author: POPOVICH, Judge:

text:
    580 A.2d 820
    COMMONWEALTH of Pennsylvania, Appellee, v. James E. VANDERLIN, Jr., Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Submitted June 11, 1990.
    Filed Sept. 18, 1990.

      David Crowley, Asst. Public Defender, Mercer, for appellant.
    Ray F. Gricar, Dist. Atty., Bellefonte, for the Com., appellee.
    Before CAVANAUGH, BECK and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Centre County. We affirm.

The record indicates that on November 27, 1988, at approximately 5:00 p.m., J.Q. was attacked and sexually assaulted. J.Q. was walking home from work when she noticed a dark-haired man of average build and of average height heading in her direction. (N.T., May 24, 1989, at 17, 30-31). Shortly thereafter, J.Q. was attacked. The perpetrator put his arm around J.Q.’s neck from behind and told her that he wanted to see her breasts. Id. He then unbuttoned her blouse, tore open her bra, and took off her pants and her underpants. Id. at 18. J.Q. testified that her attacker pulled her down to her knees and fondled her. Id. She stated that he kissed her all over her body and that his hands were “stuck up in my vagina and ... on my breasts and stomach.” Id. at 19. See also id. at 21-22. J.Q. only glanced at her attacker’s face because he covered her eyes with her work apron. Id. at 18.

The perpetrator removed his clothing and told J.Q. to fondle him. She refused. He wanted J.Q. to engage in oral sex but she again refused. The attacker then offered J.Q. a choice: “he was either going to take all my clothes from me, he was going to rape me or kill me.” Id. at 19. See also id. at 22. In response, J.Q. fondled the attacker. Id. at 20. She testified that she thought he ejaculated. Id. The perpetrator threatened J.Q. during the attack. She believed that he was going to kill her. Id.

J.Q. testified that the assailant kissed her on the mouth and that she could tell that he was a smoker. Id. She also said that she felt his beard on her chest and that he wore glasses. Id. at 21. J.Q. repeatedly testified that she remembered her assailant’s voice. She said that he spoke to her in a “scratchy whisper” throughout the twenty minute assault. Id. at 21.

Although J.Q. refused to engage in oral sex with her attacker, he put his penis on her mouth so that they were touching. Id. at 21-22, 39-40. The perpetrator kissed and fondled J.Q. some more “and when he went to leave [he] rolled me back onto my stomach and told me not to look up or he was going to kill me.” Id. at 22. The attacker then fled. J.Q. walked home and reported the incident to her mother and to the police.

At approximately 7:00 p.m. on November 27, 1988, the appellant, James Vanderlin, dialed “911” and reached the Centre County Emergency Communications Center. The dispatcher traced Vanderlin’s call to an apartment complex located in proximity to the crime scene. Id. at 55-56. The call was automatically recorded. Id. at 49-50. During his conversation with the dispatcher, Vanderlin asked whether an attempted rape had occurred near the high school track. When the dispatcher replied that he had not yet received such a report, Vanderlin confessed to the commission of the crime. See id. at 52-55.

Investigator Thomas Jordan obtained a copy of the tape recording and played it to J.Q. two times. Id. at 27, 81-83. J.Q. identified the voice as that of her attacker. Id. at 81-83. Thereafter, Jordan played the tape over the radio and television. Several persons contacted Jordan and identified the caller’s voice as Vanderlin’s. Id. at 83-85.

On January 20, 1989, Vanderlin was arrested and charged with Criminal Attempt (Rape), Criminal Attempt (Involuntary Deviate Sexual Intercourse), Indecent Assault, Indecent Exposure, Unlawful Restraint and False Imprisonment. On March 23, 1989, Vanderlin filed a motion to suppress the identification testimony of the victim, which was denied. He also filed motions in limine, which were denied. Following a jury trial, Vanderlin was convicted of all charges. His post-verdict motions were denied. Vanderlin was sentenced to an incarceration period of seven to fifteen years for Attempted Rape and a consecutive period of three to ten years for Attempted Involuntary Deviate Sexual Intercourse. Vanderlin filed a motion to modify his sentence for Attempted Rape. Realizing that the sentence initially imposed for Attempted Rape was illegal, the trial judge re-sentenced Vanderlin to five to ten years for Attempted Rape and a consecutive term of five to ten years for Attempted Involuntary Deviate Sexual Intercourse. Vanderlin filed another motion to modify sentence, which was denied. This appeal followed.

Vanderlin has preserved the following issues for our review:

I. Whether the trial court erred in failing to suppress the one-on-one identification of the attacker’s voice from a tape recorded purported confession.
II. Whether the evidence was insufficient to establish that defendant took a substantial step toward the completion of the crime of attempted rape.
III. Whether the guilty verdict for attempted rape was against the weight of the evidence as the evidence did not preponderate that defendant took a substantial step toward the completion of the crime of attempted rape.
IV. Whether the trial court erred in not merging the offenses of attempted rape and attempted involuntary deviate sexual intercourse for sentencing purposes.
V. Whether the trial court erred and violated defendant’s protections against double jeopardy under the United States and Pennsylvania Constitutions by sua sponte modifying the judgment of sentence passed upon him in open court four days previously and increasing his minimum period of incarceration for the offense of attempted involuntary deviate sexual intercourse.

See Appellant’s brief, at 4. We will address each issue seriatim.

Vanderlin’s first contention is that the trial court erred in failing to suppress J.Q.’s testimony identifying the voice on the tape recorded message as that of her attacker. Vanderlin asserts that the method employed by Investigator Jordan to procure the identification testimony from J.Q. was unnecessarily suggestive and unreliable under the “totality of the circumstances” test. Vanderlin claims that his case was prejudiced by the admission of the identification testimony. We disagree.

At the onset, we note our standard of review in considering an appeal from the denial of a motion to suppress. Our role “is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings.” Commonwealth v. Fromal, 392 Pa.Super. 100, 111, 572 A.2d 711, 717 (1990); Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1042 (1986). In making this determination,

we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. (Citation omitted). Moreover, when the evidence viewed in this manner supports the factual finding of the suppression court this Honorable Court can reverse only if there is an error in the legal conclusion drawn from those factual findings.

Reddix, 355 Pa.Super. at 518, 513 A.2d at 1042; Commonwealth v. Cauto, 369 Pa.Super. 381, 535 A.2d 602 (1987) (this Court may reverse the suppression court only if its legal conclusions, drawn from the facts in the record, are erroneous).

The instant case represents a somewhat novel situation, and case law dealing with voice identification from a tape recorded message is sparse. However, we have reviewed the analogous case law and conclude that the trial court did not err in allowing J.Q.’s identification testimony.

The parties adequately cite the pertinent law; both Vanderlin and the Commonwealth correctly refer to Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) for the proposition that the reliability of an identification is the linch pin in determining whether the identification testimony is admissible. Courts must look to the totality of the circumstances to determine whether an identification is reliable. Id. at 114, 97 S.Ct. at 2253.

As both the Pennsylvania Supreme Court and this Court have recognized, the suggestiveness of police tactics in the identification process is one factor to consider in determining whether to admit identification evidence, but suggestiveness alone will not necessarily cause the evidence to be excluded. See Commonwealth v. Ransome, 485 Pa. 490, 495, 402 A.2d 1379, 1382 (1979) (“Suggestiveness alone does not warrant exclusion. Instead ‘[i]t is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which [is] the basis of the exclusion of evidence.’ ” (citations omitted)); Commonwealth v. Johnson, 301 Pa.Super. 13, 446 A.2d 1311 (1982) (accord), aff'd in part, vacated in part 499 Pa. 380, 453 A.2d 922 (1982). The United States Supreme Court has stated that a pre-trial identification will not be suppressed unless it can be shown that the identification procedure “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. U.S., 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); see Commonwealth v. Johnson, 301 Pa.Super. 13, 15, 446 A.2d 1311, 1312 (1982).

