author: WIEAND, Judge:

text:
    526 A.2d 383
    COMMONWEALTH of Pennsylvania v. Newton STARK, Appellant.
    Superior Court of Pennsylvania.
    Argued February 20, 1987.
    Filed May 20, 1987.

      James D. Casale, Williamsport, for appellant.
    Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Com., appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge:

On September 13, 1985, after trial by jury, Newton Stark was found guilty of first degree murder. The conviction arose from an incident in which Stark had gone to the apartment of Larry Hoover, who was dating Stark’s estranged wife, and shot him in the chest with a shotgun. Stark filed timely post-trial motions in which he alleged numerous instances of trial error. Post-trial relief was denied on December 18, 1985, however, and Stark was sentenced to a term of life imprisonment. In this direct appeal from the judgment of sentence, Stark contends that the evidence was insufficient to support the verdict and that the trial court committed numerous trial errors. We will discuss seriatim the more significant of these issues.

“In reviewing the sufficiency of the evidence, we view the evidence presented and all reasonable inferences therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt.” Commonwealth v. Campbell, 353 Pa.Super. 178, 181. 509 A.2d 394, 395 (1986). See: Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983); Commonwealth v. Mease, 357 Pa.Super. 366, 368-71, 516 A.2d 24, 25-26 (1986); Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1229 (1984).

The evidence in this case showed that Stark and Larry Hoover had been close friends. Their friendship came to an end in October, 1984, when Stark’s wife left the marital home and began dating Hoover. In February, 1985, relations between Stark and Hoover became further strained when Stark learned that Hoover had disciplined one of Stark’s young daughters. Shortly thereafter, Stark began making threats, in the presence of co-workers, that he would kill Hoover if Hoover did not stay away from Stark’s children. On two occasions Stark spoke with Harold Bower, another co-worker, about Hoover and said: “I can’t beat him up, he’s too big. I’m going to have to use a gun on him.”

At or about the same time, Stark and his wife began discussing the possibility of reconciliation. On the morning prior to the shooting, however, his wife told Stark that she had changed her mind and that there would be no reconciliation. That evening, as Stark was leaving work, he told Harold Bower that he (Bower) could have Stark’s job because he (Stark) would not be returning to work. When asked “why”, Stark replied: “Tonight’s the night that [I’m] going to do it.” A few minutes later, Stark found a letter from his wife inside his car in which she had written that there would be no reconciliation and that she did not wish to see or hear from him again. Stark went to a local bar with a friend where he consumed five or six mugs of beer and a shot of Apple Schnapps. At approximately 10:30 p.m., Stark went to another bar, known as the 227 Bar, where he consumed a bottle of beer. At 11:45 p.m., as Stark was leaving the bar, he stated to Gary Lomison: “Well, I think I’m going to go and kill someone tonight.” At approximately 1:00 a.m., Stark fatally shot Hoover at Hoover’s apartment.

Shortly after 2:00 a.m., Trooper Chester M. Lampman arrived at the scene of the shooting. An hour later, he began to interrogate Stark about the killing. During this interrogation, Stark told Lampman of Hoover’s involvement with Stark’s wife and children and admitted having made numerous threats to kill him. Stark also recounted the events preceding the shooting. He stated that after he had left the 227 Bar he had driven to his and Hoover’s place of employment and had checked the work schedule to see what time Hoover would be reporting to work that morning. He then drove to his trailer home and retrieved a twelve gauge shotgun and a seven millimeter scoped rifle. The reason he retrieved both guns, he explained, was because he was unsure about whether he would kill Hoover in Hoover’s apartment, using the shotgun, or in the parking lot of Hoover’s place of employment, using the scoped rifle. When he arrived at Hoover’s apartment building, he decided to use the shotgun. He quietly climbed the stairs to Hoover’s apartment, so as not to “tip anyone off,” and knocked on the door. When Stark identified himself, Hoover opened the door. Hoover was then holding a revolver in his hand. According to Stark’s statement, Hoover pointed the gun at Stark’s groin and said: “Do you know where this gun is pointed?” Stark replied: “Yes, I guess this is it.” He then shot Hoover in the chest. Stark stated that after he shot Hoover, he entered the apartment, sat down at the kitchen table and listened to Hoover moan and breathe.

A short time after the initial interrogation of Stark, Trooper Lampman questioned Stark again and asked whether Hoover had fired his gun. Stark responded that he did not think so and added: “What’s this all about? Big deal, I shot a guy. Shotgun’s on the table. Used to be my best friend. I was there. He had a pistol. I can’t say it’s self defense because I went gunning for him. See how my gun is pointed?” Trooper Lampman testified that when Stark made these statements, he did not appear to be intoxicated. Rather, he responded well to questions, did not smell of alcohol, had no difficulty walking, even with handcuffs on, and appeared to be in physical control of himself.

During trial both a tape recorded interview and a videotaped interview with Stark were played for the jury. In these interviews, Stark confirmed his prior statements to Trooper Lampman. In his trial testimony, however, he contradicted portions of the prior statements.

At trial, Stark explained that although he had made numerous threats to kill Hoover, he had not actually intended to kill him. Rather, he said, he had made the threats in the hope that Hoover would hear of them and would leave Stark’s children alone. Stark also admitted to having told Gary Lomison on the night of the shooting that he was going to kill someone. He testified, however, that he had not meant it. He also denied that he had gone to Hoover’s apartment for the purpose of killing him. He stated, rather, that he had gone there only because he had believed that his wife and children were there and because he had wanted to see his children. Stark further stated that he had taken a gun with him only as insurance that Hoover would not be able to prevent him from seeing his children. According to Stark’s testimony, after he saw Hoover point the revolver at him, he believed that Hoover was going to shoot him. Therefore, he tried to move quickly to one side to avoid being shot; and, as he did so, the shotgun discharged.

Stark argues that the evidence was insufficient to support the jury’s verdict of guilty of murder in the first degree because neither malice nor a specific intent to kill was proven. We disagree. The testimony of the Commonwealth’s witnesses and the recorded confessions of Stark reveal that Stark went to Hoover’s apartment for the express purpose of killing him. The evidence also showed, Stark’s version to the contrary notwithstanding, that he had not fired his weapon in self-defense. Stark had told others that he was going to kill Hoover on the night in question and told Trooper Lampman after the killing that he had not fired his gun in self-defense. In view of the Commonwealth’s evidence, the jury could understandably reject as not credible the testimonial explanation offered by Stark at trial. Indeed, given Stark’s earlier admissions, it is difficult to perceive how the jury could in good conscience have done otherwise.

The evidence was not such as to require the jury to find that Stark was too intoxicated to form a specific intent to kill. “ ‘Evidence of intoxication, if believed, may operate to negate the intent necessary for conviction of murder in the first degree. [18 Pa.C.S. § 308]’ ” Commonwealth v. Stantz, 353 Pa.Super. 95, 106, 509 A.2d 351, 357 (1986), quoting Commonwealth v. Fairell, 476 Pa. 128, 133-134, 381 A.2d 1258, 1260 (1977). “However, drinking and intoxication are not synonymous terms. A defendant must be overwhelmed or overpowered by alcohol to the point of losing his or her faculties so as to be incapable of forming a specific intent to kill before an act of murder will be reduced to murder in the third degree.” Commonwealth v. Price, 306 Pa.Super. 507, 512, 452 A.2d 840, 842 (1982). See: Commonwealth v. Reiff, 489 Pa. 12, 413 A.2d 672 (1980); Commonwealth v. Fairell, supra; Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975); Commonwealth v. Groff, 356 Pa.Super. 477, 514 A.2d 1382 (1986).

The evidence showed that Stark had been drinking and socializing with his friends from 8:15 p.m. until 11:45 p.m. on the evening preceding the shooting. During this period he consumed five or six mugs of beer, one shot of Apple Schnapps, and a bottle of beer. Blood tests revealed that at 5:00 a.m., four hours after the shooting, Stark had a blood alcohol content of .06 percent, and, at 7:55 a.m., almost seven hours after the shooting, his blood alcohol content was .01 percent. The parties stipulated that based upon these test results and Stark’s rate of metabolism, Stark’s blood alcohol content at the time of the shooting was .12 percent. Stark argues that because the law presumes that a person with a blood alcohol content of .10 percent or greater is intoxicated, the jury could not properly have found that he was capable of forming a specific intent to kill. We disagree.

Merely because the alcohol in a person’s blood may permit a jury to infer that he was under the influence of alcohol to a degree which rendered him incapable of safely operating a motor vehicle (see: 75 Pa.C.S. § 3731(a)(4)) does not establish that he was so intoxicated that he was incapable of forming an intent to kill. Commonwealth v. Rose, supra 463 Pa. at 267 n. 3, 344 A.2d at 825 n. 3. The law prohibiting the operation of a vehicle while under the influence of alcohol is concerned with the degree of intoxication which renders one incapable of acting and reacting prudently to changing circumstances and conditions which frequently confront operators of motor vehicles on the public highways. See: Commonwealth v. Griscavage, 512 Pa. 540, 544, 517 A.2d 1256, 1258 (1986). The statute relating to intoxication as a defense to the crime of first degree murder, on the other hand, is concerned with that high degree of intoxication which renders a person so overwhelmed by alcohol as to lose control of his or her faculties and be incapable of thinking clearly enough to form a specific intent to kill. This is a much higher degree of intoxication than that necessary to render one incapable of safe driving.

In the instant case the evidence showed that Stark had been in sufficient control of his faculties immediately prior to the shooting so that he could drive, without incident, from the 227 Bar to his trailer home and then to Hoover's apartment. Not only did he have the presence of mind to plan the details of the murder prior to arriving at Hoover’s apartment, he also was sufficiently coherent to distinguish between weapons to be used to effectuate the crime. Moreover, he was sufficiently alert to realize the need to “sneak” up the stairs to the apartment so as not to “tip anyone off” as to his presence. Finally, Trooper Lampman and the other police officers who had come into contact with Stark shortly after the incident testified that he then appeared to be in control of his faculties. These factors, considered together with Stark’s ability to remember clearly the details of the events which had occurred about the time of the murder, were sufficient to enable a jury to conclude that Stark had been capable of forming a specific intent to kill.

