author: JOHNSON, Judge:

text:
    539 A.2d 1317
    COMMONWEALTH of Pennsylvania v. James NEELY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 16, 1987.
    Filed March 28, 1988.

      Jeffrey P. Shender, Assistant Public Defender, Philadelphia, for appellant.
    Laurie Magid, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, DEL SOLE, MONTEMURO, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant James Neely was convicted by jury of recklessly endangering another person and of possessing an instrument of crime. He appeals from the judgment of sentence. Neely asserts that the trial court erred by failing to include in its reputation evidence jury charge the words “character testimony in and of itself is such as to create a reasonable doubt.” Prior Superior Court panels have found reversible error where the trial court failed to charge that reputation evidence may in itself raise a reasonable doubt about the defendant’s guilt. Because these cases appear to misinterpret Pennsylvania Supreme Court decisions, we have granted en banc review to resolve the apparent conflict.

On the night of February 15, 1984 Neely encountered complainant Donald Williams, an off-duty deputy sheriff, who was walking his dog without a leash. Neely pulled out a knife and threatened to use it on the dog. When Williams produced his badge and drew a gun, Neely began to slash at Williams’ face with the knife and Williams fired a warning shot. Neighbors summoned the police. Neely attempted to flee over a fence. He fell off the fence towards Williams with his knife still drawn, causing Williams to fire his gun and hit Neely in the leg. Neely continued to run until police told him repeatedly to halt. A knife was recovered in the grass nearby.

Neely was charged by information with recklessly endangering another person, possessing an instrument of crime and aggravated assault. At trial before the Honorable Lynne M. Abraham, Neely produced two character witnesses who testified to his good reputation as a peaceful and law-abiding person. Neely himself also gave lengthy testimony, claiming that he drew the knife to protect himself from a possible attack from the unleashed dog. The trial court’s charge to the jury included the following instructions on reputation evidence:

Evidence of good character is very important testimony, because the law says that when a person has a prior good reputation in the community, that person is not likely to commit a crime that’s against that person’s nature. Evidence of good character is material essential testimony in determining the guilt or innocence of the defendant. This kind of testimony as to the defendant’s good character is not to be made light of. It’s not a mere makeweight thrown in to fill out the case or fill in a gap. It’s affirmative, substantive testimony to be weighed and considered by the jury in connection with all the other evidence in the case as bearing upon the question of whether or not the Commonwealth has or has not established the guilt of the defendant as he stands charged beyond a reasonable doubt.

N.T., 7/25/85 at 598. This elicited an objection from Neely’s counsel who argued that Neely was entitled to an instruction that “character testimony in and of itself is such [as] to create a reasonable doubt.” N.T., supra, at 606. The trial court declined to alter the instruction.

Following the trial of July 23-25, 1985, Neely was convicted of recklessly endangering another person and of possessing an instrument of crime. His post-verdict motions raising the denial of the proposed jury instruction were denied. On October 8, 1985 Neely was sentenced to three months to twenty-three months and twenty-nine days’ incarceration and to a concurrent three-year term of probation. Neely timely appealed to this Court.

We will begin our inquiry with a discussion of the standard for an adequate jury charge. This court must review and consider the jury charge as a whole. Error cannot be predicated on isolated excerpts. It is the general effect of the charge that controls. Commonwealth v. Alvin, 357 Pa.Super. 509, 516 A.2d 376 (1986); Commonwealth v. Grove, 363 Pa.Super. 328, 526 A.2d 369 (1987): Wording the charge is in the court’s discretion:

[T]he trial court is not required to accept the language of the point submitted by counsel but rather is free to select its own form of expression. The only issue is whether the area is adequately, accurately and clearly presented to the jury for their consideration.

Commonwealth v. McComb, 462 Pa. 504, 509, 341 A.2d 496, 498 (1975). See Commonwealth v. Smith, 511 Pa. 343, 513 A.2d 1371 (1986). The trial court has broad discretion in wording its charge and in considering requested points for charge, “particularly where that form does not reflect a correct application of the law.” Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983), cert. den. 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986). These instructions will not be overturned “when the charge meets the standards contained in appellate court opinions.” Commonwealth v. Alvin, 357 Pa.Super. at 519, 516 A.2d at 381 (1986).

Thus a jury instruction on reputation evidence must accurately state the substantive law on the role of reputation evidence at trial. While evidence of bad character is inadmissible against a defendant in a criminal case:

It has long been the law in Pennsylvania that an individual on trial for an offense against the criminal law is permitted to introduce evidence of his good reputation in any respect which has “proper relation to the subject matter” of the charge at issue. Such evidence has been allowed on a theory that general reputation reflects the character of the individual and a defendant in a criminal case is permitted to prove his good character in order to negate his participation in the offense charged.

Commonwealth v. Luther, 317 Pa.Super. 41, 49, 463 A.2d 1073, 1077 (1983) citing Commonwealth v. Castellana, 277 Pa. 117, 122, 121 A. 50, 51 (1923). The defense may introduce witnesses whose testimony attempts to prove that the defendant possesses character traits at odds with the criminal behavior alleged. In the case before us, testimony on Neely's reputation for peaceableness was introduced to rebut his alleged reckless endangerment of another person. See Henry on Pennsylvania Evidence § 159.

In this way the law allows a criminal defendant the benefit of his good reputation. “Of what avail is a good character, which a man may have been a lifetime in acquiring, if it is to benefit him nothing in his hour of peril?” Commonwealth v. Cleary, 135 Pa. 64, 84, 19 A. 1017, 1018 (1890). However, what one individual reports about what others in the community say about the defendant is obviously hearsay. Therefore, the form of the testimony is strictly proscribed to overcome the flaw of hearsay, that it is unverifiable. The testimony must speak only to the defendant’s general reputation; the witness must not refer to any previous specific acts. Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1976). Although the Federal Rules of Evidence now permit it, Pennsylvania does not allow the reputation witness to express his singular, personal opinion on the defendant’s character. Commonwealth v. Gaines, 167 Pa.Super. 485, 75 A.2d 617 (1950). The witness must be part of the defendant’s community. He or she must testify only to the “general, harmonious community opinion,” opinion arrived at by consensus. Consensus opinion creates the circumstantial probability of trustworthiness needed to negate hearsay’s unverifiability. See 5 Wigmore § 1610 (Chadbourne rev. 1979).

Neely argues that he did not recklessly endanger another person because his disposition is peaceable. He is “arguing from his actual moral constitution, which in turn becomes a fact to be proved” by the introduction of reputation evidence. Wigmore, supra, § 1608. Character, then, is a fact offered by the defendant which he must prove, as any other fact must be proved at trial. He attempts to prove this fact by introducing reputation evidence. This reputation evidence “is to be regarded as evidence of a substantive fact like any other evidence tending to establish innocence.” Commonwealth v. Sampson, 445 Pa. 558, 565, 285 A.2d 480, 484 (1971) citing Commonwealth v. Aston, 227 Pa. 106, 75 A. 1017 (1910). No Pennsylvania case holds that reputation evidence differs from any other evidence or deserves different consideration by the jury.

We must next inquire into the manner in which this substantive law must be incorporated into instructions to a jury. It is easy to understand why a jury is confused about reputation evidence. By requirement it is general. It does not relate to the incident for which the defendant is on trial, nor can it. The jury certainly hears, throughout trial, objections to admission of other evidence on the ground that it is irrelevant. The jury may wonder why reputation evidence is not also irrelevant. The court’s charge must explain this confusing state of affairs. Courts have early seen this source of confusion and, in rulings on propriety of jury charges, have attempted to set reputation evidence in its proper context. This issue was squarely addressed by our Pennsylvania Supreme Court in Heine v. Commonwealth, 91 Pa. 145 (1887), where the trial court charged:

If a man is guilty, his previous good character has nothing to do with the case, but if you have reasonable doubts as to his guilt, then character steps in, and aids in determining that doubt.

Heine, 91 Pa. at 148. Finding this charge incorrect and inadequate, the court wrote:

The effect of this was to give the evidence of good character no weight whatever; for, if the other testimony left in the minds of the jury a reasonable doubt of the defendant’s guilt, this of itself, without more, entitled him to an acquittal. Evidence of good character is not a mere make-weight, thrown in to assist in the production of a result that would happen in all events — but it is positive evidence, and may of itself, by the creation of a reasonable doubt, produce an acquittal.

Id. This selection of language by the Heine court has been employed by subsequent courts as a source for jury instructions on reputation evidence.

Both the Pennsylvania Supreme Court and this Court have held that no exact language is talismanic, as long as the charge states the law correctly and clearly. Ohle, supra, Alvin, supra. Thus, a reviewing court’s finding that a charge as a whole is satisfactory does not mean that the court is holding that the exact language is required. In fact, the Pennsylvania Supreme court has held that “in itself” language does not carry an independent meaning that reputation evidence carrys more weight than other evidence. In approving a jury charge that did not include the “in itself” language, the court wrote that while the law of Pennsylvania is very favorable when considering the weight of the accused’s good character, “it has not gone so far as to give it any special prominence or superiority to the other facts in evidence in the case.” Commonwealth v. Beingo, 217 Pa. 60, 62, 66 A. 153, 154 (1907).

In Commonwealth v. Cleary, supra, the court analyzed this principle, writing that the law:

by no means confined the jury to attaching importance to the evidence only in cases of reasonable doubt. On the contrary, it left them at liberty to make it a basis for the foundation of a doubt.