In the instant case, the trial court relied on Commonwealth v. Thompkins, 311 Pa.Super. 357, 457 A.2d 925 (1983). In Thompkins, this Court applied the “totality of the circumstances” test and considered the Manson factors in determining the reliability of an identification. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

The Thompkins Court stated:

The essential criteria in determining whether or not evidence of pre-trial identification is admissible is its reliability under all of the circumstances disclosed by the record. The question for the suppression court is whether the challenged identification has sufficient indicia of reliability to warrant its admission even though the confrontation procedure may have been suggestive. [Footnote omitted] [Citation omitted].

Id. 311 Pa.Super. at 362-63, 457 A.2d at 928.

We are satisfied that the trial court in the instant case properly evaluated Vanderlin’s claim. It adhered to the standards enunciated in Manson and adopted in Thompkins and correctly concluded to deny Vanderlin’s motion to suppress. We echo the following language and reasoning of the trial court.

At the Preliminary Hearing, the Commonwealth played a tape recording of a telephone call received by “911” on November 27, 1988—the date the alleged offenses took place. The caller first asked the police dispatcher whether an attempted rape near the high school track had been reported. When the dispatcher replied he did not have any news release on anything of that nature, the caller replied, “Well, it was me and I think I’m going to kill myself.” (N.T., p. 14)
The victim in this matter has identified the voice on the tape as belonging to her assailant. The first identification took place on December 8, 1988, when Investigator Jordan took the tape to the victim’s house. According to the victim’s testimony at the suppression hearing, Investigator Jordan told her he had a tape for her to listen to and he wanted to know whether or not the voice belonged to the man who attacked her. Investigator Jordan played the tape twice. The first time through, the victim testified she “froze” because she recognized the voice on the tape. After Investigator Jordan play [sic] the tape a second time, the victim testified she reacted by saying, “Yes, that’s definitely him.” ”
The Commonwealth played this tape at the Preliminary Hearing and the suppression hearing, the victim again identifying the voice as that of her assailant each time. Defendant urges that the first identification of the voice on tape on December 8, 1988, was impermissibly suggestive because the tape contained only one voice. Defendant contends the identification is therefore akin to a photographic lineup with only one photograph. Defendant further maintains that because every subsequent identification of the voice by the victim was tainted by this first impermissibly suggestive identification, all such subsequent identifications must be suppressed. This would also render inadmissible any potential identification at trial of the voice on the tape.
While Defendant’s analogy to a photographic lineup with only one photograph is well taken, we nevertheless do not believe it requires suppression of the tape or the identification. In Commonwealth v. Thompkins, 311 Pa.Super. 357, 457 A.2d 925 (1983), the Pennsylvania Superior Court discussed the factors to be considered in making such a determination. Noting that “(t)he essential criteria in determining whether or not evidence of pre-trial identification is admissible is its reliability under all of the circumstances,” the Court wrote: ‘The question for the suppression court is whether the challenged identification has sufficient indicia of reliability to warrant its admission even though the confrontation procedure may have been suggestive.’ 311 Pa.Super. at 362-363, 457 A.2d at 928 (emphasis in original) [sic] (footnote and citation omitted).
The Court in Thompkins then enumerated certain factors which should be considered in deciding whether or not to suppress evidence of pre-trial identifications. They are: ‘... the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.’ Id. (Citing Manson v. Brathwaite, 432 U.S. 98, 114 [97 S.Ct. 2243, 2253, 53 L.Ed.2d 140] (1977).) In Commonwealth v. Spiegel, 311 Pa.Super. 135, 145, 457 A.2d 531, 536 (1983), the Superior Court went one step further, holding that the opportunity of the witness to view the actor at the time of the crime is the key factor in the totality of the circumstances analysis (citation omitted).
In the case at hand, the Court has before it an audio pre-trial identification, rather than the usual identification of an eyewitness or visual nature. Nevertheless, the Superior Court’s opinions in Thompkins and Spiegel, above, are relevant and instructive inasmuch as the same principles must be applied.
The victim in the instant case had ample opportunity to listen to her assailant at the time of the alleged crime. She testified that the attack lasted approximately twenty minutes. Additionally, she testified the assailant spoke to her continuously throughout the attack, directing her to do certain things. The evidence clearly established not only that she had ample opportunity to listen to the sound of his voice, but also that her attention was focused on what the assailant was saying to her throughout the attack.
Another factor to be considered, according to Thompkins, is the level of certainty which the victim demonstrated when confronted with the tape recording. We note again the victim’s testimony that she “froze” when she first heard the recording, and after asking Investigator Jordan to play it once again “so she could be sure,” the victim stated unequivocally that it was the voice of her attacker. We must also consider the amotint of time which elapsed between the crime and the confrontation. The attack allegedly took place on November 27, 1988. The victim first identified the voice on the tape on December 8, 1988, eleven days later. It is difficult to know just how long is “too long” between a crime and an identification. Nonetheless, this Court does not believe eleven days to be too long a lapse between the alleged attack and the victim’s identification of the attacker’s voice.
The remaining factor to be considered, under Thompkins, is the accuracy of the victim’s prior description of the criminal. It is not clear from the record whether the victim ever gave the police a description of her attacker’s voice prior to the identification on December 8, 1988. Nevertheless, in view of the application of all the other Thompkins factors to the instant case, we believe the victim’s identification has “sufficient indicia of reliability to warrant its admission even though the confrontation procedure may have been suggestive.” Thompkins, 311 Pa.Super. at 363, 457 A.2d at 928 (footnote and citation omitted). We also subscribe to the Superior Court’s assertion in Commonwealth v. Spiegel, supra, that the opportunity of the witness to view, or in this case hear, the actor at the time of the crime is the key factor in the “totality of the circumstances” analysis.
Against all of the above factors, this Court must now weight the “corrupting effect of the suggestive identification itself.” Thompkins, supra. We do not find the corrupting effect of admitting the voice identification is of such weight as to render it inadmissible. The challenged evidence merely connects an anonymous caller with the crime. Alone, it does not connect Defendant with the crime. That fact, coupled with what we believe are sufficient indicia of reliability surrounding the voice identification, leads us to enter the following ... [Order denying Vanderlin’s motion to suppress identification testimony was entered on April 21, 1989].

Trial Court’s opinion and order, Omnibus pre-trial motion, April 21, 1989, at 2-7. After an independent review of the record and pertinent case law, we hold that the trial court properly denied Vanderlin’s motion to suppress.

Vanderlin next asserts that judgment should have been arrested with respect to the charge of Criminal Attempt (Rape) because the evidence was insufficient to sustain his conviction. We find this claim to be without merit. The law is clear that in reviewing a sufficiency of the evidence claim, we view the evidence in the light most favorable to the verdict winner, and drawing all reasonable inferences therefrom, we determine whether there is sufficient evidence to establish each element of the crime beyond a reasonable doubt. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986); Commonwealth v. Hunter, 381 Pa.Super. 606, 610, 554 A.2d 550, 551 (1989). In applying this test, we must evaluate the entire trial record and consider all evidence actually received. Griscavage, 512 Pa. at 543, 517 A.2d at 1257.

In the instant case, Vanderlin claims that since there was no attempted sexual intercourse, the evidence was insufficient to sustain his guilty verdict for attempted rape. The criminal attempt statute in Pennsylvania provides that “[a] person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” 18 Pa.C.S. § 901(a). See Commonwealth v. Russell, 313 Pa.Super. 534, 542-43, 460 A.2d 316, 320-21 (1983) (discusses intent to commit rape and sufficiency of the evidence); Commonwealth v. Gilliam, 273 Pa.Super. 586, 589-90, 417 A.2d 1203, 1205 (1980) (discusses the “substantial step” test). Regarding the crime of rape, two statutes are relevant to our discussion. 18 Pa.C.S. § 3121 defines rape as follows.

