung his shovel and that when he, Gamble, blocked it with his nightstick, the nightstick had broken. In any event, the nightstick was broken and Gamble retreated to the JAD building, pulling out his service revolver as he did so. Gamble testified that Bell struck him on the head as he, Gamble, entered the door of the building. He said that as he fell, he shot Bell in the leg. Bell kept coming forward, however, and kept striking Gamble with the shovel as Gamble crawled up a flight of steps. When Gamble reached and opened another door, he fired two shots into Bell’s body. Bell’s version of these events was different. He said that he had not struck Gamble with the shovel and that three shots had been fired at him when he reached the second door. There were no disinterested eyewitnesses to the events of that morning; and, therefore, the credibility of the parties was an important issue for the jury to decide.

Bell was arrested on charges of aggravated assault, but he was acquitted by a jury on March 29, 1977. The present action by Bell and his alleged common-law wife to recover damages for an alleged assault and battery was commenced on October 19, 1977. On March 27, 1978, the parties stipulated that plaintiffs, appellants herein, could file an amended complaint within ten days. Appellants did not file an amended complaint within the time stipulated. Thereafter, on April 10, 1978, they filed an amended complaint alleging an additional count for malicious prosecution. The trial court sustained preliminary objections to this count and caused it to be stricken because it was brought more than one year after Bell’s acquittal. We perceive no error. This was in accord with existing law. See: Act of July 1, 1935, P.L. 503, No. 196, 12 P.S. § 51 (repealed effective June 27, 1978); Sicola v. First National Bank, 404 Pa. 18, 170 A.2d 584 (1961). We reject appellants’ argument that appellees waived the defense of the statute of limitations merely because they agreed that appellants could file an amended complaint within ten days. The agreement was intended to comply with Pa.R.C.P. 1033, which required filed consent of the adverse party or leave of court to file an amended pleading. By agreeing to allow an amended pleading, appellees did not waive any defenses available to a new cause of action which appellants set forth in their amended complaint.

At trial on the complaint alleging an assault and battery, the trial court allowed each defendant three peremptory challenges. Appellants, who were given four peremptory challenges, complain that the two defendants received more peremptory challenges than they did. This was authorized by Pa.R.C.P. 221. There is no abuse of discretion evident. Moreover, appellants failed to argue this issue in the brief filed in the trial court in support of their motion for new trial. The issue, therefore, has not been preserved for appellate review. See: Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981); Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978).

At trial, appellants called Gamble as of cross-examination. Gamble’s counsel then examined the witness concerning matters inquired into during cross-examination. Gamble was asked: “And your mother got there within how much time after the incident?” At this point, appellants objected. When the trial judge asked the basis for the objection, counsel responded: “Beyond the scope of my examination; and ... defendant’s counsel is leading the witness.” The trial court overruled the objection. We are satisfied that the question was not leading. The rules on leading questions are “liberally construed in modern practice, with a large measure of discretion in the court to permit parties to elicit any material truth without regard to the technical consideration of who called the witness.” Commonwealth v. Guess, 266 Pa.Super. 359, 375, 404 A.2d 1330, 1338 (1979), quoting Commonwealth v. Gurreri, 197 Pa.Super. 329, 332, 178 A.2d 808, 809 (1962). A review of the record discloses also that the question did not improperly exceed the scope of the inquiry made on cross-examination. When a witness with an adverse interest is called as for cross-examination, he may thereafter be questioned as to related matters inquired about during cross-examination. However, when the examination is designed to introduce a defense, the trial court should not allow it. Rogan Estate, 404 Pa. 205, 214-215, 171 A.2d 177, 180-181 (1961); Houston-Starr Co. v. Davenport, 227 Pa.Super. 186, 190, 324 A.2d 495, 497 (1974). The trial court’s ruling on this question, therefore, was not erroneous.

After the objection had been overruled, the questioning of the witness continued. Appellants argue on appeal that Gamble was then asked a series of questions by his own counsel which were leading. However, appellants made no objection to any succeeding question on grounds that it was leading or, indeed, for any other reason. Any defect in the form of these questions, therefore, was waived. To avoid waiver, a party must make a timely objection. Rubenstein v. J.E. Kunkle Co., 244 Pa.Super. 474, 477 n. 2, 368 A.2d 819, 821 n. 2 (1976). Timeliness requires a specific objection at the proper stage in the questioning of a witness. Commonwealth v. Hughes, 268 Pa.Super. 536, 539 n. 3, 408 A.2d 1132, 1134 n. 3 (1979). See also: Tagnani v. Lew, supra; Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). A specific objection to one leading question is not a continuing objection to the form of later questions. If appellants believed counsel’s questions to be leading, they were required to enter an appropriate objection. In this manner, the form of the question asked could have been submitted to the court for a ruling and the form, if defective, could have been corrected. Appellants could not properly object to the form of counsel’s questions for the first time after examination of the witness had been completed.

