author: HOFFMAN, Judge:

text:
    546 A.2d 90
    COMMONWEALTH of Pennsylvania v. Edward HAMILTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 28, 1988.
    Filed July 25, 1988.

      John N. Salla, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, WATKINS and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for robbery and possession of an instrument of crime. Appellant first contends that trial counsel was ineffective for failing to call alibi witnesses. In addition, appellant contends that the trial court erred in (1) refusing to charge the jury that certain identification testimony should be received with caution; (2) improperly admitting hearsay testimony regarding the contents of certain police reports; (3) denying his motion for a mistrial after the prosecutor made a prejudicial remark during closing argument; (4) striking a prospective juror; and (5) denying his motion for a new trial on the ground that the verdict was against the weight of the evidence. For the reasons that follow, we affirm the judgment of sentence.

The charges in the instant case arose out of the robbery of a bar on May 7, 1985. On April 10, 1986, following a jury trial, appellant was found guilty of robbery and possession of an instrument of crime. Post verdict motions were timely filed. Appellant then filed a pro se petition for withdrawal of counsel, alleging ineffectiveness of trial counsel. Present counsel was appointed, and supplemental post verdict motions were filed which raised, inter alia, ineffective assistance of counsel claims. The trial court thereafter denied all post verdict motions, and appellant was sentenced to a ten-to-twenty-year term of imprisonment on the robbery charge, and a concurrent term of two-and-one-half-to-five-years imprisonment on the remaining charge. This timely appeal followed.

Appellant first contends that trial counsel was ineffective for failing to call alibi witnesses. The determination whether counsel rendered ineffective assistance is arrived at through a two-prong test. First, we must ascertain whether the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). This requirement is based upon the principle that we will not find counsel ineffective for failing to pursue a frivolous claim or strategy. Com monwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1983). Second, if appellant’s claim does have arguable merit, we must determine whether “the course chosen by counsel had some reasonable basis designed to serve the best interests of the client.” Commonwealth v. Buehl, supra (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 353 (1967)).

If our review of the record reveals that counsel was ineffective, we then must determine whether appellant has demonstrated that counsel’s ineffectiveness worked to his or her prejudice. Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 976 (1987). To determine whether appellant was prejudiced, our Supreme Court adopted the test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Pierce, supra. Under Strickland, to prove that counsel’s ineffectiveness resulted in prejudice, an appellant must show that the error was “so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.” Strickland v. Washington, supra at 686, 104 S.Ct. at 2063.

We have carefully reviewed the record (including the testimony of the proposed alibi witnesses) and the briefs submitted by the parties. For the reasons stated in the trial court opinion, we conclude that appellant’s claim regarding alibi witnesses does not possess arguable merit. Accordingly, we affirm the trial court’s disposition of this issue on the basis of the trial court’s opinion.

Appellant next contends that the trial court erred in refusing to charge the jury, in accordance with Commonwealth v. Kloiber, 378 Pa. 412,106 A.2d 820 (1954), that the identification testimony of certain Commonwealth witnesses should be received with caution. After carefully reviewing the record and the briefs submitted by the parties, we conclude that the trial court has properly disposed of this contention in its opinion and, accordingly, we affirm the disposition of this issue on the basis of that opinion.

Appellant next contends that the trial court erred in admitting testimony regarding the contents of certain police reports. The facts related to this claim are as follows. Officer Jeffrey Murphy testified that on the night of the robbery he interviewed the complainant, Wanda Smith, who was the bartender on duty the night of the robbery. N.T. April 9, 1987 at 123-24. As a result of his investigation, Officer Murphy prepared two standard reports: a Form 75-48 “complaint” form, and a Form 75-130 “hold-up memorandum.” Id. at 124-28. Each of these reports contained Ms. Smith’s description of the man who had robbed her. Over the objection of defense counsel, Officer Murphy read the contents of his reports to the jury, including Ms. Smith’s description of the robber. Id. at 122, 126-27, 131-32. On appeal, appellant maintains that the descriptions of him that were contained in those reports were inadmissible hearsay. We disagree.

In Commonwealth v. Rounds, 356 Pa.Super. 317, 514 A.2d 630 (1986), we noted that,

The reason that [hearsay] is subject to exclusion is related to the fact that the declarant is not in court, and the safeguards of cross-examination afforded by the [Sixth] Amendment to the United States Constitution (to face one’s accusers) are rendered nugatory.

Id., 356 Pa.Superior Ct. at 320, 514 A.2d at 632 (citing McCormick on Evidence, § 246 at 585 (1972); Wharton’s Criminal Evidence, § 265 at 6 (1972)), allocatur granted. See also Commonwealth v. Sanders, 260 Pa.Super. 358, 366, 394 A.2d 591, 595 (1978) (“ ‘The principal] reason for excluding hearsay is the danger that the declarant’s credibility cannot be assessed.’ ”) (quoting Commonwealth v. Dugan, 252 Pa.Super. 377, 386, 381 A.2d 967, 971 (1977) (Spaeth, J., Concurring)). When the declarant is present in court and available for cross-examination, however, testimony regarding prior statements made by the declarant is admissible. Commonwealth v. Ballard, 501 Pa. 230, 233, 460 A.2d 1091, 1092 (1983); Commonwealth v. Rounds, supra; Commonwealth v. Dean, 300 Pa.Super. 86, 89, 445 A.2d 1311, 1312-13 (1982); Commonwealth v. Sanders, supra.

Here, the descriptions of appellant that were contained in the police reports were based on information provided by the complainant, Wanda Smith. N.T. April 9, 1986 at 126, 127, 134. Ms. Smith was present in court, testified, and was subject to cross-examination. Id. at 36-71. Appellant thus had an opportunity to question Ms. Smith’s with regard to the prior description, and the jury was able to assess her credibility. In light of the fact that the complainant was present and available for cross-examination, we conclude that the trial court did not err in permitting testimony by the investigating officer regarding the complainant’s prior description of appellant. See Commonwealth v. Ballard, supra; Commonwealth v. Rounds, supra; Commonwealth v. Dean, supra; Commonwealth v. Sanders, supra.

Appellant next contends that the trial court erred in denying his motion for a mistrial after the prosecutor made a prejudicial remark during closing argument. During his summation, the prosecutor, in attempting to explain why appellant might choose to rob people whom he knew, stated that appellant was a “real scary person.” Appellant argues that no evidence was presented during the trial to suggest that he was a “scary person.” Appellant maintains that the necessary “effect of the statement ... was to bias the jury and create hostility towards [appellant]____[and thus] the jury was unable to render a true verdict.” Brief for Appellant at 18. We disagree.

A prosecutor, just as a defense attorney, must have reasonable latitude in presenting a case to the jury and “must be free to present his or her arguments with ‘logical force and vigor.’ ” Commonwealth v. Smith, 490 Pa. 380, 387, 416 A.2d 986, 989 (1980) (quoting Commonwealth v. Cronin, 464 Pa. 138, 143, 346 A.2d 59, 62 (1975)). See also Commonwealth v. D’Amato, 514 Pa. 471, 489, 526 A.2d 300, 309 (1987). The prosecutor’s remarks to the jury “may contain fair deductions and legitimate inferences from the evidence presented during the testimony.” Commonwealth v. D’Amato, supra. Moreover, “not every intemperate or uncalled for remark by the prosecutor requires a new trial.” Commonwealth v. Youngkin, 285 Pa.Super. 417, 430, 427 A.2d 1356, 1362 (1981), allocatur denied. Rather, reversible error exists only if the “unavoidable effect” of the language used “would be to prejudice the jury forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Id. (citations omitted). See also Commonwealth v. Beasley, 504 Pa. 485, 492, 475 A.2d 730, 734 (1984). Finally, “the effect of such remarks is largely dependent on the atmosphere at trial, ... and the proper action to be taken, upon objection, is within the discretion of the trial court.” Commonwealth v. Young-kin, supra. See also Commonwealth v. D’Amato, supra, 514 Pa. at 490-91, 526 A.2d at 309-10.

The prosecutor’s reference to appellant as a “scary person” occurred in the following context:

Now, the biggest problem I have with this case and I think anybody would have is why would a person be so stupid as to rob a bar where he’s a regular in and the bottom line is I don’t know. I don’t know. But we don’t really have to know. There could be a lot of reasons.
There was a famous bank robber named Willy Sutton and he robbed banks and he escaped from jails. One of the jails he escaped from was right here in Philadelphia. And Willy Sutton was asked once why he robbed banks and he said because that’s where they keep the money. Well, in this case, in this neighborhood at 11 o’clock in the evening, 11:40 in the evening, this bar is where they keep the money. The banks are closed. If you’re looking for money this is one of the places to go at least.
So there is if you’re going out to rob somebody, you’re going to rob somebody with money, right. It may be also that because the people know you they know that you’re a real scary person and it may be in your mind that they think they wouldn’t have the nerve to tell the cops.

N.T. April 10, 1986 at 29-30 (emphasis supplied).

In determining the effect that this isolated reference could have had upon the jury, we note initially that the prosecutor’s remark was a legitimate inference from evidence presented regarding appellant’s physical appearance. First, each of the three eyewitnesses testified that appellant was missing an eye. N.T. April 9, 1986 at 38, 64-65, 79, 99. This identifying characteristic was displayed to the jury. Id. at 65-66. In addition, the investigating police officer read into evidence the contents of his report, which was based upon his interview with one of the eyewitnesses, and which included, as part of the description of the robber, the fact that he had no front teeth. Id. at 133. This identifying characteristic was also displayed to the jury. Id. at 141. On this record, although it is true that the eyewitnesses did not state that appellant’s physical appearance scared them, we cannot say that the prosecutor’s common sense conclusion to that effect is an unsupportable inference. See Commonwealth v. D’Amato, supra. Moreover, because the reference may be seen to derive from appellant’s physical appearance and not from an inherently prejudicial source — such as prior criminal conduct, for example — we cannot conclude that the “unavoidable effect” of the comment was to “prejudice the jury forming in their minds fixed bias and hostility toward the defendant.” See Commonwealth v. Beasley, supra; Commonwealth v. Youngkin, supra. Accordingly, appellant is not entitled to a new trial on this ground.

