author: WIEAND, Judge:

text:
    528 A.2d 249
    COMMONWEALTH of Pennsylvania, Appellant, v. Brian L. OTIS, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1986.
    Filed July 13, 1987.

      Daniel J. Barrett, District Attorney, Athens, for Com., appellant.
    David B. Keeffe, Sayre, for appellee.
    Before WIEAND, MONTEMURO and JOHNSON, JJ.
   WIEAND, Judge:

As a result of a fatal vehicular accident, in which a vehicle operated by Brian Otis crossed the center line of a two lane highway and collided with an oncoming vehicle, Otis was charged with involuntary manslaughter and homicide by vehicle. Following a preliminary hearing, the involuntary manslaughter charge was dismissed, but the charge of homicide by vehicle was returned to court for further proceedings. After an information had been filed and Otis had been arraigned on the charge of homicide by vehicle, Otis filed an omnibus pre-trial motion which included a motion to dismiss. The trial court reviewed the record of the preliminary hearing, held that the evidence was insufficient, and dismissed the charge of homicide by vehicle. The Commonwealth appealed.

At or about 6:00 p.m. on July 6, 1985, Brian Otis was operating his vehicle eastwardly on Route 6 in Bradford County when the vehicle crossed into the westbound lane and collided head-on with a Volkswagen van approaching in the opposite direction. Robert Wright, the driver of the van, and his six year old daughter, Shannon, were killed as a result of the collision. Three other children were injured. When questioned by State Trooper George G. Gibblets, Otis said that he had not slept for thirty-six hours prior to the accident and had fallen asleep at the wheel before crossing into the opposing lane of travel. However, he told his girl friend that he had not fallen asleep prior to the accident.

The Commonwealth bears the burden at a preliminary hearing of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978); Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975). To sustain that burden it is well settled that the Commonwealth must produce evidence,
such as to present “sufficient probable cause to believe that the person charged has committed the offense stated” United States v. Johns, [4 U.S. (4 Dall.) 412, 413, 1 L.Ed. 888 (1806) ]; in other words, it should make out a prima facie case of guilt. It should be such that if presented at the trial court, and accepted as true, the judge would be warranted in allowing the case to go to the jury.
Commonwealth ex rel. Scolio v. Hess, 149 Pa.Super. 371, 374-75, 27 A.2d 705, 707 (1942) (emphasis in original).

Commonwealth v. Wojdak, 502 Pa. 359, 367-368, 466 A.2d 991, 995-996 (1983).

The offense of homicide by vehicle is defined as follows:

Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except section 3731 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

75 Pa.C.S. § 3732. In Commonwealth v. Heck, 341 Pa.Super. 183, 491 A.2d 212 (1985), allocatur granted, 509 Pa. 535, 505 A.2d 251 (1986), a panel of this Court held that the statute could pass constitutional muster only if it were interpreted so as to require for conviction a degree of misconduct which rose to the level of criminal negligence.

In Commonwealth v. Wilkinson, 278 Pa.Super. 490, 420 A.2d 647 (1980), this Court held that “the evidence presented at the subsequent preliminary hearing ... was sufficient to hold [the defendant] for trial on homicide by vehicle on the ground that the death of [the deceased victim] was caused when [the defendant] improperly drove into an opposing lane of traffic.” Id., 278 Pa. at 498, 420 A.2d at 651 (footnote omitted). And in Commonwealth v. Eichelberger, 364 Pa.Super. 425, 528 A.2d 230 (1987), this Court held that evidence showing that a driver had suddenly allowed his vehicle to cross the center line of a two lane roadway and collide with an oncoming vehicle was sufficient to support a verdict of guilty of homicide by vehicle.