Bell’s version of the circumstances under which he was shot varied substantially from the version testified to by Gamble. There were no disinterested witnesses; and the credibility of the parties, therefore, was a crucial issue. To attack Bell’s credibility, the defense was permitted to show that in 1967 Bell had been convicted on two counts of burglary and larceny. In the one instance, he had stolen a check-writing machine and had used it to write bad checks. In the other, he had broken into a business establishment from where he had stolen payroll checks. These were crimes of dishonesty. Whether Bell’s convictions were admissible to attack his credibility was dependent upon the exercise of a sound discretion by the trial court. Keough v. Republic Fuel and Burner Co., 382 Pa. 593, 596, 116 A.2d 671, 672-673 (1955). “In the exercise of its discretion the trial court must view the various aspects of the trial and determine whether the probative value of the offer is outweighed by the risk that its admission will create substantial danger of undue prejudice or of misleading the jury, and must consider also the remoteness of the convictions in question from the date of the offer.” Id., 382 Pa. at 596-597, 116 A.2d at 673. See also: Flowers v. Green, 420 Pa. 481, 485-486, 218 A.2d 219, 221 (1966). We cannot say that Bell’s convictions in this case were so remote as to be wholly irrelevant. Because the convictions were for nonviolent offenses, moreover, it was unlikely that evidence thereof would prejudice appellants in the presentation of their substantive claim for damages caused by a shooting. Dishonesty did not equate with violence and aggressiveness. We conclude, therefore, that the trial court did not abuse its discretion by allowing the jury to receive and consider evidence of prior convictions of burglary to attack Bell’s credibility.

The defense was also permitted to show that among Bell’s neighbors he had a bad reputation for argumentativeness, combativeness and violence. Bell’s reputation was tendered by the defense as substantive evidence tending to show that Bell had been the aggressor. There was no evidence that Gamble knew Bell prior to the night in question. Therefore, it was not contended that Gamble had been aware of Bell’s belligerence. Appellants argue that the trial court erred in allowing evidence of Bell’s bad reputation for violence.

This issue has not been waived. It was discussed in chambers by counsel and the trial judge, and the trial judge ruled that Bell’s reputation would be received to show his propensity for violence. His reputation was held to be relevant to support appellees’ contention that Bell had been the aggressor and that Gamble had shot in self-defense. Appellants’ counsel took exception to the court’s ruling, and the trial judge acknowledged the exception. Appellants were not required to renew their objection when counsel returned to the courtroom. Appellants’ objection was not waived because they then agreed to enter a stipulation regarding the testimony of approximately ten reputation witnesses. This stipulation, when read to the jury, made it unnecessary to produce the witnesses for testimony in open court. “[O]nce an objection has been properly made, counsel is not obliged to repeatedly voice objections in a tendentious manner.” Matsko v. Harley Davidson Motor Co., 325 Pa.Super. 452, 461, 473 A.2d 155, 159 (1984). Because the issue has not been waived, we proceed to the merits thereof.

The law in criminal cases, at least since Alexander v. Commonwealth, 105 Pa. 1 (1884), has been that evidence of a shooting victim’s reputation for hostility and violence are admissible on the issue of whether he was the aggressor. See: Commonwealth v. Amos, 445 Pa. 297, 302, 284 A.2d 748, 751 (1971). In civil cases, however, it has been said that “evidence of the character of the parties, except where the character is directly in issue, is not admissible.” Porter v. Seiler, 23 Pa. 424, 430 (1854). Only where, because of “the nature of the issues such evidence is of special importance” is reputation evidence admissible. American Fire Insurance Co. v. Hazen, 110 Pa. 530, 537, 1 A. 605, 608 (1885). “It is the nature of the issue itself, and not the consequences to be apprehended from the result, that puts character in issue____ To be in issue in a technical sense, character must be of particular importance and therefore a material fact in the case.” Greenberg v. Aetna Insurance Co., 427 Pa. 494, 498, 235 A.2d 582, 584 (1967). This general rule has been held applicable in tort actions based on an alleged assault and battery. Porter v. Seiler, supra. However, the issue in that case was not which party had been the aggressor. Where self-defense is an issue, no appellate court in Pennsylvania, so far as our research has disclosed, has ruled on the admissibility of a party’s bad reputation for violence.

Most jurisdictions which have considered the issue, however, have recognized “that where self-defense or aggression is an issue in a civil action for assault and battery, evidence of the bad reputation of the plaintiff for violence is admissible, frequently either to help determine which party may have been the aggressor, or to show the defendant’s fear and consequent justification for taking an aggressive stance, at least where it is shown that the defendant had knowledge of the plaintiff’s reputation.” Annot., 91 A.L. R.3d 718, 747 (1979) (footnotes omitted) (emphasis added).

We are of the opinion that this is the better view. Where, as here, the issue is which party was the aggressor, the bad reputation of the plaintiff for violence is of special importance. Bell’s character in this case was directly in issue. To a greater extent than in other civil actions involving criminal conduct, it was important in this case to know the disposition of the parties. See: McCormick, Handbook of the Law of Evidence § 192, at 571 n. 5 (3d ed. 1984). Moreover, it is difficult to comprehend why, where the issue is the same, the rule should be different in civil cases than it is in criminal cases.

In the absence of a contrary mandate by the Supreme Court, therefore, we adopt the majority rule and hold that the trial court properly allowed evidence of Bell’s reputation in the community for argumentativeness, bad temper and violence. This evidence was relevant to show Bell’s propensity for aggressiveness.

The trial court carefully instructed the jury regarding the credibility of witnesses. Included was a specific reference to the consideration to be given to the interest, if any, which a witness had in the outcome of the case. This was adequate. The court was not required to adopt the point for charge submitted by appellants. A trial judge is not required to adopt the exact language of a requested point for charge so long as the form of expression chosen adequately and clearly covers the subject. McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 242, 420 A.2d 514, 521 (1980). Similarly, the trial court did not err when it refused to single out police officers by instructing the jury that their testimony was entitled to no special weight. Where credibility of witnesses has been adequately covered by the court’s jury instructions, a special charge regarding the credibility of police officers is unnecessary. Cf. Commonwealth v. Wise, 298 Pa.Super. 485, 491-492, 444 A.2d 1287, 1290 (1982).