Appellant next contends that the court erred in striking a prospective juror for cause when no good cause existed. We disagree. The determination whether a prospective juror should be disqualified rests in the sound discretion of the trial court and we will not reverse that decision in the absence of a palpable abuse of discretion. Commonwealth v. Colson, 507 Pa. 440, 454, 490 A.2d 811, 818 (1985) (citing Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977)), cert. denied 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986).

Here, the juror in question, Charles Seiz, stated that he could hear only “if you talk loud, otherwise I can’t hear too good.” N.T. April 8, 1986 at 108. In addition, Mr. Seiz admitted that he had not heard all of the questions that were put to the voir dire panel as a group. Id. at 109-10. In explaining its reasons for granting the Commonwealth’s motion to strike Mr. Seiz from the panel, the trial court stated: “Look, the man has a hearing problem and I really believe the man is not entirely equipped to be a juror, mentally equipped to be a juror. I’m going to strike him____ The man has difficulty hearing. He admitted it____ I had to holler at him.” Id. at 111-12. The record also reveals that Mr. Seiz went to the wrong courtroom and sat with the wrong jury following a lunch recess. Id. at 112-13. In light of Mr. Seiz’s hearing problem and his apparent disorientation, we cannot conclude that the trial court abused its discretion in striking him from the jury panel. Commonwealth v. Colson, supra. Compare Commonwealth v. Brown, 231 Pa.Super. 431, 436, 332 A.2d 828, 831 (1974) (“The presence of a juror with a physical impairment of such magnitude as to interfere with the juror’s ability to hear and understand the presented testimony and evidence precludes a verdict by all jurors. Such a disability would render the juror incompetent to serve and would deny appellant’s right to an impartial jury and a fair hearing.”).

Appellant last contends that the verdict was against the weight of the evidence. Appellant argues that the identification testimony of the three eyewitnesses was so “conflicting, indefinite, and uncertain” that the verdict was based upon pure conjecture. In support of this argument, appellant cites to inconsistencies regarding his height, weight, nickname, and whether the witnesses noticed that he was missing an eye. Because of these inconsistencies, appellant argues that he should be granted a new trial. We disagree.

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. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982). Before a trial court may grant relief on the ground that the verdict is against the weight of the evidence, “ ‘it must appear from the record that the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice____’” Commonwealth v. Gamber, 352 Pa.Super. 36, 45, 506 A.2d 1324, 1329 (1986) (quoting Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191,192 (1981)). Our review of a trial court’s decision on a weight of the evidence claim is extremely limited. Our Supreme Court has noted that,

Traditionally under our system of jurisprudence, issues of credibility are left to the trier of fact for resolution____ While there may be some legitimacy for a trial court, who has also observed the witnesses as they testified, to consider the weight of the evidence and to that extent review the jury’s determination of credibility, there is surely no justification for an appellate court, relying solely upon a cold record, to exercise such a function.
“On appellate review of a criminal conviction, we will not weigh the evidence and thereby substitute our judgment for that of the finder of fact____ To do so would require an assessment of the credibility of the testimony and that is clearly not our function____” Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973).
This concept, however, must be distinguished from an equally fundamental principle that a verdict of guilt may not be based on surmise or conjecture---- Following this principle, courts of this jurisdiction have recognized that where evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding____

Commonwealth v. Farquharson, 467 Pa. 50, 59-60, 354 A.2d 545, 550 (1976) (citations omitted). See also Commonwealth v. Nelson, 514 Pa. 262, 271 n. 3, 523 A.2d 728, 733 n. 3 (1987) (plurality opinion) (except in cases where penalty of death is imposed, appellate tribunal should not entertain challenge to weight of evidence because their examination is confined to “cold record.”); Commonwealth v. Pronkoskie, supra, 498 Pa. at 251-52, 445 A.2d at 1206.

Applying these standards to the case at bar, it is clear that the jury’s verdict is not against the weight of the evidence. A review of the testimony of the eyewitnesses reveals that each knew appellant prior to the robbery, each had a clear view of appellant during the robbery, and each was certain that appellant was the perpetrator. N.T. April 9, 1986 at 36, 44-45, 74, 78, 90, 92, 100-01. Despite this evidence, appellant argues that, simply because there exist inconsistencies in the eyewitnesses’ descriptions of him, the testimony of those eyewitnesses is not credible. We cannot agree that these minor inconsistencies render the identification testimony of these witnesses so unreliable as to make the verdict one based upon surmise or conjecture. See Commonwealth v. Farquharson, supra. See also Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973); Commonwealth v. Bennett, 224 Pa.Super. 238, 303 A.2d 220 (1973). Accordingly, appellant is not entitled to relief on the ground that the verdict was against the weight of the evidence.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . In a related argument, appellant contends that trial counsel was ineffective for preventing him from testifying on his own behalf. This issue is waived, ‘ineffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which the counsel whose ineffectiveness is being challenged no longer represents the defendant." Commonwealth v. Hubbard, 472 Pa. 259, 277 n. 6, 372 A.2d 687, 695 n. 6 (1977). See also Commonwealth v. Johnson, 347 Pa.Super. 93, 96, 500 A.2d 173, 174-75 (1985).
      Here, trial counsel filed timely post-verdict motions on appellant's behalf. Appellant then filed a pro se petition for withdrawal of trial counsel. Present counsel was appointed, and he filed supplemental post-verdict motions, which were considered and denied by the trial court. Appellant thus had the opportunity to raise his ineffective assistance of counsel claims in supplemental post-verdict motions. In his supplemental motions, however, appellant raised only the following claim of ineffective assistance of counsel:
      3. The Defendant was denied effective assistance of counsel since the defense was alibi, and trial counsel failed to present testimony from alibi witnesses present in the courtroom during defendant’s trial.
      Motion in Arrest of Judgment and for a New Trial at 2. Appellant did not allege that counsel was ineffective for preventing him from testifying on his own behalf. Because appellant failed to raise this claim at the first opportunity, he has failed to preserve it for appellate review.


source: Caselaw Access Project

author: CIRILLO, President Judge: DEL SOLE, Judge,

license: Public Domain

text:
    546 A.2d 96
    COMMONWEALTH of Pennsylvania v. Darrell SCOTT, Appellant.
    Superior Court of Pennsylvania.
    Argued June 13, 1988.
    Filed July 29, 1988.

      Thomas A. Thornton, Assistant Public Defender, Harrisburg, for appellant.
    Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.
    Before CIRILLO, President Judge, and WIEAND and DEL SOLE, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Dauphin County following Darrell Scott’s conviction for aggravated assault. We affirm.

During the 1985-86 school year, Rawn Marshall was a student completing his eighth grade semester at the Scott Intermediate School in Harrisburg, Pennsylvania. On April 18, 1986, the appellant, Darrell Scott, decided to visit his brother at the intermediate school with his two nephews. Prior to his visit to the school, Scott had never met Rawn Marshall.

At approximately 12:00 noon, during physical education class, Marshall became involved in a argument with an unidentified student during a basketball game. The fray ended uneventfully, however, when Marshall was leaving school at approximately 4:00 p.m., the individual who argued with him during gym class, along with several other young men, approached him. Scott came forward from the group and proclaimed that “a friend of mine wants to fight you.” Undaunted by Scott’s provocations, Marshall continued walking without a response. Scott then lunged at Marshall, and struck him on the side of his head. Marshall temporarily lost his balance from the blow, but then recovered and sprinted to the principal’s office. There, he related the course of events to the principal as well as to his mother. The principal then summoned the police.

Following an investigation of the events at the intermediate school, Scott was arrested and charged with aggravated assault, 18 Pa.C.S. § 2702(a)(5). On February 17, 1986, Scott was tried before a jury in the Court of Common Pleas Dauphin County and convicted. Post-verdict motions were filed and denied by the court. On September 22,1987, Scott was sentenced to serve not less than two months nor more than twenty-three months incarceration. This appeal followed.

Scott advances the following two issues for our review: (1) whether the evidence adduced at trial was sufficient to sustain his conviction of aggravated assault pursuant to 18 Pa.C.S. § 2702(a)(5); and (2) whether the trial court erred in refusing to instruct the jury that an employment relationship must be found between the victim and the school before § 2702(a)(5) is applicable.

Scott initially contends that the evidence adduced at trial was insufficient as a matter of law in establishing that he committed aggravated assault pursuant to section 2702(a)(5). Specifically, Scott maintains that the Commonwealth failed to prove that his conduct was perpetrated against Marshall inside the school building or classroom, or that the act was committed against an individual acting within the scope of his employment. Both of these criteria, he avows, are requisite elements to sustain a conviction under § 2702(a)(5).

Generally, the following test is applied when this court reviews the sufficiency of evidence sustaining a conviction:

The test of sufficiency of the evidence — irrespective of whether it is direct or circumstantial, or both — is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the [trier of fact] could properly have based [the] verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. In reviewing the evidence, we must consider it in the light most favorable to the Commonwealth, which won the verdict at the trial court.

Commonwealth v. Dunlap, 351 Pa.Super. 43, 45, 505 A.2d 255, 256 (1985) (citations omitted). Here, Scott was convicted of aggravated assault. Section 2702 of our Crimes Code defines aggravated assault under subsection (a)(5) as follows:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(5) attempts to cause or intentionally or knowingly causes bodily injury to a teaching staff member, school board member, other employee or student of any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school while acting in the scope of his or her employment or because of his or her employment relationship to the school.