Prior to trial, Stark filed a motion to suppress all of the incriminating statements which he had made on the day of his arrest, both at the murder scene and subsequently at the police station. The trial court granted the motion in part and denied it in part. Stark argues that this was error. He contends that some of these statements should have been suppressed because they were made prior to the time that police advised him of his constitutional rights. The remainder of the statements should have been suppressed, he argues, because he did not knowingly and voluntarily waive his rights.

Our responsibility on review [of a suppression order] is “to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” ... In making this determination, this Court will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Lark, 505 Pa. 126, 129, 477 A.2d 857, 859 (1984), quoting Commonwealth v. Kichline, 468 Pa. 265, 280-281, 361 A.2d 282, 290 (1976) (citations omitted). See: Commonwealth v. DiNicola, 348 Pa.Super. 405, 409, 502 A.2d 606, 608 (1985).

The evidence in the instant case showed that Officer Brian Rockwell, of the Old Lycoming Police Department, had been the first law enforcement official to arrive at the scene of the murder. Upon his arrival, at or about 1:30 a.m., he encountered two men standing outside the apartment building. Upon seeing Rockwell, one of the men stated that someone had been shot and that the other man (Stark) had done it. Stark then said: “I shot him.” As Officer Rockwell began to pat Stark down, Stark said that the gun was on the table and that the victim was upstairs. Rockwell then held Stark by his belt and led him upstairs to Hoover’s apartment. As Rockwell was inspecting the scene, Corporal Mark Lusk arrived and, upon seeing the victim’s body asked: “What happened?” Stark replied: “It’s simple. I shot the man.” Lusk placed Stark under arrest and led him downstairs to a police car, where he advised him of his constitutional rights under Miranda. Stark told Lusk that he understood his rights and wished to talk to Lusk without having an attorney present. Lusk asked Stark a number of questions about himself for identification purposes. Although Lusk did not ask any questions about the shooting, Stark offered several spontaneous statements about it. Both Officer Rockwell and Corporal Lusk testified that Stark appeared calm, coherent and in control of his faculties. Neither officer noticed an odor of alcohol about Stark, and both testified that Stark had no difficulty walking.

A short time later, at or about 3:10 a.m., Trooper Lamp-man arrived at the scene and questioned Stark about the shooting. During this interview Stark gave a full confession. Lampman testified that Stark had been advised of his rights several times before he questioned him and that Stark had voluntarily waived his rights both orally and in writing. Lampman further testified that Stark had appeared calm, alert and in control of his actions at this time.

At 4:10 a.m., Stark was again advised of his constitutional rights. After again waiving them, Stark consented to a search of his automobile and agreed to provide urine and blood samples for analysis. Stark was then transported to Williamsport Hospital, where the samples were obtained. Upon leaving the hospital, Stark was taken to the State Police Barracks, where at 5:25 a.m., he was once again advised of his rights. After Stark had again waived his rights both orally and in writing, he gave a tape recorded confession. At approximately 7:45 a.m., after Stark had again been told of his Miranda rights, he was returned to the Williamsport Hospital for the purpose of providing additional blood and urine samples. After this procedure had been completed, Stark was taken back to the police barracks where he made a videotaped confession at 9:00 a.m.

Stark argues that the initial statements to Officer Rockwell should have been suppressed because he had not been advised of his Miranda rights when he admitted the shooting. The trial court found, however, that Stark had not been taken into custody until Officer Rockwell held him by his belt and led him upstairs to Hoover’s apartment. Therefore, the court concluded, there had been no duty to advise Stark of his rights prior to that time. We agree with the court’s assessment. See: Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Chako, 500 Pa. 571, 459 A.2d 311 (1983). Stark’s statements to Officer Rockwell, moreover, were not made in response to any questions asked by Rockwell. They were spur of the moment statements and were given freely and voluntarily. At this time, therefore, there had been no police interrogation; and, consequently, there was no basis for suppression. See: Miranda v. Arizona, supra; Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Commonwealth v. Chako, supra. The trial court did not err in refusing to suppress these early statements.

Stark contends that the remainder of his incriminating statements should have been suppressed because when made he was too intoxicated to waive his constitutional rights knowingly and intelligently. However,

[t]he fact that an accused has been drinking does not automatically invalidate his subsequent incriminating statements. The test is whether he had sufficient mental capacity at the time of giving his statement to know what he was saying and to have voluntarily intended to say it. Recent imbibing or the existence of a hangover does not make his confession inadmissible, but goes only to the weight to be accorded to it.

Commonwealth v. Smith, 447 Pa. 457, 460, 291 A.2d 103, 104 (1972). See: Commonwealth v. Seibert, 274 Pa.Super. 184, 188, 418 A.2d 357, 359 (1980).

Here, the law enforcement officials who interviewed Stark testified that he had been alert, coherent and in control of his faculties and stated that he understood his rights and agreed to waive them. Other evidence supported the suppression court’s conclusion that Stark had not been too intoxicated to make a voluntary waiver of his constitutional rights. The record provides no basis for interfering with the suppression court’s findings.

We also find no merit in Stark’s contention that his final, videotaped confession should have been suppressed because he had not been re-advised of his constitutional rights immediately prior to giving that statement. In Com monwealth v. Bennett, 445 Pa. 8, 282 A.2d 276 (1971), the Supreme Court said:

There is no prophylactic rule that a suspect must be rewarned of his constitutional rights each time custodial interrogation is renewed. Instead, we must view the totality of circumstances in each case to determine whether such repeated warnings are necessary____
Pertinent to such an inquiry are the length of time between the warnings and the challenged interrogation, whether the interrogation was conducted at the same place where the warnings were given, whether the officer who gave the warnings also conducted the questioning, and whether statements obtained are materially different from other statements that may have been made at the time of the warnings.

Id., 445 Pa. at 15, 282 A.2d at 279-280. See: Commonwealth v. Dixon, 475 Pa. 365, 370-371, 380 A.2d 765, 767 (1977); Commonwealth v. Upchurch, 355 Pa.Super. 425, 431, 513 A.2d 995, 998 (1986); Commonwealth v. Benjamin, 346 Pa.Super. 116, 123-124, 499 A.2d 337, 341 (1985).

In the instant case, the suppression court found that Stark had been advised of his rights at 1:40 a.m., 3:10 a.m., 5:25 a.m. and again at 7:10 a.m. The videotaped confession was given at the State Police Barracks, which is also where the 5:25 a.m. warnings had been given. Moreover, the videotaped interrogation was conducted by Trooper Lamp-man, who had also conducted prior interrogations at 3:10 a.m. and 5:25 a.m. Finally, the statements made during this final confession were consistent with prior statements which Stark had made following prior warnings. Under these circumstances, it was not necessary that Stark be rewarned of his rights under Miranda before his videotaped confession.

At trial, Stark called Dr. Robert Sadoff, a psychiatrist, as an expert witness. Dr. Sadoff testified that in his opinion Stark had not gone to Hoover’s apartment with the intention of killing him, but, rather, had shot Hoover only because he believed that it was necessary to save his own life. Dr. Sadoff testified that his opinions were based upon examinations of Stark, as well as the statements which Stark had made after his arrest and the police investigative reports. In actuality, Dr. Sadoffs conclusions had been based, in significant part, upon the results of a sodium amytal (truth serum) test to which Stark had submitted under Sadoffs supervision. The trial court refused to permit the witness to testify regarding the test. Stark argues that this was error. Although he does not argue that the test results themselves should have been received in evidence, he contends that Dr. Sadoff should have been permitted to testify that his opinions regarding Stark’s state of mind were based in part upon the results of the sodium amytal test.

It is well settled that the results of truth serum tests, like those of polygraph tests, are not admissible in trials in this Commonwealth because they lack scientific reliability. See: Commonwealth v. White, 271 Pa.Super. 552, 555, 414 A.2d 391, 393 (1979); Commonwealth v. Butler, 213 Pa.Super. 388, 392, 247 A.2d 794, 796 (1968). See also: Commonwealth v. Talley, 456 Pa. 574, 578, 318 A.2d 922, 924 (1974); Commonwealth v. Brooks, 454 Pa. 75, 78, 309 A.2d 732, 733-734 (1973); Commonwealth v. Camm, 443 Pa. 253, 269, 277 A.2d 325, 333 (1971), cert. denied, 405 U.S. 1042, 92 S.Ct. 1320, 31 L.Ed.2d 589 (1972); Commonwealth v. Saunders, 386 Pa. 149, 157, 125 A.2d 442, 445 (1956); Commonwealth v. Upchurch, supra, 355 Pa.Superior Ct. at 431, 513 A.2d at 998. Therefore, Dr. Sadoff could not have testified to the results of the test nor to any statements which had been made by Stark while the test was in progress. It seems also that to have permitted the expert to state his opinions with regard to Stark’s state of mind and to inform the jury that those opinions were based upon the truth serum test would have had the same practical effect as permitting the psychiatrist to testify to the test results in the first instance. To permit an expert witness’ opinion to be fortified by evidence deemed too unreliable to be submitted to the jury is not a result which we are willing to sanction. Indeed, it may well be that any opinion based upon the results of such a test should also be excluded. That issue, however, is not presently before us. It is enough for our purposes that the trial court did not err in disallowing Dr. Sadoffs testimony that a sodium amytal test had been administered and that his opinion was based thereon. Compare: People v. Cox, 85 Mich.App. 314, 271 N.W.2d 216 (1978) (sodium amytal test results and expert’s opinion based upon them deemed unreliable and inadmissible).

During the Commonwealth’s case in chief, Rick George was called to testify, inter alia, regarding Stark’s consumption of alcohol before the shooting. During cross-examination, the following exchange occurred between defense counsel and the witness:

Q: I believe you told the investigator that [Stark] might have been a little high?
A: Possibly.
Q: What did you mean by that statement?
A: [Stark’s] been known to smoke a little bit of marijuana.

Defense counsel requested that a mistrial be declared. The trial court refused to declare a mistrial but did instruct the jury that the response was being stricken from the record and should not be considered by them in any way. Stark now argues that a mistrial should have been declared.

