author: HESTER, Judge: CERCONE, Judge,

text:
    483 A.2d 566
    COMMONWEALTH of Pennsylvania v. Paul MORRISON, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1984.
    Filed Oct. 19, 1984.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   HESTER, Judge:

This is an appeal from judgment of sentence entered after appellant was adjudged guilty on January 21, 1981 of, inter alia, burglary, criminal trespass and conspiracy. Appellant contends the lower court erred in denying his right to appellate review when it dismissed his post-verdict motions.

Appellant’s post-verdict motions were first scheduled for oral argument on March 25, 1981. Due to administrative delay the matter was continued until October 27, 1981, at which time appellant failed to appear.

Appellant again failed to appear on April 6, 1982 as he had escaped the jurisdiction at or about that time. The trial judge specifically addressed appellant’s fugitive status by issuing a bench warrant. On April 22, 1982, the trial judge further recognized appellant’s fugitive status and entered the following notation in the Quarter Sessions File: “Def.— Sentence [deferred sentence].”

When appellant again failed to appear at the October 20, 1982 listing, a second bench warrant was issued. On November 18, 1982, the judge entered in the Quarter Sessions file “BW to stand, Deferred Sentence, c [continued] 12-2-82.”

Appellant was apprehended on or about November 16, 1982, after seven and one-half months as a fugitive. On December 2,1982, the lower court formally dismissed appellant’s post-verdict motions prior to sentencing. Appellant filed with this Court a Petition to Remand requesting that the lower court be required to consider appellant’s post-verdict motions. This Court denied the petition without prejudice to appellant’s right to raise this issue on appeal.

We affirm the lower court based on the factually similar case of Commonwealth v. Lewis, 300 Pa.Super. 191, 446 A.2d 295 (1982). In Lewis, the trial judge afforded the fugitive defendant one continuance for his post-verdict motions. At the next scheduled hearing, the judge noted in the record “9-26-78 Defendant F.T.A. — Bench Warrant issued — Sentence further deferred pending apprehension.”

The trial judge in Lewis dismissed the defendant’s post-verdict motions upon his apprehension. In affirming the dismissal this Court stated:

The action of the court at this second listing [9-26-78] made clear that no longer would sentence be deferred for argument upon the motions. Rather, the court directed that the next proceeding in the case would be for the purpose of imposing sentence, once the defendant was again in custody.

Id,., 300 Pa.Superior Ct. at 193, 446 A.2d at 296.

The record herein contains an even stronger manifestation of intent by the trial judge to proceed directly to sentencing upon appellant’s apprehension. In Lewis, the trial judge specifically addressed the defendant’s fugitive status on one occasion at the 9-26-78 listing. Herein, two separate bench warrants were issued and two distinct Quarter Sessions file notations, deferring sentence, evince the trial judge’s conclusion the post-verdict motions were waived. The trial judge did not abuse his discretion in dismissing appellant’s post-verdict motions, notwithstanding appellant’s fugitive status had terminated on the date the trial judge formally dismissed the post-verdict motions.

Appellant argues he was within the control of the court when his post-verdict motions were improperly dismissed, and Commonwealth v. Harrison, 289 Pa.Super. 126, 432 A.2d 1083 (1981), should control. Therein, the Commonwealth’s Motion to Quash the Appeal due to the defendant’s fugitive status was denied as the defendant was apprehended at the time the Motion to Quash was decided. Appellant’s reliance on Harrison, supra, is mistaken as the appellate court had not considered the Commonwealth’s Motion to Quash the Appeal prior to the defendant’s apprehension. Unlike Harrison, the lower court’s course of action herein was clear prior, to appellant’s apprehension. On two occasions it addressed appellant’s fugitive status and directed sentencing upon his apprehension.

It is clear appellant waived his post-verdict motions by reason of his escape even though he was once again within the control of the court at the time the motions were formally dismissed. A better practice for the lower court would be to state or write for the record a formal dismissal of post-verdict motions at the time the post-verdict motions hearings are scheduled and defendant fails to appear; however, the lower court’s entries in the Quarter Sessions files, similar to those in Lewis, clearly indicate the court considered appellant’s escape to constitute a waiver of the outstanding motions prior to their formal dismissal.

Appellant further contends the court erred in extending the time for commencement of trial in violation of Pa.R. Crim.P. 1100. In light of our above ruling, this issue is waived.

Judgment of sentence affirmed.

CERCONE, J., filed a dissenting opinion.

CERCONE, Judge,

dissenting:

I respectfully dissent. The trial court may properly have dismissed appellant’s post-verdict motions while he was at large. Commonwealth v. Bordean, 256 Pa.Superior Ct. 125, 389 A.2d 633 (1978). However, the court did not formally dismiss those motions until after he was apprehended. My review of the case law leaves me to conclude that, despite Commonwealth v. Lewis, 300 Pa.Superior Ct. 191, 446 A.2d 295 (1982), the weight of authority distinguishes between dismissal of post-verdict motions while a defendant is a fugitive and after apprehension. Such a dismissal in the former case is proper; in the latter case, it is not. See Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975); Commonwealth v. Albert, 260 Pa.Superior Ct. 20, 393 A.2d 991 (1978); Commonwealth v. Borden, 256 Pa.Superior Ct. 125, 389 A.2d 633 (1978); Commonwealth v. Harrison, 289 Pa.Superior Ct. 126, 432 A.2d 1083 (1981). And see, generally Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984).

As Judge Wieand explained the distinction in his Dissent to Commonwealth v. Lewis, supra,

The reason for this distinction becomes more readily apparent if we consider the hypothetical situation in which an escapee is re-captured within a few hours of his escape. Such a defendant, in my judgment, could not properly be held to have forfeited the right to obtain a judicial review of post-verdict motions pending at the time of his escape. It is not the period during which the escape continues that is controlling, however. Rather, it is whether post-verdict motions have been dismissed during the period in which the defendant was outside the custody and control of the court which is determinative. Commonwealth v. Lewis, supra, 300 Pa.Superior Ct. at 196-97, 446 A.2d at 297-98.

Although the lower court’s written comments of record on the issuance of the instant bench warrants can be read as implying that he considered appellant’s post-verdict motions to be waived, the fact is that they were not actually dismissed until two and one-half weeks after he was apprehended.

Because I am of the opinion the court abused its discretion in refusing to consider appellant’s post-verdict motions after he had been returned to the power and control of the court, I would remand this case to the trial court for a consideration of the merits.

      . The bench warrant was withdrawn on May 19, 1982.

      . Appellant’s reliance on Commonwealth v. Borden, 256 Pa.Super. 125, 389 A.2d 633 (1978), is inappropriate. The Court in Borden does not indicate how long the appellant was a fugitive. Herein, appellant was beyond the control of the jurisdiction for seven and one-half months; consequently, the trial judge did not abuse his discretion in dismissing appellant's post-verdict motions.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    483 A.2d 853
    Helen M. BEASLEY v. James E. BEASLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 22, 1983.
    Filed Sept. 28, 1984.
    Reargument Denied Dec. 4, 1984.
    Petition for Allowance of Appeal Denied April 24, 1985.

      Richard A. Sprague and Michael Minkin, Philadelphia, for appellant.
    Neil Hurowitz, King of Prussia, for appellee.
    Before SPAETH, President Judge, and MONTEMURO and CERCONE, JJ.
   PER CURIAM:

This is an appeal from an order of the trial court in a divorce proceeding filed by appellee-wife under the Divorce Code of 1980, granting the request of appellee-wife for $3,500.00 in appraisal costs from appellant-husband. Appellee-wife urges us to quash the appeal as interlocutory. The lower court agreed with appellee that the order was interlocutory and nonappealable. Appellant-husband contends that the lower court abused its discretion in refusing to continue the hearing on the appellee’s motion, in entering the order awarding appraisal fees in the absence of appellant and his counsel in derogation of due process, and in awarding the requested appraisal fees. Precedent supports the appealability of the instant order.

However, in this case, the docket reveals that no final order was entered on the docket following appellant’s failure to file exceptions. See Pa.R.C.P. 1038(e) (on praecipe of party, prothonotary shall enter final judgment if no exceptions are filed timely).

Although in Sutliff v. Sutliff, supra, Carangelo v. Carangelo, 321 Pa.Superior Ct. 219, 467 A.2d 1333 (1983), and Dewalt v. Dewalt, 309 Pa.Superior Ct. 275, 455 A.2d 156 (1983), our court affirmed the order of the trial court on the theory that the appellant’s failure to file exceptions constituted a waiver of the issues raised, the opinions in those cases do not reveal whether or not a final order was entered on the docket following the appellant’s failure to file exceptions. In the instant case, the final order was not entered, and we are constrained to quash this appeal. See Van Ameringen v. Arcadia Co., Inc., 299 Pa.Superior Ct. 444, 445 A.2d 837 (1982) (appeal must be quashed where no exceptions were filed and final judgment was not entered on the docket), and cases cited therein.

Appeal quashed.

      . Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq.

      . In our recent en banc decision, Sutliff v. Sutliff, 326 Pa.Superior Ct. 496, 474 A.2d 599 (1984), the question for our disposition involved the appealability of an order denying alimony pendente lite, counsel fees and expenses. In deciding that such an order is appealable, we stated, however, that
      "[I]t is settled law that an order granting such interim relief is final and appealable, insofar as the money to be paid under the order is involved, since once paid the money is likely unrecoverable. Rutherford v. Rutherford, 152 Pa.Superior Ct. 517, 32 A.2d 921 (1943)."