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(3) who is unconscious; or
(4) who is so mentally deranged or deficient that such person is incapable of consent.

18 Pa.C.S. § 3101 defines sexual intercourse as follows. “In addition to its ordinary meaning, [sexual intercourse] includes intercourse per os or per anus, with some penetration however slight; emission is not required.”

In the instant case, the record provides sufficient evidence to indicate that an attempted rape occurred. J.Q.’s assailant removed her blouse, ripped open her bra, pulled off her pants and underpants, fondled her body, kissed her, inserted his finger into her vagina, threatened to rape her or kill her, told her that he wanted oral sex and in fact touched her mouth with his penis. The case law in this State strongly supports the trial court’s finding that there was ample evidence to sustain an attempted rape conviction. See Commonwealth v. Owens, 315 Pa.Super. 400, 462 A.2d 255 (1983) (conviction for attempted rape upheld where defendant hit a seven year old child, forced her into a garage, removed her clothes and unzipped his pants before a neighbor interceded by entering the garage); Commonwealth v. Simpson, 316 Pa.Super. 115, 462 A.2d 821 (1983) (defendant’s actions in applying pressure to victim’s throat and in loosening and starting to take off his pants constituted a substantial step towards the commission of rape; conviction for attempted rape sustained); Commonwealth v. Russell, 313 Pa.Super. 534, 460 A.2d 316 (1983) (evidence was sufficient to sustain conviction for attempted rape where defendant cut the victim’s tee shirt, bra, jeans and panties, and fondled her breasts and placed his finger in her vagina); Commonwealth v. Martin, 307 Pa.Super. 118, 452 A.2d 1066 (1982) (substantial step in effectuating an intended rape occurred where defendant grabbed victim, threatened her, and expressed intent to have sex with her); Commonwealth v. Keeler, 302 Pa.Super. 324, 448 A.2d 1064 (1982) (defendant pushed victim to the ground and told her he was going to rape her; victim scratched defendant; this Court held that presence of scratch marks on defendant’s neck was sufficient to sustain attempted rape conviction); Commonwealth v. Moody, 295 Pa.Super. 106, 441 A.2d 371 (1982) (attempted rape conviction upheld where defendant forced a twelve year old girl into his basement, fondled her genitalia and began to unzip his pants before she escaped); Commonwealth v. King, 290 Pa.Super. 563, 434 A.2d 1294 (1981) (attempted rape conviction upheld where defendant exposed himself to victim, indicated that he wanted to have sex with her, approached her and forcibly laid down on top of her); Commonwealth v. Bullock, 259 Pa.Super. 467, 393 A.2d 921 (1978) (evidence was sufficient to sustain charge of attempted rape where defendant pulled at victim’s blouse, pulled down her bra and tried to remove her pants).

Vanderlin also argues that his guilty verdict was contrary to the weight of the evidence. We also find this claim to be without merit. In Commonwealth v. Hunter, 381 Pa.Super. 606, 554 A.2d 550 (1989), this Court reiterated the test to be applied when an appellant asserts that his conviction is against the weight of the evidence.

The determination whether to grant a new trial on the ground that the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent an abuse of discretion. Before a trial court may award a new trial on this ground, it must appear that the verdict was so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative. When the challenge to the weight of the evidence is predicated on the credibility of the trial testimony, our review of the trial court’s decision is extremely limited. Generally, unless the evidence “is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture,” ... these types of claims are not cognizable on appellate review.

Hunter, 381 Pa.Super. at 617, 554 A.2d at 555 (citations omitted). In applying these standards to the instant case, we conclude that the jury’s verdict was not so contrary to the evidence as to shock one’s sense of justice. The record amply supports the jury’s finding of guilt in this case.

Vanderlin’s next allegation of error is that the trial court failed to merge the offenses of attempted rape and attempted involuntary deviate sexual intercourse for sentencing purposes. Since Vanderlin attempted to commit two separate crimes, we find no error in the trial court’s ruling.

18 Pa.C.S. § 3123, Pennsylvania’s Involuntary Deviate Sexual Intercourse statute, provides:

A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(3) who is unconscious;
(4) who is so mentally deranged or deficient that such person is incapable of consent; or
(5) who is less than 16 years of age.

Moreover, 18 Pa.C.S. § 3101 defines deviate sexual intercourse as “[sjexual intercourse per os or per anus between human beings who are not husband and wife, ... and any form of sexual intercourse with an animal.”

As previously stated, 18 Pa.C.S. § 3101 also defines sexual intercourse. The definition of sexual intercourse is relevant to the attempted rape charge. The applicable part of the statute reads: “In addition to its ordinary meaning, [sexual intercourse] includes intercourse per os or per anus with some penetration however slight; emission is not required.” Id.

In the instant case, Vanderlin disrobed J.Q. and forced her to fondle him. Additionally, he touched her mouth with his penis. Thus, the jury could conclude that Vanderlin attempted involuntary deviate sexual intercourse.

Vanderlin, after undressing J.Q., told her of his intentions to rape or kill her, inserted his finger into her vagina, fondled her and kissed her all over her body. Thus, the jury could conclude that Vanderlin attempted rape. We do not find error in the trial court’s conclusion that two distinct offenses occurred. Therefore, these crimes do not merge for sentencing purposes. See Commonwealth v. Williams, 521 Pa. 556, 559 A.2d 25 (1989) (discusses the doctrine of merger and lesser included offenses); Commonwealth v. Kubiac, 379 Pa.Super. 402, 416-17, 550 A.2d 219, 226-27 (1988) (discusses whether separate statutory offenses merge for sentencing purposes); Commonwealth v. McCusker, 363 Pa. 450, 457-58, 70 A.2d 273, 277 (1950) (defines and explains the doctrine of merger). See also Commonwealth v. Hitchcock, 523 Pa. 248, 565 A.2d 1159 (1989) (merger of forcible rape and statutory rape into involuntary deviate sexual intercourse for sentencing purposes was error, where offenses were discrete and distinct); Commonwealth v. Pifer, 284 Pa.Super. 170, 425 A.2d 757 (1981) (compares rape statute with involuntary deviate sexual intercourse statute); Commonwealth v. Buser, 277 Pa. Super. 451, 457, 419 A.2d 1233, 1236 (1980) (“[t]he question whether one crime merges into another crime for the purposes of imposing sentence must be answered by reference to the facts presented in the individual case”); Commonwealth v. Johnson, 274 Pa.Super. 440, 418 A.2d 487 (1980) (sentences for Rape and Involuntary Deviate Sexual Intercourse did not merge); Commonwealth v. Ludwig, 366 Pa.Super. 361, 363 n. 6, 531 A.2d 459, 460 n. 6 (1987) (accord) appeal granted 518 Pa. 617, 541 A.2d 744 (1988).

Vanderlin finally argues that the trial court erred and violated his protections against double jeopardy by sua sponte modifying his judgment of sentence and by increasing his minimum period of incarceration for attempted involuntary deviate sexual intercourse. Four days after orally announcing sentence, the trial judge lessened Vanderlin’s incarceration period for attempted rape and increased his term of imprisonment for attempted involuntary deviate sexual intercourse. Vanderlin contends that an increased modification of sentence violates the double jeopardy clause. After a review of the current case law, we disagree.

Although our research has revealed no case which directly confronts this issue, we find analogous case law to be instructive. In Commonwealth v. Jones, 520 Pa. 385, 554 A.2d 50 (1989), the Pennsylvania Supreme Court overruled Commonwealth v. Brown, 455 Pa. 274, 314 A.2d 506 (1974) and held that a sentencing court could sua sponte increase a sentence that was illegally imposed, without violating the prohibitions against double jeopardy. In Jones, the sentencing court corrected its error after the defendant began serving his sentence.

