author: CAVANAUGH, Judge: CIRILLO, Judge,

text:
    591 A.2d 723
    Mary Jo SPITZER, Appellee, v. Francis J. TUCKER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1991.
    Filed May 21, 1991.

      William J.C. O’Donnell, Paoli, for appellant.
    Mark C. Morrow, Philadelphia, for appellee.
    Before CAVANAUGH, CIRILLO and BROSKY, JJ.
   CAVANAUGH, Judge:

The present appeal is from a support order following a petition initiated by appellee, Mary Jo Spitzer, against her ex-husband, Francis J. Tucker, to obtain from Tucker additional support in order to fund his son Will’s educational expenses at Syracuse University. After extensive hearings before a master which took place at three separate sessions held between June and October of 1989, the court entered an order in June of 1990 which found that each parent had sufficient resources to allow for payment of the educational expenses and that each, after consideration of personal living expenses, had sufficient discretionary income available for this purpose. After ordering the payment of a modest contribution by the student, the court directed that each parent contribute one-half of the tuition, board and related expenses.

Appellant Tucker attacks this order and argues that undue discretion was vested in the student’s choice of school and that the court failed to properly weigh the relevant factors; that the court erred in refusing to assign a sufficient earning capacity to the student’s mother; and the court failed to properly apply the “Meltzer" formula.

A panel of this court recently had occasion to restate the law applicable to our present review:

It is well established that the scope of appellate review in child support cases is very narrow. The appellate court will disturb a trial court’s findings only when the judge has clearly abused his or her discretion. “[A] finding of such abuse is not lightly made and must rest upon a showing of clear and convincing evidence.” Shindel v. Leedom, 350 Pa.Super. 274, 279, 504 A.2d 353, 355-56 (1986) (citations omitted). What constitutes an abuse of discretion is also well settled. It is not “merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793, 794 (1985) (citation omitted). The scope of review in such cases is not altered by the fact that the order is for college support as opposed to support for a minor child. See Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102, 104 (1989); Leonard v. Leonard, 353 Pa.Super. 604, 608, 510 A.2d 827, 829 (1986); Commonwealth ex rel. Larsen v. Larsen, 211 Pa.Super. 30, 234 A.2d 18 (1967). Judged by this stringent standard, we find no abuse of discretion.
The obligation of a parent with adequate financial resources to furnish support for a child’s college education is well settled in Pennsylvania. See e.g., Miller v. Miller, 353 Pa.Super. 194, 509 A.2d 402 (1986); Sutliff v. Sutliff, 339 Pa.Super. 523, 489 A.2d 764 (1985). A court will impose this obligation on a parent only if the burden of college support will not cause undue hardship. Leonard v. Leonard, supra; Bedford v. Bedford, supra. Furthermore, if it can be shown that “a parent Can meet the support needs of a college-age child with ease, a court is free to impose a complete obligation.” Miller v. Miller, supra, 509 A.2d at 404.

Pharoah v. Lapes, 391 Pa.Super. 585, 571 A.2d 1070,1072-3 (1990).

We have considered the testimony before the master, the trial court’s opinion, the briefs of the parties, and the oral argument presented to this court. From the narrow confines of our posture of review, we find that the arguments of appellant are without merit and we affirm the order of the trial court. We believe that the goal of the court in higher education support cases should be to “replicate, as nearly as possible the decision the intact family would have made” (See Pharoah, supra, Cirillo, J. dissenting, 571 A.2d at 1077; Milne v. Milne, 383 Pa.Super. 177, 187, 556 A.2d 854, 861 (1989). In such a situation one would expect, for example, that a father who was only subject to minimal support obligations for almost eighteen years would have made economic preparations to assist in his only son’s post-secondary education; that a well-educated parent would not resort to a claim of entry level employment competence, or shield personal trust resources to resist what should ordinarily be considered a paramount family aspiration; and finally, that the prospective student would recognize the enormous variety of excellent educational institutions available and yield in his personal preferences to choices dictated by familial resources and wisdom. Nevertheless, the trial court here was faced to some extent with a fait accompli, and fixed positions by the parties. Thus, there is substantial evidence that both parents can make equal contributions to the educational enterprise without undue hardship and there is no necessity for a circumscribed evaluation of Mrs. Spitzer’s earning capacity. Moreover, the record supports the trial court’s conclusion with respect to this issue, and we find the court’s reasoning and disposition to be a valid exercise of discretion.

Finally, since the post-secondary support obligation is governed by specific caselaw in Pennsylvania, we see no reason for application of the precise requirements of the Meltzer formula.

Order affirmed.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting.

Because I feel that Francis J. Tucker should not be required to contribute to his son’s education at Syracuse University, I respectfully dissent.

Mr. Tucker and Mary Jo Spitzer were divorced in 1973. Mr. Tucker, pursuant to a support order entered in Chester County, was providing $40.00 per week for the support of his son Will Tucker. On January 31, 1989, Ms. Spitzer filed a petition seeking financial contributions from Mr. Tucker for Will’s college expenses. Three days of hearings were held and a recommended order was entered to which both parties filed exceptions. The trial court found that Mr. Tucker, an attorney, earns approximately $60,000.00 annually, while Ms. Spitzer, who is the beneficiary of a trust fund and who is a certified teacher, was assigned an earning capacity of $40,000.00 per year. Following oral argument, the Honorable Thomas J. Gavin ordered, in pertinent part, that Will would be responsible for the first $2,000.00 of his college expenses and that the remaining expense would be borne equally by both parties. This timely appeal followed.

On appeal, father argues, among other things, that he should not be required to contribute to the cost of Will’s Syracuse education because Will’s college selection was arbitrary and because Will could receive a comparable education at the Pennsylvania State University (“PSU”) for less than half the cost of Syracuse. I agree.

We are once again asked to determine whether the trial court abused its discretion in determining a support award. Although the instant case concerns the support of an adult child, it is instructive to examine the social and moral realities which require court intervention in a divorced family’s relationships. It is well settled that the duty to support a minor child is virtually absolute. Sutliff v. Sutliff, 339 Pa.Super. 523, 537, 489 A.2d 764, 771 (1985), modified on appeal, 515 Pa. 393, 528 A.2d 1318 (1987). While courts and legislatures have only recently concerned themselves with child support obligations, see Krause, Child Support Reassessed: Limits of Private Responsibility and the Public Interest, 6 Fam.L.Q. 1, 6 (1990) (hereinafter Krause), as early as 1765, Blackstone aptly summarized the rationale for such obligations:

The duty of parents to provide for the maintenance of their children, is a principle of natural law____ By beget-
ting them, therefore, they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents.