        See also, Fried v. Fried, 326 Pa.Super. 271,473 A.2d 1087 (1984) (order granting interim counsel fees and expenses after denial of appellant's exceptions is final and appealable); Lowenschuss v. Lowenschuss, 327 Pa.Super. 120, 475 A.2d 127 (1984) (order granting interim counsel fees and expenses after denial of appellant’s exceptions is final and appealable); Rosen v. Rosen, 328 Pa.Superior Ct. 93, 476 A.2d 470 (1984) (order granting interim counsel fees and costs after denial of appellant's exceptions is final and appealable).

      . Under Pa.R.A.P. 905(a), in the interest of judicial economy, this court may notify counsel that final judgment was not entered on the docket and upon its entry, the appeal is treated as taken from a final order even though judgment was entered after the notice of appeal was filed. However, in this case in which the issues have not been preserved for review on the merits, we decline to exercise the Rule 905(a) option.


author: CIRILLO, Judge:

text:
    483 A.2d 855
    COMMONWEALTH of Pennsylvania v. John Vincent WATERS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1984.
    Filed Oct. 12, 1984.
    Reargument Denied Nov. 28, 1984.
    Petition for Allowance of Appeal Denied Feb. 14, 1985.

      Arthur L. Goldberg, Harrisburg, for appellant.
    Kevin A. Hess, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
    Before CHULLO, BECK and CERCONE, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered on January 25, 1983, in the Court of Common Pleas of Cumberland County, Following a jury trial on September 23, 1982, the appellant, John Vincent Waters, was convicted of first-degree murder. This was the second trial of the appellant. In the first trial held in May, 1982, the jury had been unable to render a verdict as to the murder charge, but did find the appellant guilty of a related charge of involuntary deviate sexual intercourse, 18 Pa.C.S. § 3123(4). Post-trial motions as to both the involuntary deviate sexual intercourse conviction and the murder conviction were filed and subsequently denied. The court imposed a sentence of life imprisonment for the murder conviction and a term of four to ten years to be served concurrently for the involuntary deviate sexual intercourse conviction. This appeal followed.

On October 14, 1981, the body of an eleven year old boy, Steven Turner, was found stabbed and bludgeoned to death in an abandoned farm house within a mile of his home in Cumberland County, Pennsylvania. The body, covered by stones and boards, was discovered in the evening as a result of a search for the boy which commenced when he did not come home for dinner.

An autopsy revealed that the 4 foot 9 inch, 80 pound sixth grader had died as a result of multiple head injuries. He had sustained a massive fracture of the skull from blows to the back and the side of the head, a broken jaw on each side of the face, a stab wound to the back of the neck and a stab wound to the back of the chest. He had also been subjected to a post-mortem incise wound on the right wrist and stab wound in the front of the neck. The blade of a knife, with its handle broken off, was left in the victim’s neck. The autopsy report also indicated that sperm was present in the victim’s mouth.

The appellant, John Vincent Waters, a 152 pound, sixteen year old, 5 foot 8 inch high school student told police during an original canvass of the neighborhood, that he had last seen the victim on the afternoon he disappeared. He told the police that he had observed the victim getting into an unknown car which subsequently drove out of the development.

As a result of a further canvass of the neighborhood, the police obtained a steak knife from the appellant’s mother. The knife which she had in her house matched the one found at the murder scene including the blade which had been left in the victim’s throat.

On October 25, 1981, the police requested that the appellant and his father report to the municipal building for questioning concerning the homicide. The appellant was given the Miranda warnings in the presence of his father. Thereafter he and his father consulted with each other. The appellant waived his rights and agreed to speak to the police without having his father present. His father had no objection to such an interrogation.

During the course of the questioning, the appellant made an inculpatory statement, admitting that he had engaged in oral intercourse with the victim and then had killed him.

On appeal, the appellant alleges that the court erred in failing (1) to transfer the proceeding to juvenile court, (2) to suppress his October 25 statement, (3) to grant a mistrial after the publication of prejudicial news stories, (4) to cover several suggested points for charge, and (5) to permit counsel in his closing to discuss the applicable penalties of the offenses. The appellant also challenges the constitutionality of the involuntary deviate sexual intercourse statute and of the imposition of a mandatory life sentence. We find that none of the appellant’s allegations are meritorious and accordingly affirm the judgment of sentence.

The appellant alleges that his case should have been transferred to the juvenile court. He had filed a pre-trial motion requesting such a transfer, but it had been denied. At the time of his arrest, the appellant was sixteen years old, but due to the nature of his offenses, the proceedings were instituted in criminal court.

Under the Judicial Code, 42 Pa.C.S. § 6322(a), the court has the discretion to transfer appropriate cases to juvenile court. It is, however, the burden of the petitioner, herein the appellant, to prove that he does not belong in criminal court. Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975). This is accomplished by demonstrating a need for and an amenability to programs for rehabilitation, supervision, and care provided by the juvenile court system. Commonwealth v. Wallace, 495 Pa. 295, 433 A.2d 856 (1981). If the evidence does not affirmatively establish that the petitioner would benefit from such programs and there exists no special reason to spare the youthful offender from adult prosecution, jurisdiction remains within the criminal court. Commonwealth v. Pyle, supra.

Although the hearing court noted that the appellant’s personal background and lack of a prior record were factors supporting transfer, the nature and circumstances of the crime, specifically the violent, aggressive and willful conduct of the appellant, as well as the need to protect the community, militated against it.

We are satisfied that, under the instant circumstances, the court was warranted in denying the appellant’s petition to transfer. This result is in accord with the great weight of authority. See Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980); Commonwealth v. Wade, 485 Pa. 453, 402 A.2d 1360 (1979); Commonwealth v. Barber, 275 Pa. Super. 144, 418 A.2d 653 (1980).

The appellant next contends that the trial judge erred in denying the motion to suppress his statement made to police on October 25, 1981, a statement that was vital to the Commonwealth’s case. Specifically, the appellant asserts that the police, in conducting the interrogation, did not comply with the “interested adult rule” as promulgated in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669, cert. denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1975).

The McCutchen rule provided that no juvenile could waive his Miranda rights without being provided with an opportunity to consult with an interested adult, who is informed of the juvenile’s rights and is interested in the welfare of the juvenile. However, the Pennsylvania Supreme Court has overruled the McCutchen rule in two recent decisions.

In Commonwealth v. Christmas, 502 Pa. 218, 465 A.2d 989 (1983), the Court created a rebuttable presumption that a juvenile is incompetent to waive his Constitutional rights without first having the opportunity to consult with an interested and informed adult.

[T]here shall exist a presumption that a statement derived in the absence of ... an opportunity for consultation [with an interested and informed adult] is inadmissible, but that presumption shall be regarded as rebutted where the evidence clearly demonstrates that the statement was in fact knowingly and voluntarily given.

Id., 502 Pa. at 223, 465 A.2d at 992.

Last April the Supreme Court overruled Christmas in Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984). “We now reject the application of a rebuttable presumption that a juvenile is incompetent to waive his Constitutional rights without first having an opportunity to consult with an interested and informed adult.” Id., 504 Pa. at 521, 475 A.2d at 1287. In place of the Christmas rebuttable presumption the Court in Williams substituted a totality of the circumstances test. “The protection against the use of involuntary confessions ... is met by application of the totality of circumstances analysis to all questions involving the waiver of rights and the voluntariness of confessions made by juveniles.” Id., 504 Pa. at 523, 475 A.2d at 1288.

The Williams Court listed some factors which should be considered in determining whether a juvenile’s confession was knowingly and freely given. “Among these factors are the juvenile’s youth, experience, comprehension, and the presence or absence of an interested adult.” Id. More specifically, the Williams Court held the confession valid in that case since the defendant’s physical condition was normal at the time of his arrest and detention; he was not subjected to physical or psychological abuse; he was of normal intelligence and responsive to questions asked of him; both defendant and his father were informed of defendant’s rights prior to the confession; defendant’s father was present during the interrogation and when defendant waived his rights and made a confession; and defendant and his father had a continuing opportunity to confer in the presence of authorities. Id.

Applying the Williams test to the instant case, we hold that the appellant knowingly and intelligently waived his Miranda rights and made a voluntary confession. The record shows that appellant, 16, was of normal intelligence and responsive to questions asked of him. There is no evidence that appellant was subjected to physical or psychological abuse. Both appellant and his father were informed of appellant’s Miranda rights on two occasions prior to their private conference out of the presence of the officers. (N.T. 8-9) After appellant and his father consulted privately, the officers again advised them of appellant’s Miranda rights. Both the appellant and his father indicated that they wanted to waive appellant’s rights and both agreed that the appellant would talk to the police without his father being present (N.T. 10-11). During the course of questioning that followed, the appellant on numerous occasions indicated that he did not object to talking to the officers alone without his father (N.T. 11).. Appellant then confessed to the murder.

Based on all the relevant facts and circumstances, it is clear from the totality of the circumstances that the appellant’s confession was knowingly, intelligently, and voluntarily made. The fact that appellant’s father was not present during the interrogation does not invalidate the confession because both the appellant and his father were in full agreement prior to the interrogation that appellant would waive his rights and give a statement. Therefore, the lower court properly denied appellant’s motion to suppress the confession.