18 Pa.C.S. § 2702(a)(5).

Scott submits that a reading of the legislative debate surrounding section (a)(5) undeniably discloses that our lawmakers intended to limit criminal responsibility under subsection (a)(5) to those who perpetrate aggravated assaults inside school buildings. We note however, that Scott failed to promote this claim before the trial court in his post-verdict motions.

It is now axiomatic that issues which are not raised in the trial court, or preserved for review in post-trial motions, cannot be raised for the first time on appeal. Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986); Pa.R.A.P. 302(a); Pa.R.Crim.P. 1123. In Monarch, our supreme court stated:

The post-verdict motions court serves as the initial step in the appellate review of trial proceedings. Our law requires that all assignments of error, whether pre-trial or at trial, must be raised in post-verdict motions. The failure of a defendant to raise assignments of error in post-verdict motions results in the preclusion of later review of those issues by an appellate court. One of the purposes for this rule is to afford trial courts the first opportunity to correct error or grant new trials where necessary and, thus, obviate the need for appellate review.

510 Pa. at 146, 507 A.2d at 78 (citations omitted) (emphasis added). Scott failed to include this claim in his post-verdict motions, and it is therefore waived.

Scott also maintains that subsection (a)(5) “clearly states that the assault must be perpetrated on an individual acting in the scope of his or her employment or because of his or her employment relationship to the school.” He asserts that since Rawn Marshall was merely a student, and not engaged in an employment capacity with the school, his conviction under section 2702(a)(5) cannot stand.

Essentially, Scott asks this court to read section 2702, as it applies to this case, in the following manner:

A person is guilty of aggravated assault if he ... attempts to cause or intentionally or knowingly causes bodily injury to a ... student of any elementary or secondary publicly funded educational institution, ... while acting in the scope of his or her employment or because of his or her employment relationship with the school.

18 Pa.C.S. § 2702(a)(5) (emphasis added). In other words, Scott contends that this language mandates that an elemen tary school student, who is the victim of an assault, must stand in an employment relationship with the school in order for his or her assailant to be criminally liable for an aggravated assault.

In addressing this claim, we consider it elucidating to undertake a cursory review of the legislative history surrounding section 2702. While we are cognizant of the tenet of law that the discussions of our lawmakers during floor debate is not widely recognized as authoritative in gleaning the legislative intent of an enactment, our rules of statutory construction nonetheless permit us to consider the contemporaneous legislative history where the words of the statute are not explicit. 1 Pa.C.S. § 1921(c)(7). In the instant case, we believe that the legislative debate sheds light upon the reason underpinning our General Assembly’s apparently untenable directive that an elementary school student must be employed by his or her school in order for the child’s assailant to be criminally liable for aggravated assault under section 2702(a)(5).

The legislative history of Senate Bill 544 discloses that, in its original form, the bill did not include the word “student.” It was not until the third consideration of the bill by the House of Representatives that it was amended by adding the word “student”. See generally Pa. Legislative Journal, House, 422 (Feb. 13,1980). The sponsor of the amendment, Representative Richardson of Philadelphia County, offered the following remarks in support of the added language:

Mr. Speaker, this is a very simple amendment. What it does is it adds the word “student.” In the school district of Philadelphia in the sixth district where I live and where my legislative district encompasses, we have a serious problem concerning the fact that a number of people who come from outside the school into the school may not only inflict harm upon any school board employe or a teacher or someone who works for the board [but] would also inflict that same harm upon a student who enters inside the building who is a student of the school. We feel there needs to be some protection to protect the student inside the classroom who attends that school so that he is protected from being beaten up also inside the school, and I, therefore, Mr. Speaker, ask for an affirmative vote on this amendment.

Pa. Legislative Journal, House, 422 (Feb. 13, 1980). It appears, therefore, that our General Assembly added the word “student,” but failed to realize that the phrase “while acting in the scope of his or her employment or because of his or her employment relationship to the school” could be read to modify the word student. We cannot believe that our General Assembly, by any stretch of the imagination, meant that a seven-year-old elementary student must be employed by his or her school in order to be afforded protection under the statute. As the trial court aptly observed, “common sense and justice both dictate that the addition of the word student was not solely to protect students working in their schools. It is doubtful that any elementary school employs elementary students in any capacity. It would be unlawful____”

We firmly believe that our lawmaking body enacted this specific provision to deter roving groups of youths from disrupting the scholastic environment and committing assaults on teachers and all students seeking to secure an education. Buttressing this conclusion are the comments of Senator O’Pake during floor debate of the proposed bill:

Senate Bill No. 544 will serve notice to those who would willfully destroy the educational environment with an act of violence or terrorism, that they will be held responsible for their acts. There is no reason for our children to be intimidated and abused in our schools. A school is a place for learning — not a combat zone____ This tough legislation is needed if we hope to protect our children and teachers from the tidal wave of violence which is engulfing our schools.

Pa. Legislative Journal, Senate, 2081-2082, 2082 (Sept. 30, 1980). This noble purpose applies regardless of the student’s employment relationship with the school.

Additionally, it is well-established that our Statutory Construction Act disfavors surplusage. We have consistently upheld the supposition that our lawmaking body is presumed to have intended to avoid mere surplusage in the words, sentences and provisions of its laws. Commonwealth v. Saul, 346 Pa.Super. 155, 499 A.2d 358 (1985); 1 Pa.C.S. § 1921(a), 1922(2). Accordingly, we must construe a statute, if possible, so as to give effect to every word. Commonwealth v. Mlinarich, 345 Pa.Super. 269, 498 A.2d 395 (1985) alloc. den. 512 Pa. 115, 516 A.2d 299 (1986). Pursuant to section 2702, our parliamentarians sought to impose criminal liability for aggravated assault upon an individual who attempts to cause or intentionally or knowingly causes bodily injury to an “employee or student of any elementary or secondary publicly-funded educational institution.” 18 Pa.C.S. § 2702(a)(5) (emphasis added). If our General Assembly only sought to impose liability for aggravated assaults perpetrated against students acting in the scope of their employment relationship with the school, as Scott advocates, then the addition of the word “student” would have been unnecessary and mere surplusage. Anybody working for the school district would be afforded protection under the statutory scheme merely by their designation as an “employee.” Giving effect to each and every word of the statute, we therefore assume that our legislature intended to protect all employees of the school district as well as all students.

Moreover, we cannot, as a matter of statutory construction, assume that our legislature intended such an absurd or unreasonable result in their enactment. 1 Pa.C.S. § 1922; Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987) alloc. den. 516 Pa. 640, 533 A.2d 712 (1987). Although we are constrained by the principle that penal provisions must be strictly construed, our supreme court has stated that “[a] phrase necessary to the construction of a statute may be added if it does not conflict with the obvious purpose and intent of the statute, nor in any way affects its scope.” Commonwealth v. Fisher, 485 Pa. 8, 13, 400 A.2d 1284, 1287 (1979) (footnote omitted); 1 Pa.C.S. § 1923(c) (“Words and phrases which may be necessary to the proper interpretation of a statute and which do not conflict with its obvious purpose and intent, nor in any way affect its scope and operation, may be added in the construction thereof.”)

Since the statute in question is susceptible to varying interpretations, with one being absurd and the other complying with the obvious legislative intent, we will construe subsection (a)(5) as if it contained the language “or while acting in his or her role as a student” following the last word of the subsection. We believe that this interpretation will serve to effectuate the purpose of the statute until our legislature deems it appropriate to address its apparent omission. Furthermore, we do not believe that this judicially interposed language either conflicts with the obvious purport of the statute or in any way affects its scope and operation. In sum, we have reviewed all the evidence proffered at trial in the light most favorable to the Commonwealth, and accepting as true all the evidence and all reasonable inferences from that evidence, conclude that the trier of fact could reasonably have found that Scott was guilty beyond a reasonable doubt of aggravated assault under section (a)(5). Consequently, we reject Scott’s strained interpretation of section 2702, and find that “student employment” is not a requisite element to sustain a conviction under section 2702(a)(5).

Scott next claims that Judge Natale erred in refusing to instruct the jury that in order to sustain a conviction under section 2702(a)(5), he must have assaulted a person who had an employment relationship with the school. Since we were unable to accept Scott’s claim that subsection (a)(5) requires that the victim be in an employment relationship with the school, we similarly reject the notion that the jury should have been instructed on such an element. Having found no error in Judge Natale’s jury instruction, we therefore affirm the judgment of sentence.

Judgment of sentence affirmed.

DEL SOLE, J., files dissenting opinion.

DEL SOLE, Judge,

dissenting:

I must dissent from the majority’s rewriting of 18 Pa.C. S.A. § 2702(a)(5). While I agree with the majority that what the General Assembly intended was to prevent persons from entering on school premises, engaging in altercations and disrupting the educational process, I cannot subscribe to the majority’s interpretation of the subject statute.

The majority’s interpretation of the statute would mean that anyone who assaults an employee of a school district or a student of the school district, at any time, would be subject to a charge of aggravated assault. Rather, it is my belief that the General Assembly sought to limit the upgrading the assault to the aggravated range only when the assault occurred to someone who was in a specific relationship with the school.

The majority’s interpretation would mean that students who engage in an altercation on a weekend that may have been precipitated by a school sponsored sporting event the previous week would be subjected to aggravated assault charges under this Section.

I do not find Appellant’s view of the statute strained. Rather, I find the majority’s attempt to justify their statutory construction as strained.

Since the statute is not clearly drawn I think the best thing that this court can do is suggest that the General Assembly redraft it in order that it might serve the laudable purpose which its sponsors intended.


author: TAMILIA, Judge:

text:
    546 A.2d 101
    COMMONWEALTH of Pennsylvania v. David CLAY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 13, 1988.
    Filed Aug. 8, 1988.