1 W. Blackstone, Commentaries on the Laws of England 447-448 (1765). Maintenance in 1765, however, did not extend far beyond food, clothing and shelter. Traditionally, such economic support was premised upon reciprocity. Krause, at 18. Specifically, support received by the young child morally and legally obligated the adult child to support the aged parent. Id. Prior to the advent of Social Security, child support was an investment the supporting parent made to be recovered in later years. Id.

Instantly, Will has requested his father to contribute to his college education. While a college education is increasingly viewed as a necessity, the obligation to support a college student is a qualified one. Milne v. Milne, 383 Pa.Super. 177, 183, 556 A.2d 854, 858 (1989). The basic test for fashioning an award of support for post-secondary education is well settled:

An award made after majority for contribution to college expenses is made within the discretion of the court. This exercise of discretion is bounded by a judicially promulgated test consisting of two factors: the desire and ability of the child to successfully pursue post-secondary education and the ability of the parent to contribute to that effort without undue hardship.

Id. (citations omitted). The above elements do not exist in a vacuum; when determining an award for college support the trial court is required to weigh and evaluate a number of factors peculiar to each case which are outside the two tier test. Id.; see also Pharoah v. Lapes, 391 Pa.Super. 585, 596, 571 A.2d 1070, 1076 (1990) (Cirillo, P.J., dissenting). Numerous cases have considered factors outside the narrow two tier test when fashioning support awards for college expenses. Id.

Here, it is clear that Will has the ability and desire to attend college. Further, although father may wish to persuade us to the contrary, it is apparent from the record that he can afford to contribute to his son’s education at Syracuse without undue hardship. Thus, if we were limited to the constraints of the above two prong test, our inquiry would cease. I, however, refuse to blindly apply this two part analysis. Pharoah, 391 Pa.Super. at 596, 571 A.2d at 1076 (Cirillo, P.J., dissenting). Consequently, while father is able to provide support for a Syracuse education, the question remains whether the trial court, under the present circumstances, abused its discretion in ordering him to do so. “An abuse of discretion is more than an error of judgment. It must be a misapplication of the law or an unreasonable exercise of judgment.” Marshall v. Ross, 373 Pa.Super. 235, 238, 540 A.2d 954, 956 (1989).

It is undisputed that the amount of any support award depends upon the facts and circumstances of each case. Pharoah, supra. Nonetheless, it is helpful to review two previous cases where the child’s choice of a more expensive college was opposed by the noncustodial parent. In Commonwealth ex rel. Larsen v. Larsen, 211 Pa.Super. 30, 234 A.2d 18 (1967), James Larsen enrolled at Washington and Jefferson College in Washington, Pennsylvania where his tuition and other expenses totaled approximately $3,600.00 per year. James’ mother sought to have James’ father, Dr. E. Noer Larsen, provide increased support to cover James’ college expense. Dr. Larsen claimed that James could receive an adequate, if not superior education, at PSU for a cost of only of $1,275.00 per year. The trial court agreed with Dr. Larsen and this court affirmed.

In what remains a considered insight into this difficult area, the Larsen court stated:

We are reluctant to formulate a rule which would, in all cases, prevent a child from attending the college of his [or her] choice simply because it is more expensive than the state-supported university. On the other hand, we do not believe that the child should have absolute discretion in selecting a college, and thereby unilaterally increasing the father’s [or mother’s] support obligation.
The duty of a parent to provide a college education for a child is not as exacting a requirement as the duty to provide food, clothing and shelter for a child of tender years unable to support himself.... No mathematical rule can be formulated to determine how extensive the hardship upon a father must be before it will excuse him from supporting a child in college. It must be a matter of judgment in a field where the judgments of sincere and advised men differ materially.... To determine whether the order is justified, an important consideration is the estate, the earning capacity and the income of the defendant. This, however, is not the sole criterion. There are other circumstances to be considered.

Id., 211 Pa.Superior Ct. at 34, 234 A.2d at 20 (citations omitted) (quoting Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 644-645, 190 A.2d 182, 184 (1963)). The court in Larsen was faced with determining whether the father should be required to fund an expensive private education at Washington and Jefferson, or a less expensive, yet adequate education, at PSU:

Thus, in a case such as this, the court must first ascertain what advantages are offered by the more expensive college in relation to the child’s individual needs, aptitude, ability, and the child’s anticipated vocation. It must then weigh these advantages against the increased hardship that would be imposed on the father to determine whether the additional expense is reasonable under the circumstances. We realize that a judge who sees and hears the witnesses in a case such as this is in a better position that this Court to decide this problem and our function on appeal, therefore, is merely to determine whether the lower court is chargeable with an abuse of discretion.

Id. (citations omitted). James’ choice of Washington and Jefferson was a unilateral decision, made without consultation with his father. Id., 211 Pa.Superior Ct. at 35, 234 A.2d at 21. James’ selection was apparently based upon the fact that Washington and Jefferson offered the advantages of smaller classes and closer contact between students and their instructors. Id. Neither the trial court nor this court felt that James’ reasons for choosing Washington and Jefferson justified the increased financial burden to his father who was 67 years old at the time. Id.

In Pharoah, Anthony Lapes decided to attend Massachusetts Institute of Technology (“MIT”) instead of accepting a full tuition scholarship to Georgia Institute of Technology (“Georgia Tech”). Anthony had discussed attending college with his father, but neglected to tell him that he had been offered a full tuition scholarship at Georgia Tech. Judge Beck, writing for the court, stated that

the record amply supports the trial court’s conclusion that Anthony “deserved” the best education possible based upon his considerable academic accomplishments. The record further established that Anthony’s decision to attend M.I.T. was based upon the reasonable conclusion that it would represent a superior educational experience. This conclusion was reached by assessing the school’s selectivity, its ratings in college handbooks, its course offerings in Anthony’s chosen field of computer science and its national, indeed international reputation.

Id., 391 Pa.Superior Ct. at 592-93, 571 A.2d at 1074. I dissented in Pharoah because the majority’s decision did not assess the totality of the circumstances with the goal of replicating, as nearly as possible, the decision the intact family would have made. Id., 391 Pa.Superior Ct. at 597, 571 A.2d at 1077 (Cirillo, P.J., dissenting). It is clear, however, that in Pharoah Anthony’s decision to attend MIT was reached after a studied consideration of its curriculum, its global reputation and its strong computer science program. Id.

In light of Pharoah and Larsen, it is imperative that we examine the reasons underlying Will’s decision to attend Syracuse and whether there is any evidence of record which would indicate that Syracuse would offer Will a superior education. Initially, it should be noted that Will did involve his father in the college selection process. Will also testified that he was aware that, due to cost, his father preferred that Will attend PSU. Although Mr. Tucker was consulted, his expressed preference that Will attend PSU was ultimately ignored and Will decided to enroll at Syracuse.