Judgment affirmed.

      . The defense of the statute of limitations is properly raised by way of answer and new matter. However, if the plaintiff does not raise any procedural objection to its insertion in preliminary objections, then the plaintiff waives the error and the court may determine the statute of limitations issue on preliminary objections. 2 Goodrich-Amram 2d § 1028(c):3 (1976). Appellants in this case raised no objection to the procedural defect; and, therefore, the court could properly resolve the applicability of the statute of limitations on preliminary objections.

      . The Judicial Code, at 42 Pa.C.S. § 5524, has extended the statute of limitations to two years for malicious prosecution actions.

      . Appellees are Gamble and the City of Philadelphia, which was alleged to be vicariously liable for the actions of Gamble.

      . It may also be observed that appellant failed to file a timely appeal from the order dismissing his cause of action for malicious prosecution. That order was a final determination of the cause of action stated therefor and was immediately appealable. Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983).

      . Appellants requested that the jury be specifically instructed that police officers, as employees of the City of Philadelphia, were “interested witnesses.”


author: OLSZEWSKI, Judge:

text:
    492 A.2d 1
    COMMONWEALTH of Pennsylvania v. Gregory ADAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1984.
    Filed April 19, 1985.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a conviction for burglary. Appellant contends that the lower court abused its discretion in (1) refusing to permit appellant to withdraw his guilty plea; and (2) failing to adequately justify the sentence imposed upon appellant. Appellant also raises several ineffective assistance of counsel issues which closely parallel the above contentions.

The facts of this case may be quickly summarized. Appellant, Gregory Adams, was charged with burglary. On January 14, 1983, appellant appeared with counsel before the Honorable William E. Pfadt, presumably to enter a plea of guilty to the charge of burglary. However, during the course of the guilty plea colloquy, appellant stated that he was only pleading guilty “so that I could probably get my time running concurrent with a year.” In light of this statement and other protests of innocence, the lower court listed the case for trial and scheduled jury selection. Later, following a short recess and consultation with counsel, appellant again indicated a desire to plead guilty. In exchange for the guilty plea, the Commonwealth agreed not to oppose a defense request for a concurrent sentence. The lower court accepted the guilty plea but deferred sentencing so that appellant’s pre-sentence report could be up-dated.

On February 15, 1983, Judge Pfadt refused the defense’s request for a concurrent sentence; appellant was sentenced to a term of two to four years to run consecutively to his prior sentence. Appellant’s counsel subsequently filed both an application to withdraw the plea and an application for reconsideration of sentence. The lower court denied both applications. This appeal followed.

For reasons to be discussed infra, we will first address appellant’s ineffective assistance of counsel claims. Appellant maintains that trial counsel was ineffective for (1) failing to insure that appellant understood the nature of the charges lodged against him and the elements of the offense of burglary; (2) failing to raise the issue of a prosecution “unkept bargain” in the application to withdraw the plea; and (3) failing to raise the sentencing issues raised in this appeal in the motion to reconsider sentence.

Appellant is currently represented by Carmela R.M. Presogna, Esquire. Appellant was represented at trial by Bradley Foulk, Esquire, of the Erie County Public Defender’s Office. The Commonwealth asserts that Ms. Presogna, though she maintains a separate office, is employed as a part-time public defender in Erie County. (Brief for Commonwealth at 13). If what the Commonwealth alleges is true, then we are confronted with one member of a public defender’s office arguing the ineffectiveness of another member of the same office.

A panel of the Court faced exactly the same situation in Commonwealth v. Richards, 317 Pa.Super. 212, 463 A.2d 1161 (1983). There, the Court remanded for an evidentiary hearing into the matter because the Court was unable to ascertain with any degree of certainty from the record whether appellate counsel was associated with the public defender’s office. Richards at 1162.

In light of this Court’s disposition in Richards, we too remand for an evidentiary hearing to determine whether Ms. Presogna is associated with the Erie County Public Defender’s Office. If she is, then appellant is entitled to new counsel, not associated with the Erie County Public Defender’s Office, to represent him on the issue of ineffectiveness of trial counsel and any other viable issue. This case, therefore, is remanded for further proceedings consistent with this opinion. We dismiss the appeal, with leave to appellant, however, to file a new appeal within 30 days after the trial court’s decision on this remand.

Turning now to the remaining issues of this appeal. The issues raised in appellant’s ineffectiveness claims are essentially the same as those raised in his allegations of trial court error. To analyze one set of issues is to analyze the other. We believe that a ruling regarding appellant’s allegations of trial court error would unduly prejudice a later presentation of the ineffectiveness claims. Therefore, in order to avoid any potential prejudice to future counsel, we decline to reach the merits of the remaining issues of this appeal.

The judgment of sentence is vacated and the case is remanded. Jurisdiction relinquished.