The appellant next challenges the denial of his motion for a mistrial, which was prompted by several allegedly prejudicial articles published in The Evening Sentinel, three days after trial had begun. The appellant argues that because of the inflammatory nature of the publicity, prejudice to the appellant must be presumed and a new trial granted.

The decision to declare a mistrial is within the sound discretion of the trial judge and will not be reversed absent a flagrant abuse of discretion. Commonwealth v. Conti, 236 Pa.Super. 488, 345 A.2d 238 (1975).

The record demonstrates that on three occasions at the end of each day’s proceedings, the judge instructed the jury to avoid publicity and discussion of the case. None of the jurors revealed any noncompliance with these instructions when asked on the morning after the publication of the objectionable articles. Therefore, we must conclude that the jury was not exposed to the damaging edition of The Evening Sentinel, thereby precluding any prejudice to the appellant. The motion for a mistrial was properly denied.

The appellant also asserts, as grounds for a new trial, the trial judge’s refusal to instruct the jury in accordance with the appellant’s proposed instructions. However, since no specific objections were made prior to the jury’s deliberations, as required by Pa.R.Crim.P. 1119(b), these objections are deemed waived and can not serve as the basis for a new trial. Commonwealth v. Watlington, 452 Pa. 524, 306 A.2d 892 (1973). Assuming arguendo that the issues had been preserved, it is well settled that a trial judge is not required to accept a requested instruction verbatim, even if legally correct and timely filed. The court may select its own form of expression, so long as the issue is adequately, accurately and clearly presented to the jury. Commonwealth v. Gardner, 246 Pa.Super. 582, 371 A.2d 986 (1977). Our review indicates that all points for charge requested by the appellant were properly rejected as superfluous.

Next the appellant cites as error the court’s refusal to permit defense counsel to discuss the penalties of the offenses in his closing argument. Punishment is a matter solely for the court and not for the jury to know or to consider during its deliberations. Commonwealth v. Lucier, 424 Pa. 47, 225 A.2d 890 (1967). Accordingly, any reference to penalties made in closing would have been improper.

The appellant lastly challenges the constitutionality of the involuntary deviate sexual intercourse statute, 18 Pa.C.S. § 3123(5), as violative of equal protection, and the imposition of a mandatory life sentence for first-degree murder, 18 Pa.C.S. § 1102(a), as cruel and unusual punishment as well as violative of equal protection.

Section 3123(5) imposes criminal sanctions on any person “who engages in deviate sexual intercourse with another person who is less than 16 years of age.” We acknowledge that this statute creates a classification based upon age but maintain that such classification is reasonable, and not violative of the Equal Protection Clause.

The Fourteenth Amendment forbids arbitrary discrimination by the states against persons or classes, but it permits the Commonwealth, as part of its police power, to create and define a criminal offense through classifications of persons so long as these classifications are reasonable and the legislation bears equally on all in the same class. Commonwealth v. Lewis, 443 Pa. 305, 279 A.2d 26, cert. denied 404 U.S. 1003, 92 S.Ct. 571, 30 L.Ed.2d 556 (1971). Thus, a classification will be held valid if there is any conceivable basis upon which it may relate to a legitimate government interest.

We therefore hold that the age classification in 18 Pa.C.S. § 3123(5) is not arbitrary but rather rests upon a real and substantial difference between the maturity of adults and that, of youth. As the hearing court noted in its opinion of August 24, 1982, denying defendant’s post-trial motions:

We conclude that such an interest — society’s interest in fostering healthy surroundings to yield well-adjusted citizens, free of social and psychological scars — exists, and that it is served by a blanket prohibition on all deviate sexual experiences between young adolescents.

The appellant’s challenge to the constitutionality of a mandatory sentence of life imprisonment in cases of first-degree murder where the death sentence is not applicable is similarly without merit.

As the Superior Court noted in Commonwealth v. Bryant, 239 Pa.Super. 43, 361 A.2d 350 (1976):
It is well settled that the fixing of penalties for crimes is a legislative function, United States v. Wallace, 269 F.2d 394, 398 (3d Cir.1959), and it is a maxim of constitutional law that the legislature will be presumed to have acted within constitutional limits, Atchison, Topeka, and Santa Fe R. Co. v. Matthews, 174 U.S. 96, 104, 19 S.Ct. [609] 612, 43 L.Ed. 909 (1899). It is also well established that the burden of demonstrating the unconstitutionality of a legislative enactment is upon the person alleging the act’s unconstitutionality. [Citations omitted]. We therefore should not declare an act of assembly void unless its violation of the Constitution is so clear as to preclude doubt or hesitation. Commonwealth v. Lukens, 312 Pa. 220, 223, 167 A. 167 (1933).

Id., 239 Pa.Superior Ct. at 46, 361 A.2d at 351.

The appellant has not met his burden in this case. A mandatory life sentence, as established by the legislature, is clearly not cruel and unusual punishment for the crime of first-degree murder. Indeed, this issue has already been decided in Commonwealth v. Sourbeer, supra, 492 Pa. at 33, 422 A.2d at 123, in which the Supreme Court stated that a mandatory life sentence:

is not cruel and unusual punishment for it is not an excessive and unnecessary punishment disproportionate to the crime and does not shock the moral conscience of the community. These considerations, coupled with the fact that life sentences lack the ponderous finality of the death penalty, induce us to uphold mandatory life sentences for murder in the first degree.

The appellant also contends that the sentencing statute is unconstitutional because it fails to provide for consideration of mitigating or aggravating circumstances. A similar challenge was made and rejected in Commonwealth v. Dessus, 262 Pa.Super. 443, 396 A.2d 1254 (1978), in which the Superior Court recognized the significant difference for Eighth Amendment purposes between a sentence of life imprisonment and one of death, a distinction emphasized by Justice Brennan in the landmark case of Furman v. Georgia, 408 U.S. 238, 290, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring). Simply stated, the Eighth Amendment requirement for individualized consideration of offender and crime in capital cases has not been extended to noncapital offenses.

Determinations regarding the appropriateness of individualized sentencing for noncapital cases are within the province of the legislature. For first-degree murder, where the death sentence is not applicable, our legislature has seen fit to impose a mandatory life sentence, choosing to deny the judiciary the discretion allowed in sentencing many other types of offenders. Its decision to do so does not violate the United States or Pennsylvania Constitutions.

Nor are the equal protection clauses of the United States and Pennsylvania Constitutions violated by the legislature’s decision to preclude consideration of individual characteristics. The legislature, in enacting this statute, has given all offenders in noncapital first-degree murder cases the same punishment: the removal of the offender from society for the remainder of his life. This is constitutionally valid.

We therefore affirm the judgment of sentence.

BECK, J., concurred in the result.

      . To this extent, the authorities in the instant case went further in the attempt to safeguard appellant’s rights than the officers in Williams, where neither the juvenile defendant nor his father were advised of defendant's Miranda rights prior to their private conference.


author: TAMILIA, Judge:

text:
    483 A.2d 862
    COMMONWEALTH of Pennsylvania v. Anthony TRIGNANI, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1984.
    Filed Oct. 19, 1984.
    Petition for Allowance of Appeal Denied March 4, 1985.

      Nino V. Tinari, Philadelphia, for appellant.
    Christopher J. Serpico, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   OPINION

TAMILIA, Judge:

Anthony Trignani, the appellant, was charged with criminal solicitation to commit first degree murder and criminal attempt after a series of recorded conversations, taking place between May 28 and June 3, 1981, indicated that the appellant attempted to persuade William Hill, a federal informant, to murder Anthony Sanutti. Appellant’s pre-trial motion to suppress this evidence was denied by the lower court. On January 8, 1982, the appellant was convicted by a jury of the above charges. Post-trial motions were filed and an Order denying the motions was entered on March 29, 1983. On June 29, 1983, the appellant was sentenced to prison for a term of four to eight years. Appellant then instituted this appeal, in which he alleges that the introduction of these tape recordings into evidence was improper because their interception was not authorized by a Superior Court judge, as required by Sections 5708 and 5709 of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. §§ 5701-5726. After thoroughly and independently reviewing the record, the Opinion of the lower court, and the arguments presented by both parties, we affirm the judgment of sentence.

The facts indicate that a criminal investigation of an arson was being conducted by the Bureau of Alcohol, Tobacco and Firearms of the United States Department of Treasury. To assist them in this investigation, an electronic eavesdropping device was attached to federal informant, William Hill, with his full knowledge and consent. The attachment of this body transmitter served the dual purpose of protecting Mr. Hill, as well as gathering evidence concerning the ongoing investigation.

On May 28, 1981, William Hill, while equipped with the body transmitter, met with the appellant and one Fred E. Sutliff at Denny’s Restaurant in Middletown Township, Bucks County, Pennsylvania. The conversation which took place between these three individuals was recorded and intercepted by federal agent, Douglas Morgan, and Pennsylvania State Trooper, Charles Conley. During this meeting, a conversation occurred in which the appellant attempted to solicit William Hill to murder Anthony Sanutti. Subsequently, there were several telephone calls from Hill to the appellant’s residence. These telephone conversations were intercepted and recorded by agent Morgan and trooper Hill pursuant to William Hill’s written consent. During these telephone conversations, the appellant made further attempts to solicit William Hill to murder Anthony Sanutti.