At the hearing, Will did not give any reason why he chose Syracuse over PSU. Will’s mother, however, testified that Will simply did not like PSU. Will’s mother also opined that Will might not have wanted to attend PSU because his father had, in effect, “pulled some strings,” to get Will into the main campus. Ms. Spitzer stated that Will was very proud and did not want to attend a college unless he “got himself in the door.”

Will’s mother also testified that Will decided to attend Syracuse after he did not gain admission to Richmond or Dickinson. Ms. Spitzer stated that Will liked Syracuse because his best friend from Conestoga was going to attend Syracuse and because Will was interested in watching Syracuse sporting events. Apparently, the academic curriculum at Syracuse was not a factor in Will’s decision. Essentially, since there was no indication that Syracuse offered Will a superior education, there was no academic reason for Will to attend Syracuse over PSU.

Moreover, if Will’s biological family had remained intact, I do not feel that Will would have had been afforded a Syracuse education. See Horan, Postminority Support for College Education—A Legally Enforceable Obligation in Divorce Proceedings? 20 Fam.L.Q. 589, 607 (1987) (hereinafter Horan). When a family is intact, there is a discussion of the financial ramifications of an adult child’s educational preference. Milne, 383 Pa.Super. at 187, 556 A.2d at 860; Pharoah, supra (Cirillo, P.J., dissenting). More importantly, when it is time for an adult child to attend college, the expressed preference of the payor spouse in an intact family is not casually disregarded.

If an intact family decides, for whatever reason, that they will not bear the burden of sending the adult child to the preferred, albeit more expensive, institution and that child still desires to attend college, he or she is confronted with two alternatives. The child can attend the more costly institution and finance the education on his or her own, or the child can defer to the parents’ decision and enroll in the less expensive college with their financial assistance. What the child of the intact family cannot do is attend the more costly college and subsequently sue his or her parents for the resulting expenses.

Pharoah, 391 Pa.Super. at 599, 571 A.2d at 1077-1078 (Cirillo, P.J., dissenting). Here, Will and his father did discuss the financial ramifications of attending Syracuse. However, because Will’s parents are divorced, he was able to attend Syracuse, against his father’s wishes, and sue his father for half of the increased expense. This is both painful and ludicrous.

While the courts require divorced parents to provide support that is reasonable under all the circumstances, married parents do not legally owe their children a lifestyle that is consistent with their income and station in life. Krause, at 20. Married parents may rear their children in any reasonable way they see fit. See id. When parents divorce, all too often, the noncustodial parent has little input on important decisions. Pharoah, 391 Pa.Super. at 599, 571 A.2d at 1078 (Cirillo, P.J., dissenting). As such, the decision-making power is exercised by the custodial parent, who often is not the paying parent. Krause, at p. 20.

I, however, am also aware that what parents would have done willingly had their relationship not deteriorated must, in certain cases, be coerced for the benefit of their children. Chesonis, 372 Pa.Super. at 117, 538 A.2d at 1379 (Cirillo, P.J., dissenting). Nonetheless, I have not lost sight of our primary objective which prompted court involvement in a divorced family’s relationship:

to ensure that children of divorced parents are not unjustly deprived of opportunities they would have had if their parents had remained married. Milne, 383 Pa.Super. at 186-187, 556 A.2d at 859. Conversely, our aim has never been to permit the adult children of divorced parents to reap profits that they would not have enjoyed if the family were still intact.

Pharoah, 391 Pa.Super. at 600, 571 A.2d at 1078 (Cirillo, P.J., dissenting).

Here, Will, against his father’s clear wishes, decided to attend Syracuse because his best friend intended to enroll at Syracuse and because he enjoyed watching Syracuse sporting events. These reasons are woefully inadequate to justify the increased support contribution a Syracuse education requires. Unlike the college-bound young adults in Pharoah and Larsen, there was no testimony that Will’s needs would be better served at Syracuse than at PSU. Additionally, there was no indication that Will wanted to take advantage of a specific program that was offered at Syracuse and was not offered at PSU. The court in Larsen, while finding that the trial judge is in far better position to make these difficult determinations, stated that a trial judge “must first ascertain what advantages are offered by the more expensive college in relation to the child’s individual needs, aptitude, ability, and the child’s anticipated vocation.” Larsen, 211 Pa.Super. at 34, 234 A.2d at 20 (emphasis added). After such a determination is made, then the trial judge must weigh these advantages against the increased hardship that would be imposed upon the payor to decide if the additional expense is reasonable under the circumstances. Id. Here, other than the presence of Will’s best friend on campus, the record reveals no advantage that is inherent in a Syracuse education and lacking in an PSU education. Consequently, since Syracuse offered no such advantages, the increased expenditure cannot be justified.

There was testimony at the hearing that Will’s father lived a frugal life. Clearly, cost, as Ms. Spitzer admitted, has always been a factor for Mr. Tucker. Moreover, there was no indication that Will harbored any animosity for his father; indeed, Will worked for his father during the summers of 1988 and 1989. These two factors, Mr. Tucker’s frugality and the apparently friendly relationship between father and son, lead me to conclude that Mr. Tucker would not have agreed to fund Will’s Syracuse education if the family had remained intact. On the contrary, from the testimony it appears that Mr. Tucker would have insisted that, for financial reasons, Will attend PSU.

I do not condone or condemn Mr. Tucker’s reluctance to finance a Syracuse education. The evidence revealed that at the date of the hearing a year at Syracuse cost approximately $15,000.00, an education that even the most munificent of parents may decline to fund.

I cannot close without commenting upon the current cost of post-secondary education and its resulting effect on divorced parents. Between 1980 and 1986 the average cost to attend a private university rose by %80.8, the cost to attend a public university rose by % 61.2, yet the median family income rose only % 40.1. New York Times, March 23, 1988 at B8 col. 1. Experts agree that education costs will continue to increase. In light of the exorbitant cost of attending college, we should not require increased support contributions from divorced, yet financially capable, parents without legitimate reasons to justify the augmented expenditure. See Larsen, supra. Surely, although a college education is arguably a necessity, no one can argue that Will needs a Syracuse education. As such, our task is to make certain that Will receives an education that is reasonable under all the circumstances. A careful review of the instant circumstances make it painfully clear that requiring Mr. Tucker to contribute to the support of a Syracuse education because of the proximity of Will’s best friend and a preference for watching Syracuse athletics is undoubtedly unreasonable.

In sum, because Will offered no academically legitimate reason for attending Syracuse instead of PSU and because Mr. Tucker’s history of frugality convinced me that he would have been opposed to funding a Syracuse education if the family had remained intact, I find that, pursuant to Larsen, the trial court abused its discretion when it ordered Mr. Tucker to contribute to Will’s educational pursuits at Syracuse when Will could have enjoyed a comparable education at PSU for less than half the cost.

      . Ms. Spitzer’s current husband is an attorney with gross annual earnings of over $200,000.00.