The statement complained of by appellant was elicited by defense counsel. Moreover, counsel might reasonably have anticipated the possibility of such an answer, for he had knowledge of Stark’s drug use. The trial court did not err when it denied a defense motion for mistrial. See: Commonwealth v. Raymond, 412 Pa. 194, 206, 194 A.2d 150, 156 (1963), cert. denied, 377 U.S. 999, 84 S.Ct. 1930, 12 L.Ed.2d 1049 (1964); Commonwealth v. McGonigle, 228 Pa.Super. 345, 349, 323 A.2d 733, 734-735 (1974); Commonwealth v. Dalton, 199 Pa.Super. 388, 393-394, 185 A.2d 653, 656 (1962). Compare: Commonwealth v. Rivers, 238 Pa. Super. 319, 357 A.2d 553 (1976).

Stark also contends that the trial court erred by permitting the Commonwealth to present to the jury a videotaped showing of his being photographed and fingerprinted at the State Police Barracks following arrest. This videotape, it is argued, was unduly prejudicial because from it a jury could infer that Stark was guilty. The prejudice was compounded, Stark urges, because the videotape showed Stark saying: “I always wanted to know what it would be like to be a criminal.”

The trial court determined that the videotape was relevant to refute Stark’s claim that he had been too intoxicated to form a specific intent to kill or to know what he was saying when he confessed to the shooting. The videotape was offered so that the jury could see that Stark had, in fact, been coherent and in control of his faculties. The trial court also found that Stark’s statement that he wanted to know what it was like to be a criminal was relevant as evidence tending to establish the necessary mens rea for first degree murder. With regard to Stark’s allegation of undue prejudice, the trial court found that the videotape, although damaging to Stark’s defense, was not of a type that would inflame the jury or distract it from the totality of the evidence offered by the parties. Therefore, the trial court permitted the videotape to be viewed by the jury. We perceive no abuse of discretion.

[A] basic requisite for the admissibility of any evidence in a criminal case is that it be competent and relevant. Commonwealth v. Potts, 314 Pa.Super. 256, 460 A.2d 1127 (1983). Evidence is relevant when it tends to establish facts in issue or in some degree advances the inquiry and thus has probative value. Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983). Not all relevant evidence is admissible, however, and the trial court may exercise its discretion to exclude evidence that, though relevant, may confuse, mislead, or prejudice the jury. Commonwealth v. Perry, 307 Pa.Super. 327, 453 A.2d 608 (1982). Since rulings on the relevancy of evidence rest within the sound discretion of the trial court, they will not be reversed absent a manifest abuse thereof. Commonwealth v. Costanzo, 269 Pa.Super. 413, 410 A.2d 324 (1979).

Commonwealth v. Lumpkins, 324 Pa.Super. 8, 14-15, 471 A.2d 96, 99-100 (1984). See: Commonwealth v. Shain, 324 Pa.Super. 456, 462-463, 471 A.2d 1246, 1248-1249 (1984).

During closing argument, the trial court, over defense objection, permitted the prosecutor to replay selected portions of Stark’s tape recorded confession. Stark argues that this prevented the members of the jury from deciding the case from their recollection of the evidence and, therefore, constituted prejudicial error. The recorded statement had been fully proved and had properly been received into evidence. Therefore, it could be referred to, quoted, or emphasized by either counsel during closing arguments.

In Commonwealth v. Wise, 298 Pa.Super. 485, 444 A.2d 1287 (1982), the defendant had been convicted of robbery and related offenses. On appeal, he argued that the trial court had erred when, during closing argument, it permitted the jury to look at photographs which had been taken during the robbery. This Court disagreed, holding that since the photographs had been introduced as evidence, the prosecutor’s use of them for illustration purposes during closing argument did not constitute the creation of new evidence and was not improper. Id., 298 Pa.Superior Ct. at 490-491, 444 A.2d at 1289-1290. See also: Commonwealth v. Burton, 459 Pa. 550, 330 A.2d 833 (1975) (new trial not warranted where during closing argument prosecutor handled weapons which had been introduced as Commonwealth exhibits).

In the instant case, the recorded confession had been received into evidence during trial. Therefore, the prosecutor’s use of it during his closing to illustrate his arguments regarding Stark’s intent on the night of the murder was not error.

After the period for filing post-trial motions had expired, Stark’s attorney received information suggesting that a member of the jury had not agreed with the verdict and had been coerced into agreeing with the verdict by other members of the jury. Defense counsel was in touch with the juror and was told, in addition, that the juror believed another juror had incorrectly answered a question propounded by the defense during voir dire. Appellant’s counsel thereupon filed a petition for leave of court to file additional post-trial motions nunc pro tunc. The trial court dismissed the petition. Stark contends that this was error.

In Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965), the Supreme Court held that the trial court had not erred by refusing to consider the affidavit of a juror averring that he had been coerced into agreeing to the verdict by his fellow jurors. The Court said: “Our courts have repeatedly held for over 150 years that after a verdict is recorded, and after the jury has separated and been discharged, jurors may not invalidate or impeach a verdict by their own testimony.” Id., 416 Pa. at 442, 206 A.2d at 297 (citations omitted). There can be no doubt, therefore, that the trial court in the instant case did not err when it refused to consider the juror’s averment that she had been coerced by the other members of the jury to agree to a verdict of guilty of murder of the first degree.

Stark’s petition also alleged that a new trial was necessary because a juror had falsely answered the following question during voir dire: “Have any of you been separated or divorced from your husband or wife because of the fact that your best friend or a friend of yours had been dating your husband or wife?” According to Stark’s offer of proof, the juror who had come forward would testify that during deliberations another juror had said that her husband had run away with the babysitter. Stark contends that because the juror did not reveal this fact in response to the above-quoted question, he was denied the right to a fair and impartial jury. We disagree.

In Brown v. United States, 356 F.2d 230 (10th Cir.1966), the defendant had been charged with murder. During voir dire, defense counsel asked the potential jurors whether they “or anyone in their immediate family” had ever been the victim of an attack upon their person. None of the potential jurors indicated a positive response, and a jury was seated. After defendant had been convicted of murder in the second degree, it was learned that a brother of one of the jurors had been murdered during the years prior to trial. Defendant filed a motion for new trial, contending that he had been denied a fair trial and had been denied the effective use of his peremptory challenges. The trial court denied the motion and defendant appealed. In affirming defendant’s conviction the Court of Appeals said:

Certainly the voir dire oath administered to potential jurors obligates them fully to tell the truth. However, no reason appears for concluding that the juror was in fact not fully responsive to the actual interrogatory, which referred to the juror’s “immediate family.” Such a term is indeed ambiguous, for depending upon such circumstantial variables as age and marital status, it can import different meanings to different individuals. Defense counsel was free to explain to the jury what was meant by “immediate family”, and could have expanded his inquiry to include “family” and “relatives”, but he elected to pursue the point no further. It cannot be presumed that the juror’s failure to respond to the question was not proper, and an inference of intentional or inadvertent non-disclosure is unwarranted.
Disruptive consequences to the trial of criminal cases are suggested by permitting defense counsel to come forth after conviction and successfully contend that, notwithstanding the absence of actual bias, and notwithstanding his own failure sufficiently to pursue voir dire inquiry to expose possible predilections on the part of a prospective juror, that nevertheless probable prejudice must be imputed to the juror as a matter of law and a new trial thereafter granted. “A disqualification which by reasonable diligence could have been discovered before verdict, may not afterwards be made the subject of an attack upon a verdict.” Spivey v. United States, 5 Cir., 109 F.2d 181, 186, cert. denied 310 U.S. 631, 60 S.Ct. 1079, 84 L.Ed. 1401.

Brown v. United States, supra at 232-233.

In the instant case, defense counsel’s question was ambiguous; it is not at all clear that it was intended to refer to the conduct between a juror’s husband and a babysitter. Thus, there is no basis for inferring from the averments contained in Stark’s petition that the juror had falsified her answer to the question asked. In the absence of a false response, we will follow the reasoning of the Tenth Circuit and conclude that Stark may not now rely upon the juror’s comment during deliberations to attack the verdict.

Judgment of sentence affirmed.

      . Stark also contends that the trial court erred by (1) denying his pre-trial motion for a change of venue; (2) permitting a state police trooper to testify at trial about incriminating statements made by Stark which had not been considered at the suppression hearing; (3) receiving into evidence various pictures of the victim and the scene of the crime; (4) permitting the Commonwealth to show the jury slides of these photographs; (5) permitting the jury to read the transcripts of Stark’s audio and videotaped confessions while the recordings were being played at trial; and (6) permitting a state trooper to testify in rebuttal that the scope of Stark’s rifle could be used at night. These arguments were correctly resolved and adequately discussed in the trial court’s opinion, and we perceive nothing to be gained by writing further thereon.

      . The suppression court ordered that this statement be suppressed because it was made pursuant to a question by a police officer after Stark had been taken into police custody and before he had been advised of his Miranda rights. The Commonwealth has not contested this finding. In all other respects, the suppression court denied the motion to suppress.

      . Stark’s argument that his waiver was invalid because he had not been informed of the general nature of the transaction giving rise to the investigation prior to being questioned is frivolous. The record leaves no doubt that Stark knew that the police were investigating the murder which he had just committed. Stark was present when Officer Rockwell was informed by another person at the scene that someone had been shot and offered information about the shooting on his own initiative. Moreover, both the questions that were subsequently asked of Stark and his answers thereto demonstrate unequivocally that Stark knew the nature of the occurrence that was under investigation.

      . For the same reasons, we find no merit in Stark’s contention that his consent to the warrantless search of his vehicle had been involuntary because of intoxication.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    526 A.2d 393
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert L. HUMMEL, Appellee.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1987.
    Filed May 18, 1987.