On June 3, 1981, the appellant again met with William Hill at Ida’s Diner in Croydon, Bucks County, Pennsylvania. During this meeting, Hill once again was equipped with a body transmitter and the conversations were intercepted and recorded by federal agent Morgan and state trooper Conley. At this meeting, appellant mentioned the sum of $50,000 to Hill and arranged that Hill meet him that evening at 700 Annin Street, Philadelphia, where appellant’s sister lived so that appellant could deliver a revolver to Hill. At the conclusion of the meeting, Hill met with Morgan and other federal agents, as well as Conley, whereupon he was followed to Annin Street in Philadelphia. Hill then sounded the horn in his automobile and the appellant came out of the house to deliver a gun to him. Throughout this meeting, Hill, as previously, was equipped with a body transmitter and the entire conversation was intercepted and recorded by federal agent Morgan and trooper Conley. During the trial, tapes made from the several conversations between the appellant and Hill were presented to the jury.

This case raises the question of whether tape recorded conversations made under federal law are admissible in Pennsylvania courts under Section 5717(c) of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act. 18 Pa.C.S.A. §§ 5701-5726. Section 5717(c) provides as follows:

(c) Otherwise authorized personnel — Any person who, by any means authorized by the laws of another state or the Federal Government, has obtained knowledge of the contents of any wire or oral communication or evidence derived therefrom, may disclose such contents or evidence to an investigative or law enforcement officer and may disclose such contents or evidence where otherwise admissible while giving testimony under oath or affirmation in any proceeding and in any court of this Commonwealth.

Thus, Section 5717(c) is a clear expression of the legislative intent that the contents of any wire or oral communication which is intercepted pursuant to federal authority may be admissible evidence in Pennsylvania courts. 1 Pa.C.S.A. § 1921(b).

The appellant contends that because no application for an order authorizing the interception of oral and wire communications was made through a Superior Court judge as required by 18 Pa.C.S.A. §§ 5708 and 5709, the taped conversations should have been suppressed. Specifically, the appellant argues that the Commonwealth attempted to circumvent the more stringent requirements of the Pennsylvania Wiretapping and Electronic Surveillance Control Act by obtaining a wiretap under federal law when it had always intended to use the wiretap for purposes of a state prosecution.

We note, however, that the taped conversations were obtained under the authority of 18 U.S.C. § 2511(2)(c), which expressly permits consentual eavesdropping of this nature. Since these interceptions were authorized pursuant to federal law, they clearly fall within the ambit of 18 Pa.C.S.A. § 5717(c). Moreover, in the recent case of Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744 (1984), this Court held that tape recordings obtained by federal agents pursuant to federal law were admissible under 18 Pa.C.S.A. § 5717(c). In Taraschi, supra, the wiretaps were performed by federal agents who were acting under “color of law” when they consented to the interception of their communications. 18 U.S.C. § 2511(2)(c). Judge Cavanaugh, in his Opinion, held that these tape recordings were admissible under 18 Pa.C.S.A. § 5717(c), since they were “authorized by the laws of ... the Federal Government,” notwithstanding the fact that no application was made for a court order pursuant to Sections 5708 and 5709 of this Commonwealth’s anti-wiretap statute, and that these recordings were obtained during a joint investigation by federal and state officers. Commonwealth v. Taraschi, supra, 327 Pa.Superior Ct. at 195-196, 475 A.2d at 752-753.

Appellant has failed to present any evidence to convince us that the Commonwealth attempted to circumvent the Pennsylvania statute. At trial, federal agent Douglas Morgan testified that the body transmitter was placed on William Hill with his total consent and was authorized by a federal court order for the informant’s protection since he was involved in the Federal Witness Protection Program. Additionally, Morgan testified that he was hoping to obtain information through Hill regarding an ongoing arson investigation. While the trial court made no specific finding that this investigation was conducted jointly between state and federal officers, the fact that trooper Conley introduced federal agent Morgan to Hill and was present during the taping of the conversations does not constitute a violation of the Pennsylvania Statute. We point out that it is common practice in law enforcement circles for federal and state law enforcement personnel to exchange information and to offer assistance to one another. Therefore, we must conclude that the use in this Commonwealth of taped conversations secured through a legally authorized federal wiretap is not in contravention of the Pennsylvania anti-wiretap statute, and that any evidence disclosed by such means may be admissible in our courts. To reach any other result would severely hamper the detection and apprehension of members of organized crime syndicates and would impose severe restrictions on this Commonwealth’s law enforcement personnel. Moreover, it has recently been recognized that the reason for the success of “serial murders”, which are on a horrendous and dramatic increase, is due to the lack of coordination and exchange of information between federal, state and local law enforcement officials. “20/20”, ABC News, July 5, 1984. In an interview, Henry Lee Lucas, this country’s most notorious “serial killer”, admitting to more than 300 murders of women, acknowledged he was successful only because of the inability of law enforcement officials to adequately share information which could have led to his capture, thus saving many lives. “20/20”, ABC News, supra.

This Court has previously held that information obtained during an investigation in New Jersey pursuant to a validly authorized wiretap under that state’s law is not in contravention of the Pennsylvania anti-wiretap statute. Commonwealth v. Bennett, 245 Pa.Super. 457, 369 A.2d 493 (1976). In Bennett, supra, a New Jersey court, pursuant to a state statute that permitted wiretapping, authorized a police wiretap on a telephone located within that state, as incident to a drug investigation which was initiated on information supplied to New Jersey authorities by Pennsylvania police. The New Jersey wiretap revealed that calls were made to and received from the New Jersey telephone number by a resident of Bucks County, Pennsylvania. Subsequently, this information was given to the Pennsylvania police who obtained a search warrant, and while searching the defendant’s house and automobile, discovered a quantity of marijuana and drug paraphernalia. This Court held that the evidence obtained through a legal wiretap in a sister state could properly form the basis for a search warrant in Pennsylvania even though such activity would have been illegal under our anti-wiretap statute. Id., 245 Pa.Superior Ct. at 461, 369 A.2d at 495. See also Commonwealth v. Corbo, 295 Pa.Super. 42, 440 A.2d 1213 (1982) (evidence obtained by Pennsylvania police from New Jersey police, who obtained information from a court approved electronic surveillance of New Jersey telephones, provided the Pennsylvania police with sufficient facts upon which to establish probable cause to issue a search warrant).

In Commonwealth v. Inadi, 303 Pa.Super. 409, 449 A.2d 753 (1982), which dealt with an extradition proceeding, which is summary in nature, we held that the Commonwealth need not prove that all of the stringent safeguards of its own anti-wiretap statute were complied with when it relied upon information based on wiretaps in the demanding state. Our reasoning was that “[t]o place this burden on the Commonwealth would go far beyond what is required in extradition proceedings.” Id., 303 Pa.Superior Ct. at 413, 449 A.2d at 755.

In the instant case, a similar burden would be placed on this Commonwealth’s law enforcement agencies if we were to hold that information obtained by federal agents pursuant to federal law is in contravention of Pennsylvania’s anti-wiretap statute. In Commonwealth v. Bennett, supra, we stated that:

If the legislature of a sister state or foreign jurisdiction determines that wiretapping will be permitted within its borders, we will not, under the present laws of Pennsylvania, question that decision. Nor should we hinder our law enforcement agencies by needless restrictions upon their use of information and evidence that properly comes to their attention.

Id., 245 Pa.Superior Ct. at 459-461, 369 A.2d 494-95. We see no need to deviate from this reasoning in the case before us. Therefore, we hold that the lower court was correct in admitting the taped conversations under 18 Pa.C. 5. A. § 5717(c).

In reaching our decision, we have carefully considered the negative implications of wiretapping and we are aware of its potential encroachment upon our citizens’ cherished right to privacy. While the constitutional rights of all citizens must be zealously guarded, we believe that a delicate balance between those rights and effective law enforcement can be maintained. Clearly, our legislature did not intend that we have an anti-wiretap law to safeguard communications among criminal networks; it was concerned with intrusions on the right of privacy of law-abiding citizens.

Appellant raises four other issues for our consideration. First, he contends that the trial court erred when it failed to grant his pre-trial motion to dismiss under 18 Pa.C.S.A. § 111, which proscribes double jeopardy. The essence of this argument is that appellant’s prior federal conviction on charges of former convict not to possess a firearm, 18 U.S.C.App. § 1202(a)(1), which arose from his delivery of the pistol to informant Hill on June 3, 1981, should have barred his later prosecution on the instant charges.

Section 111 of the Crimes Code was enacted in direct response to our Supreme Court’s decision in Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971), which contained an extensive analysis of the considerations involved in reconciling the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution with the dual sovereignty doctrine developed in the seminal case of United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922). The Mills Court recognized that the interests of the two sovereigns, federal and state, must be balanced against the interests of the individual to be free from having his liberty taken away twice for the same offense. 447 Pa. at 169, 286 A.2d at 640-41. On the basis of this interest analysis, the Mills Court held that:

[HJenceforth in Pennsylvania, a second prosecution and imposition of punishment for the same offense will not be permitted unless it appears from the record that the interests of the Commonwealth of Pennsylvania and the jurisdiction which initially prosecuted and imposed punishment are substantially different. In other words, if it appears that the interests of this Commonwealth were not sufficiently protected in the initial prosecution, then a second prosecution and imposition of additional punishment in Pennsylvania will be allowed.

