author: DEL SOLE, Judge:

text:
    568 A.2d 974
    COMMONWEALTH of Pennsylvania v. James Howard BURNS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1989.
    Filed Jan. 17, 1990.
    Petition for Allowance of Appeal Denied June 12, 1990.

      Carmela R.M. Presogna, Asst. Public Defender, Erie, for appellant.
    James Blackwood, Asst. Dist. Atty., Erie, for Com., appellee.
    Before DEL SOLE, BECK and MONTGOMERY, JJ.
   DEL SOLE, Judge:

James Burns, Appellant, was convicted of seven counts of recklessly endangering another person, four counts of aggravated assault and one count of simple assault. Post-trial motions were filed and denied. Burns was sentenced to six to twenty years in prison. On appeal, Burns raises five issues. After considering all five of the issues, we determine that one has merit. On the basis of that issue we vacate the judgment of sentence on the first count of aggravated assault and remand to the trial court for resentencing. We affirm the remainder of the judgment of sentence.

The facts of the case are not in dispute. One evening, Burns went to the residence of his aunt and cousin. An altercation arose which involved considerable violence. The police were called and an officer arrived at the scene. The officer told Burns to wait while the officer attended to one of the victims. Burns told the officer that he was going to his tractor-trailer truck, which was parked outside the residence, for a cigarette. Instead, Burns left the scene in his truck and led police officers on an hour-chase along the major highways in the northern part of the commonwealth.

David Jarzomski, a mobile CB operator from the Erie County Alert Emergency Communications Response Team, was in constant contact with Burns throughout the chase. At trial, Jarzomski testified that Burns told him that he wouldn’t stop for anyone and would run over anyone who got in his way. (Notes of Testimony, 1/10/89. pp. 37 — 38). A number of police cars were involved in the chase. The police officers testified that when they attempted to pass Burns, he would move his truck to force the officers off the road. When a police car did get in front of the truck, Burns drove right at the police car so that the officer had to accelerate to avoid being hit. When another officer set up a roadblock by placing his police car, with the police lights flashing, in the middle of the road, Burns drove right at the car with no apparent intention of stopping. The police officer had to move the police car to avoid being hit by Burns’ truck. (Notes of Testimony, 1/9/89, pp. 86 — 99).

Burns was eventually stopped by police and arrested. There were no physical injuries sustained by Burns or the police officers during the chase. Burns was convicted of six counts of recklessly endangering the police officers and four counts of aggravated assault (18 Pa.C.S.A. § 2702(a)(1)) against the officers. For the first count of aggravated assault, Burns was given three to six years. The trial court included in that sentence the deadly weapon enhancement (42 Pa.C.S.A. § 9721) of one to two years, holding that the vehicle operated by the defendant was a deadly weapon. For the next three counts of aggravated assault, Burns was given an aggregate sentence of three to fourteen years. The other counts against Burns either merged into the aggravated assault counts for the purposes of sentencing or were made to run concurrent with the sentences given for aggravated assault.

We will first discuss the issue which we believe to have merit. We will then discuss the other issues in the order they were raised. Burns argues that the trial court erred when it included the deadly weapon enhancement in the sentence it gave Burns for the first count of aggravated assault. We agree. The deadly weapon enhancement states that:

[w]hen the court determines that a defendant possessed a deadly weapon, as defined in 18 Pa.C.S.A. § 2301 ... during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence range which would otherwise have been applicable.
42 Pa.C.S.A. § 9721, 204 Pa.Code § 303.4

A deadly weapon is defined as:

[a]ny firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce serious bodily injury.
18 Pa.C.S.A. § 2301

This court has never ruled that a motor vehicle is a deadly weapon for the purposes of the deadly weapon enhancement. We have noted that it is almost impossible to make a prophylactic rule defining what constitutes a deadly weapon. Commonwealth v. Taylor, 346 Pa.Super. 599, 500 A.2d 110 (1985), aff’d. 516 Pa. 21, 531 A.2d 1111 (1987). The weapons used in cases that have applied the deadly weapon enhancement have generally been guns and knives. See Commonwealth v. McKeithan, 350 Pa.Super. 160, 504 A.2d 294 (1986). Other definitions of weapons enacted by the General Assembly limit the term “weapon” to include blades, guns, sticks, clubs and other items that are offensive weapons in the traditional sense.

A motor vehicle can be a deadly instrumentality but the General Assembly has enacted specific legislation to deal with the driver of a motor vehicle when the vehicle has caused a death or serious injury. See 75 Pa.C.S.A. § 3732 (Homicide by Vehicle), 75 Pa.C.S.A § 3735 (Homicide by Vehicle While Driving Under the Influence) and 75 Pa.C. S.A. § 3742 (Accidents involving Death or Personal Injury). Because the General Assembly has chosen to deal with motor vehicles in this manner and because we must construe the provisions of a penal statute strictly (1 Pa.C.S.A. § 1928(b)(1)), we hold that the General Assembly did not intend motor vehicles to be considered weapons for the purposes of the deadly weapon enhancement. Therefore, the trial court erred in applying the deadly weapon enhancement to Burns’ sentence.

Bums also raises the issue that the trial court abused its discretion when it denied Bums’ demurrer to the Commonwealth’s evidence as well as his motion for a directed verdict to the charge of aggravated assault. Bums argues that when there is no injury underlying a charge of aggravated assault, the Commonwealth must prove that the defendant possessed a specific intent to commit the assault.

First, we hold that Burns has lost his opportunity to challenge the trial court’s denial of his demurrer. After his demurrer was denied, Burns proceeded with his defense and eventually took the stand. When a demurrer is denied and a defendant proceeds with the case and presents a defense, the defendant can no longer challenge the order denying the demurrer. Commonwealth v. Saccol, 384 Pa.Super. 161, 557 A.2d 1095 (1989). A challenge to the trial court’s ruling will be considered a challenge to the sufficiency of the evidence. Saccol, supra. Our test for reviewing a sufficiency of the evidence claim is whether the evidence, taken in the light most favorable to the verdict winner, in this case the Commonwealth, supports the verdict. Commonwealth v. Hoke, 381 Pa.Super. 70, 552 A.2d 1099 (1989). Our test for a challenge to a denial of a motion for a directed verdict is whether the jury, in considering all the evidence in the light most favorable to the Commonwealth, could have found the defendant guilty. Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975).

Burns is correct in his assertion that in an aggravated assault, where the victim does not sustain serious bodily injury, the Commonwealth must prove specific intent in order to convict the defendant. Commonwealth v. Magnelli, 348 Pa.Super. 345, 502 A.2d 241 (1985). Such intent, however, can be proven by circumstantial evidence. Commonwealth v. Russell, 313 Pa.Super. 534, 460 A.2d 316 (1983). The evidence presented by the Commonwealth shows Bums bearing down on police officers in his tractor-trailer and forcing them off the road when they attempted to pass him. The Commonwealth also presented testimony that Burns had no intention of stopping for the officers and would run over anyone who got in his way. Construing this evidence in the light most favorable to the Commonwealth, as we must do, we hold that the evidence supports a finding of specific intent. The jury could have easily determined, from the testimony at trial, that Burns intended to harm any of the officers that got in his way. Therefore, we consider this issue to be meritless.

The next issue Burns raises is that the trial court abused its discretion when it denied a post-trial motion requesting a new trial or an arrest of judgment where the evidence brought forth before the jury was insufficient as a matter of law to establish that Burns possessed the required mens rea in the guise of specific intent to commit the crime of aggravated assault. This is basically the same issue as the one raised above. Again, we hold that the jury can infer that specific intent from the circumstantial evidence presented. Therefore, sufficient evidence existed to convict Burns of aggravated assault.

The final two issues Burns raises deal with the discretionary aspects of sentencing. In his brief, Burns includes a separate Rule 2119(f) statement. The matters raised in these issues are also raised as ineffective assistance of counsel claims. In the interests of judicial economy, we will consider the sentencing and the ineffectiveness claims together. First, Burns argues that the trial judge impermissibly took into account the fact that someone could have been killed during the chase and that trial counsel was ineffective for failing to object to the trial court’s consideration of this impermissible factor. The trial judge did say at sentencing that deaths could have occurred and that Burns was fortunate that no one was killed. (Sentencing, Notes of Testimony, 2/22/89, pp. 9 — 13). The trial court, however, did not impose a harsh or patently excessive sentence on Burns.

Aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) is defined as a felony in the first degree. As such, it can be punished with a term of imprisonment not to exceed twenty years. 18 Pa.C.S.A. § 1103(1). Burns was exposed to sentencing for four counts of aggravated assault. The sentence given was well within the statutory limit as well as the sentencing guidelines. 42 Pa.C.S.A. § 9721. Consequently, Burns does not show us how the judge’s admonishment regarding the deaths that could have been caused by the chase affected his sentence. Therefore, this issue is meritless and trial counsel was not ineffective for failing to raise it.