In discussing the right to appeal the legality of a sentence, our Supreme Court stated, “it has long been the opinion of a dissenting segment of this Court that an illegal sentence is a legal nullity, and sentencing courts must have the authority to correct such a sentence even if that means increasing the sentence.” Jones, 520 Pa. at 390, 554 A.2d at 52. Thereafter, the Jones Court concluded that the trial court’s modification of the defendant’s illegal sentence was proper, even though the modification resulted in an increased maximum period of incarceration. Id. See also Commonwealth v. Greer, 382 Pa.Super. 127, 141, 554 A.2d 980, 987 (1989) (enhanced sentence reflected original intent of sentencing court and “merely [gave] effect to the original sentencing scheme”); Commonwealth v. Broadie, 339 Pa.Super. 394, 489 A.2d 218 (1985) (double jeopardy clause does not prohibit sentencing court from modifying a defendant’s sentence and from increasing the punishment).

In Commonwealth v. Green, 232 Pa.Super. 555, 335 A.2d 392 (1975), this Court rejected the appellant’s argument that his protections against double jeopardy were violated when he was twice sentenced for the same crime. In that case, the defendant’s sentence was modified within two hours of its original imposition because the trial judge realized that the sentence initially imposed was illegal. The judge modified the defendant’s sentence to conform with the Controlled Substance, Drug, Device and Cosmetic Act. In holding that the appellant was properly sentenced, this Court stated, “[w]e believe that appellant’s claim must fail because of a fallacy in its initial premise: that a first sentence of five years was imposed prior to the imposition of the five to twenty year term.” Id., 232 Pa.Superior Ct. at 557, 335 A.2d at 393.

The Green Court relied on a number of federal cases to support its position that

a sentence, like any other judgment, is to be construed so as to give effect to the intention of the sentencing judge and that to determine this intention the court will limit itself to the language of the judgment despite oral statements of the sentencing judge which are not incorporated in it.

Id., citing United States ex rel. Speaks v. Brierley, 417 F.2d 597, 600 (3d Cir.1969). We note that in the instant case, the trial court clearly expressed its intention that Vanderlin remain imprisoned for ten to twenty five years. Trial Court opinion, November 22, 1989, at 6, 8. The trial court realized that it had made a sentencing error before the sentencing orders had been reduced to writing, signed and filed with the Prothonotary. The court became aware of its mistake at the end of the day following the “first” sentencing. See id. at 2. It contacted the parties and reconvened to rectify the sentencing error at the next earliest opportunity.

In Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947), the United States Supreme Court stated:

The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. In this case the court 'only set aside what it had no authority to do, and substitute^] directions required by the law to be done upon the conviction of the offender.’ It did not twice put petitioner in jeopardy for the same offense.

Id. (citations omitted); see also Commonwealth v. Foster, 229 Pa.Super. 269, 324 A.2d 538 (1974), citing Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1935) (“[t]he only sentence known to the law is the sentence or judgment entered upon the records of the court”). See Commonwealth v. Unger, 315 Pa.Super. 408, 462 A.2d 259 (1983) (trial judge’s oral statements not incorporated into the written and signed judgment of sentence are not part of the judgment of sentence; oral pronouncement of sentence does not constitute an imposed sentence for double jeopardy purposes).

Vanderlin argues that he only requested modification of his sentence for attempted rape. He claims that the trial court did not have the proper authority to modify the attempted deviate sexual intercourse sentence sua sponte. We disagree. First, we are persuaded by the Commonwealth’s interpretation of Commonwealth v. Lezinsky, 264 Pa.Super. 476, 400 A.2d 184 (1979). See also Trial Court opinion, November 22, 1989, at 7-8. In Lezinsky, this Court vacated three sentences imposed by the trial court, even though it found only two of the sentences to be erroneous. We held:

The Judgment of Sentence on the Criminal Mischief charge must be vacated. In this situation, where we cannot determine whether the declared invalidity of a conviction on one count may have affected the lower court’s sentencing on the remaining counts, we must remand to give the lower court an opportunity to reconsider sentencing. [Citations omitted].
For the reasons stated above, the conviction on the criminal mischief charge is vacated, as are the sentences on the remaining charges, and the case is remanded to the lower court for resentencing.

Id. 264 Pa.Super. at 480, 400 A.2d at 186. We agree with the Commonwealth that “the principle behind the Lezinsky decision is that if a trial court errs in its sentence for one count in a multi-count case, then all sentences for all counts will be vacated so that the court can re-structure its entire sentencing scheme.” Appellee’s brief, at 19. The Commonwealth posits that “[t]his is in recognition of the fact that probably the court would have sentenced the defendant differently had it known that one of its sentences was illegal.” Id.

Second, as noted previously, the trial court in the instant case had not received Vanderlin’s motion for modification at the time it imposed the “second” sentence. Therefore, we will address Vanderlin’s challenge to the trial court’s authority to change a sentence sua sponte. Specifically, Vanderlin contests the trial court’s decision to increase his sentence. Pa.R.Crim.P. 1410 provides, “[a] motion to modify sentence shall be in writing and shall be filed with the sentencing court within ten (10) days after imposition of sentence.” The official comment thereafter reads

This rule provides a procedure whereby a motion to modify sentence must be raised in the first instance before the sentencing court, thereby giving that court the first opportunity to modify the sentence. If the case proceeds to an appellate court, the Rule 1405 requirement that the trial judge state on the record the reasons for imposing a sentence will provide a record concerning the sentence. However, this procedure does not affect the court’s inherent power to correct an illegal sentence, or obvious and patent mistakes in its orders, at any time. [Citation omitted] [Emphasis added].

In the instant case, the trial court’s initial error was that it imposed an illegal sentence. The trial court had the inherent power to correct its mistake and further, to effectuate its intent that Vanderlin remain in jail for up to twenty years. See N.T., Sentencing Proceeding, October 23, 1989, at 16-18; Resentencing Proceeding, October 27, 1989, at 14-17.

Finally, in Commonwealth v. Rainey, 338 Pa.Super. 560, 488 A.2d 34 (1985), this Court held that “double jeopardy principles do not prevent a sentencing court from correcting, modifying, or increasing a sentence which the same court previously imposed.” Id., 338 Pa.Superior Ct. at 562-63, 488 A.2d at 35; see also Commonwealth v. Anderson, 304 Pa.Super. 476, 481, 450 A.2d 1011, 1014 (1982) (the double jeopardy clause does not preclude review and subsequent increase of sentences).

For the foregoing reasons, we find that the trial court properly remedied its error without depriving Vanderlin of his constitutional rights. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

BECK, J., concurs in the result.

      . The record indicates that the appellant, James Vanderlin, had a beard, wore glasses and was a heavy smoker. N.T., May 24, 1989, testimony of Investigator Thomas Jordan, at 86-7. See also id. at 65 (police officer details the description of J.Q.’s attacker based on the report received from J.Q.).

      . At trial, Vanderlin stipulated that it was he who placed the call to 911. See also N.T., May 24, 1989, at 116, 129, 132 (Vanderlin admitted dialing 911); id. at 148-49 (investigator’s testimony). He testified on his own behalf. Vanderlin stated that he witnessed the attack on J.Q. Id. at 113-15. He described the assailant as a dark-haired, bearded man. Id. at 113-14, 135. Vanderlin testified that he was depressed over a recent break-up with his fiance and that he had been contemplating suicide. Id. at 110-11. He did not want his ex-fiance to feel responsible for his death, so he decided to confess falsely to the attack upon J.Q. in a phone call to the police so that he would have reason to follow through on his suicide attempt. Id. at 115-17. He did not actually attempt suicide; nor did he re-dial 911 to clear his name. Id. at 120, 138.