Earlier decisions of this Court have also held that allowing a vehicle to cross the center line and invade the lane for traffic moving in the opposite direction is evidence of recklessness sufficient to sustain a conviction for involuntary manslaughter. In Commonwealth v. Smoker, 204 Pa.Super. 265, 203 A.2d 358 (1964), the defendant was found guilty of involuntary manslaughter after the car which he had been driving crossed into the wrong lane and struck an oncoming vehicle, killing a passenger in the approaching vehicle. The evidence there suggested that the defendant had fallen asleep shortly before the accident. On appeal, this Court affirmed, saying:

While admitting that a specific intent to kill or harm is not required for conviction of this crime, the defendant contends that there must at least be an intent to do what he did. If he means by this that he must have intentionally driven into the wrong lane, this is not the law. It is enough that he intentionally drove his car and recklessly failed to drive it in its proper lane, driving it instead, because of inattention to what he was doing, into the wrong lane____
Of course, the burden was upon the Commonwealth to prove [the defendant’s] guilt beyond a reasonable doubt, but under the evidence the jury was warranted in finding that it did so. The mere fact that he drove on the wrong side of the road, without any visible reason or compulsion to do so, would warrant the jury in inferring that he did so negligently and, particularly in view of the great danger involved in such conduct under the circumstances, that he did so recklessly. Nothing appeared in the evidence to show that he was forced off the road, that he was faced with a sudden emergency or that any other fact existed which might have relieved him of responsibility.

Id., 204 Pa.Superior Ct. at 268-269, 203 A.2d at 360. See also: Commonwealth v. Farrell, 208 Pa.Super. 200, 222 A.2d 437 (1966) (evidence that defendant had driven his truck on wrong side of road through intersection held sufficient to sustain jury’s finding of recklessness).

Otis argues in this case, as the defendant argued in Smoker, that he fell asleep and that it was for this reason that his vehicle had crossed the center line into the opposing lane of travel. The Smoker Court responded:

The defendant claims that if he fell asleep he could not be found guilty in the absence of some negligent conduct which induced the sleep. However, the defendant testified that he had been awake since about 6 A.M., working fourteen hours in the interval. The jury could have found his conduct reckless in driving after 10 P.M. that day under the circumstances, particularly since on cross examination he indicated that he had only seven hours sleep in the preceding forty hours. They could have properly inferred from this that his falling asleep and the resulting tragedy were a product of this recklessness.

Id. 204 Pa.Super. at 269, 203 A.2d at 360. The facts in the instant case present an even stronger case of criminal negligence. Otis conceded that he had had no sleep during the thirty-six hours preceding the accident, but he nevertheless got behind the wheel of his vehicle and attempted to drive it along a major thoroughfare in Bradford County. Whether he fell asleep is not clear. However, even if he did fall asleep, a jury could infer from all the circumstances that Otis was criminally negligent in causing the tragic death of Robert Wright and his six year old daughter. Commonwealth v. Smoker, supra. For the trial court to dismiss the charge summarily, therefore, was error.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . 18 Pa.C.S. § 2504.

      . 75 Pa.C.S. § 3732.

      . This was the second prosecution commenced by the Commonwealth. A prior prosecution for involuntary manslaughter and homicide by vehicle had been returned to court but had been dismissed for lack of sufficient evidence by the trial court in response to a petition by Otis for writ of habeas corpus. Thereafter, Otis was re-arrested. At the later preliminary hearing, the Commonwealth offered, in addition to evidence previously presented, the testimony of Otis’ girl friend with whom he had spent a portion of the thirty-six hour period preceding the accident and to whom Otis had made factual statements regarding the happening of the accident. At this hearing the Commonwealth also offered photographs of the accident scene.

      . An order summarily dismissing criminal charges prior to trial is appealable by the Commonwealth. Commonwealth v. Hess, 489 Pa. 580, 589, 414 A.2d 1043, 1047 (1980). See also: Commonwealth v. Orlowski, 332 Pa.Super. 600, 481 A.2d 952 (1984). Appealability was not affected adversely because the Commonwealth had elected to re-arrest Otis rather than appeal the earlier order granting habeas corpus.

      . But see Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), and Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981).


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    528 A.2d 606
    Josephine J. JOZSA and Edward A. Jozsa, Her Husband, Appellants, v. Jonathan E. HOTTENSTEIN, M.D., Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1986.
    Filed May 14, 1987.
    Reargument Denied* July 27, 1987.

      Richard J. Catalano, North Versailles, for appellants.
    Louis C. Long, Pittsburgh, for appellee.