      Mary M. Zell, Philadelphia, for appellant.
    Patricia E. Coonahan, Assistant District Attorney, Cheltenham, for Com., appellee.
    Before TAMILIA, JOHNSON and CERCONE, JJ.
   TAMILIA, Judge:

Appellant David Clay appeals an April 29, 1987 Order which found him in need of treatment, supervision or rehabilitation and, pursuant to the Juvenile Act, 42 Pa.C.S. § 6301 et seq., ordered him to be committed to Cornwells Heights Youth Development Center, Sex Offender Program. This Order followed an April 14, 1987 adjudication of delinquency of appellant; the court stated that after a hearing, it found beyond a reasonable doubt appellant did commit the acts of possession of an instrument of crime and prohibited offensive weapon, aggravated assault, and rape.

The facts are as follows. Around 9:00 p.m. on May 10, 1986, Michelle S. (now Michelle T.), a graduate student at Tyler School of Art, arrived with her fiance Richard T. at the campus to attend an art show while her fiance was to work in the art studio. As they entered the parking area, Michelle had to stop her car because a young man was “pacing back and forth in front of the driveway” (N.T. 3/6/87, p. 20). The driveway was well lit, and as Michelle was within ten (10) feet of the young man (who she identified as appellant), she could see his face (N.T. at 21). At approximately 11:00 p.m., Michelle returned to her car to get a sweater and was grabbed from behind, thrown to the ground and dragged some distance with a meat cleaver at her neck.

Michelle gave a description of the attacker to police shortly after the attack in which she described the rapist as a black male, 15-17 years old, 135 to 140 pounds, thin build, box type hair cut,.wearing a gray “Jeff” cap, dark clothing, white undershirt and sneakers. A composite picture was prepared based on descriptions given by Michelle and Richard T. Michelle was shown a photo array on December 15, 1986 by Detective Jacob Gearhardt of the Cheltenham Police from which she selected appellant’s photo from the second folder and identified him as her attacker. She became very upset when she saw the photo of appellant and asked if she could see another photo of him so she could be absolutely sure. On December 19, 1986, Michelle looked at another array and again selected appellant (N.T. at 49-52). Appellant was taken into custody on December 19, 1986, pursuant to an affidavit of probable cause for his arrest. Both Michelle and her husband Richard T., at different times, observed a line-up on February 2, 1987 and both selected appellant (N.T. at 53; N.T. 4/1/87, pp. 29-31). Appellant, whose grandparents’ residence abuts one corner of the Tyler campus, was 16 years of age at the time of the rape. He was, therefore, tried as a juvenile offender, after the Commonwealth’s petition to transfer the case to adult court was withdrawn. After several hearings, he was adjudicated a delinquent on April 14,1987, and the April 29, 1987 Order in question was issued. Notice of appeal was filed on May 28, 1987.

On appeal appellant first contends a “serious miscarriage of justice may have occurred” in this case. He argues his motion for new trial should have been granted because the verdict is contrary to the weight of the evidence in that: 1) the single distinctive characteristic of the rapist, his box-type hair cut, is one which appellant David Clay does not wear; 2) the composite drawing carefully chosen by the victim in no way resembles David; 3) results of an FBI analysis, requested by the Commonwealth, of David’s hair and that from the rapist’s cap, demonstrates they are not the same; 4) evidence of David’s good character and reputation could not be refuted by the Commonwealth.

Preliminarily, we must clarify the procedure by and through which this appeal was taken as it is incorrect. The Juvenile Act, 42 Pa.C.S. § 6301 et seq., does not provide for the right of appeal. In the Interest of McDonough, 287 Pa.Super. 326, 430 A.2d 308 (1981). Article V, section 9 of the Pennsylvania Constitution provides “there shall be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court.” The Juvenile Court is a court of record and pursuant to Pa.R.A.P. 341, appeal may be taken as of right from any final Order of an administrative agency or lower right from any final Order of an administrative agency or lower court. The final Order of a Juvenile Court is the Dispositional Order as to a Delinquent Child, pursuant to 42 Pa.C.S. § 6352; see McDonough, supra.

While this appeal ultimately lies from the Dispositional Order committing the appellant to Cornwells Heights, the actual appeal was from the denial of a motion for a new trial following post-trial motions. Our review of the proceedings from the record discloses post-trial motions are derivative of the rules of criminal proceedings and that the appellate review requested is based on alleged error in failing to make proper rulings in appellant’s favor on those motions. We observe at the outset that the Juvenile Act, unlike its predecessors, does not provide for post-trial motions or relief, and the procedures for post-trial review contained in the Pennsylvania Rules of Civil Procedure do not apply to juvenile proceedings unless specifically provided otherwise. Pennsylvania Rule of Criminal Procedure 1(a) provides:

These rules shall govern criminal proceedings in all courts including courts not of record. Unless otherwise specifically provided, these rules shall not apply to juvenile or domestic relations proceedings.

In the note to Rule 1, it is stated:

These rules apply to proceedings involving juveniles only to the extent that the Juvenile Act does not vest jurisdiction in the Juvenile Court. See, e.g., Juvenile Act §§ 6302-6303, 6355, 42 Pa.C.S. §§ 6302-6303, 6355 (1982); Vehicle Code 75 Pa.C.S. § 6303 (1977).

Nor may post-trial proceedings be introduced by reason of local rules as the authority to impose local rules must flow from the Juvenile Act, which does not grant such authority, or pursuant to Rule 1(b) of the Rules of Criminal Procedure, which is not applicable. Pennsylvania Rule of Criminal Procedure 6 provides:

b) Local rules shall not be inconsistent with any general rule of the Supreme Court or any Act of Assembly.

As stated above, Rule 1 provides the Rules of Criminal Procedure do not apply to juvenile proceedings so that a local rule could not impose those rules on such proceedings. Additionally, the Juvenile Act is sui generis and was meant by the legislature to be twofold in purpose: to protect the public interests and rehabilitate youthful offenders. McDonough, supra. Because of the difference in function between the Juvenile Act and the Crimes Code, the proceedings of the two are not interchangeable. In Interest of Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1981).

Turning to our review of this case, for the purpose of judicial economy, we will treat the matter as a direct appeal, timely made from the Dispositional Order. From the record we recount the following facts.

Michelle testified she observed the attacker’s face during the ordeal and had studied the face very carefully (N.T. 3/6/87, pp. 29-31). She identified appellant as the person who had been pacing in the driveway of the parking lot and as her attacker (N.T. at 32). Thomas also testified appellant had been in the driveway at Tyler and he had had an excellent opportunity to observe him (N.T. at 8-11).

In a criminal proceeding, from which appeal was taken from judgment of sentence after denial of post-trial motions, our standard of review was set out in Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984), where we said:

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.

Id., 336 Pa.Superior Ct. at 125, 485 A.2d at 462 (quoting Commonwealth v. Taylor, 324 Pa.Super. 420, 423-426, 471 A.2d 1228, 1229-30 (1984)). In a review of an Order of disposition of a delinquent child, we must review all of the evidence in the light most favorable to appellee, Commonwealth, and determine if the trial judge could have reasonably concluded appellant was properly identified as the rapist. McDonough, supra; In Interest of DelSignore, 249 Pa.Super. 149, 375 A.2d 803 (1977). After a thorough review of the evidence, record, briefs and trial Opinion in this case, we affirm.

Two eyewitnesses made a positive, unqualified identification of appellant as the rapist. In Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), the Supreme Court stated:

Where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimony as to identification need not be received with caution — indeed the cases say that “his [positive] testimony as to identity may be treated as the statement of a fact.” Commonwealth v. Ricci, 161 Pa.Super. 193,195, 54 A.2d 51, 52, Commonwealth v. Sharpe, 138 Pa.Super. 156, 159, 10 A.2d 120. For example, a positive, unqualified identification of defendant by one witness is sufficient for conviction even though half a dozen witnesses testify to an alibi.

Id., 378 Pa. at 422-423, 106 A.2d at 826. Thus the trial judge, exercising his discretion, did not believe the points raised by appellant outweighed the positive identification made by the victim and her husband. We do not find the evidence to be contrary to the adjudication; in fact, it supports the adjudication. Thus we do not find an abuse of discretion.

Appellant next urges the assistant district attorney failed to provide defense counsel with the victim’s statement prior to the adjudicatory hearing, and he was, therefore, denied his right to a fair trial. He argues Pennsylvania Rule of Criminal Procedure 305 B(2) mandates the Commonwealth to disclose all statements in its possession given by persons who testify as Commonwealth witnesses. This contention is not accurate since Rule 305 B(2) is discretionary, and not mandatory, and also because Rule 1 of the Criminal Rules of Procedure states those rules shall not apply to juvenile proceedings. Moreover, as noted by the Commonwealth, the failure of appellant to object at the hearing to the statement has foreclosed judicial relief at the appellate level. {See N.T., 4/1/87, p. 84.)

Appellant’s final argument is that the trial judge erred in refusing to permit defense counsel an opportunity to cross-examine the victim about a complaint she had brought against Tyler School of Art for her personal injuries resulting from the rape. He argues the complaint alleged the lighting conditions were poor on the night of the rape, and that this would be relevant to the general issue of identification and Michelle’s credibility. The Commonwealth points out that as above, defense counsel did not place an objection on the record, thus resulting in waiver of the issue. (See N.T., 3/6/87, at p. 60-63). Additionally, appellant has failed to list this issue among the items in his statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), which he had been directed to file by virtue of a May 29, 1987 Order. Rule 1925(b) provides:

b) Direction to file statement of matters complained of. If the lower court is uncertain as to the basis for the appeal, the lower court may by order direct the appellant forthwith to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

Since the trial court has not had an opportunity to address this matter, we decline review of the issue on appeal and hold it has been waived.