Id., 447 Pa. at 171-72, 286 A.2d at 642. (footnote omitted).

Since the Mills decision, our appellate courts have addressed the principle of double jeopardy and Section 111 several times. See e.g., Commonwealth v. Grazier, 481 Pa. 622, 393 A.2d 335 (1978); Commonwealth v. Mascaro, 260 Pa.Super. 420, 394 A.2d 998 (1978). In the recent case of Commonwealth v. Abbott, 319 Pa.Super. 479, 466 A.2d 644 (1983), this Court, in an instructive Opinion authored by the Honorable Stephen J. McEwen, Jr., reviewed the current posture of the protection from double jeopardy in this Commonwealth and enunciated the following three pronged test to determine the applicability of Section 111:

1. ) Is the prosecution the Commonwealth proposes to undertake “based on the same conduct” for which appellant was prosecuted by the federal government?
2. ) Do each of the prosecutions require proof of a fact not required by the other?
3. ) Is the law defining the state offense designed to prevent a substantially different harm or evil than the law defining the federal offense?

Id., 319 Pa.Superior Ct. at 489, 466 A.2d at 649. Judge McEwen added that “an affirmative answer to the initial inquiry lowers the bar to the subsequent prosecution and that only an affirmative response to both of the remaining inquiries can lift the bar.” Id. (emphasis in original).

Here, the Commonwealth’s prosecution was based on the same conduct for which the appellant was prosecuted by the federal government (i.e., appellant’s delivery of the pistol to the informant). Therefore, our inquiry turns to whether each of the prosecutions require proof of a fact not required by the other.

In the factually similar case of Commonwealth v. Zabala, 274 Pa.Super. 401, 418 A.2d 467 (1980), the defendant’s acquittal under 18 U.S.C.App. § 1202(a)(1) was held to be insufficiently related to the Commonwealth’s charges, which included criminal conspiracy, to warrant the application of Section 111. “The elements of proof required for a conviction under 18 U.S.C.App. § 1202(a)(1) are: (1) that there be a prior felony conviction; (2) that the firearm had a minimal nexus with interstate commerce; and (3) that a firearm was actually involved.” Id., 274 Pa.Superior Ct. at 407, 418 A.2d at 471. (citations omitted).

In the case before us, the Commonwealth’s charges clearly require proof of facts not required by the federal prosecution. Additionally, we note that there is no federal law under which the appellant could have been prosecuted for the present charges.

We now must determine whether the law defining the state offense is designed to prevent a substantially different harm or evil than the law defining the federal offense. Our review of the record leads us to conclude that the interests of the Commonwealth and the Federal Government in prosecuting the appellant are substantially different. We emphasize that the purpose of 18 U.S.C.App. § 1202(a)(1) is essentially regulatory in nature since the possession of a firearm does not constitute conduct that is inherently harmful. See United States v. Graves, 554 F.2d 65 (3d Cir.1977). On the other hand, the intent of the Crimes Code sections that appellant was charged under is to directly prohibit overt criminal activity. In distinguishing the interests of the federal and state criminal provisions, this Court stated in Commonwealth v. Zabala, supra, that:

In a broad sense, of course, a limitation on the possession of firearms contributes to the reduction of general criminal activity, but this is far from an adequate nexus for double jeopardy purposes. Were one to assume that federal and state statutes served the same essential purpose merely by impeding criminal activity, it would be tantamount to eliminating any joint state and federal prosecution for acts arising out of the same incident.

Id., 274 Pa.Superior Ct. at 408, 418 A.2d at 471. Thus, we conclude that Section 111 does not act as a bar to the instant prosecution.

Secondly, the appellant contends that the trial court incorrectly permitted the prosecuting attorney to cross-examine him as to a prior conviction. However, we note that the record clearly reveals that the fact of a prior conviction for aggravated robbery was introduced by the Commonwealth only to repudiate specific evidence of good character which was offered by the appellant. This use for impeachment purposes is specifically authorized by 42 Pa.C.S.A. § 5918(1), which states that a witness may be required to answer questions tending to show that he has committed, been charged with, or been convicted of any offense, if he has presented evidence tending to prove his own good character or reputation. Had the appellant limited his testimony to the conduct charged in the criminal information, the Commonwealth would have been prohibited from introducing evidence pertaining to the appellant’s prior criminal record. Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). However, the record in the instant case discloses that the appellant exceeded the scope of questioning by the prosecutor regarding the shooting of

Anthony Sanutti, and attempted to assert his own good character when he responded to the following question:

Q. You never shot Anthony Sanutti?
A. I never shot anybody in my life.

(N.T. 1/7/82; 81)

At this point, a sidebar conference was held outside of the hearing of the jury, wherein the trial court permitted the prosecuting attorney to bring out the appellant’s prior conviction for aggravated robbery where a store clerk was shot since the appellant volunteered that he was a nonviolent person. We agree with the Opinion of the lower court which stated that:

This voluntary admission constituted, in our view, a direct and forcible introduction of Defendant’s character for nonviolence. Defendant, when he attempts to apply its lesson to the case at bar, plainly misconceives the intention of Bighum. That case considered the use of prior convictions to generally impeach an accused’s credibility. Here, the use of the prior conviction was limited to the specific rebuttal of Defendant’s unsolicited character testimony. (Slip Op. at 9)

Thus, the Commonwealth’s decision to pursue a line of questioning directed at appellant’s prior conviction for aggravated robbery was permissible under 42 Pa.C.S.A. § 5918(1). See Commonwealth v. Bastone, 211 Pa.Super. 509, 239 A.2d 863 (1968) (where defendant gives testimony impliedly intended to establish his good character or reputation, he subjects himself to attack on cross-examination as to other prior convictions).

The appellant next contends that his trial counsel was ineffective for failing to attack the jurisdiction of the lower court. Specifically, the appellant contends that the Commonwealth’s evidence showed that the “substantial step” giving rise to criminal liability (e.g., the delivery of the pistol by appellant), occurred in Philadelphia, and that prosecution in Bucks County was therefore improper. While it is conceded that proof of a “substantial step” toward the commission of the murder was necessary in order for the appellant to be convicted of criminal attempted homicide, there is no authority for appellant’s proposition that jurisdiction is limited to the county in which the “substantial step” occurred. In the face of a similar jurisdictional challenge in Commonwealth v. Herriott, 265 Pa.Super. 143, 401 A.2d 841 (1979), this Court, after citing extensive authority, held that “[w]here, as here, an offense is continuing, or when elements of the same offense occur in several counties, the offender may be tried in any county where an overt act occurred.” 265 Pa.Super. at 152, 401 A.2d at 846. Here, the solicitation, agreement and planning of Anthony Sanutti’s murder was recorded over a series of several meetings, each of which occurred in Bucks County. Therefore, the jurisdictional requisites noted in Commonwealth v. Herriott, supra, were clearly satisfied and the prosecution in the instant case before the Bucks County Court of Common Pleas was entirely proper. We find appellant’s jurisdictional challenge to be patently frivolous and conclude that trial counsel had no obligation to pursue this meritless claim. Commonwealth v. Perkins, 496 Pa. 482, 437 A.2d 1143 (1981).

Finally, the appellant contends that there was insufficient evidence to sustain his convictions because of inconsistencies and the lack of credibility in the testimony of the Commonwealth’s witnesses. As we have stated many times:

In testing the sufficiency of the evidence, we proceed in several steps. First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next, we give the Commonwealth the benefit of all reasonable inferences arising from that evidence. And finally, we ask whether the evidence, and the inferences arising from it, are sufficient in law to prove beyond a reasonable doubt that the appellant is guilty of the crime of which he has been convicted, (citations omitted)

Commonwealth v. Haggerty, 294 Pa.Super. 591, 593, 440 A.2d 623, 624 (1982). So viewed, it is clear that the evidence in the instant case is more than sufficient to sustain the appellant’s convictions. The appellant, however, contends that the evidence becomes insufficient due to problems in credibility, primarily between the version of the criminal episode by the Commonwealth’s chief witness, William Hill, contrasted against the testimony of the appellant himself, which remarkably was corroborated by the testimony of the purported victim, Anthony Sanutti. The jury, however, chose to believe the Commonwealth’s witnesses while disbelieving the defense witnesses.

This Court, in the recent case of Commonwealth v. Vitacolonna, 297 Pa.Super. 284, 443 A.2d 838 (1982), stated that:

The credibility of all witnesses is in the exclusive province of the fact-finder, Commonwealth v. Barnosky, 264 Pa. Super. 443, 400 A.2d 168 (1979), such that the weight to be accorded to each witness’ testimony and whether to believe all, part or none of the evidence is for the trier of fact, and is not to be disturbed unless the ‘evidence offered to support the verdict of guilty is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture ... ’ Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976).

Id., 297 Pa.Superior Ct. at 288, 443 A.2d at 841.

Accordingly, as the dispute in the instant case was substantially one of credibility, this Court will not disturb the fact-finder’s determination as to credibility on appeal. Commonwealth v. Dobson, 302 Pa.Super. 57, 448 A.2d 92 (1982). Such a determination is solely within the province of the trier of fact. Commonwealth v. Edney, 294 Pa.Super. 67, 439 A.2d 752 (1982). This Court has reviewed the entire record in this case and finds that the evidence presented by the Commonwealth was sufficient to convict appellant of the instant criminal charges.