Burns’ final issue is that the trial court imposed an excessive sentence and that his trial counsel was ineffective for failing to request that Burns receive a psychiatric examination. As we said in the discussion of the previous issue, the sentence given was not excessive. In regards to the failure of counsel to request a psychiatric examination, we note that Burns’ history of prior mental illness was put before the court in the pre-sentence report. Trial counsel referred to the pre-sentence report at the sentencing and specifically pointed out Burns’ mental health problems. The trial judge stated that he read the pre-sentence report and took into consideration all of the factors reported in the report. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). The trial court was aware of Burns’ history of mental illness when it sentenced him. Burns does not present to us what purpose a detailed psychiatric report would have served in regards to his sentencing.

In order to establish ineffective assistance of counsel, the defendant “must show that counsel’s performance was deficient and ... that the deficient performance prejudiced [the] defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) in Commonwealth v. Pierce, 515 Pa. 153, 157-158, 527 A.2d 973, 975 (1987). Even if the performance of Bums’ trial counsel was deficient for failing to request a psychiatric report, there was no showing that the failure to request such a report was prejudicial to Bums. The trial judge told Burns that he gave him a lighter sentence than he had originally planned to give him after hearing both Burns and his trial counsel speak at sentencing. (Sentencing, N.T. 2/22/89, pp. 17-18). Burns does not show us on appeal how a psychiatric report would have altered the sentence.

Judgment of sentence vacated on the first count of aggravated assault and remanded for resentencing. The remainder of the judgment of sentence is affirmed.

      . The highways involved were Interstate 90 as well as Routes 8, 17, 89, 430 and 20. At one point the chase even went into New York State. (See Sentencing, Notes of Testimony, 2/22/89, p. 11).

      . A person commits aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) when he or she "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.”

      . In 18 Pa.C.S.A. § 907 (Possessing Instruments of a Crime) a weapon is defined as "[a]nything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have. The term includes a firearm which is not loaded or lacks a clip or other component to render it immediately operable, and components which can readily be assembled into-a weapon.”
      In 18 Pa.C.S.A. § 912 (Possession of Weapon on School Property), the definition of a weapon includes the definition in § 907 as well as “any knife, cutting instrument, cutting tool, nun-chuck stick, firearm, shotgun, rifle, and any other tool, instrument or implement capable of inflicting serious bodily injury.”

      . The pre-sentence report indicates that Burns has had in the past and continues to have mental health problems as well as drug and alcohol related problems. The report adds: "The defendant states his last admission to a mental health unit was in 1983 when he was admitted on two occasions. On the first occasion, the defendant stayed for thirty (30) days, and on the second occasion he stayed for approximately forty-five (45) days. On the first occasion, he was admitted by voluntary commitment. The defendant was suffering from schizophrenia. The second occasion came on court order with the same prognosis: Schizophrenia and drugs/alcohol. The defendant states his drug of choice is cocaine. He further states that he has never been arrested when he was not under the influence of drugs and alcohol.” Presentence Report, p. 7


source: Caselaw Access Project

author: ROWLEY, Judge: CIRILLO, President Judge,

license: Public Domain

text:
    568 A.2d 1252
    COMMONWEALTH of Pennsylvania v. Harvey WEAVER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1989.
    Filed Dec. 1, 1989.
    Reargument Denied Feb. 12, 1990.

      Burton A. Rose, Philadelphia, for appellant.
    Norman Gross, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Before GRILLO, President Judge, and ROWLEY and MONTEMURO, JJ.
   ROWLEY, Judge:

This is a direct appeal from the judgment of sentence following appellant’s conviction on charges of Conspiracy, Involuntary Deviate Sexual Intercourse and Possession of a Controlled Substance With Intent to Deliver. Appellant, represented by new counsel on appeal, is black and was tried by an all-white jury. Thus, this Court once again is called upon to apply criteria set forth by the U.S. Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Only the briefest summary of the facts is necessary. At the invitation of appellant’s co-defendant Eric Alston, 19-year-old Patricia M. came from Washington D.C. to Philadelphia with a friend for a weekend visit. During the course of the weekend Patricia and her friend were physically and sexually assaulted by appellant and his co-defendant. Both of the perpetrators and both of the victims are black.

Appellant raises three issues on appeal. First, appellant argues that he was denied his right to trial by a fair and impartial jury because the Commonwealth used five of its eight peremptory challenges to strike the remaining five black venirepersons from the panel and failed to provide valid, neutral reasons as required by Batson v. Kentucky, supra. The Commonwealth, which adamantly denies any racial bias in selection of the jury, argues that it was not required to state reasons for the peremptory challenges because the trial court at no point found that a prima facie case of discrimination had been established by appellant. Thus, we are called upon to determine whether the trial court erred in failing to hold that a prima facie case of discriminatory selection had been established by appellant. Because we so find, the case must be remanded for a hearing before the trial court to enable the prosecutor to present reasons for his challenges and a determination by the trial court whether the reasons given are racially neutral.

I.

Our scope of review was set forth in the recent case of Commonwealth v. Jackson, 386 Pa.Super. 29, 562 A.2d 338 (1989) (en banc) (plurality): “[A]n appellate court will reverse a trial court’s finding of no discrimination [in the jury selection process] only if that finding is clearly erroneous.” Id., 386 Pa.Superior Ct. at 53, 562 A.2d at 350.

A prima facie case of racially discriminatory jury selection has three elements: 1) the defendant’s membership in a cognizable racial group; 2) the prosecutor’s use of peremptory strikes to exclude members of that group; and 3) an inference arising under the totality of the circumstances that the prosecutor used the strikes to exclude venirepersons on account of race. Commonwealth v. Jackson, supra, citing Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989). Batson, supra held that once the trial court determines that defendant has made a prima facie showing of discrimination, the burden shifts to the Commonwealth to justify its decision to strike minority jurors.

In determining whether a prima facie case of discriminatory selection has been established by a criminal defendant, obviously it is the third element, the inference that the peremptory strikes were racially motivated, which is the most difficult to establish. In Jackson, supra, the trial court ruled that the defendant had presented a prima facie case of discriminatory selection where the prosecutor used all seven of his peremptory challenges to strike black venirepersons from the jury and the ultimate composition of the petit jury was 9 whites, 1 Asian and 2 blacks. In the case at bar, the prosecutor used five of his eight peremptory challenges to exclude black venirepersons, resulting in an all-white jury. Upon conclusion of the selection process in the case at bar, defense counsel moved for a mistrial on the basis of discriminatory selection.

A.

Batson indicates that once a defendant presents argument on the three elements, the trial court should consider “all relevant circumstances” and make a determination whether a prima facie case has been established. Only when the court determines that a prima facie case has been made out is the Commonwealth required to set forth its reasons for exercising the strikes.

This procedure was not followed in the case at bar. After appellant’s counsel moved for a mistrial and stated for the record the facts which he felt raised an inference that the prosecutor had purposefully excluded blacks, N.T. at 41-43, the prosecutor immediately inquired, “May I respond to that?” N.T. at 43. Without deciding whether a prima facie case had been established, the trial court gave the prosecutor an opportunity to speak. The prosecutor proceeded to respond to what he considered to have been a personal attack accusing him of being racist. Id. In addition, he responded that this was not a racial case because the complainants were black and not white, and he charged that defense counsel had used all of their strikes on the white members of the jury. Without comment, the court denied the motion for mistrial and exceptions were taken.

We hold, under the circumstances of this case, that denial of the motion for mistrial was the functional equivalent of a finding by the trial court that appellant had not established a prima facie case. Additionally, we hold that the court erred in not holding that a prima facie case had been established.

B.

In deciding whether the trial court erred, we first review factors which a trial court should consider. Judge Beck, writing for the plurality in Commonwealth v. Jackson, supra, noted:

Factors which may be relevant to a determination as to whether the defendant has established a prima facie case include not only the race of the victim, the witnesses, and the seated jurors, but also: 1) the number of strikes used against minorities; 2) the percentage of minorities on the venire panel who were eliminated by peremptory strikes; 3) the past conduct of the prosecutor in challenging members of minority at other trials; 4) the type and manner of the prosecutor’s statements and questions during voir dire; 5) similarities and differences between challenged and unchallenged venire panel members. Warning signs of possible discrimination include: 1) evidence that the use of peremptory challenges had a disparate impact on minority venire panel members; 2) evidence that challenged venire panel members had no characteristic in common except for race; 3) evidence that minority venire panel members were questioned in a manner that was especially likely to elicit disqualifying responses; and 4) evidence that minority venire panel members were struck while white panel members who had similar characteristics were retained. See Ex Parte Branch, 526 So.2d [609,] 622-23 (collecting cases); Acker, [Exercising Peremptory Challenges After Batson ], 24 Criminal Law Bulletin [187,] 197-201 (collecting cases).