Finding no abuse of discretion occurred as to appellant’s first argument, and as he has waived his remaining arguments, we accordingly affirm the adjudication of delinquency.

Adjudication affirmed.

JOHNSON, J., concurs in the result.


author: OLSZEWSKI, Judge:

text:
    546 A.2d 105
    COMMONWEALTH of Pennsylvania v. Robert S. JACKSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 16, 1988.
    Filed Aug. 8, 1988.

      Gerard W. Egan, Slippery Rock, for appellant.
    Robert F. Hawk, Assistant District Attorney, Butler, for Com., appellee.
    Before OLSZEWSKI, WATKINS and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the denial of appellant’s Post Conviction Hearing Act (PCHA) petition. Appellant asserts that the PCHA court erred in dismissing the petition because trial counsel was ineffective for failing to: (1) ensure that appellant knowingly and intelligently entered his plea of nolo contendere; and (2) file a motion to modify or vacate sentence based upon the imposition of restitution in violation of the plea agreement and without a hearing regarding appellant’s ability to pay. For reasons discussed below, we affirm in part and reverse and remand in part.

On April 9,1984, appellant was arrested and charged with twenty counts of burglary. At his July 2, 1984, arraignment, pursuant to a plea agreement, appellant pleaded nolo contendere to the twenty counts of burglary in exchange for an eleven-to-twenty-two-year sentence to run concurrent with an unrelated sentence. Appellant also executed a form entitled “Waiver of Further Proceedings Upon Arraignment, With Petition to Enter Plea of Nolo Contendere.” The trial court accepted appellant’s plea, conducted a plea colloquy, and subsequently sentenced appellant to eleven to twenty-two years and to pay restitution in the amount of twenty-one thousand seven hundred seventy-one dollars.

On November 8, 1984, appellant filed an application for discharge from payment of restitution, which the trial court denied. On November 13, appellant filed a pro se request for reconsideration of his sentence, which was also dismissed by the trial court as untimely. Appellant sought permission to file an appeal nunc pro tunc for reconsideration of his sentence on February 14, 1985. The trial court denied this motion on February 19, 1985.

On May 31, 1985, appellant filed a PCHA petition. An amended petition was filed by appointed counsel on July 8, 1985. Following an evidentiary hearing, the trial court denied appellant’s petition on November 4, 1987. This appeal followed.

When evaluating ineffective assistance of counsel claims, our Court follows a three-pronged analysis. First, we must determine if the underlying claim has arguable merit. Commonwealth v. Gass, 514 Pa. 287, 289, 523 A.2d 741, 742 (1987). If the claim is of arguable merit, we must evaluate the reasonableness of counsel’s action or inaction. Id. Finally, a finding of ineffectiveness requires a showing that the course of action pursued by counsel was prejudicial to appellant. Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865, 871-72 (1986), quoting Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605 n. 8, 235 A.2d 349, 353 n. 8 (1967).

With these standards to guide us, we evaluate appellant’s claim that trial counsel was ineffective for failing to ensure that appellant’s plea of nolo contendere was voluntary and intelligent. We have declared that a plea of nolo contendere is treated the same as a guilty plea in terms of its effect upon a particular case. Commonwealth v. Thomas, 351 Pa.Super. 423, 506 A.2d 420 (1986), citing Commonwealth v. Hayes, 245 Pa.Super. 521, 369 A.2d 750 (1976); Commonwealth v. Warner, 228 Pa.Super. 31, 324 A.2d 362 (1974). Therefore, in reviewing the validity of appellant’s plea, we are guided by the following principles:

What plea to enter must be a decision by the accused which is voluntarily and intelligently made. Commonwealth v. Forbes, [450 Pa. 185, 299 A.2d 268 (1973)]. Pa.R.Crim.P. 319 outlines a procedure to be followed that will assure the guilty plea is voluntarily tendered. No more than the inquiries outlined in Pa.R.Crim.P. 319 is required. Commonwealth v. Anthony, [504] Pa. [551], 475 A.2d 1303 (1984).

Commonwealth v. Kay, 330 Pa.Super. 89, 93, 478 A.2d 1366, 1369 (1984).

Pa.R.Crim.P. 319 provides in pertinent part:
(a) Generally. Pleas shall be taken in open court. A defendant may plead not guilty, guilty, or with the consent of the court, nolo contendere. The judge may refuse to accept a plea of guilty, and shall not accept it unless he determines after inquiry of the defendant that the plea is voluntarily and understanding^ tendered. Such inquiry shall appear on the record. If the defendant shall refuse to plead, the court shall enter a plea of not guilty on the defendant’s behalf.
(b) Plea Agreements.
... (2) When counsel for both sides have arrived at a plea agreement they shall state on the record in open court, in the presence of the defendant, the terms of the agreement. Thereupon the judge shall conduct an inquiry of the defendant on the record to determine whether he understands and concurs in the agreement.
(3) If the judge is satisfied that the plea is understandingly and voluntarily tendered, he may accept the plea____

Pa.R.Crim.P. 319 (a) and (b).

Instantly, our review of the record and the plea proceeding in particular reveal that the trial court quite satisfactorily ascertained that appellant’s plea was knowing, intelligent, and voluntary. Following an extensive colloquy conducted by the Commonwealth, the trial court asked appellant the several questions, including the following:

The Court: Do you understand the form that you have signed here today and executed?
Mr. Jackson: Yes, sir.
The Court: Do you understand these rights that your attorney has informed you of?
Mr. Jackson: Yes, sir.
The Court: And you’re asking the Court to accept your plea of nolo contendere?
Mr. Jackson: Yes, sir.
The Court: You have discussed this case fully with your attorney?
Mr. Jackson: Yes, sir.
The Court: Discussed the consequences of your guilty plea?
Mr. Jackson: Yes, sir.
The Court: And you are satisfied with his representation thus far?
Mr. Jackson: Yes, sir.

Plea transcript at 10-11.

We find, therefore, that appellant has not surmounted the threshold arguable-merit hurdle as it relates to his first ineffectiveness claim.

Next, appellant asserts that “the lower court erred in dismissing the appellant’s post-conviction petition for vacation or modification of sentence claiming ineffective assistance of counsel in that the sentence of restitution was not imposed pursuant to the terms of the negotiated plea agreement, and in that proper foundation for the imposition of the sentence of restitution does not appear of record.” Appellant’s brief at 20. In addressing appellant’s contention that restitution was imposed in violation of the plea agreement, we note, preliminarily, that the Commonwealth has an affirmative duty to honor all promises that serve as an inducement to a defendant to plead guilty. Commonwealth v. Coles, 365 Pa.Super. 562, 566, 530 A.2d 453, 455 (1987), quoting Commonwealth v. Potosnak, 289 Pa.Super. 115, 121, 432 A.2d 1078, 1081 (1981).

Instantly, the record reflects that restitution or lack thereof was not part of the plea agreement. Rather, the inducement for appellant’s plea was as to sentence only:

[Commonwealth]: And the real impetus of this plea agreement today is the fact that these Butler County sentences would be concurrent with Westmoreland County, is that correct?
Mr. Jackson: Yes, sir.
* sit * * He jjc
[Commonwealth]: And the impetus for entering into this plea agreement is that, the concurrent nature of the sentence, is that right?
Mr. Jackson: Yes, sir.

Plea transcript at 4, 8. Therefore, because the plea agreement did not contemplate restitution, we find that trial counsel was not ineffective for failing to object to its imposition as violating the plea agreement. See generally Commonwealth v. Kioske, 337 Pa.Super. 593, 487 A.2d 420 (1985).

Regarding the necessary foundation for the imposition of restitution, it is well settled that:

[T]here are four factors to be considered by the sentencing court: (1) the amount of loss suffered by the victim; (2) the fact that defendant’s action caused the injury; (3) the amount awarded does not exceed defendant’s ability to pay; (4) the type of payment that will best serve the needs of the victim and the capabilities of the defendant.

Kioske, supra, 337 Pa.Superior Ct. at 601, 487 A.2d at 424, quoting Commonwealth v. Valent, 317 Pa.Super. 145, 146, 463 A.2d 1127, 1128 (1983). In the present case, the sentencing court simply stated to whom restitution was owed and the individual amounts thereof. The court failed to make any specific findings as to timing of appellant’s ability to make restitution or as to the type of payment scheme envisioned. Appellant’s claim of ineffectiveness, therefore, has arguable merit.

In addition, we find that there was no reasonable basis for trial counsel’s failure to request or object to the absence of a restitution hearing. Moreover, at the evidentiary hearing, trial counsel stated:

[Counsel for appellant]: Okay. Do you have any recollection having reviewed [the sentencing transcript] of any consideration shown on the record as to the Defendant’s ability to pay restitution?
[Trial counsel]: Do you mean did the Court mention his income that day or anything like that?
[Counsel for appellant]: Yes, anything at all.
[Trial counsel]: No, I don’t believe they did.
* *t * * # *
[Counsel for appellant]: Was there any presentence investigation done in terms of Mr. Jackson’s financial condition?
[Trial counsel]: I quite honestly don’t recall whether one was done or one wasn’t done. My inclination was that one wasn’t done, but I can’t sit here today and say I recall seeing it.

PCHA hearing at 16, 20.

Finally, we conclude that this omission worked to the prejudice of appellant. For, if counsel had requested a restitution hearing, the sentencing court may have determined that appellant lacked the present ability to pay and may have postponed the determination of the method of payment until appellant acquired the ability to pay. See Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197 (1986). Because appellant has satisfied the test delineated supra, we find that trial counsel was ineffective for failing to request a restitution hearing to determine the timing and manner of payment.