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

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 902(a).

      . 18 Pa.C.S.A. § 901(a).

      . State wiretap guidelines must at least be as stringent as the requirements of the controlling federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20. Consequently, state wiretap standards which establish more restrictive guidelines predominate over the federal standards since states are free to provide greater protection to their citizens than Title III. However, states may not establish guidelines which are more permissive than Title III. United States v. Getter, 560 F.Supp. 1309 (E.D.Pa.1983).
      For a detailed discussion of both federal and state wiretapping and electronic surveillance laws, see J. CARR, THE LAW OF ELECTRONIC SURVEILLANCE (1977) and C. FISHMAN, WIRETAPPING AND EAVESDROPPING (1978).

      . 18 U.S.C. § 2511(2)(c) provides:
      (c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given pri- or consent to such interception.
      Therefore, if a party consents, the police officials can intercept or record the conversation, and the prosecuting attorney can play the tape or elicit testimony as to what the police heard, without obtaining a warrant. We point out that there is no expectation of privacy when there is a consentual interception; thus no Fourth Amendment rights are violated. See United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952).

      . It should be noted that 18 U.S.C. § 2517 contains provisions for the disclosure of intercepted information between federal and state officers which are similar to those provided in 18 Pa.C.S.A. § 5717.

      . In Commonwealth v. Marino, 38 Bucks County L.R. 182 (1982), like the case before us, the defendant challenged the admissibility of taped conversations made under federal authority and not pursuant to the provisions of Pennsylvania’s own wiretap statute. The court, however, ruled that the tape was not rendered inadmissible in a Pennsylvania court simply because it was obtained pursuant to federal, rather than state, authority. Thus, the court in Marino, supra, held that 18 Pa.C.S.A. § 5717(c) expressly permits the use of evidence obtained under federal authority, notwithstanding that the investigation had been conducted jointly by federal and state officers. Id. at 185. Although we are not bound by this decision of the Court of Common Pleas of Bucks County, we nevertheless conclude that its analysis of § 5717(c) is entitled to appropriate consideration.

      . 18 Pa.C.S.A. § 111 provides:
      § 111. When prosecution barred by former prosecution in another jurisdiction
      When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances:
      (1) The first prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is based on the same conduct unless:
      (i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or

        (ii) the second offense was not consummated when the former trial began.
      (2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense of which the defendant is subsequently prosecuted.

      . That section provides in pertinent part:
      (a) Any person who—
      (1) has been convicted by a court of the United States or of a State or any political Subdivision thereof of a felony, or
      (5) being an alien is illegally or unlawfully in the United States, and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

      . 42 Pa.C.S.A. § 5918(1) provides:
      § 5918. Examination of defendant as to other offenses
      No person charged with any crime and called as a witness in his own behalf, shall be asked, or if asked, shall be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation unless:
      (1) he shall have at such trial, personally or by counsel, asked questions of the witness for the prosecution with a view to establish his own good reputation or character, or has given evidence tending to prove his own good character or reputation; or
      (2) he shall have testified at such trial against a codefendant, charged with the same offense.

      . The testimony of the alleged victim, Anthony Sanutti, directly contradicts the testimony of Hill. Sanutti testified for the defense that he and the appellant were cooperating together to trap Hill in order to have him arrested. He further testified that he was fully apprised of the appellant’s meetings with Hill, and that the appellant was acting on his instructions as it was his belief that Hill was going to try and kill him. Consequently, Sanutti testified that by enlisting the appellant to talk with Hill, he could be aware of Hill’s intentions. In his own testimony, the appellant stated that everything he had done was at the direction of Anthony Sanutti. Furthermore, he testified that he had no intent to kill Anthony Sanutti or to pay someone else to do so.

      . In addition to federal informant Hill’s testimony, the Commonwealth presented additional testimony by federal agent Morgan and state trooper Conley, which corroborated key portions of Hill’s testimony. Furthermore, the jury heard the actual tape recorded conversations between the appellant and Hill in which the Sanutti killing was discussed in detail. Finally, the Commonwealth established a motive for the killing based on the appellant’s anger at Sanutti’s having made over $630,000 from his trucking business without sharing any of the profits with the appellant, who was previously a business partner.


text:
    483 A.2d 871
    James J. PALERMO, Jr., a Minor By James J. PALERMO, His Natural Guardian, and James J. Palermo and Mary J. Palermo, Individually v. Raymond NAILS and Paul F. Castrogiovanni, Administrator of the Estate of Mary D. Castrogiovanni, Deceased. Appeal of Paul F. CASTROGIOVANNI Administrator of the Estate of Mary D. Castrogiovanni, Deceased.
    Superior Court of Pennsylvania.
    Argued June 12, 1984.
    Filed Oct. 26, 1984.

      James M. Scanlon, Scranton, for appellant.
    Lawrence A. Durkin, Scranton, for appellees.
    Before CIRILLO, BECK and CERCONE, JJ,
   CIRILLO, Judge:

This appeal presents for the first time in Pennsylvania, the question of whether a landlord out of possession owes a duty of care to his tenant’s invitees to prevent injury from a vicious animal kept by the tenant on the leased premises. Public policy requires a landlord to exercise an ordinary duty of care towards his tenant’s invitees when the landlord has actual knowledge of the dangerous animal’s vicious propensities and where the landlord maintains possession or control of the property.

This appeal arises from a personal injury suit commenced by appellee James J. Palermo, Sr., on behalf of his minor child, appellee James J. Palermo, Jr., against the appellant Paul F. Castrogiovanni, administrator of the estate of Mary Castrogiovanni, deceased, and Raymond Nails.

On August 22, 1978, seven year old James J. Palermo, Jr. was attacked and bitten by a dog owned by the defendant, Raymond Nails. The attack occurred on premises owned by the deceased, Mary Castrogiovanni, who leased the property to the defendant Nails. At trial, James Jr. testified that on the day of the incident, he was playing in the backyard of his home, which was in close proximity to the defendant Nails’ leased premises. The child saw a dog tied to a post in the backyard of Nails’ property. The dog had entangled itself around a post and was choking. The child entered the Nails backyard to untangle the dog and free him from this predicament. When freed, the dog attacked the child and bit him several times on the head and face, causing permanent injury.

The jury returned a verdict for the appellees, finding that the defendant, Raymond Nails, was 50% negligent, the appellant, estate of Mary Castrogiovanni, was 30% negligent, and the minor appellee was 20% negligent. Appellant filed motions for a New Trial and Judgment N.O.V., which the trial judge dismissed. This appeal followed.

Appellant’s prime contention is that under Pennsylvania law, a landlord out of possession has no duty of care with respect to a dangerous animal owned by the tenant.

Generally, a landlord out of possession is not responsible for attacks by animals kept by his tenant on leased premises where the tenant has exclusive control over such premises. Collins v. Otto, 149 Colo. 489, 369 P.2d 564 (1982); Denagy v. Doscher, 40 Misc.2d 643, 243 N.Y.S.2d 575 (1963); cf Juarbe v. City of Philadelphia, 288 Pa.Super. 330, 431 A.2d 1073 (1981). However, a landlord out of possession may be held liable for injuries by animals owned and maintained by his tenant when the landlord has knowledge of the presence of the dangerous animal and where he has the right to control or remove the animal by retaking possession of the premises. Uccello v. Laudenslayer, 44 Cal.App.3d 504, 118 Cal.Rptr. 741 (1975); cf. Feld v. Merriam, 314 Pa.Super. 414, 461 A.2d 225 (1983).

In Uccello, a minor child sued a landlord for injuries received when she was bitten by an animal that was kept on premises leased by the landlord. The trial court granted a nonsuit after the plaintiff’s opening statement. The record on appeal disclosed that the tenant had entered into a month-to-month lease with the appellee landlord which could be terminated on two weeks notice. The landlord visited the tenant’s premises, saw the “Beware of Dog” signs posted all over his property, and gave the tenant specific permission to keep the dog. In addition, the dog had previously attacked and bitten a neighbor at a time when the landlord resided on the same street as his tenants.

The California Court of Appeal reversed, holding that the minor child stated a recognizable theory of liability against the landlord. The Court further held that public policy imposes a duty of care on a landlord if a landlord has actual knowledge of the animal’s vicious propensities and maintains such a degree of control over the premises that he can eliminate the presence of the dangerous animal. The Court reasoned that it was legally and socially unacceptable for a landlord to fail to act when he knows that it is likely that the dangerous animal will attack an innocent person on his tenant’s property.

We agree with the holding and reasoning set forth in Uccello. The facts here present an even stronger case for liability on the part of a landlord for a tenant’s vicious pet. Here, the record reveals that the deceased, Mary Castrogiovanni had almost exclusive control over the premises at 115 E. Grove Street. She owned the property and allowed defendant Nails, her nephew, to live there rent free.

Nails had been raised in the deceased’s home at 115 E. Grove Street and continued to live with her there until she married and moved away in 1978. Nails was allowed to remain in the house. His status there can be viewed as nothing more than a tenancy at sufferance.

A tenancy at sufferance is the lowest grade of estate in real property. The tenant may stay on the lessor’s property so long as the lessor permits him to remain. As against the owner, a tenant at sufferance has no rights and only the barest indicia of ownership. The lessor is entitled to possession at any time and without notice.