      . At the "re-sentencing” hearing, October 27, 1989, the trial court stated: “there has not been anything filed by Mr. Crowley asking for sentence modification that I’m aware of. If you filed it, then I guess I ■ haven’t seen it.” Id. at 4; see id. at 2-5. The court continued: “So the Court’s belief here is that what it is doing, as opposed to vacating a sentence and then deciding to resentence, is that it is correcting a mistake that was made, admittedly several days ago, but doing it at its first opportunity.” Id. at 4. Apparently, the trial court altered Vanderlin’s sentence not in response to Vanderlin’s request for modification, but because the trial court realized its own error.

      . The United States Supreme Court stated in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977):
      We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and postStovall confrontations. The factors to be considered are set out in Biggers. [Niel v. Biggers ] 409 US [188] at 199-200, 34 LEd2d 401, 93 SCt 375 [at 382 (1972) ]. These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

        Id. at 114, 97 S.Ct. at 2253.

      . We note that although Vanderlin attempted to suppress J.Q.’s identification testimony, he did not challenge the Commonwealth’s evidence that the voice on the tape belonged to him. After J.Q. identified the voice as that of her assailant, several persons, exposed to the tape through radio and television, identified the voice as Vanderlin’s. Vanderlin did not contest any of this latter evidence. Conversely, Vanderlin stipulated that the voice on the tape was his. He testified at trial that he placed the call to 911; but he denied committing the crimes.

      . We note that the fact finder is in the best position to determine the credibility of the witnesses and to assess the weight of the evidence. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984); see also Commonwealth v. Parker, 387 Pa.Super. 415, 422, 564 A.2d 246, 248 (1989) (an appellate court will not engage in a reevaluation of a witness’ testimony found credible by the finder of fact). In the instant case, the jury heard testimony from the victim and from Vanderlin himself, in addition to the other witnesses. The jury was free to believe all, part or none of the evidence presented at trial. Commonwealth v. Jensch, 322 Pa.Super. 304, 315, 469 A.2d 632, 638 (1983). We will not disturb the jury’s verdict in this case, as it was substantiated by the evidence.

      . In Commonwealth v. Hitchcock, 523 Pa. 248, 565 A.2d 1159 (1989), the Pennsylvania Supreme Court distinguished rape from involuntary deviate sexual intercourse and sanctioned separate punishments for each. It stated:
      The purpose of the statutes [applicable to rape and involuntary deviate sexual intercourse] is to protect against forcible sexual penetration of the three orifices of the body by making it a crime to do any or all to a victim. The forcible sexual penetration of another person is not a free choice of the type or method of penetration desired by the perpetrator. If the perpetrator does more than one on the same occasion then the perpetrator violates different protections and different interests of the victim for which separate penalties follow. Where the victim is a woman she may be injured by three different penetrations on the same occasion. Where each is separately charged, as here, [footnote omitted] each may be separately punished. [Citations omitted].

        Id. 523 Pa. at 251, 565 A.2d at 1161.

      . Vanderlin was initially sentenced to an incarceration period of seven to fifteen years for attempted rape, to run consecutively with an incarceration period of three to ten years for attempted involuntary deviate sexual intercourse. The trial court then modified punishment. As a result, Vanderlin was "re-sentenced” to five to ten years for attempted rape and five to ten years for attempted involuntary deviate sexual intercourse, consecutive.

      . The difference between Jones and the instant case is that in Jones, the sentencing court changed only the illegal sentence; whereas here, the trial court modified both sentences, even though Vanderlin only challenged the illegally imposed sentence for attempted rape. Again, we note that the trial court did not have the benefit of Vanderlin’s motion to modify sentence when it took action to remedy its initial error.

      . We also find persuasive Commonwealth v. Grispino, 361 Pa.Super. 107, 521 A.2d 950 (1987). In Grispino, this Court held that a sentencing court could increase a defendant’s sentence, without violating double jeopardy principles, “in order to maintain a sentence close to [defendant's] original sentence.” Id. 361 Pa.Super. at 112, 521 A.2d at 953; see also Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986).

      . As in the instant case, Green’s "first” sentence was not recorded on the indictment.

      . We note that a portion of Commonwealth v. Lezinsky, 264 Pa.Super. 476, 400 A.2d 184 (1979) was overruled by In Interest of Rodriguez, 371 Pa.Super. 130, 537 A.2d 854 (1988). In Rodriguez, this Court clarified the scope of its decision by stating:
      Appellant argues, based on Commonwealth v. Lezinsky, 264 Pa.Super. 476, 400 A.2d 184 (1979) and Commonwealth v. Williams, 299 Pa.Super. 278, 445 A.2d 753 (1982) that tangible property is limited to personal property and does not include real property. He contends that the wall of a building does not qualify as tangible property. We find tangible property, as that phrase is used in the criminal mischief statute, includes both real and personal property. To the extent that Lezinsky and Williams find to the contrary, they are expressly overruled.

        Id., 371 Pa.Super. 130, at 132-33, 537 A.2d at 855.

      . Vanderlin refers us to the dissenting opinion in Commonwealth v. Gallagher, 296 Pa.Super. 382, 442 A.2d 820 (1982) (dissent, Popovich, J.). Therein, this writer opposed the trial court’s whimsical modification of the defendant’s sentence. However, Judge Popovich recognized that "[o]f course, a court may modify a sentence in a proper case.” Id., 296 Pa.Superior Ct. at 391, 442 A.2d at 824. The judge cited Commonwealth v. Riggins, 474 Pa. 115, 126, 377 A.2d 140, 146 (1977) for the proposition that where a sentence has been increased, "the factual data upon which the increased data [sic] is based must be made [a] part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” Id. We have carefully scrutinized the instant record and we find that the trial court fully explained his reasons for modifying Vanderlin’s sentence. See N.T., Resentencing Hearing, October 27, 1989, at 2-4. We also reject Vanderlin’s reliance on Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971), which held that a modified sentence that increased a defendant’s punishment violated the double jeopardy clause. Although Silverman is a Pennsylvania Supreme Court decision, it predated the adoption of Pa.R.Crim.P. 1410.

      . Moreover, the trial court was clear, both in its determination that Vanderlin had committed distinct and separate crimes, and in its directive that his two punishments should run consecutively. N.T., Resentencing Proceeding, October 27, 1989, at 7-14.
      It is axiomatic that sentencing decisions are within the sound discretion of the trial court. Commonwealth v. Stalnaker, 376 Pa.Super. 181, 545 A.2d 886 (1988). In Commonwealth v. Golden, 309 Pa.Super. 286, 289, 455 A.2d 162, 163 (1983), we noted that the trial court is in the better position to evaluate the various factors involved in sentencing. Accordingly, we defer to the trial court’s decisions absent an abuse of discretion. Id.; see also Commonwealth v. Smith, 369 Pa.Super. 1, 5-6, 534 A.2d 836, 838 (1987); Commonwealth v. Meo, 362 Pa.Super. 328, 332, 524 A.2d 902, 904 (1987).


source: Caselaw Access Project

license: Public Domain

text:
    580 A.2d 832
    COMMONWEALTH of Pennsylvania, Appellee, v. Randall PROBST, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 11, 1990.
    Filed Sept. 18, 1990.

      William J. Miele, Williamsport, for appellant.
    Brett 0. Feese, Dist. Atty., Williamsport, for Com.
    Before CAVANAUGH, BECK and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Lycoming County. We affirm.