      . The decisional law of Pennsylvania is clear. On appeal, one member of a public defender’s office may raise the ineffectiveness of another member, if reversible error is apparent on the record. Commonwealth v. Smoyer, 281 Pa.Super. 320, 422 A.2d 189 (1980). In most cases though, as in this case, the alleged reversible error is not obvious. In this situation, this Court has been consistent in holding that the proper disposition is to remand to allow appointment of new counsel not associated with the public defender’s office. Commonwealth v. Quarles, 284 Pa.Super. 473, 426 A.2d 145 (1981); Commonwealth v. Smoyer, supra; Commonwealth v. Beecher, 278 Pa.Super. 309, 420 A.2d 555 (1980). This rule is based upon the premise that the mere association of appellate counsel with the same office that represented appellant at trial has the appearance of a conflict of interests that threatens counsel’s duty of zealous advocacy. Commonwealth v. Beecher, supra, 278 Pa.Superior Ct. at 311, 420 A.2d at 556.


author: OLSZEWSKI, Judge: DEL SOLE, Judge,

text:
    492 A.2d 2
    COMMONWEALTH of Pennsylvania v. Edward George JORGENSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 18, 1985.
    Filed April 19, 1985.

      J. Richard Gray, Lancaster, for appellant.
    Louise G. Herr, Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   OLSZEWSKI, Judge:

In this case, appellant, arguing that he was denied his constitutional right to cross-examine and confront his accuser, requests discharge or a new trial. He also argues the evidence was insufficient to sustain his conviction for simple assault, and that the procedures used in charging him were faulty. After carefully considering the opinion of the lower court, the pertinent statutes, and the public policies at stake, we affirm the judgment of sentence.

The facts of this case are not pleasant. On September 28, 1981, state police' arrested appellant and charged him with rape, involuntary deviate sexual intercourse, incest and simple assault. The complaining witness, appellant’s daughter, told police that after a late-night fight with his girlfriend, her intoxicated father came into her bedroom and forced her to submit to sexual intercourse and deviate sexual intercourse. She reported that he struck her when she initially refused. After he had gone back to his room, she escaped to a neighbor’s house and was treated at a local hospital. Police arrested appellant the next day.

Before trial, appellant moved to dismiss, arguing lack of jurisdiction, because the district attorney had failed to sign the information. The court granted his motion, and promptly re-arraigned appellant on identical charges contained in a new, properly signed information. In another pre-trial motion, this one in limine, appellant moved the court to bar the Commonwealth from introducing certain physical evidence tending to show intercourse had occurred. Alternatively, in the event the court would refuse to bar admission of the disputed evidence, appellant requested permission to introduce evidence that the complaining witness had engaged in sexual relations with a person other than the defendant prior to the night in question, and to cross-examine her as to prior sexual activities. The court considered the motion and denied it, finding that the Pennsylvania Rape Shield Law, 18 Pa.C.S.Sec. 3104 (Purdon’s 1983), barred the admission of the evidence and the proposed cross-examination.

The Admissibility of the Evidence

I.

Appellant’s argument centers on the Supreme Court’s holding in Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983). In that case, the Supreme Court held it was permissible for the defense to adduce testimony that the victim had engaged in intercourse with a third person prior to the event which resulted in rape charges being filed against the defendant. The defense argued that the presence of semen and sperm in the victim’s vagina could be explained by the earlier intercourse. The court held that where relevant evidence would tend to negate the allegation that rape occurred, it was admissible.

Appellant argues that testimony that the victim had engaged in intercourse with another person prior to the alleged rape would be relevant evidence tending to negate the allegation that rape occurred. This argument deserves careful analysis.

The Commonwealth’s evidence in part was testimony by a physician that the victim appeared to be distraught, that there was trauma to the vaginal area and that she had bruises on the vaginal wall. The bruises were still black and blue, which the physician testified meant they had been inflicted within a matter of several hours. The physician stated that tampons could cause such bruising, but it was not likely. On cross-examination, he stated that it was possible that bruises would occur with consensual intercourse, but that with consensual intercourse the act generally was not violent enough to produce bruises.

The Commonwealth also introduced the victim’s underpants, which she had put on after the incident, into evidence. A Commonwealth witness testified that lab tests indicated the presence of seminal acid phosphatase in stains on the clothing. She testified that seminal acid phosphatase exists only in seminal fluid. On cross-examination, she stated that the presence of seminal acid phosphatase does not mean intercourse has occurred, and that she could not say when the stains she analyzed occurred. On re-direct, she stated that washing stained clothing would remove the substance.

The defense called the defendant’s former girlfriend, with whom he had been living at the time when the charges were filed. She testified that she had worn the underpants briefly after she and the defendant had engaged in intercourse, but had found they were too small. She testified that she then took them off, and that she later gave them to the victim.

II.

Appellant, at the proceeding in limine, averred that a witness existed and that he would testify that he had had sexual relations with the victim. The Commonwealth disputed the offer of proof, saying the witness would testify that he had not had sexual relations with the victim. No offer of proof was made as to the date or time of the sexual incidents.

The Supreme Court said in Majorana:

We do not believe the legislature intended to prohibit relevant evidence which directly negates the act of intercourse with which a defendant is charged. Where, as here, a defendant offers evidence of intercourse close enough in time to the act with which he is charged that it is relevant to explain the presence of objective signs of intercourse, the protections afforded to the complainant by the Rape Shield Law do not apply. Such evidence should be admitted, subject to the usual rules of admissibility of evidence, in particular the balancing of probative value against prejudicial effect.

503 Pa. at 611, 470 A.2d at 84.

The objective signs of intercourse in the instant case were the bruising and the presence of seminal acid phosphatase.