Cleary, 135 Pa. at 84, 19 A. at 1018. (citations omitted). The court derived the following rule:

Evidence of good character is always admissible for the defendant in a criminal case; it is to be weighed and considered in connection with all the other evidence in the cause, — it may of itself, in some instances, create the reasonable doubt which would entitle the accused to an acquittal____

Id. The court continued by explaining:

The evidence of good character is to be considered with the other evidence in the case, and if it all combined creates a reasonable doubt, the defendant is entitled to an acquittal.

Id. The most recent Supreme Court case holding that a reputation evidence charge is proper is Commonwealth v. Holland, 480 Pa. 202, 389 A.2d 1026 (1978). In Holland the court found no error in a charge containing the following language:

Evidence of good reputation presented by a defendant does not present a distinct issue in the case, but it must pervade and be considered by you in connection with all the other evidence in the case on the general issue of guilty or not guilty, and is to be regarded as a substantive fact like any other evidence tending to establish innocence.
In some instances it may of itself work an acquital [sic] or create a reasonable doubt, but that is all a question for you under all the evidence in the case. When a defendant has had a good reputation, this fact must be given due weight. But, if he has been proven guilty beyond a reasonable doubt, he is not to go free simply because he has previously had a good reputation.
In other words, you may not in arriving at a verdict exclude everything but the evidence of good reputation and decide the case solely on such evidence.

Holland, 480 Pa. at 219, 389 A.2d at 1034. The court approved the charge without discussion. The one Pennsylvania supreme court case stating that a defendant is entitled to a charge that character evidence alone may be sufficient to raise a reasonable doubt, Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981) does so in a footnote that is dictum.

We conclude that Pennsylvania Supreme Court cases do not require an “in itself” charge to be given to the jury; the cases require only that the instructions make clear that reputation evidence is on a par with any other genre of evidence. The Holland charge illustrates how this concept is to be put in perspective. Three crucial points emerge. First, reputation evidence is a substantive fact just like any other evidence and should be considered along with other evidence in the same manner that other evidence is considered. Second, in some instances it may itself create a reasonable doubt, but, third, if all other facts in the Commonwealth’s case prove the defendant guilty beyond a reasonable doubt, “he is not to go free simply because he has previously had a good reputation.” This makes eminent sense when we consider it in tandem with the well-settled principle that it is entirely within the province of the trier of fact in a criminal case, in this case, the jury, to decide what weight to accord the evidence produced. Commonwealth v. Favinger, 358 Pa.Super. 245, 516 A.2d 1386 (1986), appeal denied 516 Pa. 612, 531 A.2d 779 (1987). This principle will not permit the judge to tell a jury to give any type of evidence more weight than other evidence. In all the above-quoted approved jury instructions, the “reputation evidence may, in itself create a reasonable doubt” language simply serves to clarify the principle that reputation evidence should be weighed just like any other evidence.

Superior Court panels have recently held that the jury charge must contain “in itself” language in Commonwealth v. Belmonte, 349 Pa.Super. 1, 502 A.2d 1241 (1985), alloc, granted 511 Pa. 368, 514 A.2d 1369 (1986) (Plea in abatement granted, case remanded to the Court of Common Pleas, 10/31/87 because appellant died); Commonwealth v. Vander Weele, 356 Pa.Super. 152, 514 A.2d 189 (1986); Commonwealth v. Schultz, 335 Pa.Super. 306, 484 A.2d 146 (1984) and Commonwealth v. Arenella, 306 Pa.Super. 119, 452 A.2d 243 (1982). These cases merely cite to the Pennsylvania Supreme Court cases of Cleary, Holland and Scott without analysis. Because none of these Supreme Court decisions hold that “in itself” language in a reputation evidence charge is required, the Superior Court holdings are ungrounded in Supreme Court law. Therefore, to the extent that Belmonte, Schultz, Vander Weele and Arenella hold that “in itself” language is required, they are now overruled. In doing this we do not change the law in Pennsylvania, but rather we reaffirm the law as set forth by our Supreme Court.

In Commonwealth v. Vander Weele, supra, the Court invalidated a jury instruction that not only omits “in itself” language but also fails to convey the crucial point about reputation evidence, that it could, like any other evidence, carry enough weight to create a reasonable doubt. Nevertheless, the Court invalidated the charge wholly on the grounds that it lacked “character evidence alone” language and in fact cited no authority for this specific proposition. In Commonwealth v. Belmonte, supra, the statement that the defendant is entitled to an “in itself” charge is dictum. The actual holding of the case was that the particular evidence in question was not reputation evidence and thus the defendant was not entitled to any reputation evidence charge. Adding dictum, the Court wrote that if reputation evidence were in the case, then the defendant would be entitled to an “in itself” charge. Belmonte, 349 Pa.Super. at 20, 502 A.2d at 1251. The Belmonte Court cited Scott and Schultz.

In Arenella the court relied on the Scott footnote and on the acceptance of the instructions at issue in Holland, supra. The Court cited the Holland instruction passage “in some instances [evidence of good reputation] may of itself work an acquital [sic] or create a reasonable doubt.” Arenella, 306 Pa.Super. at 128, 452 A.2d at 248. However, it is error to invalidate a jury charge on an isolated excerpt taken out of context. Commonwealth v. Ohle, supra; Commonwealth v. Grove, supra. The Holland court itself approved the entire jury instruction, not merely the isolated excerpt. Significant is what follows this cited passage in the Holland instructions: “... but that is all a question for you under all the evidence in the case ... if he has been proven guilty beyond a reasonable doubt, he is not to go free simply because he has previously had a good reputation.” Holland, 480 Pa. at 219, 389 A.2d at 1034. In citing the isolated passage, the Arenella Court misrepresented and in effect misinterpreted the plain meaning of the Holland charge. This is not to say that the instructions at issue in Arenella contained no error, but only that the error does not lie in the omission of the “in itself” language.

Commonwealth v. Schultz, supra, in an ineffectiveness of counsel context, held that failure to request an instruction that evidence of good character may itself be sufficient to raise a reasonable doubt constituted ineffectiveness of counsel. The court relied on the following language from an earlier Superior Court case, Commonwealth v. Padden, 160 Pa.Super. 269, 50 A.2d 722 (1947):

Evidence of good character is substantive and positive evidence, not a mere make-weight to be considered in a doubtful case, and ... is an independent factor which may of itself engender a reasonable doubt or produce a conclusion of innocence. To be sure, it is to be con sidered with all the other evidence in the case. But it is not to be measured with all the other evidence. Its probative value, its power of persuasion, does not depend upon, and is not to be measured by, or appraised according to, the might or the infirmity in the Commonwealth’s case. Even though, under all the other evidence a jury could reach a conclusion of guilt, still if the character evidence creates a reasonable doubt or establishes innocence a verdict of acquittal must be rendered.

Commonwealth v. Padden, 160 Pa.Super. at 275, 50 A.2d at 725 (emphasis in original; citations omitted), quoted in Schultz, 335 Pa.Super. at 309, 484 A.2d at 147-148. Pad-den held that for the court to instruct the jury that reputation evidence, when “measured” with all other evidence may raise a doubt is error — it must be “considered” with, not measured against other evidence. Explained by the above passage, this holding comports with previously-discussed Pennsylvania Supreme Court law. This language is another way to make the point that reputation evidence is not to be used merely to tip the balance when the Commonwealth’s case is weak but may raise a doubt even when the case against the defendant is strong. Padden did not hold that “in itself” language is required. Schultz further cites Scott, Arenella and Cleary.

Both the Commonwealth in its brief and the trial court in the thorough opinion by the Honorable Lynne Abraham discuss federal case law on reputation evidence instructions. We will summarize the federal cases because there, as in the Pennsylvania courts, some of the Courts of Appeals had misinterpreted the two United States Supreme Court cases that consider reputation evidence instructions and have recently recognized the discrepancy by reversing themselves. In Edgington v. United States, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467 (1896), the Supreme Court held substantially what our Heine court held. It invalidated a jury instruction stating that if the jury “hesitates on any point as to the guilt of the defendant, then you have the right and should consider the testimony given as to his good character.” Edgington, 164 U.S. at 366, 17 S.Ct. at 73, 41 L.Ed. at 471. The Court held that while earlier cases may have supported the instruction:

“the decided weight of authority now is that good character, when considered in connection with the other evidence in the case, may generate a reasonable doubt. The circumstances may be such that an established reputation for good character, if it is relevant to the issue, would alone create a reasonable doubt, although, without it, the other evidence would be convincing.”

Edgington, Id. The court cited Heine among cases in which a similar conclusion was reached. As in Heine:

this passage does not support an instruction that singles out character evidence. The Court was trying to put an end to instructions that had disfavored character evidence by telling the jury not to consider the evidence unless it first found the case close. The point of the passage— that character evidence when taken with other evidence may create a reasonable doubt — assimilates character evidence to other kinds of evidence. It is a mistake to lift language out of a passage such as this and insert it in a jury instruction.

United States v. Burke, 781 F.2d 1234, 1240 (7th Cir.1985). Edgington told the federal courts to eliminate differences in the treatment of character and other evidence, not to create new differences. Id.