Commonwealth v. Jackson, supra, 386 Pa.Superior Ct. at 48-49 n. 5, 562 A.2d at 347 n. 5. Our review of the record in this case, in light of the above-enumerated factors, leads us to the conclusion that appellant established a prima facie case which entitled him to a racially neutral explanation by the prosecutor.

First and foremost is the incontrovertible fact that the prosecutor’s exercise of peremptory challenges resulted in an all-white jury. We note at the outset that the plurality in Jackson “d[id] not adopt a per se rule that any particular number of strikes against minority venirepersons must invariably give rise to a prima facie case.” Id., 386 Pa.Superior Ct. at 41, 562 A.2d at 344-345. Further, President Judge Cirillo wrote in his Concurring Opinion to Jackson:

[Although the disproportionate impact of a challenged practice upon a racial minority or its potential to be abused by those of a mind to discriminate are proper considerations in determining whether the defendant has made out a prima facie case, those facts alone have never been viewed as sufficient to establish a constitutional violation. It is only if those factors in combination with all other facts that might tend to support or refute the existence of discriminatory animus give rise to an inference of intentional racial discrimination that the burden shifts to the government to prove that the appearance of discrimination can be explained by the application of permissible neutral criteria and procedures.

Commonwealth v. Jackson, supra (Cirillo, P.J., Concurring), 562 A.2d at 356 (emphasis in original; citations omitted). We agree that all factors must be considered. When all of the facts in this case which were available to the trial court, in combination with the fact that all black venirepersons were struck, are viewed in light of the factors set forth in Jackson, the conclusion is inescapable that the finding of no prima facie case was “clearly erroneous.”

Batson specifically states that a “pattern” of strikes against black jurors might give rise to an inference of discrimination. Batson, id. The use by the prosecutor of 5 of his 8 peremptory challenges to remove all potential black jurors, resulting in an all-white jury establishes such a “pattern” which requires that all of the other facts and circumstances available to the trial court be carefully scrutinized in order to determine whether there is an “inference” of unconstitutionally utilized strikes which requires an explanation. Accord, Commonwealth v. Jones, 374 Pa.Super. 493, 543 A.2d 579 (1988) (“prosecution’s use of a peremptory challenge to eliminate the only member of the defendant’s race raises inference of discrimination and entitles the defendant to an explanation”); U.S. v. Chalan, 812 F.2d 1302 (10th Cir.1987) (“if all of the jurors of defendant’s race are excluded from the jury, we believe there is a substantial risk that the Government excluded the jurors because of their race”).

The voir dire which was conducted by the trial judge, disclosed the following circumstances which should have been, but apparently were not considered by him in order to determine whether a prima facie case had been made out, when appellant timely moved for a mistrial. We focus on the “evidence that challenged venire panel members had no characteristic in common except for race” and “evidence that minority venire panel members were struck while white panel members who had similar characteristics were retained.” Commonwealth v. Jackson, supra, 562 A.2d at 347 n. 5. From the first panel of prospective jurors, two black males were peremptorily stricken by the Commonwealth: John F., of Frankford, a plumber for SEPTA, married to a computer operator, one daughter age 3; and Frederick W., of Mt. Airy, fork lift operator, married to a teacher, two sons ages 22 and 25. Two white males and two white females were seated as jurors: Edward L., of SW Phila., an engineer, married to a waitress, one son age 11 and daughters 12 & 14; Mary H., of Oxford Circle, married to a truck driver, 3 sons aged 26, 27 and 29, and a daughter 31; Denise J, of Mt. Airy, a single waitress; and Joseph M., of SW Phila., a retired maintenance engineer, a widower with ten children, the youngest of which are 26-year-old twin boys.

From the second panel of prospective jurors, three black persons were peremptorily stricken by the Commonwealth: Tyrone L., of North Phila., a divorced mailman with a 12-year-old daughter, his cousin is married to one of Mayor Goode’s bodyguards; Dolores P., of West Phila., a retired operating room technician married to a retired postal worker, two daughters 40 & 32, one son aged 38; and Salena L., of Mt. Airy, a divorced machine worker with a son and daughter ages 12 & 14. Three white males were seated as jurors: Vincent S., of Fox Chase, a systems engineer married to an office manager, two sons aged 20 & 28, two daughters 26 & 27; John K., of NE Phila., a data coordinator married to a housewife, they have a one-year-old infant; and Joseph G., of NE Phila., a gas pressure controlman married to a teacher, no children.

The remaining jurors seated, all white, consisted of: Mark P., of NE Phila., a production supervisor married to a housewife, four boys aged 6, 9, 12, 14; Loretta N, of NE Phila., a data input operator married to a finance manager, one daughter aged 20 and two sons 17 & 15; Brian S., of NE Phila., an office manager married to a clerical worker, one son aged 20 and a daughter 18; Robert M., of Mt. Airy, a single computer operator, and John M., of NE Phila., an auto mechanic married to a housewife, a daughter age 23 and a 21-year-old son.

The prosecutor volunteered his reasons for striking Frederick W. and John F. at N.T. 27 and 28. After review of those reasons, we hold that the Commonwealth has demonstrated a racially-neutral motivation in making those peremptory challenges. Frederick W. is a male with two boys the approximate age of the defendant. While it is true that four of the white males seated as jurors also have sons approximately the same age, each of them has at least one daughter of comparable age to the victims in this case. Thus, any conscious or unconscious bias presumably would be negated in those jurors who also have daughters.

John F., statistically, seems very similar to John K. who was accepted by the prosecutor from the second group of prospective jurors. Nevertheless, the prosecutor’s reasoning that he was a male, of approximately the same age of defendants, who wore an expensive suit and would not look the prosecutor in the eye, was racially neutral under the reasoning in Batson and Jackson.

It is the prosecutor’s challenges to the last three black venirepersons, however, which require an explanation. Tyrone L. was the father of a 12-year-old girl and had a relative who was married to one of Mayor Goo4e’s bodyguards. As a mailman, he held a responsible job. As the father of a young girl, he would be expected to be more sympathetic to the prosecution’s case than that of the defense. In short, he would seem to have been an ideal juror for the prosecution. We note further that white jurors having some of Tyrone L’s characteristics were acceptable to the Commonwealth. Four of the white jurors seated had relatives by blood or marriage who were in law enforcement (Denise J., Loretta N., Brian S. and Robert M.). Additionally, juror Edward L. has daughters who are aged 12 & 14. Appellant is entitled to an explanation why Tyrone L. was stricken.

Dolores P., the retired operating room technician, with three children, statistically seems very similar to Mary H., the mother of four who was acceptable to the prosecution in the first group of venirepersons. Dolores’ husband is a retired postal worker. Mary’s husband is a truck driver.

Salena L. is the divorced machine worker with 12 and 14 year-old children, the same ages as those of Edward L. and Mark P. Her employment as a machine worker is not widely disparate from that of John M. (auto mechanic), Denise J. (waitress), Joseph M. (retired maintenance engineer) or Mary H.’s husband (truck driver), each of whom were acceptable to the Commonwealth. Appellant is entitled to an explanation of why Dolores P. and Salena L. were stricken, as well.

The foregoing circumstances were all available to the trial court when appellant raised the issue following the voir dire. The court’s failure to find, under these circumstances, that a racially neutral explanation was required from the Commonwealth was error.

In summary, the Equal Protection Clause requires that the jury selection process be free from any taint of discriminatory purpose. Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664 (1880). In a case such as this, where the Commonwealth has struck all black venirepersons from the panel, the reasons for doing so must be racially neutral. We emphasize that the burden is on the Commonwealth to prove that the selection process was in fact racially neutral when the record made during the jury selection process established a prima facie case, as here. When a prima facie case of purposeful discrimination is presented by a defendant, as here, the Commonwealth is obliged to provide reasons of sufficient detail to permit meaningful review by the trial court and, if necessary, the appellate court. If on remand, in the case at bar, the trial court finds the Commonwealth’s use of peremptory strikes as to the final three black venirepersons to have been racially motivated, the court shall vacate the judgment of sentence and order a new trial.

II.

Appellant raises two additional arguments which must be addressed in the event that a new trial is not ordered on remand. First, appellant claims at least 17 instances of prosecutorial and judicial misconduct. As to the prosecutorial misconduct, the trial court adequately addressed and correctly decided this issue at pages 3-4 of its opinion.

As to the alleged judicial misconduct, appellant points to nine instances which he argues collectively rise to a level of misconduct that would entitle him to a new trial. Appellant cites absolutely no authority to support his position that he is entitled to a new trial on the basis of these comments. We have carefully reviewed each of the comments by the trial court and we find no basis upon which to award a new trial.

Last, appellant argues that trial counsel was ineffective in two respects: 1) for failing to object to an allegedly incorrect statement in the trial judge’s charge as to how a jury may consider prior inconsistent statements; and 2) for failing to object to jury instructions regarding conspiracy, accomplice liability and involuntary deviate sexual intercourse.