In addition to her evident control of the property, there is ample support for the inference that the deceased had actual knowledge of the dog’s vicious propensities and therefore could easily have taken steps to eliminate the dog’s presence and prevent injury to the minor appellee. The deceased’s close personal relationship with her nephew, coupled with numerous visits to the residence in question, indicates that she was in close proximity to the dog and therefore could observe the dog’s viciousness. Furthermore, a police officer testified that in November, 1976, 18 months before the incident in question, he told the decedent to keep the dog tied up because it had attacked and bitten a child.

We hold that the deceased landlord owed a duty of care to the minor appellee and is liable for the injuries that the child sustained when he was bitten by the dog.

Judgment affirmed.

      . Nails did not appeal the jury verdict.

      . Ladner, Conveyancing in PA § 1.04(c) at 10.

      . Appellant's other allegations of error are without merit.


author: WIEAND, Judge: POPOVICH, Judge,

text:
    483 A.2d 874
    COMMONWEALTH of Pennsylvania, v. Robert C. DICKISON, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 12, 1984.
    Filed Oct. 23, 1984.

      Jeffrey G. Velander, Stroudsburg, for appellant.

      Robert C. Lear, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

Robert C. Dickison entered a plea of guilty to a charge of burglarizing two unoccupied rooms at the Quality Motor Inn, East Stroudsburg, Monroe County. The sentencing court imposed a sentence of imprisonment for not less than two nor more than four years. In determining this sentence, the court attached to the offense a gravity score of seven under the legislatively adopted Sentencing Guidelines. Appellant contends on appeal that his offense should have been given a gravity score of only six because the motel units were unoccupied. We agree. Therefore, we remand for resentencing.

Before we consider this issue, we must first determine whether it has been preserved for appellate review. Dickison did not file in the trial court a petition to modify his sentence. The issue of the gravity score to be applied to the offense, however, had been raised at the time of sentencing and had been specifically considered by the sentencing court at that time. It was also treated in the Memorandum Opinion filed by the sentencing court pursuant to the mandate of Pa.R.A.P. 1925(a). Most importantly, although the sentencing court advised Dickison of his right to appeal from the judgment of sentence, it neglected to advise him of the necessity to file a motion to reconsider the sentence in the trial court. This failure, it has been held, will permit appellate review of sentencing errors on direct appeal without a prior motion to reconsider in the trial court. See: Commonwealth v. Walker, 298 Pa.Super. 387, 395 n. 9, 444 A.2d 1228, 1232 n. 9 (1982).

The sentencing court gave the offense a gravity score of seven pursuant to and in accordance with the subsection of 204 Pa.Code § 303.8 which pertains to “[b]urglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present.” Appellant contends that the correct gravity score for his offense was six because it was a “[b]urglary of a structure adapted for overnight accommodation in which at the time of the offense no person is present.” The sentencing court held that the word “structure” referred to the motel; whereas, appellant contends that each unit of the motel constituted a distinct “structure.” The court assessed the higher gravity score because the motel was open for business and several units were occupied even though the units burglarized by appellant were not then occupied.

The Quality Motor Inn consists of more than one hundred individual units, housed in several, two-story buildings forming a motel complex. Appellant was charged specifically with entering Rooms 235 and 237 “which said premises were not then open to the public” with the intent to commit a crime therein. The language of the information, it seems clear, suggested that the premises burglarized had been individual, unoccupied units of the motel and not the entire motel.

The different gravity scores for burglaries committed of structures where persons are present and structures where persons are not present is premised upon the likelihood of greater mischief in the former situation. If a burglary is committed while the structure is occupied, the potential for additional and more serious offenses is always present. Even if no further crime is committed, the presence of the victims and the potential for harm to them suggest an offense possessing gravity greater than when no person is present. When the reason for the distinction is applied to motel complexes, the gravity score must be determined according to the unit burglarized. Otherwise, the lesser gravity score can have no application to a motel unless, perhaps, it is closed for the season. Except when closed, the motel will at the very least be occupied by a desk clerk who awaits expected lodgers. This, we conclude, was not the presence contemplated by the Commission when it assessed a higher gravity score to burglaries of overnight accommodations in which one or more persons are present.

We hold, therefore, that the higher gravity score is applicable only where there are persons present in the motel unit burglarized; where no one is present in the motel unit, the lower gravity score should be applied. In the instant case the motel units burglarized were alleged to be and were, in fact, unoccupied. No persons were present when the offense was committed. Therefore, the sentencing court was in error when it applied the greater gravity score.

It is argued by the Commonwealth that the error was harmless because the minimum range of two years could properly be imposed under either gravity score. It must be conceded that this argument has superficial appeal. If the offense carries with it a gravity score of six, the guidelines suggest a normal minimum range of 12 to 29 months; whereas, the normal minimum range for an offense having a gravity score of seven is 22 to 39 months. However, it is not at all clear that the error of the sentencing court had no effect on the court’s determination of the sentence to be imposed. The record is clear that the court imposed a sentence for burglary of a structure which the court believed to be occupied by other persons. The court’s continued belief that this was the correct approach is apparent from the memorandum opinion which it prepared. This interpretation, we have concluded, was erroneous. A remand, therefore, is necessary.

The judgment of sentence is vacated, and the case is remanded for resentencing. Jurisdiction is not retained.

POPOVICH, J., filed a dissenting statement.

POPOVICH, Judge,

dissenting:

In the absence of any citation or authority, this writer is not prepared to conclude that the presence of a desk clerk was not contemplated by the Commission on Sentencing, hence my dissent.

      . The crime of theft was committed by the taking of a television set.


author: BROSKY, Judge:

text:
    483 A.2d 876
    COMMONWEALTH of Pennsylvania v. Frank LONG, Appellant.
    Superior Court of Pennsylvania.
    Argued May 2, 1984.
    Filed Oct. 26, 1984.
    Catherine A. Porter, Doylestown, for appellant.

      Michael S. Goodwin, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and BECK, JJ.
   BROSKY, Judge:

Three issues are raised in this appeal but essentially the question before us is whether the trial court erred in prohibiting appellant’s counsel from eliciting from a Commonwealth witness that the witness was, at the time of trial, incarcerated. We reverse.

Frank Long took this appeal following his conviction by a jury on charges of recklessly endangering another person and possession of an instrument of crime. Appellant was sentenced to a term of imprisonment of six to twenty-three months. The charges filed against him arose out of an incident that occurred on October 15, 1981. A Commonwealth witness, James Baxter, testified that on that date he lived in the home of Morris Carter; that he was in the house, to which he had returned after an altercation with appellant; and that approximately 3:00 a.m. appellant drove to the house, shouted threats at Mr. Baxter and fired a gun shot at him which struck the storm door. Mr. Baxter, who said that he had gone out on the porch of the house before the shot was fired, testified that appellant drove away after firing the gun.

On cross-examination appellant’s trial counsel sought to elicit from Mr. Baxter that he was, at the time of trial, incarcerated in the Bucks County Prison. He argues that he might have been able to show bias on the part of the witness because of his incarceration. The following exchange took place:

BY MR. GRAHAM:
Q. Mr. Baxter, if I’m not mistaken, you said your current address is 211 Buckley Street?
A. Yes.
Q. I thought your current address was Bucks County Prison. Is that your current address?
A. Right now at this moment it is.
Q. You live at Bucks County Prison, not 211 Buckley Street?
MR. WILLIAMS: Your Honor, I object to this entire line of questioning.
THE COURT: Objection sustained.
May I see counsel at side bar, please?
(Side bar discussion out of hearing of the court reporter.)
THE COURT: Take the jury out, please. (Jury leaves courtroom.)
THE COURT: Mr. Graham, are you prepared to present evidence to show that he is now in the Bucks County Prison serving a sentence for the purpose of going to the question of his credibility based upon his prior conviction of record?
MR. GRAHAM: No, Your Honor.
THE COURT: You are not?
MR. GRAHAM: No, I’m not. My point was, he announced his address as 211 Buckley Street. That is not the case.
I believe that — without going into the case, Your Hon- or, I believe that is relevent [sic] in that he — first of all, he testified that his address is 211 Buckley Street, which it isn’t. And I would submit that—
THE COURT: It isn’t because he’s now in prison, do you mean?
MR. GRAHAM: Yes. But I also have — I have information to indicate that he wished to withdraw the charge in this case, that he had no intention to prosecute this case but for—
THE COURT: Go ahead.
MR. GRAHAM: But for the fact he was arrested and incarcerated he would not even be here today. I think this is relevant, the fact that he is in custody.
THE COURT: Mr. Graham, that is about as outrageous a representation as I’ve heard in this courtroom in a very long time. I presume from what you have said he is in the prison because he has been arrested for something. Obviously, he has not been tried for it. The mere fact that he is in prison because he cannot make bail does not affect what his residence is. His residence is 211 Buckley Street and in any event perhaps his residence at this moment is totally irrelevent [sic]. The question is when and where anything happened with regard to him; and according to his testimony that was at 211 Buckley Street.
The obvious purpose of this question is to import [sic] something to the jury with regard to this witness in the nature of some kind of hidden persuader which you know full well you can’t ligitimately [sic] argue to them, but notwithstanding that, attempting to get such information to them they may not consider and which is irrelevant. That skates very close to the edge of ethical conduct on the part of an attorney. In fact, maybe it falls over the edge. Maybe the disciplinary board will have something to say about it when the trial is over.
Bring the jury back in.
MR. WILLIAMS: Your Honor, I would request some type of instruction. I don’t know what else to do.
THE COURT: There isn’t much else you can do.
I have some trouble with that kind of tactics.
(Jury returns to courtroom.)
THE COURT: Members of the jury, you heard some reference in the few questions asked by defense counsel of this witness to the fact that he is or may be presently a resident of some kind in the Bucks County Prison. I instruct you, members of the jury, that that fact is totally irrelevant to this case for any and all purposes, at least on the basis of the present record. It is totally irrelevant and has no meaning whatsoever with regard to the matter of this witness’ credibility, that means his believability-
The reason why he is or may be in the Bucks County Prison at this time has nothing to do with this case and is of no interest to us whatsoever at this time, and is to be totally disregarded by you in your deliberations on this case.
Now, go ahead, Mr. Graham.