We, therefore, reverse and remand that part of the lower court’s judgment of sentence imposing restitution without regard for the timing of payment and direct that the lower court conduct a hearing on the timing and manner of appellant’s payment of restitution, consistent with the following mandate:

Where there is evidence of present ability to pay restitution, in full or in part, the court should order a method of payment at the time of [the hearing] which will best serve the needs of the victim[s] and the ability of the defendant; but where there is evidence from which it may be determined that the defendant will have only a future ability to pay, the court can postpone the determination of the method of payment until some designated time in the future.

Mourar, supra, 349 Pa.Superior Ct. at 604, 504 A.2d at 208. If it becomes evident at the restitution hearing that appellant has no assets that indicate a present ability to pay, the sentencing court may postpone the determination of appellant’s payment scheme for a time commensurate with appellant’s release on parole and as a condition of his parole.

In sum, we reverse and remand the portion of the PCHA court’s imposing restitution without a hearing to determine the timing and manner of payment. We affirm all other aspects of the PCHA court’s order, including the amount of restitution owed by appellant.

The order of the PCHA court is affirmed in part and reversed and remanded in part. Jurisdiction relinquished.

      . We affirm the amount of restitution based upon satisfactory evidence of record substantiating the amount of loss suffered by each victim as a result of appellant’s criminal behavior. Because this matter was resolved by the sentencing court, it need not be considered on remand. See Kioske, supra.


author: BECK, Judge:

text:
    546 A.2d 109
    COMMONWEALTH of Pennsylvania v. John A. SESTINA, Appellant.
    Superior Court of Pennsylvania.
    Argued May 4, 1988.
    Filed Aug. 12, 1988.
    Petition For Allowance of Appeal Denied Jan. 12,1989.

      George N. Daghir, Saint Marys, for appellant.
    Janice Haagensen, Assistant District Attorney, Shelburne, for Com., appellee.
    Before CIRILLO, President Judge, and BECK and POPOVICH, JJ.
   BECK, Judge:

Appellant was convicted by a jury of driving under the influence of alcohol and of causing an accident involving damage to unattended vehicles or property. The jury found that appellant, while driving with a blood alcohol content of over .10%, damaged a speed-limit sign, a mail box, and a utility pole. Appellant was sentenced to 48 hours to six months in jail and was ordered to pay a $300 fine.

The record reveals that after the accident, appellant left the scene. He failed to leave any information identifying himself and failed to notify the police. Information provided by witnesses led the police to appellant’s apartment, where appellant came outside to speak to the police. When speaking to appellant, the police officer smelled alcohol on appellant’s breath. Appellant acknowledged that he had consumed a six pack of beer and had been involved in an accident. Appellant then consented to a blood alcohol test; the test resulted in a reading of .19% blood alcohol content.

Appellant raises the following issues on appeal: 1) whether the arresting officer lacked jurisdiction to arrest appellant; 2) whether the Commonwealth failed to prove jurisdiction by failing to establish that the offense occurred in Warren County; 3) whether appellant’s statements to the police should have been suppressed pretrial because of the Commonwealth’s failure to establish the corpus delecti; 4) whether appellant was denied his right to appeal because the opening and closing remarks were not transcribed; and, 5) whether the trial court erred in not allowing a defense witness to testify as to the amount of beer consumed by appellant in a certain bar. None of these claims are meritorious. We therefore affirm the judgment of sentence.

Appellant was arrested in Glade Township, situated in Warren County, by a member of the Warren Borough Police Department. Warren Borough is also situated in Warren County. Appellant argues that the Warren Borough arresting officer lacked jurisdiction to make the arrest in Glade Township because the officer had not properly obtained consent to act beyond his jurisdiction, Warren Borough. Appellant contends that the arresting officer’s action violated the Municipal Police Jurisdiction Act, 42 Pa.Cons.Stat.Ann. § 8951 et seq. (Purdon 1982). This statute delineates the circumstances under which a municipal police officer may make an arrest beyond the territorial limits of his primary jurisdiction. 42 Pa.Cons.Stat.Ann. § 8953 (Purdon 1982).

The Commonwealth asserts that the arrest of appellant was proper because authority for the Warren Borough arresting officer to act in Glade Township was valid under § 8953(a)(4). Under the Act an arresting officer may act outside of his or her jurisdiction:

[w]here the officer has obtained the prior consent of the chief law enforcement officer, or a person authorized by him to give consent, of the organized law enforcement agency which provides primary police services to a political subdivision which is beyond that officer’s primary jurisdiction to enter the other jurisdiction for the purpose of conducting official duties which arise from official matters within his primary jurisdiction.

42 Pa.Cons.Stat.Ann. § 8953(a)(4) (Purdon 1982).

Glade Township does not have its own municipal law enforcement agency. Therefore, under the Act the “chief law enforcement officer” authorized to give consent is “the commanding officer of the Pennsylvania State Police installation which regularly provides primary police services” to the municipality. 42 Pa.Cons.Stat.Ann. § 8951 (Purdon 1982). Thus, the “chief law enforcement officer” in the instant case is the commanding officer of the Warren Barracks of the Pennsylvania State Police.

The Commonwealth points out that, in the instant case, consent was authorized not by the local commander of the Warren Barracks but instead by top officer of the Pennsylvania State Police, the Commissioner. In a declaration published in “The Pennsylvania Bulletin” Vol. 13, No. 8, February 19, 1983, the Commissioner granted the requisite consent in accordance with § 8953(a)(4) on behalf of the commanding officers of the local state police barracks throughout the state.

Appellant argues that the Commissioner had no authority under the statute to issue such global consent on behalf of the local commanders of state police barracks. According to appellant, unless an arresting officer obtains consent for the arrest from the local commander of the police barracks, the arresting officer lacks authority to act outside of his own municipality. Specifically, appellant contends that in the instant case, the police officer’s extraterritorial acts in Glade Township were done without proper consent. And since the police were acting without proper authority, appellant’s statements to the police and the results of his blood test should have been suppressed. Appellant’s arguments are based solely on his interpretation of the statute.

Appellant’s contention, an issue of first impression in this Commonwealth, is meritless. The purpose of the statute is to permit municipal poliee officers to act outside of their territorial jurisdiction provided such officers obtain consent. It permits local government units without local police service to rely upon the resources of municipalities with police services so long as the state police within the jurisdiction consent. Although the statute delineates the method by which the local commander of the police barracks can authorize consent, it nowhere prohibits the Commissioner from giving consent on behalf of the local commander. Section 8953(a)(4) itself provides that the chief law enforcement officer of the local barracks, in this case the sergeant of the Warren police barracks, can authorize another person to give the requisite consent. The power to consent under this statute can be delegated along the chain of command of a law enforcement agency. Commonwealth v. Ebersole, 342 Pa.Super. 151, 155, 492 A.2d 436, 439 (1985). Thus, nothing in the statute would prevent the chief law enforcement officer of the State Police from giving the requisite consent on behalf of those under his authority.

Further, the statute must be liberally construed. Ebersole, 342 Pa.Super. at 153-155, 492 A.2d at 438. The purpose of the statute is to expand, not limit, the power of local police officers to make arrests outside of their primary jurisdictions. The goal is to foster effective working relationship among municipalities. Ebersole, 342 Pa.Super. at 153-155, 492 A.2d at 438. Enabling the State Police Commissioner to give consent under § 8953(a)(4) on behalf of the local state police barracks facilitates these statutory aims. The statute not only encourages cooperative relationships among municipalities, but also between local municipalities and the state police. The statute addresses administrative, intra-departmental practice for the state police. Appellant’s interpretation of the statute is unpersuasive in light of the aims and purpose of the statute.

Appellant asserts that if the police officer was acting beyond his jurisdiction, then the evidence against appellant must be suppressed. Even if, arguendo, the arresting officer had no authority to arrest appellant outside of the officer’s jurisdiction, suppression of evidence would not constitute a proper remedy. Commonwealth v. Peppers, 357 Pa.Super. 270, 273-274, 515 A.2d 971, 973 (1986), Commonwealth v. Saul, 346 Pa.Super. 155, 162, 499 A.2d 358, 361 (1985).

Appellant next contends that the trial court lacked jurisdiction to hear his case because the Commonwealth at trial did not establish that the crimes occurred in Warren County. At trial, the Commonwealth established that the accident occurred on Conewango Avenue at the intersection of Conewango and the south side of Quaker Hill Road, almost on the border of Warren Borough and Glade Township. As appellant correctly maintains, the Commonwealth neglected specifically to establish that the accident occured within the county of Warren. A court has no jurisdiction over an offense unless the offense occurred within the county in which the trial takes place. Commonwealth v. Thomas, 305 Pa.Super. 158, 451 A.2d 470 (1982). The burden to establish the court’s jurisdiction is on the Commonwealth. Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 285, 206 A.2d 43 (1965).

Although appellant failed to make a specific objection to the court’s jurisdiction below, his claim is not waived. Jurisdiction may never be waived, and a jurisdiction claim may be presented at any stage. Commonwealth v. Varner, 265 Pa.Super. 329, 331-332, 401 A.2d 1235, 1236 (1979). Moreover, trial counsel entered a general demurrer to the evidence at the close of the Commonwealth’s case. Such a demurrer serves to question the sufficiency of the evidence which includes the burden of the Commonwealth to establish proper jurisdiction. Nailon, 416 Pa. at 282, 206 A.2d at 44; Varner, 265 Pa.Super. at 331-332, 401 A.2d at 1236.