      Before DEL SOLE, KELLY and POPOVICH, JJ.
   DEL SOLE, Judge:

The instant appeal stems from a medical malpractice action in which judgment was entered against Appellants, Josephine and Edward Jozsa. The primary theory advanced by Appellants was lack of informed consent. At the conclusion of the testimony, the trial judge directed a verdict in favor of Appellee, Jonathan Hottenstein, M.D. Post-trial motions were denied, and Appellants raise a single issue before this Court: did the trial court err in directing the verdict.

We begin our discussion with our appellate scope of review. “On a motion for a directed verdict, the trial court must accept as true all facts and inferences tending to support the contentions of the party against whom the motion has been made, rejecting all testimony and references to the contrary.” Bucchianeri v. Equitable Gas Co., 341 Pa.Super. 319, 328, 491 A.2d 835, 840 (1985) (citations omitted). Our review of such decisions rendered at the trial court level centers on whether there exists ‘an abuse of discretion or error of law which controlled the outcome of the case'. Ibid., citing McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982).

The facts viewed in this light are as follows. In April, 1979, Josephine Jozsa was involved in an automobile accident where she suffered various injuries, including an injury to her cervical spine. Mrs. Jozsa was treated by Dr. Hottenstein for her injuries. As part of her treatment, the Doctor placed Mrs. Jozsa under a program of conservative treatment and therapy for her cervical injury which included outpatient and inpatient physical therapy at Sewickley Valley Hospital. On or about July 26,1979, Dr. Hottenstein performed a right carpal tunnel release operation on Mrs. Jozsa as an outpatient at Sewickley Valley Hospital.

Both Appellants testified that Dr. Hottenstein did not advise them of any risks or possible complications prior to the surgery. They also testified that they were advised by Dr. Hottenstein that the surgical procedure, i.e., the carpal tunnel operation, could be done in an attempt to alleviate the wife’s neck pain which had bothered her since her accident. The Appellants’ account of what was told to them by Dr. Hottenstein concerning the benefit Mrs. Jozsa might expect as to relief of her neck pain was supported by Appellee’s own testimony. Based solely on the Appellee-doctor’s explanation that the surgery could alleviate her neck pain, Mrs. Jozsa agreed to have the operation. However, Dr. Hottenstein admitted that a carpal tunnel syndrome cannot cause cervical neck pain, and Dr. Imbriglia, Mrs. Jozsa’s subsequent treating physician, testified that a carpal tunnel syndrome release should not be performed to treat a cervical strain. Dr. Imbriglia also testified that he did not think carpal tunnel syndrome causes neck pain.

As a result of the surgery, Mrs. Jozsa experienced extensive post operative complications including severe pain, swelling and impairment of motion and strength in her right hand which lasted seven months. Mrs. Jozsa also developed scar tissue formation of the median nerve, a complication which ultimately necessitated corrective surgery, which was performed by Dr. Imbriglia in February of 1980. Appellee, in his own case, admitted that the scar tissue formation was a complication. Dr. Imbriglia testified that the percentage of recurrence for carpal tunnel was 4-5%. Mrs. Jozsa, her husband, and Dr. Hottenstein all testified that she had no problem with her hand (prior to the carpal tunnel surgery) for which she was seeking medical help. At trial Mrs. Jozsa testified that she still has problems with pain and swelling of her right wrist when she attempts certain activities.

Appellants do not dispute Appellee’s diagnosis of carpal tunnel syndrome, nor do they argue that Appellee was negligent. Rather, they contend Appellee performed the surgery without having secured informed consent from his patient.

In Pennsylvania, a patient’s consent to a medical treatment is valid if:

“the physician disclosed all those facts, risks and alternatives that a reasonable man in the situation which the physician knew or should have known to be the plaintiffs, would deem significant in making a decision to undergo the recommended treatment____ The physician is bound to disclose only those risks which a reasonable man would consider material to his decision whether or not to undergo treatment.”

Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647, 650 (1972).

Under Cooper, materiality is determined by the reasonable man standard. Clearly, “determinations of what a reasonable man would do or consider significant within the context of a particular set of facts is standard fare for jurors, for which they need no expert assistance.” Festa v. Greenberg, 354 Pa.Super. 346, 357, 511 A.2d 1371, 1377 (1986), citing Cooper v. Roberts, 286 A.2d at 651.