      Mark E. Morrison, Assistant District Attorney, Harrisburg, for Com., appellant.
    Timothy J. O’Connell, Harrisburg, for appellant.
    Before DEL SOLE, MONTEMURO and ROBERTS, JJ.
   DEL SOLE, Judge:

On May 14, 1986, a van driven by Appellee was stopped by a Pennsylvania State Police trooper. A field sobriety test was conducted, following which, Appellee was arrested for driving under the influence of alcohol and/or a controlled substance. 75 Pa.C.S. § 3731(a)(1) — (4). In accordance with Pa.R.Crim.P., Rule 130(b), the arresting officer released Appellee instead of taking him before the District Justice. See Pa.R.Crim.P., Rule 130. On the following morning, a completed complaint was delivered to the District Justice’s Office. However, the complaint was not certified and issued process by that office until May 21, 1986, seven days subsequent to Appellee’s arrest and release. This was in direct contravention of subsection (d) of Rule 130, which provides:

(d) When a defendant is released pursuant to paragraphs (b) or (c), a complaint shall be filed against the defendant within five (5) days of the defendant’s release. Thereafter, a summons, not a warrant of arrest, shall be issued and the case shall proceed as provided in Rule 110.

Appellee was subsequently arraigned and given a trial date. A motion to quash was filed on Appellee’s behalf, which was granted by the trial court after a brief hearing on the matter. This timely appeal follows.

The Commonwealth, Appellant in the case at bar, avers that it was unduly prejudicial to the Commonwealth’s interests for the District Attorney’s Office to be held accountable for inadvertent judicial delay by the minor judiciary. (Appellant’s Brief, 4). In support of this position, Appellant cites Commonwealth v. Monosky, 511 Pa. 148, 511 A.2d 1346, 1348 (1986) which provides that “[w]hen the district attorney has timely filed an application for an extension [of time under Rule 1100] and was unaware of inadvertent delay by the minor judiciary in processing the complaint, such judicial delay may justify granting the application.” Appellant contends that this rationale is equally applicable to Rule 130 inasmuch as it is analogous to the instant case.

Appellee successfully argued before the trial court that Commonwealth v. Revtai, 343 Pa.Super. 149, 494 A.2d 399 (1985), and its progeny, are controlling. In Revtai, we found that “Rule 130(d) is not merely directory, but mandatory in its plain meaning that a complaint must be filed within five days of arrest and release.” Id. at 343 Pa.Superior Ct. at 152, 494 A.2d at 401. Likewise, the Revtai court declined to apply the remedial provisions of Rule 150 in interpreting Rule 130(d). Rule 150 states:

[a] defendant shall not be charged nor shall a case be dismissed because a defect in form or content of a complaint, summons, or warrant, or a defect in the procedures of this Chapter, unless the defendant raises the defect before the conclusion of the preliminary hearing and the defect is prejudicial to the rights of the defendant.

Pa.R.Crim.P., Rule 150. The court concluded that Rule 130(b) and (d) were exceptions to the general statement of policy defined in Rule 150. Ibid.

Subsequent to the filings of both parties’ briefs, we have reevaluated, en banc, the legitimacy of our holdings in Revtai and other cases concerning the application of Rule 130(d). In Commonwealth v. Kerry Schimelfenig, et al., 361 Pa.Super. 325, 522 A.2d 605 (1987), we expressly overruled Revtai and held that this decision “incorrectly construed the Rules of Criminal Procedure, ignore[d] the history and spirit of the Rules and [had] no basis under case law.” Id., 361 Pa.Superior Ct. at 332, 522 A.2d at 609. Consequently, we determined in Schimelfenig that Rule 130(d)’s five-day time limitation is directory, not mandatory. Id., 361 Pa.Superior Ct. at 332, 522 A.2d at 609. Moreover, after embarking upon a painstaking analysis of the relevant statutory and case law, we arrived at the “inescapable conclusion that [Rule 150] was expressly made applicable to Rule 130 situation and that “to label these Rules as conflicting is to simply ignore this application.” Id., 361 Pa.Superior Ct. at 339, 522 A.2d at 612.

In place of the rationale employed in Revtai, the Schimelfenig court promulgated a new “prejudice standard” for dealing with Rule 130(d) time infractions. Thus, before a tardy complaint may be dismissed for noncompliance with the five-day limitation set forth in Rule 130(d), there must be a showing of prejudicial delay made by the defendant. Id., 361 Pa.Superior Ct. at 340, 522 A.2d at 612.

The record of the proceedings on the motion to quash does not contain an inquiry concerning any alleged prejudice incurred by Appellee due to the District Justice’s two-day tardiness in issuing the complaint. Therefore, in an effort to comply with our newly established prejudice standard, we vacate the order dismissing the complaint and remand the case so that Appellee may be afforded the opportunity to show that he was prejudiced by the delay.

Order vacated and case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . During the hearing on Appellee’s motion to quash, Appellant reserved the right to appeal the trial court’s decision on that matter. Clearly, this was sufficient to preserve Appellant’s Rule 130(d) issue for our review.


text:
    526 A.2d 395
    COMMONWEALTH of Pennsylvania v. Thomasine TYSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 19, 1987.
    Filed May 18, 1987.

      Melaine S. Rothey, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   DEL SOLE, Judge:

Appellant, Thomasine Tyson, was charged with aggravated assault and Violation of the Uniform Firearms Act (VUFA). Following a jury trial, she was found guilty of all charges. Appellant was sentenced to a mandatory minimum term of imprisonment of five (5) to ten (10) years for the aggravated assault conviction (18 Pa.C.S.A. § 2702(a)(1)), and a concurrent term of two (2) years to five (5) years for the VUFA violation. A timely notice of appeal was filed by the public defender’s office which was appointed to represent Appellant in this appeal.

After two sharply contradictory renditions of the events leading up to the charges, the facts as determined by the jury can be summarized as follows. Lorenzo Jones, the victim, was shot in the leg and stomach by the defendant, Thomasine Tyson, on June 8, 1986. The parties had been romantically involved some four years earlier, and their child at the time of the shooting was approximately four years old. On the date in question, the victim went to the home of Gloria Daniels looking for Appellant and his son. Ms. Daniels and Ms. Tyson were in an automobile in front of the house. Jones received permission from Ms. Tyson to go and see the child, who was asleep upstairs. When Jones checked the boy he noticed he had wet himself and woke him in order to clean him. Appellant and Ms. Daniels returned home shortly thereafter and when Jones informed Appellant that he was taking the boy home to care for him a struggle ensued. Jones finally made his way out with the boy and proceeded to walk towards his house carrying the child and pushing his ten speed bike.

After a few blocks, Appellant and Ms. Daniels pulled up in a car. Appellant got out of the car and was carrying a gun. Jones walked toward her with the boy in his arms. He asked her what the gun was for and she stated she wanted the child back. When Jones reiterated his intention to take the boy home and “clean him up,” Appellant shot him in the leg. After he put the child down, Appellant shot him again in the stomach.

Ms. Daniels grabbed the boy and she and Appellant got into the car. Before they could leave the scene, the police arrived and Appellant was arrested.

The sole issue before us is whether trial counsel was ineffective. The specific allegations of ineffectiveness are: (1) failing to preserve for appellate review the challenge to the sufficiency of the evidence; (2) failing to present expert testimony regarding the “battered woman’s syndrome”; and (3) failing to request a jury instruction regarding the significance of prior violent acts of the victim.

Pennsylvania law regarding ineffective assistance of counsel is well documented. The process to be utilized is a three-pronged analysis consisting first of a determination of whether the issue underlying the ineffectiveness claim is of arguable merit. The second prong evaluates whether the course chosen by counsel had some reasonable basis aimed at promoting the Appellant’s interests, and the third prong requires the Appellant to establish that the ineffectiveness so prejudiced his case that it is likely that the result would reasonably have been different absent the errors. Commonwealth v. Brandt, 353 Pa.Super. 250, 509 A.2d 872 (1986); citing Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985). Throughout this process, the law presumes effective counsel, and the Appellant has the burden of proving ineffectiveness. Commonwealth v. Brandt, supra.

In the present case, trial counsel filed a Motion in Arrest of Judgment and for a New Trial containing nothing more than a boilerplate general allegation regarding the sufficiency of the evidence. Since trial counsel failed to elaborate on the specifics of the insufficiency claim, he failed to preserve the issue for appellate review. Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1973). However, as the following will show, this is not a meritorious issue and therefore trial counsel cannot be deemed ineffective for failing to pursue it.

The law is settled in this Commonwealth that in reviewing the sufficiency of the evidence, the appellate court is required to review all the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, which has won the verdict. Commonwealth v. Rivera, 349 Pa.Super. 303, 503 A.2d 11 (1985). In the case sub judice, we must determine whether the evidence, viewed as noted above, is sufficient to permit a finding beyond a reasonable doubt that each element of the offense of aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) were present. Id.

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

The evidence, when viewed under the standard for reviewing sufficiency claims reveals the following sequence of events. Appellant pursued the victim in her car, got out, pointed a gun at him and insisted that he relinquish the child. When he refused, she fired the gun and shot the victim in the leg. A second firing hit him in the abdomen. It is clear that the evidence is sufficient to support a conviction for aggravated assault. Moreover, Ms. Tyson’s contention that the Commonwealth failed to proffer sufficient evidence to disprove her overwhelming evidence of self defense is without merit. The circumstances under which the use of deadly force for self protection is justified is statutorily determined. 18 Pa.C.S.A. § 505. When the evidence establishes that the person asserting self defense provoked the incident or violated the duty to retreat, the defense is clearly unavailable. Appellant’s argument to the contrary rests entirely on her testimony, which was contradicted by the victim’s version of the assault. It is axiomatic that the credibility of witnesses is a matter for the factfinder, who is entitled to accept all, part or none of the testimony of a witness as true, including that of a defendant whose testimony suggests self-defense. Commonwealth v. Cor bin, 322 Pa.Super. 271, 469 A.2d 615 (1983); Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979).

Any assertion that the evidence was insufficient to support the conviction for aggravated assault is meritless. Therefore, trial counsel was not ineffective for failing to preserve the meritless issue. Pierce, supra.

Appellant next contends that trial counsel was ineffective for failing to present expert testimony regarding the “battered woman’s syndrome” which would have buttressed her cause of self-defense.

In the recent decision of this Court, Commonwealth v. Stonehouse, 358 Pa.Super. 270, 517 A.2d 540 (1986), we found that defendant’s counsel’s failure to raise a defense of the “battered woman’s syndrome” did not constitute ineffective assistance of counsel as “battered woman’s syndrome” is not yet recognized as a viable defense in a case of homicide.