III.

The drafters of the Rape Shield Law understood that evidence of a victim’s sexual history is not relevant in a rape case to show consent to the act in question. The Supreme Court, citing with approval Commonwealth v. Strube, 274 Pa.Super. 199, 418 A.2d 365, stated in Majorana:

The rape shield laws are legislative recognitions of the minimal probative value of sexual history and are designed to prohibit, to varying degrees, the travesty of presenting a noisome stream of defense witnesses testifying to the sexual propensities, often sordid and sometimes fanciful, of the complaining witness.

503 Pa. at 609, 470 A.2d at 84.

The Supreme Court in Majorana enjoined us and other Pennsylvania courts to balance the probative value of relevant evidence against its prejudicial value in rape cases. Relevant means “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.E. 401. See also Commonwealth v. Scott, 480 Pa. 50, 389 A.2d 79 (1978) (evidence tending to make facts at issue more or less probable is relevant).

Evidence of prior sexual activity at an undisclosed earlier time would have been irrelevant under the circumstances. The defense did not offer to prove that the clothing analyzed was present at the prior incidents alleged to have occurred. Nor did it offer to prove that the clothing had not been laundered since the incident.

Our decision is consistent with that of the Supreme Court in Majorana. In that case, the Commonwealth adduced the fact that semen and sperm had been found in the victim’s vagina. The “fact of consequence to the determination of the action” was the presence of semen and sperm. The proffered evidence was that the victim had engaged in intercourse earlier than the time when the rape occurred. This was relevant, since a prior sexual episode made it less probable that the semen and sperm found were the result of forced intercourse. Here, the “fact of consequence” was the presence of seminal acid phosphatase on the victim’s clothing. The proffered testimony was not relevant, since it did not make it more or less probable that the substance found was the result of forced intercourse. The offer of proof made no connection between earlier sexual relations and the presence of seminal acid phosphatase on the clothing.

The Charging Procedure

In Commonwealth v. Veneri, 306 Pa.Super. 396, 452 A.2d 784 (1982), this Court held that the signature requirement of Pa.R.Crim.P. 225(b), 42 Pa.C.S., is only directory, and is curable by amendment if the issue is raised in a motion to quash. Under Veneri, the Commonwealth could have moved in this case to amend the defective information; instead, it permitted the original charges to be dismissed and filed a new, signed information with charges identical to those in the first. The procedure was not defective, and the trial court properly denied appellant’s motion for discharge on this issue.

The Sufficiency of the Evidence

The evidence shows the victim testified that the defendant struck her twice across the face when she refused his advances. Simple assault occurs when a person “attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.” 18 Pa.C.S.Sec. 2701 (Purdon’s 1983). “Bodily injury” is “impairment of physical condition or substantial pain.” 18 Pa.C.S.Sec. 2301 (Purdon’s 1983).

A jury may infer that striking a person across the face causes pain; a lack of testimony on pain was not fatal to the charge. The evidence was sufficient to support the verdict on the charge of simple assault.

Judgment of sentence affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

For the following reasons, I dissent. One of Appellant’s contentions raised before this Court, also raised below, is that an individual other than Appellant had engaged in sexual intercourse with the victim on the night of the alleged rape. The record reveals that immediately prior to trial Appellant sought to permit the introduction of the testimony of the witness, who was present in the courtroom, to that effect. At that time, the Commonwealth objected on the grounds that the witness would testify to exactly the opposite, that he had never at any time had sexual relations with the victim. However, the trial court did not proceed to conduct an in camera hearing to question the witness under oath prior to ruling the witness’ testimony to be inadmissible. This I believe was error.

Under Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983), the victim in the instant case could have been cross-examined on her sexual activities prior to the alleged rape if the witness in question testified that he had sexual intercourse with the victim on the same night as the alleged rape. This would offer a possible explanation for the presence of seminal acid phosphatase on the victim’s underpants. Conversely, if the witness testified that he did not have sexual intercourse with the victim on the night of the alleged rape then it is clear that under the Rape Shield Law, 42 Pa.C.S. § 3104(a), no evidence whatsoever could be admitted into evidence concerning the victim’s prior sexual activities. The critical fact is whether the witness had sexual intercourse with the victim on the night of the alleged rape, a fact which the trial court neglected to discover from the witness under oath and a fact which the majority feels is not crucial to its analysis.

Accordingly, I would vacate Appellant’s conviction for rape and remand the case to the trial court for an evidentiary hearing to determine as a matter of record whether the witness in question had sexual intercourse with the victim on the night of the alleged rape. Should the witness testify under oath that he did not, then the conviction for rape should be reinstated with a right for Appellant to file another appeal raising any of the remaining issues he raises before this Court. Should, however, the witness testify that he did have sexual intercourse with the victim on the night of the alleged rape, the testimony would be admissible in a new trial to explain the presence of the seminal acid phosphatase on the victim’s underpants.

      . Appellant took an interlocutory appeal to this Court from the denial of a second motion to dismiss, which argued that the procedure used was defective. This Court quashed on September 14, 1982. Appellant petitioned the Supreme Court for allowance of appeal; the petition was denied.