Burke overruled the Seventh Circuit’s previous position that a “standing alone” instruction is required on the grounds that it had misinterpreted Edgington and Michelson v. United, States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). In Michelson the Supreme Court wrote that “[character] testimony alone, in some circumstances, may be enough to raise a reasonable doubt of guilt and that ... a jury in a proper case should be so instructed.” Michelson, 335 U.S. at 476, 69 S.Ct. at 219, 93 L.Ed. at 174. First, this passage was dictum. The issue addressed by the court was whether the prosecution could introduce bad conduct evidence when the defendant introduced good character evidence. More important, the passage could mean that at most, “certain circumstances,” presumably those in which nothing besides character evidence has been offered, may require that the trial judge take cognizance of this.

This is not the same as requiring an “in itself” instruction in all cases. As the Burke court said, “it does not imply any particular instruction.” Burke, 781 F.2d at 1241. The Burke court went so far as to discuss how a “standing alone/in itself” instruction may even mislead the jury; several circuits have forbidden the instruction for this reason. See Burke, 781 F.2d at 1241, n. 3.

We reserve for future determination the issue of whether an “in itself” instruction would be required where reputation evidence constitutes the entire defense. This was not so in the case before us. A peaceable reputation was not Neely’s only defense. He based his defense primarily on a self-defense theory. Neely testified at length that he was defending himself from the potentially vicious dog. Hence the jury had ample opportunity to weigh Neely’s credibility on this point. We hold that the trial court was not required by Pennsylvania law to charge the jury that “character testimony in and of itself is such as to create a reasonable doubt.” We do not determine whether “in itself” language should be prohibited, leaving it for a future case in which the issue is specifically raised.

As we noted in beginning our review, a trial court has broad discretion in phrasing its points for charge, and is not bound to give instructions in the form requested, particularly where that form does not reflect a correct interpretation of the law. A trial court may choose its own wording for jury instruction so long as the area is adequately, accurately and clearly presented to the jury for their consideration. This court’s evaluation of the charge must be based on an examination of it as a whole to determine whether it was fair or prejudicial. Commonwealth v. Ohle, supra. Where the given charge properly covers the requested point, it is not error for the trial court to refuse to give additional instructions. Commonwealth v. Grove, supra.

Here, our task is made easier in that Appellant limits his challenge on appeal to the trial court’s charge on evidence of good character. Appellant does not contest the accuracy of the charge as given, but contends that, in addition to the charge set forth above, he was entitled to have the jury instructed that character testimony in and of itself is such as to create a reasonable doubt of guilt and justify a verdict of not guilty.

We remain mindful that reputation evidence is on a par with any other genre of evidence. It is a substantive fact and should be considered by the jury along with other evidence in the same manner that other evidence is considered. It remains entirely within the province of the trier of fact, in this case the jury, to decide what weight to accord the evidence produced. With these principles in mind and after a careful review of the entire jury charge on this appeal, we find no abuse of discretion in Judge Abraham’s refusal to supplement her clearly presented and adequate charge with Appellant’s request for additional instructions.

Accordingly, we affirm the judgment of sentence.

      . See F.R.E. 405(a).

      . Scott held that the prosecution may not cross-examine a defendant’s character witnesses about the defendant’s prior arrests. The footnote relied upon Commonwealth v. Cleary, supra, which does not stand for that proposition, and Commonwealth v. Shapiro, 223 Pa.Super. 15, 297 A.2d 161 (1972), where jury instructions were not even at issue.

      . Most recently, the Court of Appeals for the Third Circuit has held that, so long as the court’s charge to the jury on the role of reputation evidence-is otherwise proper, the trial court does not abuse its discretionary power to choose the wording if it omits expressly requested "standing alone” language. United States v. Spangler, 838 F.2d 85 (3d Cir.1988).


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    539 A.2d 1325
    COMMONWEALTH of Pennsylvania v. Joseph P. WALL, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1987.
    Filed March 24, 1988.

      John E. O’Donnell, Pittsburgh, for appellant.
    Edward M. Clark, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for criminal trespass and defiant trespass. Appellant contends that (1) the trial court erred in refusing to allow him to present the defense of justification; (2) the trial court erred in refusing to charge the jury regarding the defense of justification; (3) the trial court erred in instructing the jury that it should find appellant guilty of criminal trespass; and (4) his sentence of incarceration is unconscionably harsh under the circumstances. For the reasons that follow, we affirm the judgment of sentence.

The facts of the case were summarized by the trial court as follows:

The defendant, Joseph P. Wall of Philadelphia, co-defendant, Joan Andrews of Delaware, and thirteen other men and women from the Pittsburgh area forced their way into the offices of the Women’s Health Services in downtown Pittsburgh at approximately 7:30 a.m. on May 10, 1985. The defendants were engaged in what they called a “rescue mission.” Their purpose was to hinder or stop the performance of abortions at this facility. (N.T. 11/6/85, p. 365). To this end, Mr. Wall and Ms. Andrews proceeded to Examination Room # 6 entered, locked the door, and barricaded themselves therein by positioning the examination tables against the door. [Id. at 340, 399]. Ms. Andrews then went through a cabinet containing sterilized instruments and unwrapped several of them, exposing them to the air and rendering them unsterile. [Id. at 340]. They next placed literature and stickers on various pieces of furniture and equipment in the examination room [Id. at 340-42, 399-400].
After they distributed this literature, they began to pray aloud [Id. at 348]. During their prayers, City of Pittsburgh police officers announced their presence and advised them that they were trespassing and directed them to leave [Id. at 348-49]. Mr. Wall and Ms. Andrews answered that they “could not leave as long as abortions would be taking place ...” [Id. at 349]. Mr. Wall then read a prepared statement to police after which the police repeated their demand that the pair come out of the room. [Id. at 350]. The police officers then cut the lock off the door and forced it open.
The defendants were placed under arrest. They were dragged out of the room and down a hallway as they passively resisted attempts of the police officers to escort them out of the room.
******
A criminal information was filed charging Wall and Andrews with the crimes of Criminal Trespass, 18 Pa.C. S.A. § 3503(a)(1); Defiant Trespass, 18 Pa.C.S.A. § 3503(b)(l)(i); Criminal Mischief, 18 Pa.C.S.A. § 3304(a)(1); and Resisting Arrest or Other Law Enforcement, 18 Pa.C.S.A. § 5104. They were found guilty by a jury of Criminal Trespass and Defiant Trespass, and acquitted of Criminal Mischief and Resisting Arrest on November 12, 1985. Post-trial motions were timely filed, argued, and denied. Joseph Wall was sentenced on July 7, 1986, to a term of imprisonment of not less than six months nor more than twelve months at the State Correctional Institute at Mercer, and a concurrent period of probation of three years. This appeal followed.

Trial Court Opinion at 1-3.

Appellant first contends that the trial court erred in refusing to allow him to present the defense of justification. The defense of justification is defined as follows:

Conduct which the actor believes to be necessary to avoid a harm or evil to himself or another is justifiable if:
(1) the harm sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;
(2) neither this title nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
(3) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

18 Pa.C.S.A. § 503(a). To utilize the defense of justification, the harm or evil sought to be avoided must be readily apparent. Commonwealth v. Capitolo, 508 Pa. 372, 378, 498 A.2d 806, 808 (1985) (involving use of justification defense in prosecution against demonstrators at nuclear power plant). “The defense cannot be permitted to justify acts taken to foreclose speculative and uncertain dangers, and is therefore limited in application to acts directed at the avoidance of harm that is reasonably certain to occur.” Id. Moreover, “the defense cannot be available in situations where the conduct some perceive to engender public disaster has been specifically approved of by legislation making it legal conduct____” Commonwealth v. Berrigan, 509 Pa. 118, 123, 501 A.2d 226, 229 (1985) (defendants precluded from invoking justification defense in prosecution arising from demonstration at facility of manufacturer of nuclear weapon components).

In order, then, to be entitled to an instruction on justification as a defense to the crime charged, the actor must first offer evidence that will show:
(1) that the actor was faced with a clear and imminent harm, not one which is debatable or speculative;
(2) that the actor could reasonably expect that the actor’s actions would be effective in avoiding this greater harm;
(3) that there is no legal alternative which will be effective in abating the harm; and
(4) that the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.

Commonwealth v. Capitolo, supra, 508 Pa. at 378, 498 A.2d at 809. The trial court may disallow the justification defense if a defendant fails to proffer sufficient evidence to establish even one of the above factors. Id., 508 Pa. at 379, 498 A.2d at 809.

Here, the Commonwealth filed a motion in limine to preclude appellant from raising the defense of justification. Following a hearing, the trial court granted the Commonwealth’s motion, finding that appellant was unable to establish any of the four requirements set forth in Capitolo. N.T. November 6, 1985 at 51. For the following reasons, we agree that appellant was not entitled to raise the defense of justification.

First, appellant was unable to demonstrate that he was faced with a clear and readily apparent harm. He argues that the harm that justifies his actions is the imminent threat to unborn children. Brief for Appellant at 10. The law, however, does not recognize abortions as a harm. In concluding that a woman’s right of personal privacy, grounded in the United States Constitution, encompasses the abortion decision, the Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), held that:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to to the medical judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

Id. at 164-65. See also Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 759, 106 S.Ct. 2169, 2178, 90 L.Ed.2d 779, 792 (1986) (constitutional principles that led to decision in Roe in 1973 still provide compelling reason for recognizing constitutional dimensions of woman’s right to decide whether to end her pregnancy); Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 427, 103 S.Ct. 2481, 2491, 76 L.Ed.2d 687 (1983) (woman’s right to abortion is based firmly on individual’s longstanding “freedom of personal choice in matters of marriage and family life”); Planned Parenthood Assoc, v. Fitzpatrick, 401 F.Supp. 554, 563 (E.D.Pa.1975), aff'd mem. sub nom. Franklin v. Fitzpatrick, 428 U.S. 901, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976) (fundamental right to privacy encompasses woman’s decision to have abortion, which can be limited only by compelling state interest). In the face of such clearly established precedent we cannot conclude that the abortions appellant sought to prevent presented a clear and imminent harm.