In the above cited case of Festa v. Greenberg, this Court attempted to clarify the confusion that is present in informed consent cases. Festa holds that medical testimony is “necessary to establish the existence, magnitude and other relevant scientific characteristics of the risks of a recommended medical procedure and viable alternatives”. Ibid,., 354 Pa.Superior Ct. at 357, 511 A.2d at 1377.

Cooper and Festa do not contradict one another, but rather illustrate that determination of materiality is a two step process. Initially, the trier of fact must be provided with expert information as to the nature of the harm which may result and the probability of its occurrence. But following this, it is the trier of fact that must decide the materiality of these risks; whether that probability of that type of harm is a risk which a reasonable patient would consider in deciding on treatment. Festa, supra.

The case sub judice gives us an excellent opportunity to clarify Festa even further. The trial court found that since the expert testimony only established that there was a 4-5% risk of recurrence, and no expert testimony was offered as to alternative procedures or their feasibility, that the Appel-, lee was entitled to a directed verdict. We disagree.

The law is very clear that once expert medical testimony establishes that there was a risk of any nature to the patient that he or she was not informed of, and after surgery the patient suffers from that undisclosed risk, it is for the jury to decide whether the omission was material to an informed consent.

Festa holds that expert testimony is mandatory to establish existence of risks, existence of alternative methods of treatment and existence of risks attendant with such alternatives. It does not hold that expert testimony must establish all of the above before the question of whether there was an informed consent can go to the jury. We emphasize that once expert testimony establishes the existence of an undisclosed risk of a recommended medical procedure (or of any of the above-mentioned factors), it is the role of the jury to decide whether that type of harm if it occurs, is a risk which a reasonable patient would consider in deciding on whether to undergo or reject the procedure.

Therefore, since the record in this case supports the Appellants’ position that the Appellee-Doctor did not inform them of the medically attested to recurrence rate of 4-5%, which was a known risk, the Appellants’ case should have been permitted to go to the jury. The trier of fact has to be the arbiter of what constitutes a material risk for the patient.

Accordingly, the trial court erred in directing a verdict in favor of the Appellee. The Judgment of the trial court is vacated and this case is remanded for a hearing consistent with the findings expressed herein.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I must dissent. The majority opinion in its attempt to “clarify” Festa v. Greenberg, 354 Pa.Super. 346, 511 A.2d 1871 (1986) has ignored the clear language of that case. In Festa, decided less than a year ago, this Court stated:

[Expert] testimony is still required to establish the existence of risks in a particular medical procedure, the existence of alternative procedures and the feasibility of these alternatives in the patient’s case. Expert medical testimony is essential in this limited context because the average lay juror does not possess the requisite technical or medical knowledge to determine if the facts are true as alleged by the petitioner.

Id., 354 Pa.Super. at 357, 511 A.2d at 1377. (Emphasis in original).

I do not agree with the majority’s conclusion that expert testimony is not mandatory to establish the existence of risks, existence of alternate methods of treatment and risks attendant with such alternative. The majority holds expert testimony is necessary only to establish the existence of risks. Festa, supra, however, dictates otherwise. Festa lists all three aspects......(.1.) existence of risks, (2) existence of alternate methods of treatment; (3) risks of alternate treatment — -and couples these three aspects with the conjunctive “and”. The language of Festa makes absolutely no sense unless it is interpreted as requiring expert testimony for establishing all three prongs. I am further convinced this is the intent of Festa because in the passage quoted above, our Court chose to emphasize this particular point by italicizing all three areas as requiring expert testimony.

The trial judge’s determination that the record in this case is devoid of any evidence as to the seriousness of carpal tunnel surgery, its risks, complications and alternatives in light of this patient’s situation and condition at the time of her consent was correct. The only medical testimony offered was that of Dr. Imbriglia, the treating physician who performed the second surgery, and the testimony of appellee. Appellants contend there could have been no informed consent because they were misinformed as to the expected results of the surgery. However, appellants both testified appellee explained it was the nerve in the hand upon which he would operate. Appellants contend since they were told the surgery would help the neck pain they were misinformed because carpal tunnel surgery would never alleviate neck pain.