      . We note the Supreme Court, in Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982), held that the trial court properly excluded testimony that no semen was found on the defendant’s undershorts when the defendant failed to establish that the undershorts were the same as those present at the rape. The testimony had been excluded by the trial court as irrelevant: For the same reasons, the instant evidence is irrelevant.
      Had the defense offered testimony by the prior partner that the underclothing admitted into evidence was the same as that worn during the prior episode, and had the complaining witness stated the clothing had not been laundered since the earlier episode, the testimony would be relevant.


author: BECK, Judge:

text:
    492 A.2d 6
    ESTATE OF Harry PEETROS by Executrix, Helen PEETROS, Appellee, v. COUNTY DETECTIVES AND DISTRICT ATTORNEY’S OFFICE. Appeal of COMMONWEALTH of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1984.
    Filed April 19, 1985.

      Sandra L. Elias, Deputy District Attorney, Media, for Commonwealth, appellant.
    Gary A. Hurwitz, Media, for appellee.
    Before MONTEMURO, BECK and WATKINS, JJ.
   BECK, Judge:

Appellee Helen Peetros is the executrix of the estate of her husband, Harry Peetros (hereinafter “decedent”), who was murdered on May 23, 1981. She filed a motion seeking the return of certain books seized from the decedent’s office by police investigating the homicide. The Commonwealth asserts that the books are records of the decedent’s loansharking operations and are therefore contraband subject to forfeiture. The court below initially granted appellee’s motion. The Commonwealth then petitioned for and received a rehearing. After the rehearing, the court once again granted the motion. The Commonwealth appealed.

We reverse the order of the trial court granting appellee’s motion, and find that the record books are derivative contraband subject to forfeiture.

The trial court properly treated Mrs. Peetros’ motion as a motion for return of seized property under Pa.R. Crim.P. 324, although the motion makes no reference to the rule. Under Rule 324 the court may order the property to be forfeited if it determines the property to be contraband. Contraband property is divided into two classes: contraband per se and derivative contraband. Contraband per se is property the mere possession of which is unlawful, and derivative contraband is property which is innocent in itself but which has been used in the perpetration of an unlawful act. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); Commonwealth v. Fassnacht, 246 Pa.Super. 42, 369 A.2d 800 (1977). In a forfeiture proceeding, the Commonwealth has the burden of proving that the property is contraband by a preponderance of the evidence. Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999 (1976).

The trial court’s findings of fact indicate that the court believed the Commonwealth’s expert witness who testified on rehearing that the notations in decedent’s books were records of loan-sharking activities, i.e. the illegal practice of lending money at egregiously usurious rates of interest. The court found that many of the sheets recorded loans at an effective interest rate of over one hundred percent (100%) per annum (Findings of Fact 10-13, Trial Court Opinion at 2-3). The court correctly concluded that charging such interest was a criminal offense under 41 Pa.S. § 505 (Conclusions of Law 1-2, Trial Court Opinion at 3).

Despite its finding that the evidence connected the record books with an illegal activity, the court decided that the books were not derivative contraband. The court noted that the record books lended themselves to use for lawful purposes; i.e. that the record borrower is liable to the lender for the principal and the maximum legal interest rate (see 41 Pa.S. § 501). The court, therefore, concluded:

5. The records, which are the subject matter of this Petition, would constitute derivative contraband if they were used to collect usurious interest on the debts owned [sic] the decedent’s estate.
6. The records which are the subject matter of this Petition may be used to collect upon the lawful debts owed to the decedent’s estate plus interest calculated at the legal rate.
7. The Court may not assume or attribute illegitimate motives or illegal purposes to the Petitioner’s reasons for attempting to regain possession of records.

Conclusions of Law 5-7, Trial Court Opinion at 4. Appellee asks us to affirm these conclusions, arguing that Helen Peetros is entitled to the records so she can collect the “just debts” owed her husband’s estate.

We agree with the Commonwealth that the trial court’s conclusions of law indicate that it misapprehended the nature of the inquiry involved in deciding whether property is derivative contraband. It is the status of the property when it was seized and the uses to which it had been put at the time which are determinative, not whether the property will be used for only lawful purposes in the future. To hold otherwise would be inconsistent with the entire concept of derivative contraband. By definition, derivative contraband is property which may be used in a lawful manner. Yet it is still subject to forfeiture under the law because of its prior connection with criminal activity. It is no defense to an action for forfeiture of an automobile used to transport illegal drugs to vow that the vehicle will be used for strictly lawful purposes in the future. It is likewise insufficient for appellee to claim that the record books will only be used in the future to enforce legal debts.

The record books are therefore subject to forfeiture as derivative contraband if the Commonwealth meets its burden of connecting them with criminal activity. We hold that the Commonwealth has carried this burden. In addition to the facts found by the trial court at Findings of Fact 10-13, the record contains undisputed testimony that payments had already been made on some of the loans. See N.T. 13/7/83 at 30, 34. This clearly established that decedent had charged and collected usurious interest in violation of 41 Pa.S. § 505.

Appellee’s argument that the Commonwealth has not met its burden because “decedent was never formally charged or suspected of any criminal activity” (Appellee’s Brief at 15) or, alternatively, because “the Commonwealth is attempting to categorize the property as derivative to a crime which it has never been [sic] proven to have occurred” (Id. at 16) is clearly meritless. Conviction of the owner or possessor of the contraband for the underlying crime is not necessary, and even an acquittal does not operate as a bar to a finding of contraband. One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972); Commonwealth v. 1978 Toyota, 321 Pa.Super. 549, 468 A.2d 1125 (1983). Contrary to appellee’s claim that “the Commonwealth has not provided one fact that the decedent used the property in an illegal manner” (Appellee’s Brief at 16), the Commonwealth has provided ample factual support for the conclusion that these record books are derivative contraband.