Second, appellant was unable to establish that he could reasonably expect that his demonstration at Women’s Health Services would be effective in preventing what he considered a “greater harm” — i.e., abortions. Appellant’s action disrupted the Clinic only temporarily. Certainly, the women scheduled to have abortions at the Clinic that morning were free to go to another examination room or another clinic to have an abortion or could have changed the appointment to another day. There is no evidence that any women discontinued their efforts to obtain an abortion as the result of appellant’s actions. Because it would have been unrealistic for appellant to expect that he would be allowed to remain in the Clinic and disrupt their services indefinitely, wé conclude that appellant could not reasonably believe that his actions would be effective in preventing abortions.

Third, appellant was unable to establish that there was no legal alternative available that would have been effective in abating the harm. Certainly, appellant was free to stand on a public street outside of Women’s Health Services and exercise his first amendment rights by providing information regarding abortions to persons entering the Clinic. In addition, appellant can lobby for legislative reforms in the area of abortion. Either of these legal alternatives to criminal trespass would be a no less effective means of preventing abortions than the action taken by appellant in this case.

Fourth, appellant has failed to demonstrate that the Legislature has not acted to preclude the defense of justification by a clear and deliberate choice regarding abortion. Although the Legislature has enacted legislation regulating abortions, see 18 Pa.C.S.A. §§ 3201-3220, it has not enacted legislation prohibiting a woman from obtaining an abortion. Because the Legislature has not enacted legislation prohibiting a woman from obtaining an abortion prior to viability, (and, indeed, cannot constitutionally enact such legislation, see Roe v. Wade, supra) we conclude that it has effectively precluded the justification defense with regard to protests at abortion facilities. Accordingly, appellant is unable to establish any of the four requirements that would entitle him to raise justification as a defense to criminal trespass or defiant trespass at an abortion facility. See Commonwealth v. Capitolo, supra.

Despite the above, appellant nevertheless insists that he was justified in violating the law in this case because his actions were motivated by higher principles. To accept appellant’s argument would be tantamount to judicially sanctioning vigilantism. If every person were to act upon his or her personal beliefs in this manner, and we were to sanction the act, the result would be utter chaos. In a society of laws and not of individuals, we cannot allow each individual to determine, based upon his or her personal beliefs, whether another person may exercise her constitutional rights and then allow that individual to assert the defense of justification to escape criminal liability. We recognize that, despite our proscription, some individuals, because of firmly held and honestly believed convictions, will feel compelled to break the law. If they choose to do so, however, they must be prepared to face the consequences. Thus, such private attempts to circumvent the law with the aim to deprive a pregnant woman of her right to obtain an abortion will not be tolerated by this Court. Accordingly, for the reasons set forth above, we conclude that the trial court properly determined that appellant was not entitled to raise the justification defense.

Appellant next contends that the trial court erred in refusing to charge the jury regarding the defense of justification. Because we hold that appellant was not entitled to assert the justification defense at trial, we conclude that he was not entitled to a jury instruction regarding the defense.

Appellant next contends that the trial court erred in instructing the jury that it should find him guilty of criminal trespass. This issue is waived. Appellant argues that the following instruction was erroneous:

If after considering all of the evidence, you find that the Commonwealth has established each of these elements beyond a reasonable doubt, then you must find the defendants guilty. On the other hand, if you find that the Commonwealth has failed to establish each of these elements beyond a reasonable doubt, you must find the defendants not guilty.

N.T. November 6, 1985 at 502.

If after considering all of the evidence, you find that the Commonwealth has established each of these elements beyond a reasonable doubt, then you should find the defendant guilty of criminal trespass. Otherwise, you must find the defendant not guilty.

Id. at 516-17. Appellant has not preserved this claim for our review because he failed to make an objection to the court’s charge to the jury. See Commonwealth v. Jensch, 322 Pa.Superior Ct. 304, 316, 469 A.2d 632, 638 (1983) (failure to specifically object to trial court’s charge waives issue). See also Pa.R.A.P. 302(b); Pa.R.Crim.P. 1119(b). Accordingly, we will not address the merits of this issue.

Appellant last contends that his sentence of incarceration is unconscionably harsh under the circumstances. The issue raised by appellant concerns a discretionary aspect of sentencing. The requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) therefore apply. Appellant has failed to include in his brief “a concise statement of the reasons relied upon for allowance of appeal” as required by Rule 2119(f) and Tuladziecki. In Commonwealth v. Krum, 367 Pa.Superior Ct. 511, 533 A.2d 134 (1987), this Court, sitting en banc, recently held that an appellant’s failure to comply with Rule 2119(f) and Tuladziecki, if not objected to by appellee, is a waivable procedural violation. Id., 367 Pa.Superior Ct. at 519, 533 A.2d at 138.

Here, however, the Commonwealth has objected to appellant’s failure to include in his brief a concise statement of the reasons relied upon for allowance of appeal. Brief for Appellee at 17-19. Accordingly, because appellant failed to comply with Rule 2119(f) and Tuladziecki, and because the Commonwealth has objected, we must disallow appellant’s appeal as to this issue.

For the above-stated reasons, we affirm the judgment of sentence.

Affirmed.

      . Although the issue of justification as a defense to criminal prosecutions arising from demonstrations at abortion clinics has never been addressed by our appellate courts, it has been addressed by courts in other jurisdictions, who have unanimously determined that the justification defense is not available to abortion protesters. See Cleveland v. Municipality of Anchorage, 631 P.2d 1073 (Alaska 1981); People v. Stiso, 93 Ill.App.3d 101, 48 Ill.Dec. 687, 416 N.E.2d 1209 (1981); People v. Krizka, 92 Ill.App.3d 288, 48 Ill.Dec. 141, 416 N.E.2d 36 (1981); Sigma Reproductive Health Center v. State, 297 Md. 660, 467 A.2d 483 (1983); City of St. Louis v. Klocker, 637 S.W.2d 174 (Mo.App.1982).

      . At the hearing, appellant asserted that the justification defense should apply because the evidence would show, inter alia, the following:
      (1) life commences at conception;
      (2) abortion imminently threatens thousands of people (unborn children) daily;
      (3) abortion threatens the foundation of our society; and,
      (4) his “rescue mission” was the only effective means of saving human lives.
      Trial Court Opinion at 5.

      . We do not question the sincerity of appellant’s convictions. We note, however, that by characterizing his efforts as an attempt to save "lives”, i.e., unborn children, appellant assumes as fact a matter that is at the very heart of the most hotly contested aspect of the abortion controversy. In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme Court stated that:
      We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

        Id. at 159, 93 S.Ct. at 715. Thus, although appellant’s argument regarding abortions as a harm may possess force as a personal philosophical or religious matter, as a legal matter the "harm" involved remains, at best, merely speculative.
      We recognize that people differ strongly in their views concerning abortion. Regardless of one’s personal beliefs, however, a woman possesses a constitutional right to obtain an abortion. The doctrine of stare decisis “demands respect in a society governed by the rule of law” and it is especially compelling that we adhere to the doctrine of stare decisis in applying the principles of Roe v. Wade. Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 419-20, n. 1, 103 S.Ct. 2481, 2487, n. 1, 76 L.Ed.2d 687 (1983). “[I]t should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them." Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 759, 106 S.Ct. 2169, 2178, 90 L.Ed.2d 779, 792-93 (1986) (quoting Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955)).

      . Because neither party argues to the contrary, we assume that the Women’s Health Services performed abortions in compliance with existing law. We do not mean to suggest, however, that had Women’s Health Services been engaged in performing unlawful abortions, appellant’s actions would have been justified.

      . Portions of the Abortion Control Act, 18 Pa.C.S.A. §§ 3201-3220, have been declared unconstitutional. See Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986).

      . We are guided by Justice Brandéis’ dissent in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), when, arguing that the law should place limits on the actions of every one, including the government, he stated that
      In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously---- Crime is contagious. If the government becomes a lawbreaker; it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.

        Id. at 485, 48 S.Ct. at 575.

      . As was stated by the Alaska Supreme Court in Cleveland v. Municipality of Anchorage, 631 P.2d 1073 (Alaska 1981):
      If the legislature cannot delegate a “veto power” to the patient’s parent or spouse, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), we think it unlikely that a state court could delegate such a “veto power” to strangers, to be exercised in such an obtrusive manner.

        Id. at 1080 n. 5.

      . We note that appellant did not file a reply brief with this Court in an attempt to comply with Rule 2119(f) and Tuladziecki.


author: BECK, Judge:

text:
    539 A.2d 1331
    COMMONWEALTH of Pennsylvania v. Barry FLECK, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1987.
    Filed April 4, 1988.
    Andrew F. Schneider, Langhome, for appellant.
    Janice Zerbe, Assistant District Attorney, Doylestown, for Com., appellee.