Appellant contends that the trial court erred in prohibiting his attorney from asking Mr. Baxter his address.

It is generally the rule that although the fact that a witness has been convicted of a crime in the nature of crimen falsi may be brought out as bearing on his credibility, there must be a conviction before such evidence is relevant, because there is a vast difference between a conviction and a mere accusation. Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969). In Ross our Supreme Court explained that an exception to the general rule exists insofar as the courts have held that if a witness is under indictment for the same crime, or a crime growing out of .it, or a crime closely related to the very offense for which the defendant is being tried, so as to form part of the same occurrence, then evidence of this indictment is relevant as bearing on the witness’ interest in the immediate matter. Ross, supra 434 Pa. at 169-171, 252 A.2d at 662-663. The Ross court declined to expand the rule to permit evidence merely of arrest.

In Commonwealth v. Warren, 250 Pa.Super. 522, 378 A.2d 1271 (1977) the appellant had tried to cross-examine the prosecutrix in a rape case about her arrest on the day before trial in order to show possible bias because she might have been promised leniency in return for her testimony. While we affirmed the trial court’s prohibition of the cross-examination we did say that we could envision in another case finding an exception to the Ross requirements that the witness has been indicted and that the indictment be for the same crime (or related) as that for which the defendant was being tried. We explained that it seems that the requirement that the witness and the defendant be charged with the same crime stems from the desire to ensure that the prosecutor was able to promise leniency (thereby indicating bias on the part of the witness).

In Warren, the prosecutrix was not arrested for a crime associated with the incident involving the defendant and we concluded that the cross-examination would indeed have been improper since appellant’s counsel made no showing that the prosecutor was in a position to offer the witness leniency.

In Commonwealth v. Joines, 264 Pa.Super. 281, 283, 399 A.2d 776, 778 (1979) we cited Warren, supra as having recognized that the Ross exception has only two requirements: the existence of an indictment against the witness; and evidence that the prosecution was able to promise the witness leniency on the charges against him. We found that the witness, who was not a co-defendant of the appellant, had been given leniency and we reversed the decision of the trial court which had prohibited cross-examination of the witness as to a guilty plea which had been withdrawn so that the witness could participate in an ARD program.

It seems that this court has expanded the Ross exception to include instances in which a witness has been indicted for a crime unrelated to that for which the defendant is being tried. However, despite dictum which suggests a further broadening to include instances in which a witness has not yet been indicted in Warren, supra 250 Pa.Super. at 528, 378 A.2d at 1274, the Court has not yet held that a mere arrest justifies cross-examination of a witness in order to show bias.

The United States Supreme Court, however, in Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931) found that a federal trial court had erred in prohibiting defendant’s counsel from asking a witness his address. As in the present case, counsel wished to elicit from the witness that he was incarcerated in order to show bias towards the Prosecutor. As in this case the witness was under arrest, but not convicted and the trial court said that counsel could not elicit testimony that he was merely detained. There is no indication in the opinion that the defendant in Alford had been indicted for a crime; rather, counsel wished to show that he was being detained by Federal authorities. As in the present case, the crime for which the witness was being detained was not related to that for which the defendant was being tried. In fact, the colloquy between defense counsel and the trial court in Alford was much like that which took place in the present case and as in this case it contains no offer of proof that the prosecutor had offered leniency to the witness. Trial counsel explained that he had been informed that the witness was then in the custody of the federal authorities and that such fact might be brought out on cross-examination “for the purpose of showing whatever bias or prejudice he might have.” The Supreme Court said that the purpose of the proposed question, “[w]as not, as the trial court seemed to think, to discredit the witness by showing that he was charged with crime, but to show by such facts as proper cross-examination might develop, that his testimony was biased because given under promise or expectation of immunity, or under the coercive effect of his detention by officers of the United States, which was conducting the present prosecution.” Id at 693, 51 S.Ct. at 220.

Under these circumstances the Supreme Court nonetheless held that the question “Where do you live?” was appropriate not only to identify the witness with his environment, but also to show by cross-examination that his testimony was affected by fear or favor growing out of his detention.

While the appeal in Alford, supra was from a Federal conviction, we believe its holding as to the permissible limits of cross-examination governs this case. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 111, n. 6, 39 L.Ed.2d 347 (1974) in which the Supreme Court held that the right of confrontation guaranteed by the Sixth Amendment is paramount to a state’s policy of protecting a juvenile offender by prohibiting cross-examination of him about his status as a probationer. The Court discussed the Alford case and noted that its holding is applicable to state as well as federal trials. As the court wrote, “Although Alford involved a federal criminal trial and we reversed because of abuse of discretion and prejudicial error, the constitutional dimension of our holding in Alford is not in doubt.” Davis 415 U.S. at 318, n. 6, 94 S.Ct. at 1111, n. 6.

Although we recognize that the absence of an indictment in this case distinguishes it from Ross and Joines and that the absence of evidence of leniency distinguishes it from Joines we nonetheless conclude that the United States Supreme Court decision in Alford compels the decision we reach. The trial court erred in prohibiting the cross-examination of Mr. Baxter as to his address.

Judgment of sentence reversed and case remanded for new trial. Jurisdiction is relinquished.

      . Specifically appellant poses the following questions:
      (a) Did the lower court err by denying defense counsel the right to cross-examine James Baxter regarding his residence?
      (b) Did the lower court err by instructing the jury to ignore the defense counsel's question regarding said residence?
      (c) Did the lower court err by refusing appellant’s requested point for charge regarding Mr. Baxter's incarceration?

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 907.

      . The relevant portions of the trial transcript in Alford, supra follow:
      Q. Where do you live, Mr. Bradley?
      MR. ARMSTRONG: That is objected to as immaterial and not proper cross-examination.
      THE COURT: I cannot see the materiality.
      MR. FRIEDMAN: Why, I think the jury has a perfect right to know who the witness is, where he lives and what his business is, and we have the right to elicit that on cross-examination. I may say that this is the first witness the Government had called that they have not elicited the address from.
      THE COURT: I will sustain the objection.
      Q. BY MR. FRIEDMAN: What is your business, Mr. Bradley?
      A. My profession is an accountant, public accountant.
      Q. What is your occupation now?
      A. I am not doing anything at the present time on account of this case.
      Q. On account of this case?
      A. Yes.
      Q. Do you live in Los Angeles?
      MR. ARMSTRONG: That is objected to as immaterial and invading the Court’s ruling.
      THE COURT: I have ruled on that question.
      MR. FRIEDMAN: I will temporarily pass on to something else. I would like leave to submit authorities on my right to develop that on cross-examination. I haven’t them with me.

        THE COURT: All right. * * *
      The jury were thereupon excused by the court until 9:30 o'clock on the morning of July 24, 1929, whereupon the jury retired after which the following proceedings were had relative to the materiality of the testimony, as to the residence and place thereof of Cameron Bradley.
      THE COURT: So ordered. In what particular do you think that evidence is material?
      MR. FRIEDMAN: I think it is material for this purpose, first, not only on the general grounds I urged in asking the question, but on the additional grounds that I have been informed and caused to believe that this witness himself is now in the custody of the Federal authorities.
      MR. ARMSTRONG: You mean Mr. Bradley? You mean by the Federal authorities here?
      MR. FRIEDMAN: I don’t know by what authorities, but that is my impression, that he is here in the custody of the Federal authorities. If that is so, I have a right to show that for the purpose of showing whatever bias or prejudice he may have.
      THE COURT: No; I don’t think so. If you can prove he has ever been convicted of a felony, that is a different thing.
      MR. FRIEDMAN: I realize that is the rule. I may impeach him if he has been convicted of a felony.
      THE COURT: No. You may prove that fact as going to his credibility, but you can’t merely show that he is detained or in charge of somebody. Everybody is presumed to be innocent until proven guilty.
      MR. FRIEDMAN: It is a violent presumption sometimes, I know.
      THE COURT: Your defendant is certainly to be given the benefit of that presumption.
      MR. FRIEDMAN: I have no doubt of that.
      THE COURT: If that is all you have, I will have to stand on the ruling. * * * MR. FRIEDMAN: I would like, if the Court please, our exception noted to the Court's ruling made yesterday after the jury retired to the effect that we could not inquire as to the present address and residence of the witness.
      THE COURT: Very well.

        Alford, supra 282 U.S. at 689, n. 1; 51 S.Ct. at 218-219, n. 1.