The order of the trial court is reversed and the subject property is ordered forfeited to the Commonwealth. Jurisdiction is relinquished.

      . The court’s order granting the motion included the proviso that appellee was to receive photocopies of the records at first, with the originals to be turned over to her upon the disposition of post-verdict motions in a criminal action in Delaware County against James Peetros (decedent’s brother) and James Eden. James Peetros and James Eden were charged in that action with bribery and conspiracy in connection with an attempt to obtain the books from the police by illegal means.

      . By way of further illustration, property may be forfeited even if its owner had no knowledge of and did not consent to the prior unlawful use by another. United States v. One 1951 Cadillac Coupe De Ville, 108 F.Supp. 286 (W.D.Pa.1952); Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973 (1983); but see Commonwealth v. One 1972 Ford Pickup Truck, 49 Pa.Commw. 600, 411 A.2d 892 (1980) (owner’s knowledge relevant to discretion of court in cases under the Liquor Code); Act of December 14, 1984, P.L. -, No. 200, 35 P.S. § 780-128 (a)(6)(h) (property not forfeitable under Controlled Substance Act if owner establishes lack of knowledge).

      . It is important to bear in mind that a conviction for the underlying crime requires proof beyond a reasonable doubt while a finding of contraband may be made on a preponderance of the evidence.


author: JOHNSON, Judge:

text:
    492 A.2d 9
    COMMONWEALTH of Pennsylvania v. William SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 17, 1985.
    Filed April 19, 1985.

      Joseph S. O’Keefe, Norristown, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant, William Smith, takes this appeal from the judgment of sentence entered following his conviction by a jury for robbery, possessing instruments of crime, simple assault, and recklessly endangering another person. Appellant raises four issues for our review:

A. Did the learned trial court err in allowing the Commonwealth to introduce evidence of a prior arrest of the defendant?
B. Did the learned trial court err in admitting into evidence out-of-court conversations between a Commonwealth witness and the defendant’s stepmother?
C. Did the learned trial court err in denying defendant’s request for a mistrial due to prosecutorial misconduct?
D. Was trial counsel ineffective in failing to object to the introduction of testimony of the defendant’s prior arrest as well as failing to object to the hearsay testimony of the Commonwealth’s witnesses?

Finding none, of appellant’s issues to have merit, we affirm.

On September 9, 1980, at 12:45 a.m., appellant entered Caesar’s Pike Bar in Philadelphia. Because appellant had been arrested for burglarizing this same bar just three and one-half months previously, the barmaid told appellant that he was not welcome and asked him to leave. Appellant argued with’ the barmaid and, when another customer attempted to intervene, appellant struck him. Appellant then started a destructive imbroglio — throwing chairs and breaking glasses with an axe handle he had with him. During his rampage, appellant threatened to kill the barmaid and threw a stool at her, injuring her back. Appellant then began pounding on the cash register with the axe handle, saying, “They said I tried to rob this mother-fucker. This time I will really rob it.” Appellant was still attempting to open the cash register when the police arrived.

Appellant first argues that the trial court erred in admitting evidence of appellant’s prior arrest for robbing the same bar three and one-half months before the crime now at issue. As a general rule, evidence of prior criminal acts by an accused is inadmissible; however, an exception to this rule exists where such evidence is probative of the accused’s motive or intent. Commonwealth v. Speller, 311 Pa.Super. 569, 458 A.2d 198 (1983). However, the probative value of the evidence must exceed its prejudicial impact. Commonwealth v. Middleton, 320 Pa.Super. 533, 467 A.2d 841 (1983).

In the instant case, the evidence of appellant’s prior arrest did reveal a motive and intent for appellant’s actions on the date in question. By showing a motive for appellant’s actions, the evidence helped to prove that appellant did not accidentally hit Sylvia Robinson with a barstool, but that he did so intentionally after Robinson asked him to leave because of the prior robbery. Also, the evidence went toward proving that appellant was intending to rob the bar when the police found him pounding on the cash register with an axe handle. See, e.g., Commonwealth v. Gonzales, 297 Pa.Super. 66, 443 A.2d 301 (1982) (Testimony of owner’s agent, that same premises had been broken into by defendant and friends just five days prior to present burglary and that on the prior occasion defendant stated that lessee owed him two weeks pay, was relevant and material in proving intent, motive, and identity and thus admissible.)

Furthermore, appellant took the stand at trial and denied that he had had any intent to rob the bar. He claimed that he had only been engaging in a fight with two of the bar’s patrons over an unrelated matter. Appellant also claimed that the bar’s owner had not previously filed a criminal complaint against him. Thus, the evidence of appellant’s prior arrest was necessary to rebut appellant’s testimony. See, e.g., Commonwealth v. Rozanski, 289 Pa.Super. 531, 433 A.2d 1382 (1981) (Admission of defendant’s prior threat to blow up a church was not unduly prejudicial where defendant testified at trial and the issue of his intent in present case was sharpened by his testimony; if the prior threat had not been offered by the Commonwealth as part of its case-in-chief, it could have been offered in rebuttal.) Therefore, we find in the instant case that the prejudicial impact of this evidence was outweighed by its probative value.