      . Father also contends that the trial court erred by not assigning a greater earning capacity to mother who is a certified teacher, and that the trial court abused its discretion in failing to perform an on-the-record Melzer calculation. See Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Since it is fairly clear that both mother and father have sufficient funds to contribute to their son’s education, I will limit my discussion to the propriety of the trial court’s decision requiring father to contribute to Will’s education at Syracuse.

      . In Milne, this court looked outside the above test and held that an adult child’s willful estrangement from his or her parent excuses that parent from his or her duty to contribute to the child’s educational expenses. Milne, supra. See Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102 (1989) (clarifying estrangement necessary to sever a parent's duty to contribute to the child’s college support); see also Sutliff v. Sutliff, 515 Pa. 393, 528 A.2d 1318 (1987); Melzer v. Witsber

        ger, 505 Pa. 462, 480 A.2d 991 (1984); Chesonis v. Chesonis, 372 Pa.Super. 113, 538 A.2d 1376 (1988); DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987); Francis v. Francis, 358 Pa.Super. 391, 517 A.2d 997 (1986); DeVergilius v. DeVergilius, 329 Pa.Super. 434, 478 A.2d 866 (1984); Commonwealth ex rel. Smith v. Smith, 217 Pa.Super. 1, 268 A.2d 161 (1970); Commonwealth ex rel. O’Hey v. McCurdy, 199 Pa.Super. 115, 184 A.2d 291 (1962).

      . Today, fathers increasingly assume an active role in the ongoing family. In stark contrast, the typical custody adjudication in divorce terminates the father’s parental status, at least in any meaningful sense. This de facto termination of parental status comes at the very time we impose on the absent parent a child support obligation that typically is far larger than what he might have shouldered, or was legally obligated to provide, in the ongoing family.

        Krause, at p. 19 (footnotes omitted). Although Mr. Tucker’s child support payments for Will were arguably reasonable, the above comments become relevant to the instant case in light of the increased college support contribution now required of Mr. Tucker.

      . For a child born in 1988, four years at a public university is estimated to cost $120,000.00 in tuition and other expenses. New York Times, Feb. 20, 1988, at 34, col. 1.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    591 A.2d 730
    COMMONWEALTH of Pennsylvania, Appellee, v. Jay C. SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1991.
    Filed May 22, 1991.
    Petition for Allowance of Appeal Granted Sept. 20, 1991.

      William Costopoulos, Lemoyne, for appellant.
    Robert A. Graei, Deputy Atty. Gen., Harrisburg, for Com., appellee.
    Before CAVANAUGH, McEWEN and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

Should all charges against appellant Jay C. Smith be dismissed and a retrial barred because of an alleged pattern of prosecutorial misconduct during trial and on appeal?

The history of the case, relevant to our present inquiry, may begin with the conviction of Smith by a jury of murder in the first degree for the killing of Susan Reinert and her two children Karen and Michael. At the penalty stage of the proceedings, the jury found two aggravating factors as to each case and no mitigating factors with the result that a death sentence was imposed as to each victim. Post-trial motions were heard and denied. Just before sentencing, a motion for a new trial was filed based on after discovered evidence citing alleged prosecutorial misconduct in failing to disclose a “deal” with a Commonwealth witness, Raymond Martray, who had testified at trial as to incriminating statements made by Smith while Martray and Smith were incarcerated together. The trial court, after hearing evidence relative to this motion, concluded that there was no after discovered evidence warranting a new trial and rejected Smith’s motion. Smith was sentenced in accordance with the jury verdicts and the court later denied post-sentence motions to modify sentence.

Argument on appellant’s automatic appeal to the supreme court was heard in May of 1988. Among the claims of error asserted on appeal was the denial of the Martray motion. Following argument before the supreme court, the attorney for the Commonwealth advised Smith’s counsel of the discovery of five evidence collection devices known as rubber lifters, two of which contained a particle of sand sized quartz. This disclosure inspired a motion on behalf of Smith in the supreme court wherein the case then resided. This motion sought vacation of the sentence and a bar to retrial on the basis of double jeopardy. The supreme court in response remanded for an evidentiary hearing on the issue. After hearing, the trial court denied Smith any relief and its findings and conclusions were forwarded to the supreme court, which on December 22, 1989 granted Smith a new trial on a basis other than the two motions discussed above (the “Martray motion” and the “lifters motion”). In view of the grant of a new trial, the court did not reach the Martray and lifters issues.

On remand, Smith filed a motion in the trial court reasserting his claim for double jeopardy relief to bar a retrial on the grounds of prosecutorial misconduct. The matter was assigned to Senior Judge Robert L. Walker. Judge Walker concluded that there were no double jeopardy violations under controlling interpretations of that doctrine and that at least inferentially the supreme court had already denied relief on these grounds since it had ordered a new trial and, therefore, may be presumed to have rejected any arguments in favor of relief which would bar a retrial. Nevertheless, the court refused to make a finding of frivolousness as to Smith’s contentions which would have precluded an appeal from its order. Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986); Commonwealth v. Gains, 383 Pa.Super. 208, 556 A.2d 870 (1989). The present appeal is from Judge Walker’s order which denied Smith any relief.

Initially, the Commonwealth interposes the argument that the double jeopardy motion asserted here has already been presented to and rejected by the supreme court. Indeed, it is argued that Smith, in his Martray motion, sought only a new trial and that having been granted a new trial, albeit on another ground, appellant has already received all the relief which he sought. Similarly, the Commonwealth argues that the lifters motion was also presented to the supreme court and in that instance, in fact, double jeopardy relief was sought.

In both instances the Commonwealth relies upon the substantive integrity of the supreme court opinion to the effect that if there were an argument which would merit relief in the form of barring a retrial, it would have been considered before the court reached those issues meriting a lesser relief in the form of a new trial. The Commonwealth’s argument is further buttressed by the fact that the supreme court specifically referred to the lifter evidence in its decision and stated:

In view of our disposition, we need not consider this issue in determining whether a new trial should be granted. This evidence will now be available at a subsequent trial, and the jury will be given the opportunity to assess its import within the totality of the evidence presented.

Commonwealth v. Smith, 523 Pa. 577, 596 n. 8, 568 A.2d 600, 610 n. 8 (1989).

Thus, the implication is that if the remedy was discharge, rather than a new trial, the court would have addressed the issue as it did the potentially dispositive issue of the sufficiency of the evidence. Nevertheless, while we agree that supreme court opinions must be accorded the highest degree of deductive integrity, we are reluctant to conclude by inference that the important issue of a violation of double jeopardy rights has been considered and rejected. Moreover, the language quoted above, together with the summary deferral of the seventeen other issues (including the Martray issue) not reached , leads us to conclude that this ease is similar to another case which is highly relevant to the issues at hand. In Commonwealth v. Simons, 514 Pa. 10, 522 A.2d 537 (1987), the issue of prosecutorial misconduct was argued on appeal in the context of seeking a new trial. After a remand and hearing on the issue, the trial court granted a new trial and then motions to dismiss on double jeopardy grounds were filed. Both this court and supreme court heard appeals from the denial of double jeopardy relief without finding waiver by reason of the previous adjudication.