The law presumes that counsel is effective and places upon appellant the burden of establishing his counsel’s ineffectiveness. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984); Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983). If the particular course chosen by counsel “has some reasonable basis designed to effectuate his client’s interests,” counsel’s assistance is deemed constitutionally effective. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Only when the claim which has been foregone is of arguable merit must further inquiry be made into the basis for counsel’s decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Appellant must show not only that the omission by trial counsel was arguably ineffective, but he must also establish “the likelihood that he was prejudiced as a result thereby.” Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Finally, appellant must demonstrate that the alternatives not chosen by his counsel at sentencing “offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice to the defendant.” Commonwealth v. Molina, 358 Pa.Super. 28, 34, 516 A.2d 752, 755 (1986) (emphasis in original), quoting Commonwealth v. Garvin, 335 Pa.Super. 560, 566, 485 A.2d 36, 39 (1984). Based upon our review of the record, we find that appellant has not established an underlying claim “of arguable merit” with respect to either of the arguments.

Appellant first argues that trial counsel was ineffective for failing to object to the trial court’s jury instruction to the effect that prior inconsistent statements of the witnesses could be considered only for impeachment purposes and not as substantive evidence. Until Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), the law in this Commonwealth was that prior inconsistent statements of a non-party witness were not admissible as substantive evidence of the truth of the matter asserted therein. Id., 510 Pa. at 127, 507 A.2d at 68. Our Supreme Court adopted in Brady the modern rule permitting prior inconsistent statements to be used as substantive evidence. The Court reasoned, “the out-of-court declarant is now a witness in-court where he or she is placed under oath, subject to cross-examination and under observation by the finder of fact.” Id., 510 Pa. at 128-129, 507 A.2d at 69 (emphasis in original). Thus, the trial court was in error where, two years following the Brady decision, it charged:

You heard evidence that witnesses made a statement on an earlier occasion that was inconsistent with their testimony here. This evidence may be considered by you for one purpose only, that is to help you judge the credibility and the weight of the evidence given by the witness in this trial.
You may not regard evidence of a prior inconsistent statement as proof of the truth of any matter asserted in the statement.

N.T. at 867. We must determine, however, whether this error was prejudicial. See Commonwealth v. McMillan, 376 Pa.Super. 25, 545 A.2d 301 (1988).

Appellant claims he was prejudiced because Patricia M. testified that she came to Philadelphia to visit appellant’s co-defendant. “I didn’t come up here to have sexual relationships with him because that wasn’t what our relationship was based on. We was friends. It was more or less like he was my big brother,” she testified. N.T. at 71-72. However, the other victim in this case was confronted with preliminary hearing testimony in which she had testified that she believed she would be engaging in sex during the weekend, and that Patricia M. had told her that she (Patricia) believed that she, too, would be engaging in sex. N.T. at 811.

Appellant took the stand and admitted to having engaged in sexual relations. His defense was that the relations were consensual. Since the only eyewitnesses to the events were the victims and the defendants, the Commonwealth’s case rested almost entirely on the credibility of the victims. Because this case turned on the credibility of the witnesses, it was actually more important for the appellant that the prior statement be considered for credibility purposes, than for its value as substantive evidence. This is because remarks made on the train prior to the weekend would have had little bearing on the issue of consent at the moment the intercourse occurred, after a morning of terror. It is evident from the verdict that the jury believed the victims’ testimony that the defendants did not have permission to engage in intercourse with them in the apartment. N.T. at 121, 295. The jury found this testimony credible even though they were also permitted to consider the prior inconsistent remark of one of the victims. With the case resting on credibility, the jury plainly believed the victim’s trial testimony. Thus, we find the trial court’s erroneous charge to have been harmless error under the circumstances of this case.

Finally, appellant urges that trial counsel was ineffective for failing to object to jury instructions regarding conspiracy, involuntary deviate sexual intercourse, and the trial court’s failure to charge on accomplice liability. In evaluating a trial court’s instructions, we review the charge as a whole. Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983). Having thoroughly reviewed the charge, including the clarification on conspiracy at N.T. 886-87, we find no merit to appellant’s arguments.

The judgment of sentence is vacated. The case is remanded for a hearing at which the Commonwealth may present its reasons for striking Tyrone L., Dolores P. and Salena L. from the jury panel. If the trial court finds that the prosecutor did not have a neutral explanation for the strikes, a new trial shall be ordered. However, if the court finds the Commonwealth has presented racially neutral reasons for striking the named jurors, judgment of sentence shall be reimposed. Both parties shall have the right of appeal from the trial court’s decision. Jurisdiction is relinquished.

CIRILLO, President Judge, files a concurring and dissenting opinion.

CIRILLO, President Judge,

concurring and dissenting.

I join in part II of the majority’s opinion. However, I respectfully dissent to the majority’s decision to vacate the judgment of sentence and remand for a Batson hearing. Appellant Weaver has failed to establish the necessary inference of discrimination, Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 1723-24, 90 L.Ed.2d 69 (1986), and thus has failed to establish a prima facie case of discrimination. Id.) 343-44 see also Commonwealth v. Jackson, 386 Pa.Super. 29, 562 A.2d 338, 343-44 (1989); Commonwealth v. Long, 367 Pa.Super. 190, 532 A.2d 853 (1987). The burden shifts to the prosecutor to come forward with a neutral explanation for striking certain venirepersons from the jury only after a prima facie case of discrimination has been established. Based upon a review of the voir dire proceedings and the argument on post-trial motions in this case, Weaver has failed to establish a prima facie case. Therefore, the majority’s decision to remand for a Batson hearing is inappropriate in this case.

A peremptory challenge is defined as the “right to challenge a juror without assigning a reason for the challenge.” Black’s Law Dictionary 1023 (5th ed. 1979). Its significance in our jury system has been well documented. The peremptory challenge has been described as a “necessary part of a trial by jury,” Batson, 476 U.S. at 91, 106 S.Ct. at 1720, “one of the most important of the rights” in our criminal justice system, Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965), and “essential to the fairness of trial by jury,” Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892). Unlike a challenge for cause, for which an attorney is required to specify reasons why a prospective juror should not be allowed to be a member of the jury, a party may utilize a peremptory challenge to strike a potential juror “on his own dislike, without showing of any cause.” H. Joy, On Peremptory Challenge of Jurors 1 (1844). As Chief Justice Burger aptly noted in his dissenting opinion in Batson, “[ajnalytically, there is no middle ground: A challenge either has to be explained or it does not.” 476 U.S. at 127, 106 S.Ct. at 1739.

In Batson, however, a majority of the Supreme Court determined that a state’s privilege to strike individual jurors must bend to the constitutional principle of equal protection. Id. at 89, 106 S.Ct. at 1719. Thus, a prosecutor is forbidden from challenging a potential juror solely on account of his or her race “on the assumption that black jurors as a group will be unable impartially to consider the [s]tate’s case against a black defendant.” Id. Since Batson, the peremptory challenge, when used in the case of a black defendant to strike one or more black venirepersons under circumstances suggesting racial animus, is no longer a peremptory challenge in its purest form; as a result of the Batson decision, it has become, in effect, a challenge for cause for which the prosecutor must give a race-neutral explanation. A prosecutor must provide the court with a race-neutral explanation, however, only if the trial court determines that based on the totality of the circumstances an inference of discrimination arises. Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723-24; Jackson, supra, 386 Pa.Super. at 41-43, 562 A.2d at 343-44. The evidentiary test is as follows:

a defendant can establish a prima facie case [of racial discrimination] by showing that he is a “member of a cognizable racial group,” that the prosecutor exercised “peremptory challenges to remove from the venire members of the defendant’s race,” and that those “facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. [Batson,] 476 U.S. at 96, 106 S.Ct. at 1723]. Once the defendant makes out a prima facie case of discrimination, the burden shifts to the prosecutor “to come forward with a neutral explanation for challenging black jurors.” Id. at 97, 106 S.Ct. at 1723.

Jackson, supra (Concurring Opinion by Cirillo, P.J.) 386 Pa.Super. at 40-42, 562 A.2d at 342-43, quoting Teague v. Lane, — U.S. —, —, —---—, 109 S.Ct. 1060, 1066, 1065-67, 103 L.Ed.2d 334 (1989) (emphasis added).

Here, Weaver presented the trial court with no facts concerning his jury selection which would support a finding of a prima facie case of discrimination. Weaver’s argument on post-trial motions with respect to this issue is as follows:

You cannot tell me that that jury selection was not an exact intention to put an all white jury in those seats and preclude any blacks from being on that jury. Every black that came forward, Mr. Sax struck, Your Honor. It was intentional, it was noted, we had a side bar on it and what did Mr. Sax do? He came back, struck another and another black juror in the face of what Your Honor had noted to us____ [T]he prosecution cannot strike jurors on the basis of race strictly. And I believe and I aver that that, in fact, was done, Your Honor.