      Before GRILLO, President Judge, and BROSKY and BECK, JJ.
   BECK, Judge:

The bill of information charged appellant with simple assault, 18 Pa.Cons.Stat.Ann. § 2701(a)(1) (Purdon 1983), and listed the grade as a second degree misdemeanor. The evidence at trial established that appellant and the complainant engaged in a scuffle at a crowded bar. The complainant testified that appellant punched him without any provocation. Appellant, on the other hand, testified that he punched the complainant in self-defense after the complainant attacked appellant. The trial court decided that the evidence produced at trial would support a jury’s finding that the fight or scuffle was entered into by mutual consent, in which case the alleged assault would be downgraded to a misdemeanor of the third degree. The court then, sua sponte and over defense counsel’s objection, instructed the jury that it could find the appellant guilty of the lesser degree of simple assault if the jury found that the scuffle was entered into by mutual consent. Appellant asserts on appeal that the trial court acted improperly in so instructing the jury over the defense’s objection. We agree and vacate the judgment of sentence and grant appellant a new trial.

At no time before or during trial was appellant alerted to the possibility that he would have to defend against a charge of simple assault by mutual consent. The bill of information specifically listed the simple assault as a misdemeanor of the second degree. The Commonwealth did not pursue a mutual consent theory and did not ask for the instruction on mutual consent. Rather, the Commonwealth’s position throughout the trial was that the complainant did not consent to any fight, but was punched by appellant without any provocation on the complainant’s part. In fact, complainant testified that after he was struck, he simply fell. He did not admit to taking any defensive or retaliatory actions against appellant.

Unaware that the jury would be instructed to consider whether a fight by mutual consent took place, appellant structured his defense to combat the charge of a second degree simple assault. He testified that he struck the complainant in self-defense after the complainant swung at him with a drink. As appellant complains, he would have structured his defense differently had he known that he would be charged with fighting by mutual consent. Appellant could then have employed different impeachment tactics showing that the complainant was trying to avoid criminal charges against himself by testifying against appellant. Instead, by asserting self-defense, appellant sought an outright acquittal from the jury, not a downgraded verdict.

By instructing the jurors that they could consider whether the fight was entered into by mutual consent and that so finding could return a verdict downgrading the offense, the trial court gave to the jury an alternative to acquittal on the second degree assault charge. In doing so over the defense’s objection, the court went beyond its responsibility to clarify the issues and define the pertinent questions of law. The court improperly assumed the responsibilities of an advocate by introducing a new theory to downgrade the offense. While such action could in some cases be seen as helpful to the defense, it does interfere with defense strategy by lessening the chances of an outright acquittal. Such an invasion is particularly evident here where defense counsel objected to the proposed charge and resisted the theory that mutual consent was an issue. See Hrivnak v. Perrone, 472 Pa. 348, 372 A.2d 730 (1977) (trial court cannot assume an advocate’s function of introducing theories which were not raised by the parties and were resisted by the plaintiff throughout the trial). Such action by the trial court, if condoned, would prevent a defense attorney from following the legitimate and often effective trial strategy of seeking outright acquittal. See, e.g., Commonwealth v. Musi, 486 Pa. 102, 110, 404 A.2d 378, 382 (1979) (defense counsel pursued client’s best interest by not requesting involuntary manslaughter charge so as not to suggest compromise verdict to the jury); Commonwealth v. Westcott, 362 Pa.Super. 176, 207, 523 A.2d 1140, 1155, appeal denied, 516 Pa. 640, 533 A.2d 712 (1987) (defense counsel’s omission to request instruction on lesser included offenses was legitimate trial strategy designed to keep from the jury a suggestion of compromise). Further, as in the present case, the introduction of such a theory at the end of the trial prevented the defense from structuring an effective defense.

Such a sua sponte instruction not only constitutes uninvited interference with defense strategy, but also invades the prosecution function. Although the prosecution did not object to the trial court’s charge on mutual consent, it never pursued such a theory at trial. The prosecution instead aimed for a conviction of simple assault in the second degree. The trial court’s action was similar to a trial court amending the information sua sponte to include a charge of a lesser grade. Such an amendment is an improper invasion of the prosecutorial function. Commonwealth v. Donaldson, 339 Pa.Super. 237, 488 A.2d 639 (1985). The unwarranted instruction obviously prejudiced appellant. The jury took the opportunity to return a compromise verdict and did so by finding appellant guilty of simple assault in the third degree.

Therefore, we vacate appellant’s judgment of sentence and remand for a new trial.

      . The statute under which appellant was charged provides in part:
      (a) Offense defined. — A person is guilty of assault if he:
      (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
      (b) Grading. — Simple assault is a misdemeanor of the second degree unless committed in a fight or scuffle entered into by mutual consent, in which case it is a misdemeanor of the third degree.
      18 Pa.Cons.Stat.Ann. § 2701 (Purdon 1983).

      . Appellant also asserts that the charge to the jury on the issue of self-defense was inadequate and that the court erred in permitting testimony by a Commonwealth witness concerning settlement conversations. Since we now vacate appellant’s judgment of sentence and remand for a new trial on the strength of appellant’s initial claim, we do not reach those other issues.


text:
    539 A.2d 1333
    COMMONWEALTH of Pennsylvania v. Gregory SHEPPARD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 1, 1988.
    Filed April 4, 1988.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before DEL SOLE, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the order below granting the Commonwealth’s petition to vacate a prior order that had granted appellant’s motion to discharge the prosecution. Appellant contends that the trial court lacked jurisdiction to vacate the discharge order because the court did not act within the thirty day period required by 42 Pa.C.S.A. § 5505. For the reasons that follow, we agree, and, accordingly, reverse the order below and order appellant discharged.

Appellant was arrested and held for trial on charges arising from the theft of an automobile. Appellant’s case was listed for a non-jury trial. On March 23, 1987, the matter was called to trial and appellant moved for discharge. The trial court granted the motion and entered an order discharging appellant. The Commonwealth did not file an appeal from this order. Thirty-one days later, however, the Commonwealth filed a petition to vacate the March 23, 1987 discharge order. On May 13, 1987, following a hearing, the trial court granted the Commonwealth’s petition, and entered an order vacating the discharge order, and listing the case for trial. This appeal followed.

Appellant contends that the trial court lacked jurisdiction to enter the May 13, 1987 order because it did not act within thirty days of its original order discharging appellant, as is required by 42 Pa.C.S.A. § 5505. We agree. Under the relevant portion of § 5505, a court retains power to “modify or rescind any order within thirty days after its entry”. Id. “Thereafter, the [order] cannot normally be modified, rescinded or vacated.” Simpson v. Allstate Ins. Co., 350 Pa.Superior Ct. 239, 244, 504 A.2d 335, 337 (1986) (citation omitted) (en banc). See also Commonwealth v. Cook, 359 Pa.Superior Ct. 216, 221, 518 A.2d 858, 860-61 (1986) (trial court does not possess authority to reconsider prior order beyond thirty-day period specified in 42 Pa.C.S.A. § 5505). In Simpson, supra, our Court, sitting en banc, emphasized the “very definite function” that this doctrine of finality serves: “[it] establishes] a point at which litigants, counsel and courts ordinarily may regard contested lawsuits as being at an end.” Simpson v. Allstate Ins. Co., supra (citations omitted). Moreover, with specific regard to the thirty day rule mandated by § 5505, the Simpson court noted that,

Although the inability of a court to grant relief from a judgment entered in a contested action after the appeal period has expired is not absolute, the discretionary power of the court over such judgments is very limited. Generally, judgments regularly entered in adverse proceedings cannot be opened or vacated after they have become final, unless there has been fraud or some other circumstance “so grave or compelling as to constitute ‘extraordinary cause’ justifying intervention of the court. ”

Id., 350 Pa.Superior Ct. at 245, 504 A.2d at 337 (emphasis supplied) (quoting Klugman v. Gimbel Brothers, Inc., 198 Pa.Superior Ct. 268, 272, 182 A.2d 223, 225 (1962)). See also Commonwealth v. Fiore, 341 Pa.Superior Ct. 305, 313, 491 A.2d 276, 280-81 (1985) (court erred in vacating judgment of sentence more than thirty days after its entry where there was no proof that sentence was procured by perpetration of fraud upon court).

Here, it is undisputed that the Commonwealth did not petition the court to reconsider its discharge order within the mandated thirty day period. Accordingly, we may affirm the court’s May 13, 1987 order vacating the discharge order only if there is proof in the record that the discharge order was procured by the perpetration of a fraud upon the court. See Commonwealth v. Fiore, supra.

Our review of the record discloses no evidence that appellant procured the discharge order by fraudulent means. The basis for appellant’s motion to discharge was that the Commonwealth had failed to supply pre-trial discovery. At the hearing held on the Commonwealth’s petition to vacate, the Commonwealth maintained that appellant had never made a formal discovery request. N.T. May 13, 1987 at 1. At the time the discharge order was issued, the court apparently assumed that appellant had made a formal discovery request, and relied upon the presence of such a formal request in determining that discharge was appropriate. Significantly, however, neither the trial court nor the Commonwealth suggest that appellant, at any time, represented that he had made a formal discovery request. Thus, we cannot conclude that the court’s mistaken assumption regarding the existence of a formal discovery request resulted from misrepresentations made by appellant. Accordingly, even if the court granted appellant’s motion to discharge based upon “misinformation”, it does not follow that appellant is responsible for that misinformation. Moreover, we are not satisfied that such misinformation is the equivalent of a fraud or other grave or compelling circumstance under Simpson v. Allstate Ins. Co., supra. Because the court’s mistaken assumption regarding the existence of a formal discovery request did not result from a fraud perpetrated by appellant, and because the court otherwise lacked authority to issue its May 13, 1987 order, we must conclude that the trial court erred in vacating the March 23, 1987 order discharging appellant. Commonwealth v. Cook, supra; Simpson v. Allstate Ins. Co., supra; Commonwealth v. Fiore, supra.