Under the facts of this case we cannot say that the Commonwealth failed to establish the county in which the offense occurred. At trial, the Commonwealth established the precise location of the accident. The identity of the intersection where the accident occurred was clearly Warren County. Appellant does not dispute that the offense did in fact occur at the intersection established by the Commonwealth. Neither does appellant raise any contention that the intersection at issue is not located in Warren County. It would have been better if the Commonwealth placed on the record with exactness the name of the county. However, a record statement of the county of the offense was only technically in issue as a necessary requirement for conferring jurisdiction on the trial court. Varner, 265 Pa.Super. at 331-332, 401 A.2d at 1236. Since the Commonwealth did establish a specific street and intersection location, the trial court would have been entitled to take judicial notice of the fact that the site of the offense was in Warren County. Varner, 265 Pa.Super. at 331-332, 401 A.2d at 1236. See also Emert v. Larami Corp., 414 Pa. 396, 397, 200 A.2d 901, (1964); Goff v. Armbrecht Motor Sales, Inc., 284 Pa.Super. 544, 630, 426 A.2d 628 (1980).

Next, appéllant complains that his statements to the police should have been suppressed pretrial because the Commonwealth failed to establish the corpus delicti. Appellant misapplies the corpus delicti rule by attempting to use the rule to invalidate his arrest. The rule is instead applicable at trial. It prevents the Commonwealth from introducing a defendant’s statements at trial until the Commonwealth has established that a crime has been committed by someone. The rule is rooted in a hesitancy to convict a person of a crime soley on the basis of that person’s own statements. Commonwealth v. DeLeon, 276 Pa.Super. 36, 39-41, 419 A.2d 82, 84 (1980). Appellant cannot invoke the rule to invalidate his arrest.

Appellant also claims that the trial judge erred by disallowing the testimony of a defense witness. Appellant attempted to call to the stand a witness who would allegedly testify that appellant drank two bottles of beer at one of the bars he ¿visited on the night in question. The trial judge refused to admit this testimony on the grounds that it was irrelevant. Questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent a showing of a clear abuse of discretion and actual prejudice. Commonwealth v. Sweger, 351 Pa.Super. 188, 194-195, 505 A.2d 331, 334 (1986). The record shows that appellant had admitted consuming approximately a six-pack of beer at two different bars in the hours preceding the accident. Thus, the proposed testimony had no probative value, except to corroborate that appellant did have two bottles of beer at one of the bars. This fact was never challenged by the Commonwealth. The proposed testimony had no value as evidence impeaching the credibility of the blood alcohol test, as appellant claims. Therefore, we find that the trial judge did not abuse his discretion in excluding the testimony.

Finally, appellant complains that he is entitled to a new trial because the court stenographer failed to record the opening and closing arguments at trial. As appellant correctly asserts, it is the Commonwealth’s burden to produce a transcript for appellate review. Commonwealth v. Shields, 477 Pa. 105, 108-110, 383 A.2d 844, 846 (1978); Commonwealth v. Goldsmith, 452 Pa. 22, 29, 304 A.2d 478, 482 (1973). However, a defendant waives the claim that he was denied a transcript if he fails to request one in a timely manner. Commonwealth v. Harper, 292 Pa.Super. 192, 201, 436 A.2d 1217, 1222 (1981). Appellant failed to request at trial that the opening and closing statements be recorded and transcribed. Appellant has therefore waived this claim.

We affirm appellant’s judgment of sentence.

      . 75 Pa.Cons.Stat.Ann. § 3731(a)(4) (Purdon 1987).

      . 75 Pa.Cons.Stat.Ann. § 3745 (Purdon 1987).

      . Appellant is represented on appeal by counsel different than that at trial.

      . The trial court would have also been able to exercise its discretion, prior to submitting the case to the jury, to permit the Commonwealth to reopen its case to present additional evidence establishing the county. Commonwealth v. Mathis, 317 Pa.Super. 226, 232-233, 463 A.2d 1167, 1171 (1983).

      . In appellant’s statement of questions, he places the alleged error in applying the corpus delicti rule at the close of the Commonwealth’s case. In his brief and below, appellant argues only that the statements should have been suppressed at the pretrial stage because the Commonwealth failed to establish the corpus delecti.

      . Even if framed and argued correctly, appellant’s claim has no merit. Before introducing a defendant’s statements at trial, the Commonwealth must show 1) an occurrence of specific injury or loss; 2) someone’s criminality as the source of that injury or loss; and, 3) the identity of the accused as the doer. If the evidence points to someone’s criminality, the Commonwealth need not exclude the possibility of accident in order to establish the corpus delecti. DeLeon, 276 Pa.Super. at 39-41, 419 A.2d at 84. At trial, the Commonwealth established that a telephone pole, mail box, and automobile were badly damaged. Commonwealth witnesses testified that an automobile resembling appellant's left the scene of the damage without reporting the accident or damage. Upon arrival at the appellant’s apartment, the arresting officer oberved that the appellant smelled of alcohol and had watery eyes. The evidence was adequate to establish the corpus delicti. See DeLeon, 276 Pa.Super. 36, 419 A.2d 82; Commonwealth v. Jones, 242 Pa.Super. 471, 364 A.2d 368 (1976).


author: WIEAND, Judge:

text:
    546 A.2d 114
    PENOX TECHNOLOGIES, INC., Appellant, v. FOSTER MEDICAL CORPORATION, Appellee.
    Superior Court of Pennsylvania.
    Argued April 5, 1988.
    Filed Aug. 16, 1988.

      Richard A. Russo, Wilkes-Barre, for appellant.
    Michael J. Glasheen, Philadelphia, for appellee.
    Before WIEAND, McEWEN and BECK, JJ.
   WIEAND, Judge:

This is another in a growing number of appeals from orders by which trial courts have attempted to transfer pending cases to other forums. On May 27, 1987, Penox Technologies, Inc. (Penox) commenced an action against Foster Medical Corporation (Foster) in Luzerne County to recover $94,120.60 in unearned cash discounts which Foster had allegedly taken improperly on goods sold by Penox to Foster. Foster filed preliminary objections requesting a dismissal of the Penox action or, in the alternative, a transfer of the action to Montgomery County where, on May 26, 1987, Foster had filed a praecipe for writ of summons in an action against Penox. A complaint subsequently filed in that action requested a declaratory judgment that Penox was not entitled to recover the discounts which it was seeking to recover in the action in Luzerne County. The trial court in Luzerne County sustained Foster’s preliminary objections, dismissed the action in Luzerne County, and transferred it to Montgomery County for consolidation with the action there pending. Penox appealed. We reverse.

In order to plead successfully the defense of lis pendens, i.e., the pendency of a prior action, it must be shown that the prior case is the same, the parties are the same, and the relief requested is the same. Dickerson v. Dickersons Overseas Co., 369 Pa. 244, 251, 85 A.2d 102,105 (1952); Hessenbruch v. Markle, 194 Pa. 581, 593, 45 A. 669, 671 (1900); Glazer v. Cambridge Industries, Inc., 281 Pa.Super. 621, 624, 422 A.2d 642, 644 (1980); Taylor v. Humble Oil and Refining Co., 225 Pa.Super. 177, 180, 311 A.2d 324, 325 (1973). The purpose of the lis pendens defense is to protect a defendant from harassment by having to defend several suits on the same cause of action at the same time. See: Feather v. Hustead, 254 Pa. 357, 362, 98 A. 971, 973 (1916). Once the defense is raised under Pa.R.C.P. 1017(b)(5), a court may dismiss or stay the subsequent proceedings. 5 Std.Pa.Prac.2d § 25:81.

Lis pendens has no application where the relief requested in the separate actions is different. Thus, it is inapplicable where the prior action is in assumpsit to recover damages and the later action is in equity to rescind the same contract. Kramer v. Kramer, 260 Pa.Super. 332, 394 A.2d 577 (1978). See also: Raw v. Lehnert, 238 Pa.Super. 324, 357 A.2d 574 (1976) (assumpsit action not abatable by reason of pending equity action even though both actions may have arisen from same subject matter). In keeping with these decisions, we hold that lis pendens is not available as a defense to dismiss or stay an action for breach of contract, where the prior proceeding is an action for declaratory judgment to determine whether the later action for breach of contract can be maintained.

Foster must have been aware that the relations between itself and Penox had deteriorated and that an action was about to be brought against it in Luzerne County. In anticipation of the Penox action in Luzerne County, Foster sought to avail itself of the procedure set forth in the Declaratory Judgments Act to have its obligations and liabilities determined in Montgomery County before being required to defend the action in Luzerne County. It is readily apparent, therefore, that Foster’s request for declaratory relief was in reality an attempt to pick its forum and determine in advance whether it had a defense to the anticipated action by Penox to recover discounts which had been taken — wrongfully, it was alleged — for goods which Foster had purchased from Penox. A similar attempt to establish in advance the validity of an affirmative defense to defeat an action before the Board of Claims was condemned by the Supreme Court in Commonwealth, Dep’t of Gen. Services v. Frank Briscoe Co., 502 Pa. 449, 466 A.2d 1336 (1983). Declaratory relief, the court held, is not available when an action therefor is filed in anticipation of another proceeding. Id., 502 Pa. at 459, 466 A.2d at 1341. See also: Ven-Fuel, Inc. v. Department of the Treasury, 673 F.2d 1194 (11th Cir.1982); Donadio v. Cunningham, 58 N.J. 309, 277 A.2d 375 (1971).

The complaint in the instant case was served upon Foster at its place of business in Hazleton, Luzerne County. Venue, therefore, was proper. See: Pa.R.C.P. 2179(a). Indeed, Foster does not contend otherwise. Moreover, Foster did not petition the court pursuant to Pa.R.C.P. 1006(d)(1) to transfer the action to Montgomery County for the convenience of the parties and witnesses. In the absence of such a petition, the court in Luzerne County could not transfer the case to another forum where, for reasons perceived by the transferring court, the case could more conveniently be decided. Horn v. Erie Insurance Exchange, 373 Pa.Super. 186, 540 A.2d 584 (1988). As long as venue was properly laid, the plaintiff was entitled to select its own forum, and its choice could not lightly be set aside. Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 82, 461 A.2d 805, 806 (1983). See also: Horn v. Erie Insurance Exchange, supra, 373 Pa.Superior Ct. at 189, 540 A.2d at 586; Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 75, 491 A.2d 154, 156 (1985).