Having decided that the double jeopardy contention has not been already decided by the supreme court, we proceed to consider the merits of the appeal from Judge Walker’s order denying relief. In Commonwealth v. Simons, supra, the supreme court after noting the parallel reach of the double jeopardy issue under federal and Pennsylvania law and the federal supreme court ruling in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), concluded that:

In light of the altered basis of Starks, we now declare that henceforth double jeopardy will attach only to those mistrials which have been intentionally caused by prosecutorial misconduct.

Commonwealth v. Simons, Id., 514 Pa., at 16, 522 A.2d at 540.

On the face of it, the Martray and lifter evidence viewed separately or together, would not merit double jeopardy relief under the Kennedy-Simons standard since the essence of the Commonwealth’s acts in each case was concealment rather than engaging in acts which were intended to provoke a mistrial. Recognizing this, appellant argues for an expansion of the narrow Kennedy-Simons standard to include as conduct meriting dismissal intentional prosecutorial misconduct which, if revealed at trial, would have caused a mistrial, but, in fact, was successfully concealed at trial. Judge Del Sole in this court and Judge Flaherty in the supreme court filed dissents in Simons which appealingly argued for a wider reading of the double jeopardy protection to reach instances where the prosecution misconduct is concealed from the defendant, thus negating any basis for concluding that there was an overt intention to provoke a mistrial. Appellant makes a compelling argument as to why dismissal relief should be available to the defendant who is victimized by undisclosed harassing prosecutorial action designed to obtain a conviction rather than overt action aimed at provoking a mistrial.

Separately, an argument is made that dismissal should be granted on the ground that the Commonwealth's conduct was so outrageous that there has been an abridgement of appellant’s right to due process, and, in effect, that a civilized society cannot permit retrial under such egregious circumstances. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); United States v. Driscoll, 852 F.2d 84 (3d Cir.1988).

In order to grant the relief of dismissal, we would be required to expand the Kennedy-Simons interpretation of the double jeopardy doctrine or to recognize the existence of a due process right to be free from reprosecution when there has been concealed overreaching by the government. In either case, as an intermediate appellate court, the grant of the relief sought would entail the expansion of an existing doctrine (Kennedy-Simons) or the enunciation of a new precept of Pennsylvania law (bar of reprosecution because of due process infringement of defendant’s rights), neither of which this court is empowered to do. Malinder v. Jenkins Elevator & Machine Co., 371 Pa.Super. 414, 538 A.2d 509 (1988); DeFrancesco v. Western Pennsylvania Water Co., 329 Pa.Super. 508, 478 A.2d 1295 (1984); Rambo v. Commissioner of Police, 301 Pa.Super. 135, 447 A.2d 279 (1982); Hillbrook Apartments v. Nyce Crete Co., 237 Pa.Super. 565, 352 A.2d 148 (1975); Crowell Office Equipment v. Krug, 213 Pa.Super. 261, 247 A.2d 657 (1968); Beckham v. Travelers Insurance Co., 206 Pa.Super. 488, 214 A.2d 299 (1965).

In conclusion, we feel constrained to agree with Judge Walker who, in deciding the motion which is the subject matter of the present appeal, opined that he was bound by the majority opinion of higher court precedent and we, therefore, affirm the order of the trial court which on May 15, 1990 declined to dismiss charges on double jeopardy grounds due to prosecutorial misconduct.

      . See, 523 Pa. at 588 n. 6, 568 A.2d at 606 n. 6.

      . Both appellant and appellee have devoted large portions of their extensive briefs to a discussion of the alleged prosecutorial misconduct, primarily the matters of the Martray “deal" and the lifters discovery. We agree with Judge Walker’s comment that "neither the Attorney General’s Office nor the Pennsylvania State Police can take any great pride in the manner in which this case was handled [during trial and on appeal]”. A review of the evidence at the hearing on both the Martray and lifters motions demonstrates that the Commonwealth took extraordinary steps to procure Martray's release and may have been instrumental in his being successful in avoiding part of his sentence from a previous offense. As to the lifter evidence, it appears that the reaction of the attorney general’s office was to focus on possible charges against the witness who had disclosed the existence of the lifter evidence at trial rather than its duty to discover and to disclose the evidence to the defendant and the court (See, Memorandum of April 11, 1986 from trial attorney Guida to Robert Keuch, then Executive Deputy Attorney General).
      Moreover, we have reviewed the orders which ensued after the trial court’s separate hearings on the Martray and lifters motions (which were heard and decided prior to the double jeopardy motion before Judge Walker). Both orders were based in part on the theory that knowledge of the mischief, if any, on the part of the police or members of the attorney general’s office was not brought home to or attributable to the prosecuting attorney or authorities in the attorney general’s office at the crucial times, relevant to the claim of misconduct. The lack of individual scienter by a member of the prosecution’s office, however, has been rejected as excusable error since the office is considered as an entity. Commonwealth v. Simons, supra; Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983).

      . In addition to the Martray and lifters claims, appellant cites two other instances of alleged prosecutorial misconduct, the grand jury presentment and negligent handling of evidence. Assuming the validity of these claims, our posture as to this court’s empowerment to grant relief would be the same.


author: OLSZEWSKI, Judge:

text:
    591 A.2d 734
    COMMONWEALTH of Pennsylvania v. Kenneth INGRAM, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 20, 1991.
    Filed May 22, 1991.

      Kalvin Kahn, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence rendered in the Court of Common Pleas of Philadelphia County, following a jury trial wherein appellant was found guilty of possessing an instrument of crime, aggravated assault, and recklessly endangering another person. Appellant alleges eleven instances of error by the trial court and sixteen claims of ineffective assistance of trial counsel. The facts, as stated by the trial court, are as follows:

This case involves open gunfire into a nightclub injuring an employee, John Anderson. Mr. Anderson was employed as the doorman at the Boyle’s Pacific Tavern located at 2222 Pacific Street in the City of Philadelphia. On August 1, 1987, at approximately 12:00 midnight Mr. Anderson was required to fulfill his duties as the “bouncer” by turning away a group of approximately four men, one of which was the defendant, for not meeting the club’s appropriate dress code. Mr. Anderson testified that the “gentlemen” protested by beginning a “tussle” that ended in a fight. (N.T. 12/13/88, p. 27). Approximately five to ten minutes after the fight had dissipated, Mr. Anderson heard a shot, the glass of the window shattered and he was hit in the arm. Mr. Anderson testified that the shot originated from a parking lot angled across the street from the club. (N.T. 12/13/88, p. 28). Mr. Anderson identified the defendant as a regular at the club, and stated that the defendant was present on August 1, 1987. However, Mr. Anderson was unable to identify the defendant as the gunman. (N.T. 12/13/88, p. 59).