The record, however, does not support appellants’ position. Both appellants and both experts agree that shortly before the surgery Josephine Jozsa suffered pain in her neck, shoulders and arm. (N.T. 2/11/86, pp. 13, 16-17, 53, 64; N.T. 9/15/83 pp. 6, 8, 26). Appellants rely on the following testimony by Dr. Imbriglia:

Q. Doctor, in terms of treatment, can you tell us whether or not a carpal tunnel release operation or surgery, whether that, in your opinion, is a useful or beneficial surgery in treatment of cervical strain?
A. I don’t think for a pure cervical strain that a carpal tunnel release should be performed. (N.T. 9/15/83, p. 17)

This statement would support appellants’ misinformation theory if Mrs. Jozsa had been suffering from “pure cervical strain.” However, Dr. Imbriglia reported that Mrs. Jozsa did suffer shoulder and arm pain prior to the first surgery and stated:

Q. Now, Doctor, you were asked by Mr. Catalano whether or not carpal tunnel surgery such as that that was undertaken by Dr. Hottenstein would be useful or beneficial and I think he said in an instance where a patient complained of pure whatever that is, cervical strain. And you said no, that isn’t an ordinary course of treatment, but I believe you said that it’s not uncommon to find carpal tunnel syndrome with pain reflected up into the arm and into the shoulder; is that correct?
A. That’s correct.
Q. In fact, there are instances in the literature where shoulder and neck pain are discussed as a result of carpal tunnel syndrome; is that correct?
A. Correct.
Q. And then would it be logical, would it be a fact, that if you correct the carpal tunnel problem, the consequential pain in the neck and shoulder and the arm will hopefully diminish or go away?
A. Often the pain in the arm and the shoulder can go away. From what — from my experience I do not think carpal tunnel syndrome causes neck pain. I think it can cause shoulder pain. I don’t think it causes neck pain. N.T. 9/15/83, pp. 29-30.

Josephine Jozsa testified that appellee told her that pain radiates from the wrist up to the arm and neck, and he advised her to “take a shot in the dark” and release the nerve in the hand to see if it would relieve some of the pain. (N.T. 2/11/86 pp. 16-17). This information is compatible with Dr. Imbriglia’s testimony.

Definitive expert testimony was essential because the average lay juror could not possess the technical knowledge to determine whether the surgery could have eased Mrs. Jozsa’s pain. Without further expert testimony, the jury would have had to speculate improperly whether appellants were misinformed as to the purpose of the surgery. The trial judge properly granted a directed verdict.


author: OLSZEWSKI, Judge:

text:
    528 A.2d 610
    COMMONWEALTH of Pennsylvania v. Debra RODGERS, Appellant. COMMONWEALTH of Pennsylvania v. David RODGERS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1987.
    Filed May 28, 1987.
    Reargument Denied July 29, 1987.

      Samuel C. Stretton, West Chester, for appellants.
    Joseph W. Carroll, III, Deputy District Attorney, West Chester, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and MONTEMURO, JJ.
   OLSZEWSKI, Judge:

Appellants appeal from the judgments of sentence entered after a jury found them guilty of involuntary manslaughter, recklessly endangering another person, and endangering the welfare of a child. On this appeal, appellants argue: (1) that the evidence was insufficient to support the verdict; and (2) that the trial court erred by allowing the prosecution to present testimony on the battered child syndrome and by not charging the jury that such testimony should be received with great care and caution. For the reasons stated below, we affirm the judgments of sentence.

With regard to the first issue, we note that the well-established standard for reviewing a sufficiency claim was stated recently by our Supreme Court as:

(W)hether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt____ The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence ... Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered ... Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986) (quoting Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 538-539 (1979) (citations omitted)). After thoroughly examining the evidence presented, and taking from it all reasonable inferences favorable to the Commonwealth and resolving all conflicting evidence in favor of the Commonwealth, we find that appellants’ claim of insufficient evidence must fail. The trial court’s opinion at 3-7 adequately addresses this issue. We, consequently, will address only appellants’ second issue in this opinion.