Upon application of the above rationale to the instant case, trial counsel cannot be deemed ineffective for failure to present an expert witness on the “battered woman’s syndrome” when this form of justification defense has not yet been recognized by the courts of the Commonwealth. Again, Appellant has failed to prove her claim has arguable merit.

Finally, Appellant claims that trial court’s failure to request a jury instruction concerning the victim’s prior acts of violence rendered his assistance ineffective. The basis of Appellant’s argument is that this type of instruction was necessary because the evidence adduced at trial of the victim’s prior acts of violence was critical to show Ms. Tyson’s state of mind when she allegedly acted in self-defense in shooting the victim.

As set out earlier in this writing, it is elementary that a finding of ineffectiveness can never be made unless we conclude that Appellant was prejudiced by counsel’s conduct or strategy to the extent that it is reasonable to determine that the result would have been different had counsel pursued the action currently proposed. Commonwealth v. Pierce, supra.

“A court’s charge to the jury will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury properly in its deliberations.” Commonwealth v. Stonehouse, supra, 358 Pa.Superior Ct. at 279, 517 A.2d at 545; citing Commonwealth v. Reynolds, 256 Pa.Super. 259, 389 A.2d 1113, 1122 (1978).

Our review of the record leads us to conclude that the extensive charge on self-defense and the court’s specific warning that the juror’s reach their verdict based on the evidence presented using common sense (Partial Transcript, p. 47) was sufficient to insure that the jurors considered the testimony regarding the alleged prior violent acts of the victim in considering Appellant’s justification defense. We do not find the omission of the instruction at issue here prejudicial to the Appellant. We find that it is not reasonably likely that the result would have been different had the trial court instructed the jury in some manner, (not now specified by the Appellant), on the relevance of the victim’s prior violent acts. Therefore, Appellant has failed to prove the requisite prejudice for trial counsel to be deemed ineffective. Pierce, supra:

Order affirmed.


text:
    526 A.2d 398
    COMMONWEALTH of Pennsylvania v. John M. VERILLA, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 21, 1987.
    Filed May 18, 1987.

      Russell J. Heiple and Kevin J. Rozich, Johnstown, for appellant.
    Lloyd G. Parry, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

Presented before us for our review are two consolidated appeals. The appeal at No. 952 Pittsburgh 1986 is taken from the Judgment of Sentence imposed following Appellant’s convictions for first degree murder, kidnapping, conspiracy to commit murder and conspiracy to commit kidnapping. At No. 1149 Pittsburgh 1986, Appellant appeals an order which assessed him for the counsel fees and costs incurred by the County of Cambria for his court appointed representation. Because the facts and issues underlying each appeal are distinct, we will treat the appeals separately-

APPEAL AT 952 PITTSBURGH 1986

Following a jury trial, Appellant was convicted of charges associated with the kidnapping and murder of John Clark. Timely post-trial motions were filed on Appellant’s behalf and a supplemental motion was later filed, all of which were denied by the trial court. Appellant was sentenced to serve a life term for his conviction of first degree murder and he received three sentences of 10-20 years incarceration for the crimes of kidnapping, conspiracy to commit murder and conspiracy to commit kidnapping. These 10-20 year terms were all ordered to be served concurrently with Appellant’s life term.

On appeal Appellant raises ten issues in his statement of questions involved.

Issue number eight, which addresses the psychological examination of a witness was raised in a pre-trial motion but was not reasserted in Appellant’s post-trial motions. Accordingly, we deem this issue waived and decline to address its merits. Pa.R.Crim.P. Rule 1123, 42 Pa.C.S.A.; Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979).

Likewise, Appellant’s issue number nine has not been properly preserved for our consideration. As recited previously, Appellant filed timely post-trial motions within ten days of October 3, 1984, the date his guilty verdict was returned. Appellant’s motion included the following language: “THAT DEFENDANT reserves the right to supplement and add to the above list of Motions with additional reasons within a reasonable time following receipt of the transcribed record in this case.” On November 4, 1984, Appellant filed a document entitled “Amended Motion in Arrest of Judgment”. The sole reason for requesting relief contained in the amended motion was the claim Appellant now presents as issue number nine. Issue nine concerns the presentment authority of the Investigating Grand Jury and does not set forth a claim relative to Appellant’s request for the transcript.

Pennsylvania Rule of Criminal Procedure 1123(a) provides in part: “If the grounds do not require a transcript neither the filing, argument, nor hearing of post-verdict motions shall be delayed for lack of transcript of the notes of testimony.” (emphasis added). As a transcript was not necessary to a just determination of Appellant’s amended motion, we conclude the amended motion was not timely filed and the issue contained therein was not properly preserved for appellate review. See also: Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210 (1983).

Turning to the remaining issues, we have determined after study of the record that the assertions of Appellant found in issues one through seven are, indeed, meritless. Moreover, we find that the able and comprehensive opinion of the distinguished Judge Caram J. Abood has carefully addressed and properly rejected each of these contentions. We only wish to expound upon the discussion presented by the trial court on issue number three.

The third claim of error submitted by Appellant alleges that defense counsel was not timely provided with the statements of Kenny Russler and, therefore, Mr. Russler should not have been permitted to testify on behalf of the Commonwealth.

The trial court properly found that the Commonwealth was not tardy in providing Appellant with Mr. Russler’s name and a copy of his statement. This statement, in which Mr. Russler implicated Appellant, was elicited from Mr. Russler only shortly before trial. Appellant’s counsel conceded that the defense was provided with the information within the 24 hours, in the first day of jury selection. Appellant argues, however, that notwithstanding this disclosure he should have been previously provided with a copy of the testimony Mr. Russler gave before the Grand Jury since such testimony was inculpatory.

We disagree with Appellant’s characterization of the testimony Mr. Russler gave before the Grand Jury and find that Appellant has in no way been harmed by the Commonwealth’s actions. As noted by the trial court, Appellant’s counsel was provided with a copy of the Grand Jury testimony at the beginning of voir dire and Appellant’s counsel did attempt to impeach Mr. Russler with the testimony he had previously given the Grand Jury. The Commonwealth reasons that since Appellant’s counsel made no request for a continuance he must have had ample time to examine Mr. Russler’s testimony and we concur with this logic. Further, Mr. Russler recounted at trial the testimony he gave before the Grand Jury; the substance of which was that he could not recall what happened at a meeting between Appellant, the decedent, and another party the day before the murder. We conclude that Mr. Russler’s non-recollection of an event was not exculpatory and for these reasons we find further support for the trial court’s rejection of Appellant’s claim.

The remaining issue challenges whether Appellant’s motion to quash the information on his charges of kidnapping, conspiracy to commit murder and conspiracy to commit kidnapping should have been granted since such prosecutions were time-barred. We are constrained to agree with Appellant’s contention.

John Clark was kidnapped and murdered on January 23, 1979. A Grand Jury did not convene to consider the instant matter until October of 1981 and this body did not issue a presentment until June of 1983. The relevant statute which provided the appropriate limitation of time read: “Except as otherwise provided, a prosecution for an offense other than murder must be commenced within two years after it is committed.” 42 Pa.C.S.A. § 5552(a), 1976, July 9, P.L. 586, No. 412, [effective June 27, 1978] Commencement is defined for purposes of this statute as “... when an indictment is found or an information ... is issued, if such warrant, summons or citation is executed without unreasonable delay”. 42 Pa.C.S.A. § 5552(e).

The Commonwealth does not dispute the fact that the prosecution was not commenced in this case until more than two years after the kidnapping and murder of John Clark. However, it maintains that under 42 Pa.C.S.A. § 5552(d) the beginning of the tolling period should not be the date of Mr. Clark’s kidnapping and murder. We cannot adopt this interpretation of the statute.

42 Pa.C.S.A. § 5552(d) provides:

Commission of offense — An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the complicity of the defendant therein is terminated. Time starts to run on the day after the offense is committed.

The Commonwealth certified this case as one in which a continuing course of conduct appears under § 5552(d). While such a claim may have arguable merit for the two conspiracy charges, this reasoning is clearly inapplicable to the kidnapping charge. See: Commonwealth v. Volk, 298 Pa.Super. 294, 444 A.2d 1182 (1982), (where the prosecution of a conspiracy that was renewed repeatedly by fraudulently obtaining public assistance funds could be prosecuted at any time within two years after the commission of the last offense). The kidnapping herein occurred on January 23, 1978 and the statute of limitations began to run on this charge the next day.

Regarding the conspiracy charges the Cross Reference listed under § 5552 states: “Criminal conspiracy, duration of offense for purposes of subsec. (d) of this section see 18 Pa.C.S.A. § 903(g).” Turning to the section to which reference was made, one finds:

Duration of conspiracy — For purposes of 42 Pa.C.S. § 5552(d) (relating to commission of offense):
(1) conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired;
(2) such abandonment is presumed if neither the defendant nor any one with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation; and
(3) if an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and of his participation therein.

18 Pa.C.S.A. § 903(g).

Subsections (2) and (3) are clearly inapplicable to the instant case since the object of the conspiracy was not abandoned. Subsection (1) holds that although a conspiracy is a continuing course of conduct such conduct “terminates when the crime or crimes which are its object are committed”. 18 Pa.C.S.A. § 903(g)(1). In the case sub judice the crimes which were the objects of the conspiracy were committed on January 23, 1978, more than two years before the prosecution of Appellant was commenced. There is no evidence in the record which would expand the scope of the conspiratorial agreement well beyond January 23, 1978, the date when its principal objective was accomplished. See: Commonwealth v. Evans, 489 Pa. 85, 92-93, 413 A.2d 1025 (1980).

In view of the above analysis, we conclude that Appellant’s convictions for kidnapping, conspiracy to commit murder and conspiracy to commit kidnapping must be vacated since the prosecution of these actions was not timely made.

APPEAL AT 01149 PITTSBURGH 1986

Today we determine the validity of the trial court’s order assessing against Appellant counsel fees and costs, expended by the County of Cambria, for Appellant’s court-appointed representation.

The record reveals that Appellant retained private counsel after being arrested and charged with the crimes of which he was ultimately convicted. However, before trial commenced, counsel-for-Appellant filed a Motion for Leave to Withdraw Appearance as Counsel for Defendant insofar as Appellant had failed to pay the legal fees and expenses associated with his defense. Following a hearing on this issue, the trial court granted this motion.