(Trial court opinion at 20.)

Several police officers testified concerning appellant’s identification and apprehension. Officer Murphy, an officer at the scene, testified that on the night in question, he observed a male walking toward the parking lot with what appeared to be a rifle or a shotgun. (N.T. 12/13/88, p. 71.) The officer testified that he witnessed the male make a “pump” action, which appeared to be loading the gun. The male then disappeared behind a garbage dumpster, at which time a shotgun fire was heard. (N.T. 12/13/88, p. 73.) The officer then testified that he observed the male running toward him and recognized the male as appellant. Officer Murphy was able to recognize appellant because of his routine patrol of the area over a four-year period. Additionally, the officer testified that he had once been involved in transporting appellant to the hospital from his mother’s house. (N.T. 12/13/88, pp. 89-90.) The officer followed appellant through a fence, but was unsuccessful in apprehending him. (N.T. 12/13/88, p. 74-75.)

Officer Andrew Smith testified that he searched the area and recovered a used shotgun shell near the garbage dumpster, as well as a shotgun containing two shells. The shotgun was in two separate pieces under weeds and debris near a hole in the fence where appellant had escaped. (N.T. 12/14/88, pp. 4-12.)

Officer Thomas Ryan was the arresting officer and testified that he received a warrant for appellant’s arrest on August 1, 1987. He testified that he was unsuccessful in finding appellant until February 12, 1988, when he observed appellant walking in a Philadelphia neighborhood. (N.T. 12/14/88, p. 26.)

Appellant first alleges that the trial court erred in failing to grant his petition to dismiss pursuant to Pa. R.Crim.P. 1100. Rule 1100 was amended on December 31, 1987. Under the former version of Rule 1100, a defendant was required to be brought to trial within 180 days from the date on which the complaint is filed. The amended version increases this time period to 365 days. The record indicates that the complaint was filed against appellant on August 1, 1987; therefore, the original 180-day period for commencement of trial ended on January 28, 1988. Appellant was apprehended on February 12, 1988. Because the original 180-day period allowing for commencement of trial had not yet expired when Rule 1100 was amended, the amended version of Rule 1100 applies to the case sub judice. See Commonwealth v. Palmer, 384 Pa.Super. 379, 558 A.2d 882 (1989). Therefore, the Commonwealth had 365 days to bring appellant to trial from the time the complaint was filed on August 1, 1987, excluding any period of time allowable by Rule 1100(c).

Rule 1100(e)(1) excludes the period of time between the filing of the written complaint and the defendant’s arrest from calculation of the trial commencement period, provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence. Appellant argues that the Commonwealth failed to exercise due diligence in attempting to apprehend him. We disagree. In determining whether the police acted with due diligence, a balancing process must be employed where the court, using a common sense approach, examines the activities of the police and balances this against the interest of the accused in receiving a fair trial. Commonwealth v. Cruz, 362 Pa.Super. 282, 524 A.2d 507, 509 (1987), citing, Commonwealth v. Branch, 337 Pa.Super. 22, 486 A.2d 460 (1984). The actions must be judged by what was done, not by what was not done. In addition, the efforts need only be reasonable; lack of due diligence should not be found simply because other options were available or, in hindsight, would have been more productive. Commonwealth v. Cruz, supra, 524 A.2d at 509, citing, Commonwealth v. Kaminski, 349 Pa.Super. 78, 502 A.2d 1281 (1985). In the present case, the trial court adequately set forth the Commonwealth’s activities in attempting to apprehend appellant:

Officer Thomas Augustine testified [at the suppression hearing on December 7, 1988] that he in the company of several police officers attempted to serve the arrest warrant at the defendant’s last known address. (N.T. 12/7/88, p. 10). Based on the information received from Mrs. Ingram, the defendant’s mother, the police were able to form a reasonable belief that the defendant had left town, and, therefore, had no reason to return to the address. (N.T. 12/7/88, p. 12). Officer Augustine then entered a wanted message into the PCIC, but not the NCIC because it was the officer’s belief that the defendant could not be extradited. (N.T. 12/7/88, pp. 13-16).
Officer Thomas Ryan testified that apprehension activities continued by himself and members of the police department in the neighborhood where the defendant was well known to them. Officer Ryan stated that on a daily basis during routine patrol, he and his partner haunted the spots where they had seen the defendant on numerous occasions in the past. (N.T. 12/7/88, p. 17). The continuing search ended in successful apprehension of the defendant by Officer Ryan on February 12, 1988, 196 days after the formal complaint was lodged. (N.T. 12/7/88, p. 17).

(Trial court opinion at pp. 28-29.)

We agree with the trial court, that this above police activity constitutes reasonable effort and due diligence in attempting to apprehend appellant. We will not, by judicial hindsight, criticize the police activity in this instance. Therefore, the 196 days between the time the complaint was filed on August 1, 1987, and the time appellant was arrested on February 12, 1988, is excluded from the computation of the period for trial commencement under Rule 1100. Recalculating the period, the Commonwealth had 365 days from February 12, 1988, the date of appellant’s arrest, to bring appellant to trial. As appellant’s trial commenced in December of 1988, there was no Rule 1100 violation.

Appellant next alleges that he was denied his Sixth Amendment right to counsel by virtue of the trial court’s failure to grant appellant a continuance to hire private counsel after he expressed his general dissatisfaction with court-appointed counsel at the beginning of the voir dire. Pa.R.Crim.P. 316(c)(ii) states, “A motion for change of counsel by a defendant to whom counsel has been assigned, shall not be granted except for substantial reasons.” A review of the record indicates that appellant, in the presence of the venire panel, expressed his dissatisfaction with trial counsel; however, appellant merely stated that he was not satisfied with counsel and was unable to specify counsel’s deficiencies. (N.T. 12/7/88, pp. 27-28.) Thus, it appears from the record that appellant was unable to provide substantial reasons for the assignment of new counsel.

Additionally, whether to grant a defendant’s petition to replace court-appointed counsel is a decision which is left to the sound discretion of the trial court. Commonwealth v. Neal, 387 Pa.Super. 165, 563 A.2d 1236, 1241 (1989) [citations omitted]. As a general rule, however, a defendant must show irreconcilable differences between himself and his court-appointed counsel before a trial court will be reversed for abuse of discretion in refusing to appoint new counsel. Commonwealth v. Neal, supra, 563 A.2d at 1241. The “right to counsel does not give [a defendant] the right ‘to delay the trial indefinitely because he is dissatisfied with competent counsel appointed by the court, ready and willing to represent him.’ ” Commonwealth v. Neal, supra, at 1241, citing, Commonwealth v. Stiles, 229 Pa.Super. 411, 417, 323 A.2d 841, 844 (1974). In its opinion, the trial court states that appellant’s trial counsel “clearly displayed spirited and conscientious preparation to defend this difficult defendant.” (Trial court opinion at 39.) Therefore, as appellant failed to specify substantial reasons for the appointment of new counsel, we cannot find that the trial court abused its discretion in denying appellant a continuance in order to employ private counsel.