Weaver’s argument established only that he is a member of the black race and that the prosecutor used his peremptory challenges to strike black members of the venire; Weaver failed to cite any facts or circumstances which would support an inference that the prosecutor’s strikes were racially motivated. Neither the fact that Weaver is a member of the black race nor the mere fact that strikes were disproportionately exercised against minority venirepersons establishes a prima facie case of discrimination. The mere cry of “discrimination,” even on an issue as sensitive as race, has never been enough to establish a prima facie case. Jackson, supra (Concurring Opinion by Cirillo, P.J.), 386 Pa.Super. at 40, 562 A.2d at 343, citing Washington v. Davis, 426 U.S. 229, 238-42, 96 S.Ct. 2040, 2046-49, 48 L.Ed.2d 597 (1976).

Based upon my review of the record, I find no facts or circumstances upon which the trial court could have based a finding of a prima facie case of discrimination. It is only in his appellate brief that Weaver for the first time points to the specific similarities in characteristics between black and white venirepersons. Under these circumstances, I would find that the trial court did not abuse its discretion in determining that no inference of racial bias on the part of the prosecutor has been shown, and that no prima facie case of discrimination was established.

Additionally, I point out that the fact that the composition of the jury in this case was all white does not necessarily mandate an inference of racial discrimination. See Commonwealth v. McKendrick, 356 Pa.Super. 64, 514 A.2d 144 (1986), allocatur denied, 514 Pa. 629, 522 A.2d 558 (1987) (where defendant and his victim were both members of the black race, witnesses for both sides were black, and no racial issues were present in the case, appellant had not established a prima facie case under Batson despite the fact that appellant was tried by an all-white jury). The holding in McKendrick is not intended to imply, however, that where both the defendant and the complainant are black, a finding of a prima facie case is always precluded. The law in this area does not call for a mechanical response by a trial court simply because there are certain objective, observable facts before it, i.e., the number of blacks on the jury, the number of black venirepersons excluded, and the race of the victim. In the instant case, this was all that was before the trial court. Without more, we cannot say that the trial court erred in determining that the defendant had failed to establish a racial motivation for the prosecutor’s action.

Because I believe that the trial court was not presented with evidence establishing a prima facie case of discrimination, I find that the majority’s decision today has incorrectly determined that the trial court abused its discretion. Therefore, I must register my dissent to part I of the majority opinion. I would affirm the judgment of sentence.

      . Initially, the panel of venirepersons contained seven black persons. Two were struck for cause.

      . See Concurring opinion by Cirillo, P.J. in Commonwealth v. Jackson, supra, 562 A.2d at 356.

      . The Commonwealth cited, inter alia, Commonwealth v. McKendrick, 356 Pa.Super. 64, 514 A.2d 144 (1986), allocatur denied, 514 Pa. 629, 522 A.2d 558 (1987), in which appellant was tried by an all-white jury. A panel of this Court affirmed the trial court’s opinion that no inference of racial bias was shown, in part because there were no racial issues in the case. Distinguishing McKendrick, Judge Beck, writing for the plurality in Jackson, supra, noted: ”[E]ven where the defendant and the victim are both black, some prosecutors may attempt to minimize the number of blacks who are selected as jurors. Thus, the fact that a defendant is a member of the same racial group as the Commonwealth’s witnesses is in no way inconsistent with a finding of a prima facie case.” Jackson, supra, 562 A.2d at 346.

      . Compare Commonwealth v. Dinwiddie, 373 Pa.Super. 596, 542 A.2d 102 (1988) in which our Court noted that "[tjhe [trial] court’s directive that the prosecutor provide an explanation for striking the black venire members evidences that the court was fully satisfied that appellant had presented a prima facie showing of discrimination.” Id., 373 Pa.Superior Ct. at 602, 542 A.2d at 105.

      . The trial court’s discussion of the Batson issue was limited to the following: "Defendant’s other complaints about his trial are groundless and deserve no response. He received a fair trial. An impudent drug dealer has been brought to justice.” Tr. ct. op. at 5.

      . The Commonwealth argues in footnote 10 to its letter brief that "a personal bodyguard for an elected official [has] no greater law en-. forcement obligations than any other private citizen." This effort to distinguish Tyrone L. from the eight white venirepersons who were related to law enforcement personnel is not persuasive. The trial court asked the pool of venirepersons: "Do we have any policemen here? F.B.I. men? State troopers or anybody in law enforcement? Or do we have someone who is related to someone in law enforcement?" N.T. at 10. By responding to the judge’s question as he did, it is evident that Tyrone L. perceived himself to be among the class of venirepersons who were related to law enforcement personnel. This is a more accurate predictor of the type of juror Tyrone L. would be, than the distinction put forth by the Commonwealth. We would add that some of the white venirepersons were related to a secret serviceman, a transit officer and a sheriff. The Commonwealth did not seek to distinguish each of the white jurors on that basis.

      . The Commonwealth stated in its letter brief that “in this case, involving charges of sexual assault and a defense of consent, the prosecutor was very likely inclined to eliminate men from the jury, and seek the inclusion of women, without regard to the race of venire persons.” Letter brief at 12. This comment is contradicted by the record in this case.
      From the first panel of prospective jurors, two men and two women were seated in the petit jury. The prosecutor then proceeded to strike two black women, Dolores P. and Salena L., from the second panel of venirepersons. This left the composition at five men and two women, at this point.
      Had the prosecutor, as the Commonwealth claims, been inclined to eliminate men in favor of women, he would have stricken either Vincent S. (who had two sons the approximate ages of the defendants), Joseph G. or John K. instead of striking the two black women. This would have left the composition of the petit jury at this point at four women and three men.

      . The Commonwealth did have the benefit of a tape recording of Patricia M.’s plea to a 9-1-1 emergency operator begging them to send help.

      . Allegedly inconsistent statements regarding the moment at which rings were removed from fingers, or the reason for the beating of Patricia M., appellant’s brief at 41, are peripheral matters of little significance. Therefore, we do not discuss them.

      . Although a finding of a prima facie case based only on these observable factors may appear to be a safe way for a trial judge to handle this issue, the fact remains that subtleties and subjective perceptions are the source and rationale of all peremptory challenges. Knowing full well that even the trial judge is not privy to all exchanges, or lack of exchanges, between an advocate and a venireperson, we have no choice but to rely upon the trial court to evaluate the atmosphere of the voir dire. This court is certainly not privy to averted eyes and sidelong glances.


author: KELLY, Judge:

text:
    568 A.2d 1261
    GREATER PITTSBURGH BUSINESS DEVELOPMENT CORPORATION, Debtor, Philip E. Beard, Trustee, Appellee, v. Melvin A. BRAUNSTEIN, an Individual d/b/a M.A. Braunstein Company, Appellant.
    Superior Court of Pennsylvania.
    Argued May 23, 1989.
    Filed Dec. 15, 1989.
    Reargument Denied Jan. 31, 1990.

      David Abrams, Pittsburgh, for appellant.
    Paul R. Rennie, Pittsburgh, for appellee.
    Before OLSZEWSKI, MONTEMURO and KELLY, JJ.
   KELLY, Judge:

In this opinion, we are called upon to determine whether the trial court erred when it denied a petition to set aside a sheriffs sale of personalty which had alleged that the price was grossly inadequate; that the personalty was described in a vague manner; that the applicable notice provisions of the Pennsylvania Rules of Civil Procedure were not followed; and, that the applicant’s due process rights were violated. We affirm the order of the trial court.

The facts and procedural history may be summarized as follows. Appellee, Greater Pittsburgh Business Development Corporation, (“Corporation”), through its trustee, Philip E. Beard, filed an action in the United States Bankruptcy Court for the Western District of Pennsylvania against Melvin A. Braunstein, an individual D/B/A M.A. Braunstein Company, (“Braunstein”), a scrap and salvage dealer, to recover certain rents due for property rented by Braunstein. On April 20, 1987, an order was entered in the Bankruptcy Court in favor of the Corporation and against Braunstein in the amount of $81,948.32. Braunstein appealed; however, no bond was posted to stay execution.

A judgment roll of the Bankruptcy Court judgment was recorded with the Court of Common Pleas of Allegheny County on July 8, 1987, and on September 8, 1987, the Corporation filed its writ of execution. The Deputy Sheriff of Allegheny County levied upon Braunstein’s personal property in October of 1987. On November 10, 1987, Braunstein filed a motion to compel the sale of the personal property on an item by item basis, which was denied. A sheriff’s sale was scheduled for November 12, 1987, but was postponed until January 27, 1988. On that date, at the time scheduled for the sale, counsel for the Corporation requested postponement. The Deputy Sheriff then announced that the sale would be rescheduled for February 3, 1988. The sheriff’s sale was conducted on February 3, 1988, and concluded for the price of $2350.00. On February 5, 1988, Braunstein filed a motion to set aside the sheriff sale. The Corporation filed a reply to Braunstein’s motion. On March 3, 1988, the trial court denied Braunstein’s motion and its order was entered on the docket.