For the foregoing reasons, we reverse the order of May 13, 1987, and we reinstate the order of March 23, 1987 discharging appellant. Jurisdiction is relinquished.

Order reversed. Appellant discharged. Jurisdiction is relinquished.

      . Section 5505 provides in its entirety that:
      Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within thirty days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

        Id.

      . Indeed, the trial court stated that appellant’s § 5505 argument was "technically correct.” Trial Court Opinion at 2-3.

      . Thus, the trial court noted that "the misinformation pertained to the absence of any formal discovery request by the defendant and this Court’s reliance on such a request in entering its sanction of discharge." Trial Court Opinion at 3-4.
      We note that, because of our disposition of this case, we need not determine whether (1) a "formal” discovery request was in fact made, and (2) the effect that the absence of such a “formal" request would have on the case.

      . There is no stenographic record of the March 23, 1987 hearing. At the May 13, 1987 hearing, however, appellant’s counsel recounted on the record the representations that he had made at the March 23, 1987 hearing. Counsel stated that:
      When the case was called to trial I represented that there was a discovery conference on January 6th, two months prior to the trial date. I represented at that time the District Attorney's file was missing. The Commonwealth did not challenge that version of the facts. N.T. May 13, 1987 at 6. We note that the Commonwealth did not dispute counsel’s recollection of the facts related to the March 23 hearing.


author: OLSZEWSKI, Judge:

text:
    539 A.2d 1335
    COMMONWEALTH of Pennsylvania v. William SHEPPARD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 21, 1987.
    Filed April 4, 1988.

      John J. Kevlock, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before McEWEN, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the trial court’s order denying appellant’s petition for relief under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq. For the reasons stated below, we affirm the judgment of the trial court.

A statement of the case follows. Appellant was charged and found guilty of first-degree murder and possession of an instrument of a crime. On October 6, 1977, he was sentenced to concurrent terms of life imprisonment for the conviction of first-degree murder with one to five years’ imprisonment for the conviction of possession of an instrument of a crime. On September 7, 1979, the judgment of sentence was affirmed by our Court. Commonwealth v. Shepherd, 269 Pa.Super. 291, 409 A.2d 894 (1979). Petition for allowance of appeal to the Supreme Court was denied on February 4, 1980.

Appellant’s first pro se petition for relief under the Post Conviction Hearing Act was filed on September 24, 1980. Other than prior counsel was appointed to represent him in this matter, and an amended petition was filed. Following a hearing on this matter, the appellant’s petition was denied on June 17, 1982. This decision was affirmed by our Court on April 6, 1984. Commonwealth v. Sheppard, 326 Pa.Super. 619, 474 A.2d 645 (1984).

On April 29, 1986, appellant filed the instant (second) pro se petition for relief under the Post Conviction Hearing Act. Other than prior counsel was appointed to represent him and to file an amended petition. By letter dated March 23, 1987, PCHA counsel notified the court that he was unable to ascertain any issues of arguable merit from the record and that the issues raised by appellant were without merit.

Upon receipt of this notice, the trial court undertook an independent review of the record and applicable law. Thereafter, the trial court entered an order on May 1,1987, denying appellant’s PCHA petition. Upon request of counsel, the trial court vacated the May 1, 1987, order and reinstated it as of June 2, 1987, so that appellant could timely file the instant appeal.

Appellant presents one issue for our review. Did the second PCHA court err in denying appellant’s petition without a hearing in view of the fact that appointed counsel did not comply with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)?

Appellant’s argument is premised upon this Court’s holding in Commonwealth v. Finley, 330 Pa.Super. 313, 479 A.2d 568 (1984), appeal dismissed 510 Pa. 304, 507 A.2d 822, cert granted Pennsylvania v. Finley, — U.S.-, 107 S.Ct. 61, 93 L.Ed 2d 20 (1986), rev’d Pennsylvania v. Finley, — U.S.-, 107 S.Ct. 1990, 95 L.Ed 2d 539 (1987). Commonwealth v. Finley held that a court-appointed attorney representing a defendant in a PCHA proceeding must follow the procedure set forth in Anders when he is of the opinion that the case presents no basis for an appeal. Specifically, Anders provided court-appointed counsel in the above situation with two choices: (1) he could file briefs and argue the case on behalf of his client; or (2) he may choose to withdraw his services, in which case he must so advise the court and request permission to withdraw. Counsel’s request to withdraw must be accompanied with a brief referring to anything in the record which arguably supports an appeal. This brief must be provided to defendant within enough time to allow defendant to pursue an appeal. Commonwealth v. Finley, supra.

In the case at hand, appellant’s counsel conducted a thorough review of the record and was unable to discern any issues, which had not been finally litigated, which presented arguable merit. Appellant's counsel so advised the court in a letter with copies of the letter sent to the district attorney and appellant. Appellant’s counsel further presented his position to the court at a hearing on May 1, 1987. At that the time, the court directed counsel to perfect an appeal on appellant’s behalf, should appellant so wish, before petitioning the court for permission to withdraw from the case. Accordingly, counsel perfected an appeal to this Court on behalf of appellant.

We feel that this procedure was substantially in accordance with that required by Commonwealth v. Finley. Although admittedly Finley was not followed to the letter, we believe that the purpose to be served by the Finley requirements was fulfilled in this case. Specifically, the court was advised of counsel’s wish to withdraw from the case; counsel outlined the legal issues in the case which might arguably support an appeal; and the defendant was so advised and his right to appeal was protected.

The order of the trial court is affirmed.

      . This statement of the law, as articulated by Commonwealth v. Finley, was overruled by the United States Supreme Court in Pennsylvania v. Finley, — U.S.-, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Pennsylvania v. Finley held that, as a matter of federal constitutional law, the requirements of Anders do not apply to collateral proceedings such as a petition under the Post Conviction Hearing Act. Our Court, in accordance with Pennsylvania v. Finley, proposed a new procedure for appointed counsel to follow when they are asked to file what they believe to be a frivolous PCIIA appeal. See Commonwealth v. Rauser, 367 Pa.Super. 370, 532 A.2d 1191 (1987). Although we find merit in the procedure suggested by Rauser, we believe that the matter is one of rule-making which is within the strict purview of our Supreme Court in its supervisory power. See Commonwealth v. Schimelfenig, 361 Pa.Super. 325, 522 A.2d 605 (1987). We therefore leave for the Supreme Court the adoption of the procedure suggested by Rauser. See Commonwealth v. Harris, 370 Pa.Super. 575, 537 A.2d 24 (1988).


author: HESTER, Judge:

text:
    539 A.2d 1337
    Linda PETTO, Appellant, v. George PETTO.
    Superior Court of Pennsylvania.
    Argued Dec. 10, 1987.
    Filed April 4, 1988.

      Stephen A. McBride, Milford, for appellant.
    Joseph T. Wright, Jr., Scranton, for appellee.
    Before WIEAND, KELLY and HESTER, JJ.
   HESTER, Judge:

This appeal is from a final order denying appellant’s petition for special relief. Appellant argues that the trial court abused its discretion by failing to impose a security arrangement on the funds due appellee from the equitable distribution of the parties’ marital property in order to insure appellee’s payment of child support. We agree; therefore, we reverse and remand for proceedings consistent with this opinion.

The parties were married on September 7, 1969, and have two children, Janvier, age fourteen, and Sarah, age thirteen. On September 5, 1984, the parties separated and the children thereafter resided with appellant-mother. Appellee-father moved to Brazil on October 15, 1984, where he has continued to reside. On December 17,1984, appellant instituted a divorce action and later amended her complaint to include a child support claim on May 27, 1986. The trial court appointed a master and the parties entered info a written custody agreement whereby appellant received primary physical and legal custody of the children. The trial court entered a divorce decree on February 24, 1987, and incorporated the master’s report which required appellee to pay $200 per month child support, appellant to pay appellee $12,419.43 as part of their equitable distribution, and appellant to receive the family residence as well as personal and investment properties. Appellee filed exceptions to the master’s recommendations on February 25, 1987, and a motion to reconsider and/or vacate a decree in divorce on March 5, 1987. However, on March 26, 1987, appellee filed praecipes to discontinue both the exceptions and the motion. On April 30,1987, appellant filed a petition for special relief requesting the court to secure the remaining funds appellant owed appellee in order to insure future child support payments. The trial court denied appellant’s request on June 8, 1987, and she filed this timely appeal.

The evidence establishes that from the time the parties married, appellee had stated his intent to retire at age fifty. When a hotel owned by the parties was destroyed by fire on November 5,1978, appellee decided that he would no longer work and that appellant would be required to support the family. Appellant was employed at various jobs while appellee worked sporadically in part-time positions. Following his termination of employment as a bartender in 1982, appellee remained unemployed until October 15, 1984, when he moved to Brazil. Prior to moving to Brazil, appellee had changed the names on the parties’ joint bank accounts and had obtained a new mailing address to which bank statements were forwarded, all without appellant’s knowledge. When appellee left for Brazil, he took with him the bank funds and the childrens’ bonds, totalling approximately $86,000. Appellee has not reported any income since his move to Brazil.

Appellant's sole allegation is that the trial court erred by not imposing a trust or requiring a bond for the money due appellee as security for future child support payments.