Appellant next contends the trial court erred in denying the defense’s challenge for cause of a jury panel member who expressed his opposition to the use of weapons to commit crimes. When questioned about his ability to be an impartial juror and apply the law to the facts of the case, the juror responded affirmatively.

The test for determining whether a prospective juror should be disqualified is whether he or she is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor, Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). It must be determined whether any biases or prejudices can be put aside on proper instruction of the court, Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318 (1983). A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice or demonstrates a likelihood of prejudice by his or her conduct and answers to questions, Commonwealth v. Colon, 223 Pa.Super. 202, 299 A.2d 326 (1972). The decision on whether to disqualify is within the sound discretion of the trial court and will not be reversed in the absence of a palpable abuse of discretion, Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977).

Commonwealth v. Akers, 392 Pa.Super. 170, 572 A.2d 746 (1990).

In the present case, the trial court observed the venire member’s demeanor, heard his answers, and was in an overall better position to assess his credibility. Therefore, we are unable to find an an abuse of discretion by the trial judge.

Next, appellant alleges trial court error in denying appellant’s motion for a mistrial following the in-court identification of appellant by the complainant. Appellant contends that the Commonwealth had represented to appellant’s trial counsel that no in-court identification of appellant would be made through the complainant and that such identification was prejudicial, as it placed appellant at the scene of the crime within minutes of its occurrence. Appellant, in essence, argues that such testimony should not have been admitted, as it was damaging to appellant’s defense. We do not agree that appellant was unfairly prejudiced by this identification. The record indicates that the complainant did not identify appellant as the person who shot him, but only testified that he had seen appellant at the club on a regular basis and that he was present and involved in the “tussle” that occurred just prior to the shooting in question. (N.T. 12/13/88, p. 32.) We believe, as did the trial court, that this testimony presents an issue of credibility to be determined by a jury. See, Commonwealth v. Nelson, 337 Pa.Super. 292, 486 A.2d 1340 (1984). Any inferences as to the identity of the shooter that the jury may have drawn from the complainant’s testimony are not to be second-guessed by an appellate tribunal. See Commonwealth v. Nelson, 486 A.2d at 1344; Commonwealth v. Kloiber, 378 Pa. 412, 425, 106 A.2d 820, 827 (1954) (“... a weak identification, together with other evidence in the case, may be sufficient to convince a jury of the defendant’s guilt beyond a reasonable doubt—the credibility of the witnesses and the weight to be given their identification is, under proper instructions from the Court, exclusively for the jury.” [citations omitted]). Therefore, appellant’s motion for a mistrial was baseless and the trial court did not err in denying such motion.

As stated above, Officer Murphy, the police officer at the scene of the shooting, also gave identification testimony incriminating appellant. Appellant argues that the verdict was against the weight of the evidence, as this identification was based on mistake and therefore incredible. In evaluating a claim that the verdict is against the weight of the evidence, this Court, in Commonwealth v. McLean, 396 Pa.Super. 23, 578 A.2d 4, 6 (1990), recently stated:

The determination whether to grant a new trial on the ground that the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent an abuse of discretion. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982). Before a trial court may award a new trial on this ground, it must appear that the verdict was so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative. Commonwealth v. Gamber, 352 Pa.Super. 36, 45, 506 A.2d 1324, 1329 (1986); Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981). When the challenge to the weight of the evidence is predicated on the credibility of the trial testimony, our review of the trial court’s decision is extremely limited. Generally, unless the evidence “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) (citations omitted), these types of claims are not cognizable on appellate review. Id. See also Commonwealth v. Nelson, 514 Pa. 262, 271 n. 3, 523 A.2d 728 n. 3 (1987) (except in cases where penalty of death is imposed, appellate court should not entertain challenge to weight of evidence because examination is confined to “cold record”).

Id. 578 A.2d at 6-7, citing, Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989).

At trial, Police Officer Murphy was the only witness to identify appellant as the shooter. The officer identified appellant based on his observations of appellant on the night of the shooting. The officer testified that he saw a male walking across a parking lot preparing to fire a rifle or shotgun. The officer testified that the male, after the shotgun was fired, reappeared and began running towards the officer; and the officer was able to identify such male as the appellant. (N.T. 12/13/88, pp. 71-74.) The officer was able to recognize appellant from routine patrols of the neighborhood. Additionally, the officer testified that he had transported appellant from his mother’s house to the hospital approximately one to two months prior to the shooting. (N.T. 12/13/88, pp. 80-81, 89-90.)

Appellant now argues that the verdict was against the weight of the evidence due to the fact that defense counsel introduced evidence that appellant had not received treatment at the hospital, but, instead, appellant’s brother had received such treatment. (N.T. 12/15/88, pp. 29-30.) Appellant contends that the officer’s identification of appellant as the shooter was therefore incredible, as his identification of appellant as the person he transported to the hospital was mistaken. We do not find that the conflicting evidence presented as to the credibility of the witness’s identification testimony demands that we find the jury verdict to have been against the weight of the evidence. The jury was permitted to weigh the conflicting evidence and was free to decide, on its own, which evidence was more credible. The jury, as evidenced by the verdict, obviously found the officer’s testimony to be based on independent previous contacts with appellant and, hence, reliable and credible. The verdict was not so contrary to the evidence so as to shock our sense of justice; we, therefore, refuse to disturb the jury’s credibility determination.

Additionally, appellant’s allegation of trial court error for failure to grant appellant’s request that Officer Murphy view a pre-trial lineup is likewise without merit. Generally, the grant or denial of a request for a lineup is within the sound discretion of the trial court, and such a decision will not be disturbed on review absent an abuse of discretion. Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979); Commonwealth v. Rush, 522 Pa. 379, 387-88, 562 A.2d 285, 289 (1989). In the present case, Officer Murphy’s identification of appellant was grounded on independent observations of appellant prior to the shooting. We do not find an abuse of discretion in denying a pre-trial lineup, where, as in the case sub judice, the witness has knowledge and familiarity with the appellant prior to the incident in question and had opportunity to view the appellant at close range during the incident. See, Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988).