On April 12, 1988, Braunstein filed a motion to vacate, reconsider, or redocket the trial court’s order of March 3, 1988, alleging that he did not receive notice of the entry of the order and requesting the trial court to vacate, reconsider and/or redocket the order to preserve his appellate rights. On April 14, 1988, the Corporation filed a reply in which it was acknowledged that notice of the order entered March 3,1988, was not received in the mail, but alleged that the notice published in the Pittsburgh Legal Journal on March 9, 1988, was an adequate substitute. On April 15, 1988, the court entered an order which vacated the March 3, 1988 order, and which denied Braunstein’s motion to set aside the sheriff’s sale. On May 11, 1988, Braunstein filed this appeal.

Review of the docket reveals that notice of the entry of the March 3, 1988 order was not sent to the parties as required by Pa.R.C.P. 236(b). A proper appeal could not be filed until the court entered its April 15, 1988 order and notice was properly sent to the parties. See Speight v. Burens, 371 Pa.Super. 478, 481 n. 3, 538 A.2d 542, 543 n. 3 (1988); Estate of Keefauver, 359 Pa.Super. 336, 338-339, 518 A.2d 1263, 1264-1265 (1986); see also Pa.R.A.P. 903(a) and 108(b); Pa.R.C.P. 236(b). Hence, we find the appeal to have been timely.

On appeal, Braunstein raises the following issue for our consideration:

Whether the lower court erred in denying issuance to Melvin A. Braunstein d/b/a M.A. Braunstein Company of a rule to show cause why sheriff’s sale of personal property should not be set aside, where Melvin A. Braunstein has asserted errors in the levy, post-levy, and conduct of sale on the personal property of Melvin A. Braunstein as well as a constitutional infirmity in the procedures for Sheriff Sales of personal property under the Pennsylvania Rules of Civil Procedure.

(Appellant/Braunstein’s Brief at 5). For the reasons which follow, we find that the trial court committed no errors, and we affirm its denial of Braunstein’s petition to set aside the sheriff sale.

Initially, we note that this appeal arises from the denial of a petition to set aside a sheriff’s sale that was filed pursuant to Pa.R.C.P. 3132 which provides:

Upon petition of any party in interest before delivery of the personal property or of the sheriffs deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances.

Pa.R.C.P. 3132. Such petitions are grounded in equitable principles and are addressed to the sound discretion of the trial court, whose decision will not be disturbed absent a clear abuse of discretion. Bornman v. Gordon, 363 Pa.Super. 607, 611, 527 A.2d 109, 111 (1987) (collecting cases), appeal denied, 517 Pa. 620, 538 A.2d 874 (1988); Continental Bank v. Frank, 343 Pa.Super. 477, 484, 495 A.2d 565, 568 (1985). As a general rule, the burden of proving circumstances warranting the exercise of the court’s equitable powers is on the applicant, and the application to set aside a sheriff’s sale may be refused because of the insufficiency of proof to support the material allegations of the application, which are generally required to be established by clear evidence. Bornman v. Gordon, supra.

With these principles in mind, we turn to the specific claims raised here on appeal. Braunstein contends that the trial court erred in denying his petition to set aside the sheriff sale because (1) the failure to sell the personal property on an item by item basis resulted in a grossly inadequate price; (2) the personal property was described in an impermissibly vague manner; (3) the Rules of Civil Procedure which pertain to sheriff's sales were not properly followed; and (4) the sheriffs sale procedures violated his right to due process. We find no merit in Braunstein’s contentions.

I. Alleged Gross Inadequacy of Sheriffs Sale Price

Braunstein contends that a grossly inadequate price was obtained from the sale because the items were sold in bulk and not on an item by item basis. Prior to the sale, Braunstein made a motion to complete the sale on an item by item basis which was denied. Braunstein argues that if the items had not been sold in bulk, a greater amount could have been obtained.

While mere inadequacy of price is not a sufficient basis for setting aside a sheriffs sale, it has long been established that gross inadequacy of price is a sufficient basis. Continental Bank v. Frank, supra, 495 A.2d at 568 (citations omitted) (emphasis added). Absent evidence of the actual or estimated value of the property sold, however, a determination of gross inadequacy cannot be made. Bornman v. Gordon, supra, 527 A.2d at 112.

Braunstein has failed to offer any evidence whatsoever regarding the value of the personal property sold by the sheriff. Absent competent evidence to support Braunstein’s bare assertions, we cannot find that the trial court erred in refusing to set aside the sale for gross inadequacy of price.

II. Alleged Inadequacy of Property Description in Handbills

Braunstein next contends that the vague description of the personal property to be sold as set forth in the handbills of the Sheriff of Allegheny County warranted setting aside the sale, or the issuance of a rule to show cause why the sale should not be set aside, because it detracted prospective bidders. Braunstein argues that a vague description is equal to or worse than a misdescription.

Misdescription of the property to be sold at a sheriffs sale may be grounds for setting aside the sale if the property is ‘misdescribed’ in some material respect. Calhoun v. Commercial Credit Corp., 151 Pa.Super. 589, 591, 30 A.2d 735, 736 (1943) (emphasis added). It is conceivable that descriptions of property in sheriff’s sale handbills, in particular cases, could be so vague as to achieve the same effect as a material misdescription in detracting potential bidders. Nonetheless, as with alleged misdescription, the burden would remain upon the applicant to establish by clear evidence that the alleged under-description was material. Cf. Bornman v. Gordon, supra; Calhoun v. Commercial Credit Corp., supra.

Instantly, Braunstein has failed to show that the description of the personal property actually deterred prospective bidders. The Corporation, in its reply to Braunstein’s motion to set aside the Sheriffs sale, states that the “Sheriffs Levy specifically listed approximately 21 items and also referred to all other personal property of the Defendant.” (Reply to Motion to Set Aside Sheriffs Sale, filed 2/16/88). This assertion has not been contested by Braunstein. As with the prior claim, Braunstein has failed to demonstrate that his bare assertion of prejudice has any basis in fact. Hence, we find the claim to be without merit.

III. Alleged Defects in the Sheriff Sale Proceedings

Braunstein next contends that the trial court erred in denying his motion to set aside the sheriff sale and in refusing to issue a rule to show cause why the sale should not be set aside because the applicable notice provisions of the Pennsylvania Rules of Civil Procedure were not followed. In fact, however, the applicable rules were followed.

In the instant case, the writ of execution states that the sale was to be conducted on November 12, 1987. The record reveals that property claims were filed in early November of 1987, by Merrill Pendergast, Robert L. Braunstein, and Dennis Ticke. In early December of 1987, the Corporation filed an exception to the property claim of Merrill Pendergast. The writ of execution indicates that the sale was re-advertised on “January 13, 1987,” to take place on January 27, 1988. On January 27, 1988, the Corporation requested that the sale be postponed for a week in order to contact more bidders. The Deputy Sheriff announced that the sale would take place on February 3, 1988. The sale occurred on that date and the personal property was sold for $2350.00.

Notice of a sale is intended to advertise the sale and insure the presence of bidders. Pa.R.C.P. 3128, “Notice of sale. Personal Property” provides in pertinent part:

(a) Notice of sale of personal property shall be given by the sheriff at least six (6) days prior to sale by handbills posted at the sheriffs office, the place of sale and the place of levy, if different from the place of sale.
* * * * # *
(c) If the sale is stayed, or continued or adjourned generally, new notice shall be given as provided by Subdivisions (a) and (b). If the sale is continued or adjourned at the direction of the plaintiff to a date certain within thirty (SO) days, the public announcement of the adjournment and new date is made to the bidders assembled at the time and place originally fixed for the sale, no new notice shall be required, but there may be only one such continuance or adjournment to a date certain without new notice.
3¡C 9jc $ Sj< $

Pa.R.C.P. 3128(a) and (c) (emphasis added). The burden of showing inadequate notice resulting in prejudice is upon the person who seeks to set aside the sale. Bornman v. Gordon, supra, 527 A.2d at 113. Absent evidence that the sale price was inadequate, a court will be reluctant to find prejudice sufficient to require another sale. Bornman v. Gordon, supra.

Instantly, we find that the notations on the writ of execution reveal complete compliance with the notice requirements of the Pennsylvania Rules of Civil Procedure. The sale was initially delayed upon the filing of the property claims by third parties in accordance with Pa.R.C.P. 3121. The sale was rescheduled for January 27, 1988, and re-advertised on January 13, 1988, in compliance with Pa.R. C.P. 3128(a). The sale was stayed on January 27, 1988, at the Plaintiff/Corporation’s request, until February 3, 1988. The Corporation alleges that the Deputy Sheriff announced the stay and a new sale date within thirty days before the assembled bidders at the time and place scheduled for the sale; and therefore, no re-advertisement was required according to Pa.R.C.P. 3128(c). Braunstein does not contest that a public announcement was made; nor has he produced any evidence to suggest the contrary. Consequently, we find Braunstein’s unsubstantiated claim of procedural irregularity to be without merit.