By Order of Court, Appellant was later afforded court-appointed counsel, although the Public Defender’s Office had declined to grant Appellant indigent status. Included in that Order was the provision that “the Court will make a determination as to whether or not the costs of such representation can be assessed against John Verilla”. (Order of Court, 3/4/84). Subsequent to sentencing, a hearing was conducted to resolve this question. The result of this proceeding was to assess counsel fees and costs against Appellant. For the following reasons, we reverse.

Initially, we note that it was within the trial court’s discretion to provide Appellant with court-appointed counsel. The source of such power originates from Pa.R. Crim.P., Rule 316(c)(i). Pursuant to subsection (c)(i), a trial judge may assign counsel, regardless of indigency, where in his/her opinion, the interests of justice require it. See Comment to Pa.R.Crim.P., Rule 316. However, Rule 316 provides simply for the assignment of counsel; it has no provisions authorizing the court to order payment of fees.

The court, by its Order, admittedly cites no derivative authority by which it could assess counsel fees against Appellant. The record divulges that the reimbursement order was based largely upon the trial court’s interpretation of In re Estate of Damario, 488 Pa. 434, 412 A.2d 842 (1980). (N.T., 6/26/86, 7). In that case, our Supreme Court upheld an orphans’ court’s decision requiring the guardian of an incompetent’s estate to reimburse the Court of Berks County for costs incurred for the incompetent’s defense in a murder prosecution. Id. at 488 Pa. at 439, 412 A.2d at 845. We find Damario to be inapposite to the instant case inasmuch as it involved the exercise of a broad grant of equitable authority which was vested in the orphans’ court. Id. at 488 Pa. at 439, 412 A.2d at 844-845. Moreover, our Supreme Court distinguished the facts in Damario from those circumstances similar to the case at bar:

[w]hile there are cases which have invalidated orders for reimbursement for lack of express statutory authority, ... those orders were entered by sentencing courts and are therefore inapposite here. The case before us involves a separate civil action instituted by the county, brought before the orphans’ court having broad jurisdiction over Damario’s estate.

Id. at 488 Pa. at 437-438, n. 3, 412 A.2d at 844, n. 3. Clearly, Damario cannot be construed to permit assessment of counsel fees by a trial court simply because Appellant was assigned court-appointed counsel, even though he was not ruled indigent.

Notwithstanding the fact that there exists no case law addressing the precise issue presently before this Court, we draw support from those cases which require a finding of statutory authority before the trial court’s order of reimbursement to a public defender’s office would be upheld. See Commonwealth v. Terry, 470 Pa. 234, 368 A.2d 279 (1977); Commonwealth v. Pride, 252 Pa.Super. 34, 380 A.2d 1267 (1977); Commonwealth v. Opara, 240 Pa.Super. 511, 362 A.2d 305 (1975).

Absent an indication by our legislature sanctioning the assessment of counsel fees for court-appointed counsel, we decline to validate orders granting such relief to counties. Parenthetically we note that § 3 of the Act of January 19, 1968, P.L. 984, 19 P.S. § 793, at one time provided for the reimbursement by a criminal defendant or a relative of the defendant to the county “for compensation and expense incurred and paid to court-appointed counsel”. However, this statute has since been repealed, 1984, October 12, P.L. 959, No. 187, § 6.

Appeal at 952 Pittsburgh 1986, Judgment of Sentence for first degree murder affirmed. Judgment of Sentence for kidnapping, conspiracy to commit murder and conspiracy to commit kidnapping vacated. Jurisdiction relinquished.

Appeal at 1149 Pittsburgh 1986, order reversed. Jurisdiction relinquished.

      . These issues are listed by Appellant as follows:
      1. Whether a change of venue or venire should have been granted due to the excessive and prejudicial amount of pre-trial publicity;
      2. Whether the defense should have been permitted to impeach Vincent Carraciola’s character by use of his prior conviction for sodomy;
      3. Whether the Commonwealth should have been precluded from using the testimony of Kenneth Russler due to its failure to timely provide the defense counsel with his eyewitness status and testimony;
      4. Whether independent evidence of the alleged conspiracy or conspiracies should have been required prior to allowance of testimony pursuant to the co-conspirator exception to the hearsay rule;
      5. Whether the defense should have been permitted to call Judith Fleegle as a witness on the basis that the benefit to the Appellant would outweigh her privilege against self-incrimination; or that the immunities granted to Judith Fleegle would have prevented any legal incrimination against her from her testimony at Appellant’s trial;
      6. Whether the arrest for perjury of defense witnesses, Burket and Noyer, during the course of the trial constituted prosecutorial misconduct in that its purpose was to have a chilling effect on other defense witnesses’ willingness to come forth and/or testify truthfully for the Appellant;
      7. Whether the court’s failure to sustain Appellant’s motion to quash the indictments charging kidnapping and conspiracy to commit kidnapping and murder unfairly prejudiced Appellant’s trial on the charge of murder by allowing co-conspirator hearsay testimony and permitting the jury to hear testimony charging Appellant with the other crimes;
      8. Whether the court erred in failing to order a psychological examination of Vincent Carraciola;
      9. Whether the court lacked jurisdiction over the crimes charged against Appellant because the Blair County investigating Grand Jury's presentment authority was limited to persons who appear to have committed crimes within the county;
      10. Whether Judgment should be arrested on the convictions of kidnapping and conspiracy to commit kidnapping and murder as the period of limitations had expired prior to the indictment.
      We caution Appellant that his Brief violates the provisions of Pa.R. A.P., rule 2116 by listing his Statement of Questions on more than one page. Appellant is warned that such violation of this rule will not be tolerated in the future. Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984).

      . 42 Pa.C.S.A. § 5552 was amended December 14, 1984, effective in 60 days, and it now provides no limitation period for the crime of conspiracy to commit murder if a murder results.


text:
    526 A.2d 404
    Marjorie L. JOHNSON and Joseph E. Johnson, Appellants v. John MATHIA d/b/a John’s Auto Body.
    Superior Court of Pennsylvania.
    Submitted March 18, 1987.
    Filed May 18, 1987.

      Gregory Gleason, Pittsburgh, for appellants.
    Joseph D. Talarico, Pittsburgh, for appellee.
    Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   DEL SOLE, Judge:

This appeal follows a non-jury trial in which a verdict was entered in Appellee's favor. By his Opinion, dated August 5, 1986, the trial court capsulized the following series of events. Appellant’s automobile was delivered to Appellee’s garage for body repairs. The parties struck an agreement in which Appellee received $300.00 with the understanding that the total cost of the repairs would be $1,100.00. In addition, the $1,100.00 figure was contingent on Appellant’s purchase of certain body parts and delivery of them to Appellee’s garage for installation.

Appellee proceeded to make $300.00’s worth of repairs to the vehicle. However, Appellant never gave Appellee the required auto parts so that the balance of repairs could be performed. Appellee finally contacted Appellant and notified him that no further work would be done on the automobile until Appellant paid him $800.00 to finish the repairs. When Appellant did not respond to this notification, Appellee told Appellant that the car was outside on his lot and that he wanted it to be removed from the site. In fact, Appellee even offered to pay the towing expenses of having it delivered to Appellant’s home. Appellant refused this offer and promised instead to remove the car. This promise, however, was never fulfilled. Eventually, Appellee reported the car abandoned to the North Braddock Police Department, after which, it was removed from the establishment. The lapse of time between delivery to, and removal from, the lot was eight months. Appellant later recovered the automobile and found that it was “totally cannibalized”. (Opinion, 8/5/86).

On appeal, it is Appellant’s position that Appellee failed to exercise ordinary care of the automobile pursuant to their contract of bailment. Likewise, Appellant alleges that he had sufficiently proven damages resulting from the destruction of the vehicle. The trial court ruled against Appellant on both of these issues. We affirm.

A bailment is created by the delivery of personalty for a particular purpose, pursuant to an implied or express contract, in which redelivery is promised upon completion of that purpose. In a mutual benefit bailment, as illustrated in the instant case, the bailee is entitled to compensation if he/she gives adequate notice of the intention to charge the bailor. Ferrick Excavating and Grading v. Senger Trucking, 315 Pa.Super. 69, 75, 461 A.2d 800, 802 (1983), rev’d for other reasons, 506 Pa. 181, 484 A.2d 744 (1984) (citations omitted). Under these circumstances, the bailee must use ordinary care and is liable for ordinary negligence. Id., 506 Pa. at 192, 484 A.2d at 749.

Appellant maintains that Appellee is liable for the damages to the automobile insofar as he failed to meet his duty of ordinary care. However, the trial court aptly points out that “Plaintiff was on notice that any bailment with Defendant was at an end when there was a mutual agreement that the car would be towed from Mathia’s lot.” (Opinion, 8/5/86, 3).

Admittedly, Pennsylvania case law remains undeveloped on the issue of termination of a bailment. However, it is the general consensus among our sister states that either the bailor or the bailee may terminate a bailment at will where the bailment is not for any particular time. 8 Am Jur 2d, Bailments § 292. In these cases, such as the instant, a bailee has the additional obligation to allow the bailor a reasonable time in which to retake possession of the property before the bailment can be regarded as terminated. Id. at § 294. “If the facts are in dispute as to whether the bailment has been terminated, or if different inferences may be drawn from the evidence, it is for the [factfinder] to say whether the bailment was terminated or continued and renewed.” Id. at § 292.

We are satisfied that the findings of the trial judge, sitting as a trier of fact, were supported by competent evidence. Thus, we decline to disturb the trial court’s conclusion that Appellee gave Appellant proper notice that the bailment had ended and a sufficient period of time in which to collect the automobile. This is further evidenced by the fact that Appellee went so far as to offer to incur the expense of towing the car to Appellant’s home. See 2401 Pennsylvania Avenue Corporation v. Federation of Jewish Agencies of Greater Philadelphia, 319 Pa.Super. 228, 236, 466 A.2d 132, 135 (1983) (factual findings of trial judge made in non-jury trial will not be disturbed unless not found on competent evidence).