The record indicates that on March 27, 1988, the appellant, Randall Probst, Sr. contacted a local “helpline” to report the stabbing of his live-in girlfriend, Nicole Deemer. The helpline notified the police of the incident. Soon thereafter, the paramedics arrived at Probst and Deemer’s apartment where they discovered the victim, Deemer. She was nude and had multiple cuts on her back, buttocks, thigh and face. Additionally, Elavil pills were found near her body. Deemer had lost between forty to fifty percent of her blood. As a result, her body temperature had lowered to approximately eighty five degrees.

The police questioned Probst following the incident. The interrogation was videotaped. Officer David Bailey, Lt. Phillip Preziosi and Agent William Dalton of the Williams-, port Police Department were present. Lt. Preziosi read Probst the Miranda warnings and asked him if he understood his rights. Probst responded affirmatively, proeeeded to sign a waiver and volunteered information to the police. See Randall Probst, Videotaped Interview, March 28, 1988, at 1-47.

During his interview with the police, Probst detailed his relationship with Deemer, his medical problems, his contemplation of suicide, their drinking problems, Deemer’s past roommate, his children, his ex-girlfriends and the fact that he does the housekeeping and cleaning. Notably, Probst did not confess to committing the stabbing. See Probst’s Videotaped Interview, March 28, 1988, at 1-47. At one point during the interrogation, Probst stated that he “probably” was responsible for Deemer’s injuries. Id. at 11-12. However, even this purported admission was not a definitive declaration of guilt. Probst confined any comment relative to his participation in the stabbing to the following statement: “ ... I just, I’d like you guys to know that alright I probably did it because I have a hurt hand.” Id. at 12.

Following a jury trial, Probst was found guilty of aggravated assault and reckless endangerment. Post-verdict motions were denied. Thereafter, Probst was sentenced to eight to sixteen years imprisonment. This appeal followed.

On appeal, Probst raises three issues for our review. First, he claims that his videotaped statement should have been suppressed because he did not knowingly, voluntarily and intelligently waive his Fifth Amendment Rights. Second, he asserts that the Commonwealth’s expert witness should not have been allowed to testify, in response to a hypothetical question, about the cooling rate for a deceased body. Third, he argues that the trial court erred in permitting testimony from the victim and other witnesses that Probst previously attempted to force the victim to swallow the drug Elavil.

Probst first asserts that the trial court erred in denying his motion to suppress his videotaped statement. Our standard of review in considering an appeal from the denial of a motion to suppress is well established. Our role “is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings.” Commonwealth v. Fromal, 392 Pa.Super. 100, 111, 572 A.2d 711, 717 (1990); Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1042 (1986). In making this determination,

we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. (Citation omitted). Moreover, when the evidence viewed in this manner supports the factual finding of the suppression court this Honorable Court can reverse only if there is an error in the legal conclusion drawn from those factual findings.

Reddix, 355 Pa.Super. at 518, 513 A.2d at 1042; Commonwealth v. Cauto, 369 Pa.Super. 381, 535 A.2d 602 (1987) (this Court may reverse the suppression court only if its legal conclusions, drawn from the facts in the record, are erroneous).

Here, Probst alleges that he did not waive his right to counsel during his custodial interrogation. He asserts that he was the victim of psychological coercion and that he did not possess the requisite mental capacity “to know what he was saying and to have voluntarily intended to say it.” (Appellant’s brief, at 9-10). See Commonwealth v. Harm, 272 Pa.Super. 431, 416 A.2d 533 (1979); cf. Commonwealth v. Smith, 470 Pa. 220, 368 A.2d 272 (1977). In support of his position, Probst relies on the testimony of Dr. Steven A. Raggusea. Dr. Raggusea stated at the suppression hearing that he did not think that Probst was capable of making “an intelligent, voluntary, informed, knowing consent or waiver.” N.T., June 12-14, 1989, at 78.

On appeal, Probst argues that he was unable to comprehend his rights. Therefore, his waiver was invalid. After a thorough review of the record, we disagree.

The trial court briefly summarized the evidence in the instant case. In its opinion, it stated:

[Probst claims] that the Court erred by denying to suppress the video tape because of the Defendant’s failure to knowingly, intelligently, and voluntarily waive his Miranda rights, and because the Defendant never explicitly nor clearly waived his rights. The evidence in question related to a video taped interrogation by Lt. Preziosi and police officers Dalton and Bailey. Denial of the motion to suppress was based on the Defendant’s continual waivers of his Miranda rights as recorded on the videotape. In addition, the Defendant never affirmatively invoked his right to counsel. See, Commonwealth v. Hubble, [509 Pa. 497], 504 A.2d 168 (Pa.1986). Before beginning to question the Defendant, Lt. Preziosi advised the Defendant of his Miranda rights and proceeded to assure that the Defendant understood his rights. The Defendant also was asked to read the Miranda statement aloud and proceeded to do so. The Defendant stated on several occasions that he understood what the officers had explained to him. Further into the questioning, the Defendant demonstrated that he was aware of his right to counsel when he stated, in an “aside”, that he was not sure he should speak without an attorney present. The Defendant then waived his rights by speaking, without the prodding of the police. Later into the video testimony, the Defendant spoke to the police and said that “no lawyer can tell me to shur [sic] up about this kinda stuff cause I wanta volunteer this stuff.” The Defendant came close to asserting his rights to an attorney near the end of the video testimony, stating that “maybe I should call a lawyer,” but testimony from the video tape made after this statement is not at issue. We conclude that the Defendant’s Suppression Motion was properly denied in this Court’s June 12, 1989 Order, and accordingly the Post Trial Motion on this issue is denied.

Trial Court opinion, at 2-3. We find that the trial court’s findings are amply supported by the record.

In Commonwealth v. Carter, 377 Pa.Super. 93, 546 A.2d 1173 (1988), this Court set forth the test for determining whether a statement was rendered voluntarily. We stated:

In determining whether a confession, obtained as a result of custodial interrogation, is admissible, the accused’s Miranda rights must have been explained to him and he must have knowingly, voluntarily and intelligently waived these rights. Further, the Commonwealth must show by a preponderance of the evidence that the confession was voluntary. The test for determining whether the confession was voluntary and the waiver of the Miranda rights was valid is a totality of the circumstances. Factors which must be looked to in reaching this determination include the following: the duration and methods of interrogation, the conditions of detention, the manifest attitude of the police toward the accused, the accused’s physical and psychological state, and any other conditions which ‘may serve to drain one’s powers of resistance to suggestion and undermine his self-determination.’

Id,., 377 Pa.Superior Ct. at 101-02, 546 A.2d at 1177 (citations omitted). See also Commonwealth v. Schneider, 386 Pa.Super. 202, 206-07, 562 A.2d 868, 870 (1989) (accord).

The instant record indicates that Probst’s waiver comported with the requirements of Carter. Furthermore, not only did Probst express his willingness to discuss the case with the officers, but he repeatedly told the police that he wanted to help in any way that he could. See Randall Probst, Videotaped Interview, March 28, 1988, at 2, 3, 11, 13, 19, 24, 26, 27, 29, 33, 38, 47. See also N.T., June 12-14, 1989, at 36 (Lt. Preziosi testified that Probst was videotaped voluntarily). We are satisfied that the trial court properly ruled to deny Probst’s motion to suppress.

Probst next contends that the trial court erred in allowing the Commonwealth’s expert witness to render an opinion regarding the amount of time that elapsed before the victim’s body cooled to eighty five degrees. As both the Commonwealth and the defense correctly noted, the purpose of expert testimony is to aid the jury in understanding matters beyond the average layperson’s knowledge or experience. Commonwealth v. Rounds, 518 Pa. 204, 542 A.2d 997 (1988); Commonwealth v. O’Searo, 466 Pa. 224, 229, 352 A.2d 30, 32 (1976) (accord); Commonwealth v. McNeely, 368 Pa.Super. 517, 534 A.2d 778 (1987) (accord). See Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988) (admission of expert testimony lies within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion). See also Commonwealth v. Hamilton, 459 Pa. 304, 329 A.2d 212, 215 (1974). In the instant case, Dr. Mihalikus, a forensic pathologist, testified about the cooling rates of bodies after death. Deemer was not dead; however, her body had cooled to a temperature of eighty five degrees.