Our scope of review of a child support order is well established. “Our Court is required to defer to the court below and will not interfere with its determination absent a clear abuse of discretion.” Leonard v. Leonard, 353 Pa.Super. 604, 608, 510 A.2d 827, 829 (1986). “A finding of abuse will be made only upon a showing of clear and convincing evidence.” Koller v. Koller, 333 Pa.Super. 54, 57, 481 A.2d 1218, 1220 (1984). Although this is a strict standard, this court will not ignore an error of law when reviewing a child support order. Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981).

The Pennsylvania Legislature has determined that:

§ 102. Legislative findings and intent (a) The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:
(3) Give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.
(4) Mitigate the harm to the spouses and their children caused by the legal dissolution of the marriage.

23 Pa.S. § 102(a)(3), (4). Therefore, in order to carry out this intent “[o]rders of child support, alimony, or alimony pendente lite may be enforced as provided by the practice and procedure in actions for support and in the Divorce Code.” Pa.R.C.P. 1920.31(b)(1).

Pursuant to these directives, appellant filed her petition for special relief in compliance with Pa.R.C.P. 1910.25 and 1920.43(a):

Rule 1910.25. Special Relief
At any time after the filing of the complaint, the court may on application issue a preliminary or special injunction, appoint a temporary receiver, order the seizure of property, dispose of seized property or grant other appropriate interim or special relief.
Rule 1920.43. Special Relief
(a) At any time after the filing of the complaint, on petition setting forth facts entitling the party to relief, the court may, upon such terms and conditions as it deems just, including the filing of security,
(1) issue preliminary or special injunctions necessary to prevent the removal, disposition, alienation or encumbering of real or personal property in accordance with Rule 1531(a), (c), (d) and (e); or
(2) order the seizure or attachment of real or personal property; or
(3) grant other appropriate relief.

Appellant argues that appellee’s only asset in this Commonwealth is the money that she owes him, and that once she has paid her debt, the courts of this Commonwealth will no longer have jurisdiction over appellee or his property. Therefore, appellant argues, the traditional means of enforcing a child support order, i.e. contempt, wage attachment, and execution upon a judgment for arrearages, would prove meaningless and unenforceable since appellee is beyond the jurisdiction of the court. Although appellant concedes that there is no case law directly on point to support her request for relief, she alleges that due to the fact that child support orders are modifiable upon a material and substantial change in circumstances, they are never final in the strictest sense; therefore, 23 Pa.S. § 403(a) of the divorce code applies in this case.

23 Pa.S. § 403(a), provides:

§ 403. Injunction against disposition of property pending suit and decree rendering fraudulent transfers null and void (a) Where it appears to the court that a party is about to remove himself or herself or his or her property from the jurisdiction of the court or is about to dispose of, alienate, or encumber property in order to defeat alimony pendente lite, alimony, child and spousal support, or similar award, an injunction may issue to prevent such removal or disposition and such property may be attached as provided by the Rules of Civil Procedure. The court may also issue a writ of ne exeat to preclude such removal.

(Emphasis added.) The trial court held that § 403 did not apply and stated:

The next item brought to this Court’s attention is § 403 of the Divorce Code, (23 Pa.C.S.A. § 403). This section provides that where it appears to the Court that a party is about to remove himself or his property from the Court’s jurisdiction, or said party is about to dispose of property, in order to defeat a Court award for alimony or support, the Court may issue an injunction or a writ of ne exeat, or attach such property in order to preclude its removal. It simply does not appear to this Court that the Defendant, who now resides in Rio de Janiero, is attempting to defeat this Court’s child support award, for there is no direct evidence of such. Thus § 403 does not apply to the instant case.

Trial court opinion, 6/8/87, at 4.

We disagree with the trial court and hold that Pa.R.C.P. 1920.31(b)(1), which permits child support orders to be enforced “as provided by the practice and procedure in actions for support and in the Divorce Code”, makes 23 Pa.S. § 403(a) applicable to this case. The trial court was clearly mistaken in finding that there was no direct evidence of appellee attempting to defeat the child support order. The record clearly indicates that appellee owed five months of arrears at the time the trial court denied appellant’s request for special relief. In fact, the court stated:

There does, however, exist an arrearage of child support payments. Rule 1910.20 of the Pennsylvania Rules of Civil Procedure allow the Plaintiff several means of enforcing a support [order]. One of these methods would be execution upon a judgment for arrearages pursuant to Rule 1910.23. Hence, this Court finds that there exists an interest in these funds for Defendant’s support arrearages which have accrued from February 1, 1987, to date. This is the sum of Two hundred and 00/100 ($200.00) dollars per month, for a period of five (5) months, total-ling One thousand and 00/100 ($1,000.00) dollars. In the interests of judicial economy, this Court will award that sum to the Plaintiff now, and use it as an offset, or credit, against the amount Plaintiff owes Defendant.

Trial court opinion, 6/8/87, at 5-6. Consequently, we agree with appellant that although this case is unique in that we are now ordering the funds due appellee to be placed in a sequestered account in order to insure future child support payments, to do otherwise would frustrate the objectives of justice. Appellee’s history of not paying child support, absconding with the funds in the marital bank accounts and the children’s bonds, coupled with his present lack of income, intent not to become gainfully employed, and residence in Rio de Janiero, Brazil, supports our holding that the funds due appellee must be sequestered and drawn upon monthly to meet appellee’s support obligation for two teenage children.

The trial court abused its discretion in finding that there was no compelling reason to grant the relief sought.

On the contrary, this Court finds that there is no interest in the money due to the Defendant as part of his share of the marital estate based on future child support obligations. Such obligations, because they are to happen in the future, are extremely uncertain, and may not accrue at all. As Defendant’s attorney so ably pointed out, the Defendant may die; the children may die; the Defendant may become physically disabled; or the Plaintiff may become wealthy; all of which are changes in present circumstances which would negate the Defendant’s duty to pay child support. Also, Defendant may pay his support obligations. So, as yet, there is no interest in Plaintiff’s funds for future support payment.

Trial court opinion, 6/8/87, at 5. While we believe that many of the factors enumerated by the trial court in discussing appellee’s health and the children’s health are legitimate concerns, the terms and conditions of a sequestered account could easily provide for any such future circumstances. We find the language in Young v. Young, 507 Pa. 40, 48 n. 11, 488 A.2d 264, 268 n. 11 (1985), particularly instructive in this case, especially where it states that “[o]nce there has been a demonstrated lack of intention of making future [support] payments, we see no reason to force an individual who needs support to obtain a new judgment and commence enforcement proceedings for each missed payment. Such a requirement would be especially harsh [if not impossible] in a case such as this” where appellee lives in Brazil and has no known assets in this Commonwealth. We believe that this holding is indicative of our strong public policy requiring a father to support his children. Finally, this holding is in keeping with our prior decisions concerning the equitable powers of the court in familial matters. See Nucci v. Nucci, 355 Pa.Super. 549, 513 A.2d 1059 (1986) (husband required to post $10,000 to insure future payments under alimony order since husband’s mobility from state to state threatened wife’s ability to enforce order); Mayhue v. Mayhue, 336 Pa.Super. 188, 485 A.2d 494 (1984) (trustee appointed to manage husband’s corporation to prevent his fraudulent misappropriation of wife’s marital property).

Order reversed. Remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . The trial court ordered appellant to pay appellee $12,419.43 minus a $1,000 credit which was imposed to pay for appellee’s arrears.

      . Since appellee did not prefer the hours requested of him, he quit a $17,000 a year position with a local resort after two weeks of work.

      . The supreme court ordered the attachment of a police pension to satisfy an order whose purpose was to enforce an obligation of support. This ruling applied equally to judgments for arrearages and to orders requiring future payments when substantial arrearages already existed.


text:
    539 A.2d 1341
    COMMONWEALTH of Pennsylvania v. Thomas POINDEXTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 8, 1988.
    Filed April 4, 1988.

      MaryAnn F. Swift, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, MONTEMURO and WATKINS, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence entered after a jury convicted appellant of three counts each of rape, statutory rape, and involuntary deviate sexual intercourse. Appellant presents us with four issues for our review: (1) whether counsel was ineffective for failing to seek the recusal of the preliminary hearing judge; (2) whether counsel was ineffective for failing to challenge the bills of information as to one of the victims, A.P., on the basis of double jeopardy; (3) whether the trial court erred by preventing defense counsel from questioning one of the victims, A.P., about a statement she made to the police concerning her sexual conduct with another adult male; and (4) whether the prosecutor failed to prove that the sexual intercourse was by forcible compulsion or by threat of forcible compulsion. In addition, although represented by counsel on this appeal, appellant included the following pro se argument which was attached as a supplemental argument to counsel’s brief: whether trial counsel was ineffective for failing to call certain witnesses. For the reasons stated below, the judgment of sentence is affirmed.

The trial court aptly stated the facts as follows:

Defendant sexually abused his three daughters, [A.P., C1.P., and Ca.P.], commencing on or about January 1, 1974, before they had attained puberty, and continuing on a frequent basis up to August 26, 1983. At all relevant times, his youngest daughters [Cl.P. and Ca.P.], were under the age of 14; [A.P.], the eldest, turned 15 six months before the last incident. The instant charges were filed against defendant on November 2, 1983.

Trial court opinion at 1-2. Appellant was sentenced to a concurrent term of 5-to-10 years’ imprisonment on each of the three involuntary deviate sexual intercourse bills and a consecutive term of 5-to-10 years’ imprisonment on each of the three rape bills.