IV. Due Process Challenge to Sheriffs Sale Procedures

Finally, Braunstein contends that Pa.R.C.P. 3132 fails to afford a judgment debtor “due process” in direct violation of the Fourteenth Amendment. Braunstein argues that because the rule only provides relief if a petition to set aside a sale is filed before delivery of the personal property, and delivery is effectively made simultaneously with the sale, it is physically impossible for the judgment debtor to protect himself using Rule 3132, under the system of sale and delivery applicable to the Sheriff of Allegheny County, Pennsylvania. Braunstein further notes that the sale occurred on February 3, 1988, but that the Sheriffs special return was not dated until February 8, 1988, approximately three days after Braunstein filed his motion to set aside the sale.

We find Braunstein’s contention that he was denied due process to be without merit. He attended and participated in the bankruptcy court proceedings which resulted in the judgment roll entered into the Court of Common Pleas of Allegheny County and the subsequent writ of execution. Braunstein and his attorney participated fully in all stages of the proceedings arising from that writ of execution. Nowhere has Braunstein supported his vague assertion that delivery ordinarily occurs simultaneously with sale; importantly, he has not alleged that such occurred here. Indeed, Braunstein has failed to allege any harm or negative effect resulting to him in this case due to the alleged defect in Rule 3132. “It is a fundamental principle of constitutional law that a challenge to a statute may not be raised in the abstract, but must find its basis in an injury to the party seeking to have the enactment declared constitutionally infirm.” Commonwealth v. Bell, 512 Pa. 334, 342-343, 516 A.2d 1172, 1177 (1986) (collecting cases). Braunstein’s abstract due process challenge is therefore rejected.

Conclusion

Based upon the foregoing, the trial court order of April 15, 1988, denying Braunstein’s motion to set aside the sheriff sale is AFFIRMED.

ORDER AFFIRMED.

      . We note, moreover, that the sheriff merely followed the trial court’s directive to sell the personal property in bulk. Because Braunstein failed to demonstrate that a greater price would have been achieved, we find no abuse of discretion by the trial court in ordering the sale to be conducted in bulk rather than on an item by item basis.

      . Though the writ of execution by apparent clerical error indicates 1987, we note that 1988 was the correct year.

      . A sheriff sale may be stayed in accordance with Pa.R.C.P. 3121, “Stay of Execution. Setting Aside Execution” which provides in pertinent part:
      (a) Execution shall be stayed as to all or any party of the property of the defendant
      ******
      (3) pending disposition of a property claim filed by a third party;
      Pa.RX.P. 3121(a)(3).


author: WIEAND, Judge: KELLY, Judge,

text:
    568 A.2d 1266
    COMMONWEALTH of Pennsylvania v. George LYONS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 10, 1989.
    Filed Dec. 27, 1989.
    Reargument Denied Feb. 8, 1990.

      Charles J. Porter, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before BROSKY, WIEAND and KELLY, JJ.
   WIEAND, Judge:

In this appeal from an order denying post conviction relief, the principal issue is whether the absence of a pre-trial, preliminary hearing requires the release and discharge of a defendant who in all other respects has been properly tried, convicted and sentenced. After careful review, we conclude that the defendant in this case is not entitled to post conviction relief and affirm the order of the P.C.R.A. court.

On December 26, 1980, a criminal complaint was filed against George Lyons in which it was alleged that he had committed the crimes of robbery and criminal conspiracy in connection with a purse snatching which had occurred on a Pittsburgh street on October 10, 1980. An arrest warrant was issued, but Lyons could not be found and the warrant was not executed. On January 6, 1981, the Commonwealth, having recited an inability to execute the warrant despite reasonable efforts because of the defendant’s evasive tactics, requested leave of court to file an information without holding a preliminary hearing. This request was granted. Lyons was not taken into custody until July 2, 1981, after which he was duly arraigned and entered a plea of “not guilty.” Prior to trial, he filed a motion requesting a preliminary hearing. This motion was denied. Lyons also filed pre-trial motions to suppress identification testimony and to dismiss the prosecution for a violation of Pa.R. Crim.P. 1100. These motions were denied after hearing.

Lyons was tried without jury on January 28, 1982 before the Honorable James R. McGregor and was found guilty as charged. Post-trial motions were denied, and Lyons was sentenced to serve consecutive terms of imprisonment of not less than five (5) years nor more than ten (10) years, for each offense. A motion to modify sentence achieved a reduction of the minimum sentence for conspiracy to four and one-half (4V2) years. A subsequent appeal to the Superior Court was interrupted by an order which remanded the case for an evidentiary hearing on a motion for new trial based on newly discovered evidence. During the course of such hearing, appellant contended that the robbery may have been committed by someone who looked like him, and the trial court ordered a new lineup. When Lyons refused to participate in the lineup, however, the court rescinded its order, granted a request by counsel to withdraw, and denied the motion for new trial. New counsel was appointed, and another appeal was filed in the Superior Court. The judgment of sentence, however, was affirmed. See: Commonwealth v. Lyons, 367 Pa.Super. 649, 528 A.2d 257 (1987). A petition for allocatur to the Supreme Court was denied.

On May 18, 1988, Lyons filed pro se a petition which collaterally attacked his conviction. Although styled a petition under the Post Conviction Hearing Act, it was more correctly a request for relief under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., which had become effective on April 13, 1988. Counsel was appointed, an addendum to the petition was filed, and an evidentiary hearing was held before the Honorable James R. McGregor. Post conviction relief, however, was denied. This appeal followed.

Appellant’s first contention is that the court in Allegheny County erred when it permitted the Commonwealth to file an information without a preliminary hearing. This issue, however, was not raised in post-trial motions or on direct appeal. In the absence of extraordinary circumstances, therefore, the issue has been waived. See: 42 Pa.C.S. § 9544(b); Commonwealth v. Craddock, 370 Pa.Super. 139, 142-143, 535 A.2d 1189, 1191 (1988).

In order to avoid the effect of an apparent waiver, appellant argues that his trial counsel and subsequent counsel were constitutionally ineffective for failing to move to quash the information and for failing to preserve the absence of a preliminary hearing for appellate review. For counsel to be found constitutionally ineffective, it must be shown that there was arguable merit in the claim not asserted, that the failure to assert the same was not reasonable, and that the defendant was prejudiced thereby. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

“There is no constitutional right, federal or state, to a preliminary hearing.” Commonwealth v. Ruza, 511 Pa. 59, 64, 511 A.2d 808, 810 (1986). See: Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Commonwealth v. Mayberry, 459 Pa. 91, 327 A.2d 86 (1974). In Pennsylvania, Pa.R.Crim.P. 141 contains provision for a preliminary hearing whose principal function is to protect the individual against unlawful detention. Commonwealth v. Ruza, supra, 511 Pa. at 64, 511 A.2d at 810. Under certain circumstances, the attorney for the Commonwealth may be permitted to file an information without a preliminary hearing. Pa.R.Crim.P. 231(a) provides as follows:

(a) When the attorney for the Commonwealth certifies to the court of common pleas that a preliminary hearing cannot be held for a defendant because the statute of limitations will otherwise bar prosecution, an information is necessary in order to extradite the defendant, or a preliminary hearing cannot be held for other good cause, the court may grant leave to the attorney for the Commonwealth to file an information with the court without a preliminary hearing.

Under this rule, appellant’s fugitive status was not, without more, sufficient “good cause” for filing an information without a preliminary hearing. Commonwealth v. Ferrari, 376 Pa.Super. 307, 545 A.2d 1372 (1988); Commonwealth v. Costello, 301 Pa.Super. 537, 448 A.2d 38 (1982). Thus, there is arguable merit to appellant’s contentions that he was improperly denied a preliminary hearing and that his trial counsel should have moved to quash the information.

The absence of a preliminary hearing, however, did not so impair the truth determining process as to require that appellant be discharged. Here, the case was tried and the evidence was submitted to the court which, as trier of the facts, found not only that the Commonwealth had established a prima facie case of guilt but that appellant’s guilt had been proved beyond a reasonable doubt. Any deficiency in the preliminary hearing procedure, therefore, was harmless. See: Commonwealth v. Ruza, supra; Commonwealth v. Hess, 489 Pa. 580, 589-590, 414 A.2d 1043, 1048 (1980). Cf. Commonwealth v. Ferrari, supra. Because the truth determining process was not impaired by counsel’s alleged ineffectiveness, the P.C.R.A. court did not err when it dismissed appellant’s petition for post conviction relief. Appellant failed to show that he had been prejudiced by counsel’s failure to assert post-trial the absence of a pre-trial preliminary hearing.

The same result is reached by an application of the Post Conviction Relief Act. This Act, at 42 Pa.C.S. § 9543, provides that to be eligible for relief a person must prove by a preponderance of the evidence that, (1) he has been convicted of a crime and (2) “[t]hat the conviction ... resulted from one or more of the following:

(i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.”