Appellant also alleges trial court error in failing to suppress supposed incriminating statements made by appellant to Detective Dambach on the day of his arrest. Appellant submits that on his arrest day, the detective advised him of his Miranda rights and that appellant chose to remain silent. Appellant, however, admits that he did proceed to tell the detective that he had been in possession of a shotgun on the day in question, but did not discuss the incident at issue or give a formal statement. (Appellant’s brief at 28.) Appellant argues that the detective’s continued questioning regarding biographical information needed to process the arrest was an improper line of questioning in derogation of his Miranda rights.

In reviewing the ruling of a suppression court, the reviewing court’s initial task is to determine whether the factual findings are supported by the record. In making this determination, if the suppression court held for the prosecution, the reviewing court must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74, 78 (1986), citing, Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976).

The record indicates that the incriminating statements made by appellant were unsolicited. Appellant made the statements after hearing his Miranda rights and after he requested to remain silent, without further provocation by the detective. In Commonwealth v. Johnson, 373 Pa.Super. 312, 541 A.2d 332 (1988), this Court summarized the present state of the law with respect to one’s right against self-incrimination:

A person must be informed of his or her Miranda rights prior to custodial interrogation by police. Commonwealth v. Sites, 427 Pa. 486, 490, 235 A.2d 387, 389 (1967). Custodial interrogation is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.” Id., 427 Pa. at 492, 235 A.2d at 390 (emphasis supplied) (quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). “ ‘Interrogation’ is police conduct ‘calculated to, expected to, or likely to evoke admission.’ ” Commonwealth v. Brantner, 486 Pa. 518, 527, 406 A.2d 1011, 1016 (1979) (quoting Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969)). When an inculpatory statement is not made in response to interrogation by police officers, however, “the statement is classified as a volunteered statement, gratuitous and not subject to suppression for lack of warnings.” Commonwealth v. Whitley, 500 Pa. 442, 445, 457 A.2d 507, 508 (1983) (citations omitted).

Id. 541 A.2d at 336.

In the present case, the detective was not engaged in an interrogation of appellant at the time appellant made the inculpatory statements. Appellant volunteered the statement after he was given his Miranda warnings and requested to remain silent. As there was no interrogation, such statements were admissible and, accordingly, the trial court did not err in denying the motion to suppress.

Furthermore, appellant contends the trial court erred in refusing to allow defense counsel to cross-examine the Commonwealth’s firearms expert regarding a lead fragment recovered from the hat of a person in the vicinity of the shooting. Appellant argues that had such cross-examination been permitted, it may have elicited material information as to whether another person using a different gun had committed the crime in question. (See Appellant’s brief at 29.)

We agree with the trial court’s analysis, that such cross-examination would be irrelevant and immaterial to the determination as to whether appellant shot the victim in the present case. Evidence is admissible if, and only if, the evidence logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. Davis, 381 Pa.Super. 483, 554 A.2d 104 (1989) (citations omitted). The record indicates that the lead fragments found in the hat arose from a separate case which was dismissed at its preliminary stage. Furthermore, no evidence exists which indicates that this separate shooting occurred near the time of the shooting in question. Therefore, we are unable to discern how delving into the details of the separate shooting and lead fragments recovered therefrom would be of relevance to the case sub judice.

Appellant’s final allegation of trial court error is that it improperly denied the jury’s request to have the recorded testimony of Officer Murphy read back to them. The general rule is that when a jury requests that recorded testimony be read to it to refresh its memory, it rests within the trial court’s discretion to grant or deny such request. Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984). The record indicates that the trial judge’s reason for denying the jury’s request was that it was preferable for the jury to recall the witness’s testimony as they heard it from the witness and not from the courtroom stenographer. (N.T. 12/16/88, pp. 2-4.) It was within the trial court’s discretion to make such a determination, and we will not disturb its decision.

Finally, appellant alleges sixteen reasons why trial counsel was ineffective and requests that we grant a new trial. Before trial counsel may be deemed ineffective, appellant must meet the three-pronged test, as set forth in our Supreme Court’s recent decision of Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989):

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudieed him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Appellant merely alleges sixteen, unsupported claims of trial counsel’s ineffectiveness. Appellant attempts to fulfill none of the above three parts of the test for determining counsel’s effectiveness. When asserting ineffectiveness, an appellant must allege sufficient facts upon which a reviewing court may conclude that counsel was ineffective, as we will not consider claims of ineffectiveness in a vacuum. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). See also, Commonwealth v. Hutchinson, 521 Pa. 482, 556 A.2d 370 (1989) (Allegations of the deprivation of the right to effective counsel are not self-sustaining. The burden of proof of the allegations remains with the claimant: their accuracy to be established by his submission of relevant proofs.). Therefore, as appellant fails to specify how trial counsel’s performance was ineffective, nor attempts to satisfy the test for establishing ineffectiveness, we decline to review such claims and deem them abandoned. See Commonwealth v. Maple, 385 Pa.Super. 14, 559 A.2d 953, 958 (1989).

For the foregoing reasons, judgment of sentence is affirmed.

      . Following trial counsel’s filing of post-trial motions, appellant filed, pro se, a motion in arrest of judgment and/or new trial and a petition for withdrawal of counsel and appointment of new counsel. The petition for appointment of new counsel was heard and granted, at which time new counsel was appointed. Thereafter, a second new counsel was appointed, who filed and argued post-trial motions, which were held under advisement. Following the filing of supplemental amended post-trial motions, all of appellant's motions were denied and appellant was sentenced to a total incarceration period of five-to-ten years.

        . As we find no Rule 1100 violation, we need not review the trial court’s holding that appellant waived the alleged Rule 1100 violation. Appellant’s argument that the Commonwealth failed to file a written petition to extend the Rule 1100 run date is likewise redundant, as there is no such requirement under the amended version of Rule 1100, nor was such an extension necessary because Rule 1100 was not violated.

      . Appellant’s allegation of trial court error in failing to discharge the venire panel or render curative instructions is likewise without merit. The record indicates that trial counsel amply evaluated each prospective juror’s ability to be impartial and render a fair verdict based on the evidence. The four jurors that were actually selected from the panel were thus adequately examined in this respect. Additionally, appellant does not even attempt to argue how any of these four jurors were rendered tainted as a result of appellant’s own remarks concerning his dissatisfaction with trial counsel.

      . We must also note that the venire member in question never actually served on the jury at appellant’s trial, as he was excluded by a peremptory challenge. Therefore, appellant’s claim of trial court error is moot, as appellant has not demonstrated that he was denied a fair trial by virtue of having an impartial or incompetent juror empaneled. See Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Detective Dambach testified that following appellant’s indication that he wished to remain silent, the appellant added, without solicitation, that he had been in possession of a shotgun on August 1, 1988, in the 2200 block of Pacific Street. Following this admission, the detective testified that the only questions asked of appellant thereafter were of a biographical nature. (Supp. N.T. 12/6/88, pp. 9-13.)

      . Appellant suggests that the lead fragments recovered from the hat should have been compared to other lead fragments recovered from the scene to determine their origin.