Appellant cannot now be heard to complain that Appellee acted improperly by having the vehicle towed from his premises. Clearly, Appellant made no attempt to protect his rights by either removing the automobile or making other appropriate provisions. Accordingly, we agree with the trial judge’s conclusion that Appellant had failed to demonstrate a showing of negligence committed by Appellee. In light of our treatment of the negligence issue, it is unnecessary to consider Appellant’s argument concerning proof of damages.

Judgment affirmed.


author: BECK, Judge:

text:
    526 A.2d 405
    COMMONWEALTH of Pennsylvania, Appellant, v. Terrence LEE.
    Superior Court of Pennsylvania.
    Submitted Sept. 29, 1986.
    Filed May 18, 1987.

      Sean K. Code, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    Larry P. Gaitens, Pittsburgh, for appellee.
    Before BROSKY, BECK and POPOVICH, JJ.
   BECK, Judge:

The Commonwealth appeals the judgment of sentence for driving under the influence (DUI), 75 Pa.Cons.Stat.Ann. § 3731 (Purdon Supp.1985), entered after a guilty plea. We are asked to consider whether the sentence was illegal because the sentencing court did not impose the mandatory minimum penalty for DUI recidivists, under 75 Pa.Cons. Stat.Ann. § 3731(e)(1)(iii). We reverse and remand for resentencing.

Appellee Terrence Lee was charged with one count of DUI and various summary offenses not relevant to this appeal. Lee entered a plea of guilty. No formal guilty plea colloquy was held. As a substitute for the colloquy, appellee Lee read and signed a document consisting of forty-three questions addressing whether he understood the charges against him and the consequences of pleading guilty. Question twenty-three, which deals with notice, is pertinent to the instant case. It states: “Have you discussed with your attorney or are you aware of the permissible range of sentences and/or fines that can be imposed for the offense charged.” Appellee Lee wrote “yes” in the space provided. Before the guilty plea was entered formally, but after Lee had read and signed the above document, the Commonwealth attempted to make an oral motion to amend the information to include the statement that appellee had been convicted of two prior DUI charges. The motion was denied without discussion.

As a result, on October 1, 1985, appellee Lee was sentenced, not as a recidivist under the Drunk Driving Act, § 3731(e)(l)(iii), but as a first offender, to a 48-hour commitment, a $300 fine and costs, alcohol evaluation, and safe driver program. Lee was also fined $275 on summary charges. This appeal followed.

The Commonwealth presents one issue for our consideration: whether the sentence was illegal because the sentencing court failed to apply the recidivist provision of the Drunk Driving Act, 75 Pa.Cons.Stat.Ann. § 3731(e) (Purdon Supp.1986).

Section 3731(e) provides, in relevant part:

(e) Penalty—
(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(i) not less than 48 consecutive hours.
(iii) not less than 90 days if the person has twice previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

The Commonwealth alleges that appellee Lee had two prior DUI convictions, having been convicted, after guilty pleas, on unrelated DUI charges, in 1979 and 1980. Appellee does not contest this allegation. The trial court did not impose the recidivist mandatory minimum sentence because it found that appellee did not have notice of the Commonwealth’s intent to seek the enhanced penalty.

In Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985) (en banc), this court held that the Commonwealth is required to notify the accused before he enters a guilty plea that it will seek a sentence pursuant to the recidivist provisions. Id., 348 Pa.Superior Ct. at 598-599, 502 A.2d at 707. The court distinguished guilty plea from trial convictions. The court held that, when a defendant is convicted at trial, notice of the recidivist penalty need only be provided prior to sentencing. The court then added:

When a defendant pleads guilty rather than proceeds to trial, however, the defendant must be advised of the recidivist statute prior to entering his guilty plea. There is no dispute that a plea entered without knowledge of not only the maximum penalty which could be imposed, but also the minimum penalty which must be imposed, would not be a valid plea. Knowledge of the higher mandatory minimum sentence for repeat offenders may affect the defendant’s decision to plead guilty even though knowledge of the recidivist penalty would not affect a defendant’s defense for the crime charged. Therefore, although notice of the recidivist penalty is not required prior to trial, it is required prior to a guilty plea.

Id. The court did not further explain when and how such notice must be provided, except to say that it need not be provided in the information. The statute in question, Section 3731, is silent on when notice must be given and on the nature of the notice.

In the case at bar, therefore, we must clarify when and how the Commonwealth was required to give notice that it intended to seek application of the recidivist provision at the sentencing of appellee. In conformance with Reagan, we hold that the Commonwealth must provide record notice prior to the guilty plea. That notice does not have to be included in the information, but it must be communicated to the defendant and made part of the record before a guilty plea is accepted. We may apply Reagan retroactively since the Reagan court did not make its decision prospective only. See Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983); Ecksel v. Orleans Const. Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987).

In the instant case, the Commonwealth would have satisfied its obligation if it had been permitted to amend the information prior to the court’s acceptance of appellee’s guilty plea. We see no reason for denying the Commonwealth the opportunity to provide notice in this form. Pa.R. Crim.P. 229, which governs amendments to an information, does not preclude the Commonwealth from amending the information in order to provide notice of a prior offense inasmuch as such notice does not “charge an additional or different offense.” See Commonwealth v. Gamber, 352 Pa.Super. 36, 506 A.2d 1324 (1986). Indeed, under Reagan the Commonwealth is not required to include prior offenses in the information in order for a defendant to be subject to the recidivist provision. The Commonwealth was exhibiting caution in choosing this method of providing notice.

We conclude that the sentencing court abused its discretion in denying the Commonwealth’s motion to amend the information. Therefore, the court erred in relying on this lack of amendment as justification for failing to impose the mandatory minimum sentence required by § 3731(e)(l)(iii). Since the sentence imposed is less than the mandatory minimum required by statute, the sentence is illegal. We therefore remand for resentencing under 75 Pa.Cons.Stat.Ann. § 3731(e)(l)(iii) (Purdon Supp.1986).

Judgment of sentence vacated and case remanded for resentencing in accordance with this opinion. Jurisdiction is relinquished.

      . The Commonwealth appeals of right in alleging that the sentence does not meet the requirements of § 3731. 75 Pa.Cons.Stat.Ann. § 3731(e)(4).

      . The trial court opinion notes that the Commonwealth filed a motion for reconsideration and modification of sentence, which was denied. The record certified to us on appeal, however, contains neither such a motion nor a notation in the docket of its filing or denial. Nevertheless, we reach the sentencing issue because a challenge to the legality of a sentence is not waived by failure to file post-sentencing motions. Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985).


author: POPOVICH, Judge:

text:
    526 A.2d 408
    COMMONWEALTH of Pennsylvania v. Juan ADAME, Appellant.
    Superior Court of Pennsylvania.
    Argued March 4, 1987.
    Filed May 20, 1987.

      Melaine S. Rothey, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

      Before CAVANAUGH, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County finding the appellant, Juan Adame, guilty of the summary offense of obstructing public passage (18 Pa.C.S. § 5507) and imposing a sentence of ten (10) days imprisonment and a three-hundred dollar ($300.00) fine plus costs. We reverse.

The facts reveal that on the 4th day of June, 1985, at approximately 10:50 p.m., Glassport police officer Val Uziel was on duty and observed at least ten (10) youngsters (age twelve to sixteen) and the appellant congregating on the sidewalk in front of a business establishment (Open Pantry) situated at the busiest intersection in town. Open Pantry had previously requested the police to keep the area in front of its establishment clear and to remove anybody gathering there because this interfered with its business. Since it is patronized by mostly older people, they refuse, in the words of the officer, to go into the establishment when they see a “gang of kids” there, as was the case on the evening in question.

The officer told the appellant on four separate occasions that evening to leave. In fact, the third time the officer recalls stating:

We told him what he is doing wrong. We told him to move on, he is obstructing the public passages and also he is interfering with this place of business.

Nonetheless, albeit the youngsters would leave at the officer’s direction, the appellant would remain and, “by his actions”, would prompt the gathering of another group “to find out what he [was] yelling about.” By the officer’s fourth request, the appellant’s refusal to remove himself from the premises resulted in his being cited for obstructing public passages.

After all of the evidence was presented, the de novo bench trial came to a close. The next day, i.e., April 29, 1986, an order was entered finding the appellant guilty as charged and imposing sentence. Attached to the order was a one page document advising the appellant of his post-verdict rights pursuant to Pennsylvania Rules of Criminal Procedure 1123 and 1410. This appeal followed.

The sole issue raised for our consideration concerns the legality of the sentence. However, the merits of the contention will have to be postponed given the procedural irregularities which plague this ease and, as a result, necessitate a remand.

First, it cannot be denied that the general post-verdict rules are applicable to summary cases appealed de novo to the Court of Common Pleas. See Commonwealth v. Pringle, 304 Pa.Super. 67, 450 A.2d 103 (1982); Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981). Adherence to such rules seems to have been ignored in the case at bar.

For example, we note the following failings of the trial court in the post-verdict area; to-wit:

WITHIN TEN (10) DAYS OF THE DATE OF THIS ORDER YOU HAVE THE RIGHT TO FILE WRITTEN MOTIONS FOR A NEW TRIAL AND IN ARREST OF JUDGMENT. RULES OF CRIMINAL PROCEDURE § 1123.
If Motions for a New Trial and In Arrest of Judgment are filed, the sentence herewith imposed will become effective upon curial disposition of such motions.
If Motions for a New Trial and In Arrest of Judgment are not filed, the sentence herewith imposed will become effective ten (10) days from the date of this order.
YOU ALSO HAVE THE RIGHT TO FILE A WRITTEN MOTION TO MODIFY SENTENCE WITHIN TEN (10) DAYS FROM THE DATE THIS SENTENCE BECOMES EFFECTIVE. RULES OF CRIMINAL PROCEDURE § 1410.
Only the grounds contained in Motions for New Trial, In Arrest of Judgment, and to Modify Sentence may be raised on an appeal to an Appellate Court.
You have the right to the assistance of counsel in filing any of the aforesaid motions. If you cannot afford counsel, the Court will appoint counsel for you.
YOU HAVE THIRTY (30) DAYS FROM THE DATE THIS SENTENCE BECOMES EFFECTIVE TO APPEAL TO THE INTERMEDIATE APPELLATE DIVISION IF YOU SO DESIRE.