Appellant’s first contention is that counsel was ineffective for failing to seek the recusal of the preliminary hearing judge since he was the same judge who had presided over a trial for appellant less than two years earlier. When confronted with a claim of ineffectiveness of counsel, this Court must determine whether the issue underlying the charge of ineffectiveness is of arguable merit. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). If the issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis in promoting the client’s interests. Id. In addition, appellant must establish that the ineffectiveness so prejudiced his case that he did not receive a fair trial. See Commonwealth v. Verdekal, 351 Pa.Super. 412, 506 A.2d 415 (1986). Counsel is presumed to be effective and the burden of proving the contrary rests on the party alleging counsel’s ineffectiveness. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). For the following reasons, we find appellant’s contention to be meritless.

The determination of whether a trial judge should recuse himself depends upon the following:

... “the type of evidence that the judge hears; if the evidence is inadmissible and is of a highly prejudicial nature, the judge should recuse himself or declare a mistrial if it is too late for recusal.” The judge should also recuse himself whenever there is substantial doubt as to his ability to preside impartially. The burden to show prejudice, however, is on the party seeking recusal. “If the evidence is admissible, or not of a highly prejudicial nature, recusal is not required,” and while it may be the better practice to have a different judge preside over trial than preside over pre-trial proceedings, such a practice is not constitutionally required and has not been made the basis for setting aside a verdict reached in an otherwise proper trial. This principle appears to be based on “the prevailing view that judicial fact-finders are capable of disregarding prejudicial evidence.”

Commonwealth v. Lewis, 314 Pa.Super. 298, 303-04, 460 A.2d 1149, 1151-1152 (1983) (citations omitted).

Instantly, the Honorable Leonard A. Ivanoski, Jr. presided over appellant’s preliminary hearing and the Honorable Angelo A. Guarino presided over appellant’s jury trial. Appellant has failed to assert any basis for prejudice other than that the preliminary hearing judge presided over an earlier trial involving similar charges brought by one of the victims, A.P., against appellant. The mere participation by a presiding judge in an earlier stage of the proceedings or in an earlier trial is not, in itself, sufficient evidence of prejudice. See Commonwealth v. Edney, 318 Pa.Super. 362, 464 A.2d 1386 (1983); Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982). Appellant merely states in his brief that “[b]ias, prejudice and unfairness should strongly be inferred” because the preliminary hearing judge presided at an earlier trial involving circumstances similar to the instant case. Brief for appellant at 7. We, accordingly, find that appellant has not met his burden of proving prejudice on the part of the preliminary hearing judge.

In addition, appellant’s argument appears to be moot. Our review of the record reveals that nothing occurred during the trial that would cast doubt on the trial judge’s impartiality or objectivity. Moreover, appellant was convicted by a jury. Appellant, consequently, received a fair trial. There is no indication on the record that appellant was prejudiced by the fact that the preliminary hearing judge had presided over an earlier trial involving appellant. See Commonwealth v. Satzberg, 358 Pa.Super. 39, 516 A.2d 758 (1986); Commonwealth v. Johnson, 291 Pa.Super. 566, 436 A.2d 645 (1981). Accordingly, appellant’s trial counsel did not have sufficient grounds to seek recusal of the preliminary hearing judge and, hence, counsel cannot be deemed ineffective for failing to advance a meritless claim.

Appellant’s second contention is that trial counsel was ineffective for failing to challenge the bills of information as to one of the victims, A.P., on the basis of double jeopardy. We disagree.

Double jeopardy protects against a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. See Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983). Appellant was convicted in April of 1982 for assault, indecent assault, and corruption of a minor, arising from one incident with his daughter, A.P., which occurred earlier in 1982. We agree with the trial court that appellant’s 1982 conviction did not protect him from a subsequent prosecution involving later sexual assaults on his daughter, A.P. During appellant’s 1985 trial, A.P. testified that appellant resumed his pattern of rape just months after his conviction in 1982. Accordingly, appellant was not punished twice for a single wrongful act; rather, he was prosecuted and punished for separate acts he committed against A.P. after his 1982 conviction. Hence, trial counsel cannot be considered ineffective for failing to raise a meritless claim.

Appellant’s third contention is that the trial court erred by preventing defense counsel from questioning A.P. about a statement she made to the police concerning her sexual conduct with another adult male. In determining whether evidence of a victim’s sexual conduct is admissible, we must turn to the Rape-Shield Law which provides as follows:

(a) General rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

18 Pa.C.S.A. § 3104(a). Appellant correctly argues that the Rape-Shield Law does not preclude evidence of prior sexual activity with third persons which is offered to show the victim’s bias or motive. In Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985) (en banc), this Court stated:

While we hold that Pennsylvania’s Rape Shield Law may not be used to exclude relevant evidence showing witness’ bias or attacking credibility, we do not hold that all material evidence is necessarily admissible. Although logically relevant, evidence tending to show the victim’s prejudice or lack of credibility may be excluded if “it would so inflame the minds of the jurors that its probative value is outweighed by unfair prejudice.” Commonwealth v. Stewart, 304 Pa.Super. 382, 387, 450 A.2d 732, 734 (1982) (quoting Commonwealth v. Strube, 274 Pa.Super. 199, 216, 418 A.2d 365, 374 (1979) (citations omitted), cert. denied, 449 U.S. 992, 101 S.Ct. 527, 66 L.Ed.2d 288 (1980)).

Id., 337 Pa.Superior Ct. at 557, 487 A.2d at 401.

In the present case, appellant argues that testimony about A.P.’s prior sexual activity with her boyfriend would have shown that A.P. was motivated to press charges against appellant, her father, because of domestic difficulties arising from her relationship with her boyfriend which her father did not approve of and which he had sought to discontinue by filing charges against her boyfriend. We find that the trial court properly limited the scope of defense counsel’s cross-examination since the evidence he sought to elicit had little probative value and was highly prejudicial. Whether A.P. was sexually active with an adult boyfriend was irrelevant on the issue of whether appellant had intercourse with her. As the trial court explained in its opinion, what was relevant was that appellant had filed charges against A.P.’s boyfriend, from which the jury could have inferred that A.P. was pressing the instant charges against appellant in retaliation; this, defense counsel was allowed to argue and show. See N.T. 1/21/85 at 105-110. By excluding non-probative and highly prejudicial evidence of prior sexual conduct, the trial court did nothing to hamper appellant’s defense that A,P. filed the charges against him in retaliation for appellant’s filing of charges against her boyfriend.

Appellant’s fourth contention is that the prosecutor failed to prove that the sexual intercourse was by forcible compulsion or by threat of forcible compulsion. We disagree. In Commonwealth v. Williams, 294 Pa.Super. 93, 439 A.2d 765 (1982), this Court explained:

A person commits the crime of rape when he engages in sexual intercourse with another person not his spouse by forcible compulsion; or by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; or who is unconscious; or who is incapable of consent because of a mental deficiency which would preclude the person of consenting. 18 Pa.C.S.A. 3121. The same criteria apply to the crime of involuntary deviate sexual intercourse. 18 Pa.C.S.A. 3123. The force necessary to support convictions for rape and involuntary deviate sexual intercourse need only be such as to establish lack of consent and to induce the woman to submit without additional resistance. Commonwealth v. Irvin, 260 Pa.Superior Ct. 122, 393 A.2d 1042 (1978). It is not necessary that the victim be beaten, that the victim cry, that the victim become hysterical, or that she be threatened by a weapon for the crime of rape to occur. The degree of force required to constitute rape is relative and depends upon the facts and particular circumstances of the case. It is not necessary that force be actually applied by the perpetrator to the victim. Commonwealth v. Irvin, supra.

Id., 294 Pa.Superior Ct. at 97, 439 A.2d at 767-768. Whether a threat of force has overcome a victim’s will to resist is a question for the jury to determine. See Id.

Instantly, we agree with the trial court that, in light of the circumstances surrounding the sexual assaults, the jury properly found sufficient evidence of force:

Since the sexual assaults commenced at a very tender age, the force applied to compel their submission was by and large subtle and psychological. The evidence established that the girls generally submitted to defendant’s persistent and ofttimes petulant demands for incestual coitus out of a sense of duty and obedience to parental authority. On the occasions when they did resist, he overcame their unwillingness by truculent reproaches and threats to beat them if they did not obey. In fact, both [Cl.P. and Ca.P.] testified that they were beaten on two occasions. As the girls grew older and became aware of their womanhood and the wrongfulness of the acts, he admonished them to remain silent lest they cause the family to split up and lose their mother’s love.

Trial court opinion at 2.

Appellant also raises an issue in a pro se document which was attached as a supplemental argument to counsel’s brief. We will not address appellant’s pro se argument. This Court has stated that it will not consider documents filed pro se by a defendant who is represented by counsel on appeal. See Commonwealth v. Henry, 341 Pa.Super. 146, 491 A.2d 193 (1985); Commonwealth v. Moore, 321 Pa.Super. 1, 467 A.2d 862 (1983).

Accordingly, the judgment of sentence is affirmed.

      . Even if appellant’s pro se argument was properly before us, we would find it meritless. Appellant fails to allege that the witnesses were available and prepared to cooperate and testify for the defense. See Commonwealth v. Griffin, 357 Pa.Super. 308, 515 A.2d 1382 (1986), appeal denied, 515 Pa. 574, 527 A.2d 535 (1987). Accordingly, appellant has failed to meet his burden of proving that the issue underlying his claim of ineffectiveness was of arguable merit.