Appellant next argues that the trial court erred by admitting into rebuttal for the Commonwealth, evidence of out-of-court threats made by appellant’s stepmother to a witness for the Commonwealth, one Sylvia Robinson, the barmaid on the night in question. The introduction of this evidence was made after appellant called his father in rebuttal to testify in appellant’s behalf. On cross-examination the district attorney then questioned appellant’s father about the father’s attempts to keep Robinson from testifying, including one occasion when appellant’s father and stepmother walked up to Robinson during a court recess and the stepmother said, “I know one goddam thing; the shit better go right tomorrow or else some fucking body going to answer to me. I mean it, I mean it.” Appellant’s father denied this and it was then that the Commonwealth called Robinson to the stand in its rebuttal. Robinson testified that during a recess in the trial she was approached by appellant’s father and stepmother and that the stepmother threatened her. Appellant now asserts that this impeachment was improper because it went to a collateral issue and because a hearsay statement was introduced.

Admission or rejection of rebuttal evidence is within the sound discretion of the trial judge. Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980); Commonwealth v. Eackles, 286 Pa.Super. 146, 428 A.2d 614 (1981). Evidence concerning threats made by one witness against another witness is relevant to a determination of the strength of feeling, and thus the credibility and bias, of the witness making the threats. Commonwealth v. Sparrow, 471 Pa. 490, 499-500, 370 A.2d 712, 717 (1977), overruled on other grounds, Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981). As the supreme court has said:

We have repeatedly held that the order of presentation of evidence is a matter which is largely within the discretion of the trial judge____ [A] party may produce evidence to rebut testimony which he himself elicited from his opponent’s witness on cross-examination.

Commonwealth v. Hickman, 453 Pa. 427, 432, 309 A.2d 564, 567 (1973) (citations omitted). See also Commonwealth v. Stevens, 276 Pa.Super. 428, 419 A.2d 533 (1980). It was, therefore, proper for the district attorney to cross-examine appellant’s father regarding attempts by the father to prevent Robinson from testifying, and for the Commonwealth to call Robinson to the stand in rebuttal.

We further note that the admissibility of Robinson’s testimony was not negated by the fact that appellant’s father did not, himself, make the threatening statements to Robinson. The law in this matter was thus summarized by the supreme court:

The hearsay rule does not apply to all statements made to or overheard by a witness, but only those statements which are offered as proof of the truth of what is said. Thus, a witness may testify to a statement made to him when one of the issues involved is whether or not the statement was, in fact, made. Similarly, a witness may testify to statements made by another to the witness or to a third person when the purpose of this testimony is to evidence the effect which the statement had upon the listener.

Commonwealth v. Wright, 455 Pa. 480, 485, 317 A.2d 271, 273 (1974) (citations omitted) (footnote omitted). In keeping with this rule, evidence of threats against a witness by a third party has been found not to be hearsay and has been allowed to be introduced. See, e.g., Commonwealth v. Starks, 298 Pa.Super. 213, 444 A.2d 736 (1982); Commonwealth v. Douglass, 185 Pa.Super. 269, 138 A.2d 193 (1958). Accordingly, we do not find the admission of the evidence at issue to be reversible error.

Appellant next argues that the trial court erred in denying appellant’s request for a mistrial on the grounds of prosecutorial misconduct. Specifically, appellant points to two statements in the district attorney’s closing address. In the first of these, the D.A. referred to “the mentality that someone was going to have to pay.” (N.T., 8/6/81 at 3.53). By this statement, the D.A. was referring to the attempts by appellant’s father and stepmother to prevent Robinson from testifying. In the second remark, the D.A. alluded to appellant’s having an interest in the outcome of the case. The D.A. then said, “Well, ladies and gentlemen, [appellant’s] interest is the most vital, and you ask yourselves if anyone is going to color what they say is it not the person who is accused of the crime?” (N.T., 8/6/81 at 3.51).

While it is true that a prosecutor may not express his personal opinion regarding a defendant’s guilt, credibility or trial strategy, Commonwealth v. Pfaff, 477 Pa. 461, 384 A.2d 1179 (1978), the prosecution may argue reasonable inferences from the facts and comment upon the credibility of the witnesses. Commonwealth v. Barren, 501 Pa. 493, 462 A.2d 233 (1983); Commonwealth v. Carey, 313 Pa.Super. 20, 459 A.2d 389 (1983). We do not find that the district attorney at trial exceeded the bounds of proper argument, as he was merely making an argument on credibility.

Lastly, appellant argues that his trial counsel was ineffective for failing to object to the admission into evidence of a statement made by appellant during his rampage in the bar. In this statement, appellant said, “They said I tried to rob this mother-fucker. This time I will really rob it.” Appellant asserts that this evidence was an impermissible reference to appellant’s prior arrest for burglarizing the Caesar’s Pike Bar. As we held in our ruling on appellant’s first issue, supra, we find the admission of this evidence to be proper for showing appellant’s motive and intent for the crime.

As a further basis for arguing ineffectiveness of counsel, appellant asserts that counsel failed to object to numerous admissions of hearsay testimony. We have reviewed each section of the testimony to which appellant now objects and find none of these examples to be hearsay. In almost every instance, the specified evidence consists of statements which were made by appellant during his destruction of Caesar’s Pike. The few remaining points in the testimony concern inconsequential matters, such as a conversation between the employees of the bar as to what time they should close. The truth of such statements is immaterial. Therefore, counsel was not ineffective for failing to object to this evidence.

Judgment of sentence affirmed.