We conclude, therefore, that on the record in this case, Foster was not entitled to have the Penox action dismissed or stayed in Luzerne County because of the pendency of a declaratory judgment proceeding in Montgomery County. Moreover, because venue was proper in Luzerne County and there was no basis on which to transfer venue for the convenience of the parties and witnesses, the trial court could not properly transfer venue to Montgomery County. When it did so, it abused its discretion.

The order dismissing the action in Luzerne County and transferring it to Montgomery County is reversed; and the case is remanded to Luzerne County for further proceedings. Jurisdiction is not retained.

      . The action in Montgomery County also contained a count in which Foster sought to recover the sum of $43,000.00 which, it was alleged, consisted of discounts which Foster had earned, but had not taken on goods sold to it by Penox.

      . Because of the decision which we have reached, we do not consider issues raised by appellant which pertain to the form of appellee’s preliminary objections.


text:
    546 A.2d 116
    COMMONWEALTH of Pennsylvania v. John G. THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 3, 1988.
    Filed Aug. 19, 1988.

      Earl G. Kauffman, Philadelphia, for appellant.
    Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, BECK, KELLY, POPOVICH and MELINSON, JJ.
   BECK, Judge:

Appellant was found guilty by a jury of robbery as a felony in the first degree. He was then sentenced to six to fifteen years’ imprisonment. On direct appeal, this Court affirmed appellant’s judgment of sentence. Appellant subsequently filed a petition for relief under the Post Conviction Hearing Act. 42 Pa.Cons.Stat.Ann. § 9541 et seq. (Purdon 1982). The petition was denied and this appeal followed.

The evidence adduced at trial establishes that appellant entered a McDonald’s Restaurant in the early morning hours and jumped over the service counter. He announced that “this is a robbery” and proceeded to push a cashier. As he was doing so, appellant held a pointed object under his shirt with one hand. The cashier and a co-worker both testified that they believed that the object which appellant was pointing was a gun. With his free hand, appellant began to take money from the cash register. However, when appellant began to use both hands to retrieve the money, he exposed the contents of the hand which he had kept under his shirt. He was holding, not a gun, but a six-inch door lock. Upon realizing that appellant did not possess a gun, one of the employees tried to stop appellant, but appellant escaped.

Appellant’s sole claim is that trial counsel was ineffective for failing to request a jury instruction on the lesser offense of robbery as a second degree felony under 18 Pa. Cons.Stat.Ann. § 3701(a)(l)(iv) (Purdon 1983). When reviewing allegations of ineffectiveness of counsel, we must first determine if the underlying issue is one of arguable merit. Commonwealth ex. rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Thomas, 363 Pa.Super. 348, 352, 526 A.2d 380, 381 (1987). Here, the evidence in the record would not have supported the second degree robbery charge. Therefore, appellant was not entitled to have the jury instructed on the second degree robbery charge. Counsel is not ineffective for failing to assert a baseless claim. Commonwealth v. Nelson, 514 Pa. 262, 274-5, 523 A.2d 728, 735 (1987). Therefore, we affirm the order denying appellant’s petition for post-conviction relief.

Appellant was charged with, and the trial court instructed the jury on, robbery as a felony of the first degree under 18 Pa.Cons.Stat.Ann. § 3701 (Purdon 1983). That statute, in pertinent part, provides:

(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;

18 Pa.Cons.Stat.Ann. § 3701(a)(l)(i) and (ii) (Purdon 1983). Appellant contends that his trial counsel was ineffective for failing to request the court to instruct the jury on robbery as a felony of the second degree. Robbery constitutes a felony of the second degree when a person, in the course of committing a theft:

“inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury.” 18 Pa.Cons.Stat.Ann. § 3701(a)(l)(iv) (Purdon 1983).

Appellant asserts that had defense counsel requested such an instruction, he would have been entitled to it since robbery as a second degree felony is a lesser included offense of the first degree robbery charge. An offense can be considered a lesser included offense of a charge if each and every element of the lesser offense is necessarily an element of the greater. Commonwealth v. Wise, 298 Pa. Super. 485, 493, 444 A.2d 1287, 1291 (1982). The “serious bodily injury” required to prove first degree robbery is defined as “[bjodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.Cons.Stat.Ann. § 2301 (Purdon 1983). On the other hand, second degree robbery requires proof of “bodily injury” which is defined as “[impairment of physical condition or substantial pain.” 18 Pa.Cons.Stat.Ann § 2301 (Purdon 1983).

These same definitions were examined in Commonwealth v. Sirianni, 286 Pa.Super. 176, 428 A.2d 629 (1981). Siri anni held that simple assault, as an attempt to cause mere bodily injury, is a lesser included offense of aggravated assault which is an attempt to cause serious bodily injury. 286 Pa.Super. at 182, 428 A.2d at 633. The definition of “serious bodily injury” includes within it “bodily injury.” 286 Pa.Super. at 182, 428 A.2d at 632. The same rationale applies to the two charges of robbery considered here. The elements of threatening or intentionally putting another in fear of immediate bodily injury in the course of committing a theft (second degree robbery) are included in the greater first degree offense of threatening or intentionally putting another in fear of immediate serious bodily injury in the course of committing a theft.

However, appellant is not automatically entitled to have the jury instructed on second degree robbery simply because that charge constitutes a lesser included offense of the first degree robbery charge. A defendant is entitled to such an instruction only where the evidence in the record would permit the jury to find, rationally, the defendant guilty of the lesser included offense but not the greater offense. Commonwealth v. Wood, 327 Pa.Super. 351, 475 A.2d 834 (1984); Commonwealth v. Sirianni, 286 Pa.Super. at 183, 428 A.2d at 633.

Appellant asserts that he was entitled to such an instruction because the evidence supported a finding that appellant threatened the McDonald’s employees with “immediate bodily injury” but not with “immediate serious bodily injury.” According to appellant, since appellant carried only a lock, which cannot cause serious bodily injury, the victims were never placed in fear of serious bodily injury. Appellant further maintains that since the employees realized before appellant escaped that the hidden object was not a gun, any fear they had of serious bodily injury was unfounded.

Appellant’s focus on the true nature of the hidden object and on the state of mind of the victims is misplaced. Rather, the proper focus under the statute in determining the type of bodily harm threatened is on the defendant’s intent and actions. Commonwealth v. Morton, 355 Pa.Super. 183, 512 A.2d 1273 (1986); Commonwealth v. Mays, 248 Pa.Super. 318, 375 A.2d 116 (1977). In simulating the possession of a gun, appellant was clearly aiming to instill in his victims the highest degree of fear. Faced with a deadly weapon, a victim fears, not just that he or she may be injured during the robbery, but that his or her very life is in danger. Appellant did not simply intend that the victims’ fear of some bodily injury would prevent resistance; rather, he relied on thé threat of a deadly weapon to insure compliance.

Appellant’s crime is not made less serious by the fact that he did not possess a gun, but was only simulating one. Commonwealth v. Hurd, 268 Pa.Super. 24, 29, 407 A.2d 418, 420 (1979) (defendant placing hand in pocket and pointing at victim shows that defendant intended to put victim in fear of serious bodily harm). Neither is the harm intended reduced to mere bodily harm simply because the victims realized before appellant escaped (but after appellant began taking the money), that appellant did not possess a gun. The proper question is whether the threat intended or posed by appellant was calculated to inflict fear of serious bodily injury. Commonwealth v. Mays, 248 Pa.Super. at 321, 375 A.2d at 118. The threat posed by the appearance of a gun is calculated to inflict fear of deadly, not just mere bodily, injury. This threat enabled appellant to proceed with the theft. The fact that the victims eventually discovered that appellant did not have a gun may have served only to dissipate tension somewhat, if at all, during appellant’s escape. Moreover, the statute instructs that in determining the grade of the felony we focus on the intent or act of the defendant and not the subjective state of mind of the victim. Appellant would not have been exonerated of the first degree felony even if his victims refused to take his threat seriously. Hurd, 268 Pa.Super. at 29, 407 A.2d at 420; Mays, 248 Pa.Super. at 321, 375 A.2d at 118.

The statute itself, by dividing the degrees of robbery into gradations of possible violence, demands that the jury make a decision as to the degree of violence that the defendant intended or used in the commission of the crime. In distinguishing between bodily injury and serious bodily injury, the legislature recognized that the amount of force used or threatened on a person during a robbery deserved separate treatment and penalty, with the punishment proportionate to the amount of violence threatened or used. Commonwealth v. Brown, 506 Pa. 169, 175, 484 A.2d 738, 741 (1984). It would be both irrational and contrary to the aims of the statute for the jury to be permitted to find appellant, who calculated that his victims would be in mortal fear of a deadly weapon, guilty only of the lesser offense of threatening mere bodily injury, but not guilty of threatening serious bodily injury. Appellant was therefore not entitled to have the jury instructed on the charge of second degree robbery. See Commonwealth v. Sirianni, 286 Pa.Super. at 183, 428 A.2d at 633 (where firearm involved, it would not have been reasonable for the jury to infer the intent to cause mere bodily injury from the fact that no serious bodily injury was caused; defendant not entitled to jury instruction on lesser included offense of simple assault). Instructions should invite the jury to arrive at a rational, not an irrational, conclusion.

We affirm the order of the lower court denying appellant’s petition for post-conviction relief.

WIEAND, J., concurs in the result.