Mihalikus testified that the victim’s body temperature was eighty five degrees when she was admitted to the hospital. He stated that her body would have been cooling for at least eight hours before her arrival. Probst contends that Mihalikus’ testimony was speculative and prejudicial because he had no factual basis for his opinion. He also asserts that Mihalikus failed to consider that Deemer had ingested drugs and alcohol; nor did he account for the forty to fifty percent blood volume loss. Probst therefore concludes that Mihalikus’ testimony “failed to meet the requirements of competent, admissible expert evidence.” (Appellant’s brief, at 18).

Conversely, the Commonwealth argues that the testimony was relevant. See N.T., June 12-14, 1989, at 194-97. See also Trial Court opinion, at 4 (this evidence was relevant for the purpose of determining the time the victim was attacked). We agree.

Probst testified at trial that after he and Deemer returned home, he went to sleep on the couch. He awoke to Deemer’s mother’s telephone call. Probst told her that Deemer had left the prior evening and indicated that he had not seen her since. Probst testified that after he hung up the phone, he fell asleep again. Later, when he awoke, he found Deemer on the floor, barely alive. N.T., June 14-16, 1989, at 147-54.

The Commonwealth’s case was that Deemer had been lying in an injured state since the previous night. It posited that

the length of time that it would take the victim’s body to cool to 85 degrees Fahrenheit would be probative of the length of time she was suffering from her injuries and from that the jury could infer that the victim was at the apartment at least by 2:30 in the afternoon when the Defendant was awake. Since the Defendant was not truthful with the victim’s mother the jury could infer that he was attempting to hide the fact that a crime was committed and he was the perpetrator of the crime.

Appellee’s brief, at 10-11. Following this rationale, Dr. Mihalikus’ testimony was relevant. We have reviewed the testimony at issue. At trial, Dr. Mihalikus clearly explained the theory underlying body heat reduction in deceased individuals. He opined, based on the facts provided to him in the Commonwealth’s hypothetical question, that a body would have taken at least eight hours to cool to eighty five degrees. See N.T., June 12-14,1989, at 194-213. Although Mihalikus arrived at his conclusion based on the assumption that the victim was deceased, he clarified that his testimony represented the shortest period of time during which a body could have reached eighty five degrees. In fact, when asked if he was speculating, Mihalikus responded, “No Counselor, I don’t believe I am speculating because I took the worst possible situation. Where there is no circulation and this body would lose heat faster than any other means. So I gave a base line number of eight hours.” Id. at 212. See also id. at 191-217.

The law is clear that the trial court maintains broad discretion to admit or exclude evidence. In Commonwealth v. Meadows, 381 Pa.Super. 354, 553 A.2d 1006 (1989), this Court held that:

[t]he admission or exclusion of evidence is a matter specifically within the discretion of the trial judge, and we will not reverse his decision absent an abuse of that discretion. ‘The test to be applied in determining the admissibility of such evidence involves weighing the inflammatory nature of this evidence against its essential evidentiary value.’

Id., 381 Pa.Superior Ct. at 366, 553 A.2d at 1012 (citations omitted); see also Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616 (1985) (the admission or exclusion of evidence rests within the sound discretion of the trial court); Commonwealth v. Robinson, 332 Pa.Super. 147, 480 A.2d 1229 (1984) (trial court’s decision to admit or exclude evidence will not be disturbed absent an abuse of discretion). In the instant case, the trial court determined that there was a clear factual and logical basis for the expert opinion. Trial Court opinion, at 4. After an independent review of the record, we conclude that Mihalikus’ testimony involved facts and subject matter which extend beyond the knowledge or experience of an average layperson. The doctor expressed his opinion with a reasonable degree of medical certainty. N.T., June 12-14, 1989, at 200-01. We see no reason to disturb the trial court’s decision to admit Mihalikus’ testimony into evidence.

Probst finally claims that the trial court erred in allowing the Commonwealth to present evidence of Probst’s prior bad acts, to wit, that Probst tried to force Deemer to swallow the anti-depressant Elavil on a prior occasion. The Commonwealth argues that the evidence was relevant and admissible to show Probst’s identity, and to refute his contention that Deemer voluntarily ingested the drugs.

The law relative to this issue is established. Evidence of prior bad acts is inadmissible to show a defendant’s propensity to commit a crime. Commonwealth v. Wheeler, 518 Pa. 103, 541 A.2d 730 (1988); Commonwealth v. Lark, 518 Pa. 290, 308-09, 543 A.2d 491, 497 (1988); Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987). However, there are exceptions to the general rule. Evidence of prior crimes or bad acts may

be introduced to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one intends to prove the other; (5) to establish the identity of the person charged with the commission of the crime on trial, in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. (Citation omitted).
This list of “special circumstances” is not exclusive, and this Court has demonstrated it will recognize additional exceptions to the general rule where the probative value of the evidence outweighs the tendency to prejudice the jury. (Citation and parenthetical omitted). Such evidentiary issues are addressed to the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. (Citation omitted).

Id., 513 Pa. at 350, 521 A.2d at 17; Commonwealth v. Bond, 261 Pa.Super. 311, 396 A.2d 414 (1978) (accord; admissibility must be the result of a balancing test). See also Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989) (evidence of prior bad acts is admissible to show motive and intent); Commonwealth v. Watson, 355 Pa.Super. 160, 512 A.2d 1261 (1986) (accord); Commonwealth v. Smith, 341 Pa.Super. 564, 492 A.2d 9 (1985) (accord); Commonwealth v. Middleton, 320 Pa.Super. 533, 467 A.2d 841 (1983) (accord). See also Commonwealth v. Lawson, 519 Pa. 175, 546 A.2d 589, 593 (1988) (extrinsic offenses are admissible to prove intent, plan, scheme, identity, ... “provided that [ ...] these factors are genuinely in issue and qualify for admission on grounds of relevancy and probative value”).

In the instant case, the trial court allowed the Commonwealth to ask Deemer about an incident that occurred two months prior to the stabbing, during which time Probst wanted Deemer to ingest Elavil pills so that people would think that she committed suicide. N.T., June 12-14, 1989, at 132. Probst put the pills in her drink. When Deemer refused to ingest them, Probst threw the glass against a wall. Id. Probst argues that

[t]he prior bad act and the current offense are completely unrelated. The current offense involves a slashing incident not an aborted attempted homicide by forced overdose. On the other hand, the prejudicial affect [sic] is overwhelming. The jury was likely to conclude that the appellant committed the instant offense because he tried to kill the victim previously and he was a bad person who would commit such an offense.

Appellant’s brief, at 20.

The trial court adequately disposed of this issue in its opinion. It stated:

The Commonwealth’s evidence was that there was Elavil in the victim’s system when tests were done after her body was found and that the victim denied having taken any such substance. Elavil pills were found on the floor near her body in the apartment and the Commonwealth provided evidence that the Defendant was taking Elavil as a prescription drug at the time and the victim testified that on a prior occasion he had attempted to force her to involuntarily consume some of that drug. The Defendant testified that on the night in question the victim had voluntarily ingested some of that drug and the Defendant had attempted to force her to spit it out by slapping her on the back. Expert testimony was produced that in the victim’s condition, she could have been induced to swallow some of the medicine. In light of the facts, the evidence of the prior conduct by the Defendant toward the victim was relevant as tending to explain the presence of Elavil in her blood and the presence of Elavil pills on the floor near her body and therefore the post trial motions on these issues are denied.