As we have already observed, appellant has failed to show that the absence of a preliminary hearing in any way undermined the truth determining process so as to render unreliable the trial court’s finding of guilt.

Appellant relies upon the decision of the Superior Court in Commonwealth v. Costello, supra, where a failure to provide the defendant with a preliminary hearing resulted in a decision to quash the information and discharge the defendant. We need not determine whether the Costello court correctly discharged a defendant who had been tried and found guilty beyond a reasonable doubt, for in any event that decision is distinguishable from the present case. There, the case was before the Superior Court on direct appeal. In the instant case, appellant’s conviction was affirmed on a direct appeal in which the absence of a preliminary hearing had not been argued. The matter is now before this Court under the recently enacted Post Conviction Relief Act to determine whether appellant is entitled to P.C.R.A. relief on grounds that all prior counsel were ineffective for failing to preserve and argue on direct appeal the defective preliminary hearing procedure. We hold only that appellant is not entitled to collateral relief under the Post Conviction Relief Act where, as here, the absence of a preliminary hearing did not so undermine the truth determining process as to render unreliable the adjudication of guilt. Therefore, counsel’s failure to move pretrial to quash the information does not require that appellant be discharged.

Appellant also contends that the trial court’s finding of a conspiracy was contrary to the weight of the evidence. This issue was raised in post-trial motions, but it was not argued on direct appeal. Instead, counsel argued on direct appeal that the evidence was insufficient to sustain the finding that he was guilty of conspiracy.

The distinction between sufficiency of the evidence and weight of the evidence was discussed in Commonwealth v. Whiteman, 336 Pa.Super. 120, 124-125, 485 A.2d 459, 461 (1984), where the Court said:

Sufficiency of the evidence and weight of the evidence are discrete inquiries____ In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt____
A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion____ The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.

Commonwealth v. Whiteman, supra, citing Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1229-1230 (1984) (citations omitted). Appellant argues, therefore, that appellate counsel was ineffective for failing to argue on direct appeal that the conspiracy verdict was contrary to the weight of the evidence.

We reject this claim because we find no arguable merit in appellant’s contention that the verdict was contrary to the weight of the evidence. Relief may be granted on the ground that a verdict is against the weight of the evidence only if the record reveals that the verdict is so contrary to the evidence as to “shock one’s sense of justice.” Commonwealth v. Saksek, 361 Pa.Super. 173, 178, 522 A.2d 70, 72 (1987); Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981). This is not the case here.

The evidence showed that while Mrs. Shirley Miller was speaking to a neighbor on the morning of October 10, 1980, a light-skinned, black male approached her, grabbed her purse and a money bag which together contained approximately nineteen hundred fifty ($1950) dollars in cash, and ran away. Mrs. Miller was unable to release the purse from her arm and was dragged along the street, with resulting injury to her person. The assailant was observed by other witnesses as he entered a brown car, with an unknown driver, and left the area. One witness, however, obtained the license number of the vehicle and gave it to police. The vehicle was traced to Harry Coleman, and cash in the amount of $838 was found in the glove compartment of the car. Coleman later pleaded guilty to receiving stolen property. He testified at trial that he believed appellant was the man who had entered his car on the day of the robbery and that appellant was then going through a woman’s purse. Three witnesses had selected appellant’s photo from an array prepared by police and at a lineup. They also identified appellant at trial. Hair samples taken from a hat recovered at the scene of the robbery were tested and were determined to have the same microscopic characteristics as samples of appellant’s hair.

Criminal conspiracy is defined at 18 Pa.C.S. § 903(a) to be an agreement between two or more persons to commit a crime or an agreement by one person to aid another person or persons in the planning or commission of a crime.

[I]n order to convict a defendant of conspiracy, a fact-finder must conclude that he reached an agreement with his co-conspirator to commit the crime. Commonwealth v. Graves, 316 Pa.Super. 484, 463 A.2d 467 (1983). Direct proof of the corrupt agreement, however, is not necessary. Commonwealth v. Brown, 351 Pa.Super. 119, 505 A.2d 295 (1986). “An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities.” Commonwealth v. Campbell, 353 Pa.Super. 178, 509 A.2d 394 (1986) quoting Commonwealth v. Strantz, 328 Pa. 33, 43, 195 A. 75, 80 (1937). Thus, the existence of a common agreement between co-conspirators may be inferred from circumstantial evidence surrounding the allegedly conspiratorial activities, and from the relationship between and the conduct of the parties. Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984).

Commonwealth v. Anderson, 381 Pa.Super. 1, 15-16, 552 A.2d 1064, 1071 (1988).

In the instant case, an illicit agreement between appellant and Coleman could be inferred from the circumstances. The trier of the facts was not required to accept Coleman’s testimony that there had been no agreement to commit a crime. “The credibility of witnesses and the weight to be accorded the evidence produced [were] matters within the province of the trier of fact; the fact finder [was] free to believe all, some or none of the evidence.” Commonwealth v. Smith, 502 Pa. 600, 604, 467 A.2d 1120, 1122 (1983). See also: Commonwealth v. Nelson, 514 Pa. 262, 272, 523 A.2d 728, 733 cert. denied, 484 U.S. 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (1987). The trial judge in this case, as fact finder, determined that Coleman’s presence in the area of the crime was not merely fortuitous but by design for the purpose of assisting appellant in getting away after the , crime. Our review of the record fails to disclose any good reason for disturbing the trial court’s finding.

Order affirmed.

KELLY, J., files a concurring opinion.

KELLY, Judge,

concurring:

In Commonwealth v. Ferrari, 376 Pa.Super. 307, 545 A.2d 1372 (1988), this author opined for the majority that:

In Commonwealth v. Costello, [301 Pa.Super. 537, 448 A.2d 38 (1982)] this Court stated:
We hold, therefore, that the Commonwealth failed to show the existence of ‘exceptional circumstances’ that would constitute ‘good cause’ under Rule 231, as amended. Where no preliminary hearing has been held and there exist none of the recognized exceptions to the holding of a preliminary hearing, the proper remedy is to quash the information. Commonwealth v. Brabham, 225 Pa.Super. 331, 309 A.2d 824 (1972).
In view of our disposition of the Rule 231 question, we do not need to reach the other issues raised by appellant in this appeal.
The judgment of sentence is reversed, appellant’s conviction is vacated, the information is quashed and appellant is discharged.
448 A.2d at 41. Appellant seeks identical relief.
Succinctly, we find that despite the holding in Costello, not every denial or abridgement of an accused’s right to a preliminary hearing warrants reversal and discharge following an otherwise fair trial and conviction. In Commonwealth v. Emmett, 274 Pa.Super. 23, 417 A.2d 1232 (1979), this Court declined to grant a defendant discharge following his conviction where the violation of Pa.R.Crim.P. 231 was technical and the defendant had not demonstrated any prejudice arising from the violation. Likewise, in Commonwealth v. Ruza, 511 Pa. 59, 511 A.2d 808 (1986), our Supreme Court held that it was unnecessary to decide whether “good cause” to proceed under Pa.R.Crim.P. 231(a) had been established, as any error in that regard would be deemed harmless in that the pre-trial hearing conducted in that case provided procedural protections equivalent to a preliminary hearing.
Similarly, this Court has held on several occasions that the denial of counsel at the preliminary hearing stage will not require post-conviction relief unless actual prejudice is shown to have arisen from the denial of counsel. See Commonwealth v. Bennie, 352 Pa.Super. 558, 508 A.2d 1211 (1986); Commonwealth v. Bastone, 321 Pa.Super. 232, 467 A.2d 1339 (1983); Commonwealth v. Rines, 247 Pa.Super. 429, 372 A.2d 901 (1977). Indeed, the requirement that a defendant must show both error and prejudice to warrant relief is the general rule in criminal appeals. See e.g. Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987) (violation of Pa.R.Crim.P. 130(d) does not require relief in absence of actual prejudice arising from the violation); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) (error by prior counsel does not require relief in absence of actual prejudice arising from the error).
Based on the foregoing, we conclude that appellant herein must demonstrate prejudice arising from, the violation of Pa.R.Crim.P. 231(a) before reversal of his convictions and discharge would be required or appropriate.

545 A.2d at 1379-80. (Emphasis added).

Here, there was no demonstration of prejudice. Any suggestion in Costello that relief will be granted in absence of prejudice is a dead letter with no precedential or persuasive authority.

I join the majority Opinion.

      . Neither a motion for preliminary hearing nor an order denying the same appears among the record papers. Appellant alleges that such a motion was filed and denied by the Honorable Robert E. Dauer, and the Commonwealth does not dispute that such occurred.

      . We also do not decide whether the decisions in Costello and Ferrari are in conflict.

      . One of the three witnesses selected appellant’s photo, together with two other photos, as the possible robber.