1) Failure to impose sentence in open court (see 42 Pa. C.S. § 9752 and Pa.R.Crim.P. 1405(a));

2) No record was made of the proceeding (see 42 Pa.C.S. § 9759);

3) Failure to provide the appellant with his right of allocution (see Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980); Commonwealth v. Brown, 342 Pa.Super. 249, 492 A.2d 745 (1985) (en banc) (Opinion in Support of Reversal by POPOVICH, J., joined by SPAETH, P.J., BROSKY, J., and WICKERSHAM, J.));

4) Failure to state on the record the reasons for the sentence imposed (see Commonwealth v. Mullen, 321 Pa.Super. 19, 467 A.2d 871 (1983) (en banc); 42 Pa.C.S. § 9721(b); Pa.R.Crim.P. 1405(b));

5) Failure to articulate the amount of the fine, its due date and inquire as to the appellant’s financial ability to pay (see 42 Pa.C.S. §§ 9758(a), 9726(d) and Pa.R. Crim.P. 1407); and

6) Failure to advise the appellant of his post-verdict rights (see Pa.R.Crim.P. 1405(c)).

Moreover, the type of “mail-order-verdict/sentence” issued by the court below is at odds with those stated principles so cherished in our judicial system, i.e., to have hearings, proceedings, sentencings and trials conducted in an open forum and of record. These precepts are lacking as to the manner and method in which the verdict and sentence were issued. See Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987) (Opinion by POPOVICH, J., with MONTGOMERY, J. Concurring in Result and BROSKY, J. Dissenting).

The error is especially glaring in regard to the circumstances surrounding the entry of the sentence. Not only was the appellant not present during the imposition of sentence, given the mail-order nature of the transmission, but the court below neglected to state of record its reasons for issuance of the sentence. See Mullen, supra. Thus, we are hampered in our efforts to assess the merits of the appellant’s illegality of sentence argument, a subject which has not been waived for the appellant’s failure to submit a modification of sentence motion within ten (10) days of imposition since the subject was not broached in open court. See Ragoli, supra; Rule 1405.

Thus, in light of the procedural shortcomings of this case, we do what we did in Ragoli and reverse the order of the trial court imposing sentence and “remand with directions that the trial court enter a finding of guilty or not guilty in accordance with accepted practice in this Commonwealth, and, if the verdict is guilty, to impose sentence as more fully detailed in the ... [.Ragoli ] opinion. Jurisdiction is not retained by this Court.” Id. 362 Pa.Super. at 403, 524 A.2d at 939.

MONTGOMERY, J., concurs in the result.

      . The one page document reads:

      . In its order of April 29, 1986, the appellant was directed “to pay fine and costs as arranged by the issuing authority.” This type of deferral of the determination of the sentence was disapproved by this Court in Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987) (Opinion by POPOVICH, J., with MONTGOMERY, J. Concurring in Result and BROSKY, J. Dissenting). It is the sentencing court which must articulate its reasons for the sentence at the time it is imposed in open court. See Commonwealth v. Mullen, 321 Pa.Super. 19, 467 A.2d 871 (1983) (en banc). This certainly cannot occur if the original fine of the issuing authority (District Magistrate) is merely referred to without comment as to justification or the requirements of the Sentencing Code are ignored. See, e.g., 42 Pa.C.S. §§ 9759, 9758, 9756, 9755, 9752(a)(2), 9725, 9724 and 9721(b).


author: CAVANAUGH, Judge: BECK, Judge,

text:
    526 A.2d 411
    COMMONWEALTH of Pennsylvania, Appellant, v. Kenneth STEIN.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1986.
    Filed May 26, 1987.

      Ronald T. Williamson, Deputy Attorney General, Norristown, for Com., appellant.

      Richard M. Bockol, Philadelphia, for appellee.
    Before CAVANAUGH, MONTEMURO and BECK, JJ.
   CAVANAUGH, Judge:

This action began in 1983 when appellee, a licensed podiatrist, was charged with over 99 counts of Medicaid fraud. The Commonwealth charged appellee with billing the Department of Public Welfare for several podiatric office visits for the sum of Six Dollars ($6.00) each, when in fact the patient had never visited appellee’s office. The disputed billings in this case involved renewals of prescriptions, over the telephone, for orthopedic shoes for the children of three qualified medical assistance recipients. Prior to trial, appellee filed a motion entitled “Motion for Accelerated Rehabilitative Disposition and/or Motion to Strike Information” which the trial court treated as a motion to quash. The trial court granted in part appellee’s motion dismissing 27 of 99 counts against him. The Commonwealth proceeded to trial on the remaining counts. At the conclusion of the Commonwealth’s case, the lower court sustained appellee’s demurrer to 60 counts against him. The court later found appellee not guilty on the remaining 12 counts.

The Commonwealth appealed the lower court’s orders quashing 27 counts (3015 Phi, 85) and sustaining appellee’s demurrer to 60 counts (3016 Phi, 85). These appeals were consolidated. The Commonwealth later discontinued its appeal at 3016 Phi, 85 following the U.S. Supreme Court's decision in Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). In Smalis, the U.S. Supreme Court held that a grant of a demurrer to an accused cannot be appealed where reversal would lead to further trial proceedings thereby implicating the double jeopardy clause. Thus, appellant brings one issue before this court: whether the lower court committed reversible error in granting appellee’s motion to quash 27 counts against him. We reverse.

The Commonwealth argues that the lower court abused its discretion when it granted in part appellee’s motion to quash. It argues that the informations in question were not facially defective and were not otherwise defective so as to prohibit prosecution. Appellant further argues that the lower court legally erred when it granted the motion as it based its decision on an assessment of the evidence against appellee and not upon a determination of the per se validity of the informations.

We first recognize that the decision to grant or deny a motion to quash is within the sound discretion of the trial judge whose decision will be reversed on appeal only where there has been a clear abuse of discretion. Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980); see also Commonwealth v. Hackney, 117 Pa.Super. 519, 178 A. 417 (1935). We have also stated:

A Motion to Quash may be used to raise defects apparent on the face of the information or other defects that would prohibit prosecution. A Motion to Quash an information is neither a guilt determining procedure nor a pre-trial means for determining the sufficiency of the Commonwealth’s evidence. (Citations omitted.) (Emphasis added.)

Commonwealth v. Meoli, 307 Pa.Super. 50, 51-55, 452 A.2d 1032, 1033-1034 (1982).

The lower court stated, inter alia, in its opinion in support of its decision, that it quashed 27 counts as

... enough of an ambiguity existed in the definition of an ‘office visit’ before the January 1, 1983 revision [of the Medicaid Department’s Fee Schedule] so as to create a reasonable basis for misinterpretation of the term ‘office visit’ prior to the issuance of the revised definition----

We agree with appellant that any ambiguity or confusion as to appellant’s interpretation of the Fee Schedule is more properly a matter relevant to appellee's defense which could be asserted at trial. However, we do not believe that an asserted ambiguity or confusion serves as a basis to quash facially valid informations. Commonwealth v. Chew, 338 Pa.Super. 472, 487 A.2d 1379 (1985); Commonwealth v. Moser, 328 Pa.Super. 237, 476 A.2d 980 (1984); see also Pa.R.Crim.P. 225, Commonwealth v. Baranyai, 278 Pa.Super. 83, 419 A.2d 1368 (1980).

We reject appellee’s arguments that the lower court acted within its discretion when it granted his motion in the nature of a petition for habeas corpus. Appellee entitled his petition before the lower court “Motion for Accelerated Rehabilitative Disposition and/or Motion to Strike Information.” The lower court stated in its opinion that it treated this petition as a “Motion to Quash.” Now appellee argues that his motion was “in the nature of a petition for habeas corpus.” Appellee, having inartistically denominated his motion, should not now be permitted to advance a new theory as to its scope. Regardless of the appellation of this petition, however, we believe the lower court abused its discretion in dismissing these counts. It is true that a trial court has the authority to review evidence presented at a preliminary hearing to ascertain whether a prima facie case has been made out against a defendant. Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980); see also Commonwealth v. Ballard, 501 Pa. 230, 460 A.2d 1091 (1983). This is true even where a petitioner’s caption is incorrectly titled provided his intent is clear. Commonwealth v. Hess, supra. See also Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). However, the lower court is charged with the duty to examine the evidence with the limited inquiry as to whether there exists sufficient evidence to require a defendant to stand trial. Commonwealth v. Ballard, 501 Pa. at 233, 460 A.2d at 1092, citing Commonwealth v. Hess, supra, and Commonwealth v. Krall, 452 Pa. 215, 304 A.2d 488 (1973). See also Commonwealth v. Hetherington, supra. Our review of the record discloses that the Commonwealth presented the lower court with sufficient evidence, with respect to these counts, to meet the traditional threshold associated with this inquiry. Therefore, we remand this case to the lower court for further proceedings consistent with this opinion.

Order reversed. Case remanded. Jurisdiction relinquished.

BECK, J., files a concurring statement.

BECK, Judge,

concurring:

I concur in the majority’s conclusion that the informations were not facially invalid, nor did they present any other defect that would prohibit prosecution. Therefore, the trial court erred in granting appellee’s motion to quash.

However, I disagree with the majority’s apparent consideration of appellee’s argument that his motion below was in the nature of a petition for habeas corpus rather than a motion to quash. Appellee should not be permitted to change his theory as to the nature of his motion on appeal.

      . Appellee was indicted under 62 Pa.Stat. Ann. §§ 1407(a)(1), (a)(4) and (a)(9). (Purdon 1986 Cumulative Annual Pocket Part).

      . A review of the record discloses that appellee, on thirty-three occasions, billed the Department of Public Welfare for an "office visit” (Procedure Code #90005) from a member of one of these families.

      . We disagree with the lower court’s assertion that Procedure Code #90005 was subject "... to an ambiguous interpretation by a medical provider____” An “office visit” under the Code is defined as "[an] office visit, brief examination, evaluation and/or treatment.” We do not believe that the receipt of a phone call could reasonably be construed to meet the requirements of the Code’s definition of an office visit.