Trial Court opinion, at 3-4.

We conclude that the trial court did not err in permitting the Commonwealth to introduce evidence of Probst’s past conduct. Its admission was appropriate as an exception to the general standard regarding the inadmissibility of evidence of prior bad acts. See also Commonwealth v. Laskaris, 385 Pa.Super. 339, 561 A.2d 16 (1989) (evidence is admissible if its probative value outweighs its prejudicial impact). Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . A more detailed recitation of the facts, as gleaned from the trial transcripts in the instant case, may be helpful. The notes of testimony reveal that on March 26, 1988, Probst and Deemer began arguing while at the Linwood Inn. N.T., testimony of Nicole Deemer, June 12-14, 1989, at 103-04. Probst, while in a jealous rage, accused Deemer of having sexual relations with other men. Id. He threatened to kill her if his beliefs were ever confirmed. Id. at 104-05. At some point during the evening, Probst and Deemer returned to their apartment where they reconciled. Then, they drove to the K-Bar where they remained until one o'clock a.m. Next, they went to Morey’s Bar but only stayed there briefly before returning to the K-Bar. They continued to drink at the K-Bar until four o’clock a.m. Both Probst and Deemer were intoxicated when they left the bar to return home. Deemer testified that after Probst drove home from the bar he became violent and began kicking her up the steps of their apartment. Deemer also stated that Probst threw her down the steps. Id. at 109-10. Deemer passed out and does not recall any subsequent events. Probst contends that Deemer’s injuries may have been the result of his ex-girlfriend’s attempts to have Deemer killed. N.T., Testimony of Randall Probst, Sr., June 14-16, 1989, at 185, 189-93.

      . The following excerpts from Probst’s videotaped confession are pertinent to the instant discussion.
      Lt. P.: OK, Now, Randy, I’ll reintroduce myself. I’m Lt. Phillip Preziosi, Williamsport Bureau of Police. This is Agent William Dalton, also of the Williamsport Bureau of Police and the officer "back there is Officer David Bailey, who is a uniform Officer of the Williamsport Bureau of Police. Randy, what we’re going to be doing is talking with you in regard to some events this evening but before we talk with anybody about anything we always advise them of what we refer to as the Miranda Warning, just ta [sic] explain to you what your rights are, OK?
      R.P.: Yes, Sir.
      Lt. P.: So, ah I will explain it to you and then Agent Dalton will let you read it and sign it if you wish and we’ll (inaudible). Alright, if you listen very carefully____ I wish to advise you that you have an absolute right to remain silent, that anything that you say can and will be used against you in a court of law. You have a right to talk to an attorney and have an attorney with you during questioning if you so desire. If you can not afford to hire an attorney, one would be appointed to represent you before any questions and if you decided that you wanted to answer any questions you can stop at any time that you wish. Do you understand that, Randy?
      R.P.: (Inaudible) Yes.
      Lt. P.: Do you know what an attorney is?
      R.P.: Yes.
      Lt. P.: Would you explain to me what your (inaudible) of an attorney is.
      R.P.: A guy that, that ah, ah, ah protects you when you’re, when you got problems.
      Lt. P.: Somebody to advise you of your ...
      R.P.: Right, right, right.
      [----] Lt. P.: OK, well, you understand what I explained to you right now?
      R.P.: Yes, sir.
      Lt. P.: OK. And, you’re willing to talk to us about that without having an attorney?
      R.P.: .... anything that I can help ya out with, I mean, anything that will, that will help clear my head too about this, ya know. [----] [Probst reads his Miranda rights aloud to Lt. Preziosi. He indicates that he does not know if he wants an attorney. Immediately thereafter, the following transpires].
      Lt. P.: OK, you understand that if any time that you tell me that you don’t want to talk anymore, you could stop. You understand that?
      R.P.: Yes.
      Lt. P.: OK.
      R.P. (reading) By affixing your signature on this waiver you are acknowledging that you have read and understand the rights that are explained on this form. I understand this.
      Lt. P.: OK, if you would please ...
      R.P.: Sign here?
      Lt. P.: Yes, Sir.
      R.P.: OK.
      Randall Probst, Videotaped Interview, March 28, 1988, at 1-3.

      . See abo N.T., June 12-14, 1989, at 14-15, 26 (Probst made similar statements to the police at the scene of the crime).

      . Probst was acquitted of attempted homicide.

      . We note that the trial court rejected Dr. Raggusea’s testimony. N.T., June 12-14, 1989, at 90-92. The fact-finder is deemed to be in the best position to assess the credibility of a witness and to weigh the evidence. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984); see also Commonwealth v. Parker, 387 Pa.Super. 415, 422, 564 A.2d 246, 248 (1989) (an appellate court will not engage in a reevaluation of a witness’ testimony found credible by the finder of fact). In the instant case, the trial court listened to Dr. Raggusea’s testimony. The trial court was free to believe all, part of none of his testimony. Commonwealth v. Jensch, 322 Pa.Super. 304, 315, 469 A.2d 632, 638 (1983). We will not disturb the trial court’s ruling where it is substantiated by the evidence. See Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1042 (1986) (discussing our standard of review with reference to the denial of a motion to suppress).

      . After reading Probst’s videotaped interview, we have made two observations. First, during the interview, Probst did not affirmatively request the presence of an attorney. See Commonwealth v. Hubble, 509 Pa. 497, 504 A.2d 168 (1986) (a defendant must first invoke his right to counsel before the principle of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) will apply). Second, Probst never actually confessed to the commission of the crime. Thus, even if we were to determine that the trial court erred in not suppressing Probst’s statement, the error was harmless. Commonwealth v. Terry, 513 Pa. 381, 403, 521 A.2d 398, 409 (1987) ("Under our harmless error test, an error is harmless if it does not prejudice the defendant, or the effect on the jury is minimal”). We note that Probst did not challenge the sufficiency of the evidence. Therefore, we will not speculate as to whether Probst’s statement contributed to his verdict.

      . Mihalikus based his estimation on an average body temperature of ninety nine degrees, Deemer’s approximate weight (one hundred and ten pounds) and height (five foot four inches), a room temperature of 60-70 degrees and an assumption that the victim was dead. He also accounted for the carpeted floors and the fact that Deemer was nude. N.T., June 13, 1989, at 198-201.

      . Probst testified that he was groggy, sick and still drunk when Deemer’s mother called. N.T., June 14-16, 1989, at 148.

      . In the instant case, the drug Elavil was found in Deemer’s bloodstream. The Commonwealth contends that this evidence was germane to its theory that Probst tried to harm Deemer mortally on this occasion. The Commonwealth argues that Probst’s first attempt to kill Deemer was relevant to show both his motive and his intent to cause her injury in the instant situation; it asserts that both incidents involved attempts to force Deemer to ingest the Elavil pills. See Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989). Here, Probst was being prosecuted for attempted homicide, in addition to aggravated assault and reckless endangerment.

      . Probst denied that he was the assailant.

      . This story was corroborated by Wayne Gray, Probst’s former coworker. N.T., June 12-14, 1989, at 162-66. In his brief, Probst alerts us that no charges were ever filed against him as a result of this first incident.

      . Probst also asserts in his brief that the Commonwealth failed to establish that he forced Deemer to consume Elavil at the time of the instant offense. Aside from the fact that Deemer was knocked unconscious, and therefore could not have voluntarily ingested the drugs, the evidence was circumstantially sufficient to inculpate Probst. See Commonwealth v. Dawson, 464 Pa. 254, 346 A.2d 545 (1975) (circumstantial evidence may be sufficient to establish guilt beyond a reasonable doubt); see also Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988) (convictions sustained by circumstantial evidence may not be based on mere suspicion or conjecture).