Before addressing the legal issue raised in this case, however, a recital of the facts is necessary. The trial court aptly stated the facts as follows:

On the morning of September 27, 1983, Pennsylvania State Police Officer William Hill received an emergency request for an ambulance from Debra Rodgers, via telephone, for a child (the Rodgerses’ two-and-a-half-year-old daughter, Anna Mae) who would not wake up. Before it arrived, however, the Rodgerses themselves took their daughter to Pottstown Memorial Medical Center. Dr. Michael Wrigley, the emergency room physician, pronounced her dead on arrival, observing that she was cold and stiff. He counted approximately thirty bruises on her body and head. The next day, Dr. Robert Catherman of the Medical Examiner’s Office in Philadelphia performed an autopsy. Its results confirmed Dr. Wrigley’s observations, and suggested malnutrition as the underlying cause of death.
The police obtained separate statements from each defendant. According to them, on the morning of September 27, Anna Mae was “acting weird” and “wasn’t breathing properly.” Debra Rodgers testified that she was limp “like a puppet ... and I hit her face a couple times.” When there was no improvement, she called for an ambulance. David Rodgers decided to take the child to the hospital, and Anna Mae stopped breathing en route, despite the attempts of Debra Rodgers at CPR. With respect to the child’s malnourished condition, Debra Rodgers told police that Anna Mae was “always skinny”, and that none of the doctors who had examined her in the past had explained why she failed to thrive. Regarding the bruises over Anna Mae’s body, Debra Rodgers told police that the child “bruised easily” and “would throw a fit”. Neither defendant could explain how all the bruises were caused.

Trial court opinion at 2-3 (citations omitted).

At trial, the Commonwealth called as an expert witness Dr. Robert L. Catherman, the forensic pathologist from the Philadelphia Medical Examiner’s Officer who conducted the autopsy on Anna Mae Rodgers. Dr. Catherman testified that Anna Mae had suffered from “battered child syndrome.” Such a diagnosis simply indicates that a “child received injuries which were inflicted by another person by other than accidental means.” Annot., 98 A.L.R.3d 306 (1980).

On appeal, appellants do not challenge Dr. Catherman’s qualifications as an expert witness. Rather, appellants argue that the facts in the present case did not fall within the syndrome for the following reasons: the bruises were all recent and there was not a pattern of old and new bruises which is found in cases of battered child syndrome; the court erred in not instructing that such testimony should be received with great care and caution; and by allowing testimony on the battered child syndrome, the trial court usurped the role of the jury on deciding an ultimate issue. We find that the testimony of a properly qualified expert concerning the battered child syndrome was admissible in the instant case.

The determination of the admissibility of expert testimony on battered child syndrome is an issue of first impression in this Commonwealth. Although no Pennsylvania appellate courts have squarely addressed the admissibility of testimony concerning battered child syndrome, references to the syndrome have appeared in reported cases. See Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1985); Commonwealth v. McIntosh, 291 Pa.Super. 352, 435 A.2d 1263 (1981); In the interest of Tamela Pernishek, 268 Pa.Super. 447, 408 A.2d 872 (1979).

The courts of several other jurisdictions have considered the issue, though, and have held that expert testimony regarding battered child syndrome was properly admitted. See, e.g., People v. Jackson, 18 Cal.App.3d 504, 95 Cal.Rptr. 919 (1971); Commonwealth v. Cadwell, 374 Mass. 308, 372 N.E.2d 246 (1978); State v. Durfee, 322 N.W.2d 778 (Minn. 1982) ; People v. Henson, 33 N.Y.2d 63, 349 N.Y.S.2d 657, 304 N.E.2d 358 (1973); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); State v. Best, 89 S.D. 227, 232 N.W.2d 447 (1975); State v. Tanner, 675 P.2d 539 (Utah 1983) .

Initially developed following extensive research more than two decades ago, the diagnosis of battered child syndrome has become an accepted medical diagnosis. See generally Kempe, Silverman, Steele, Droegemueller and Silver, The Battered Child Syndrome, 13 Journal of the American Med. Ass’n. 105 (1962); 2 AmJur.Proof of Facts 2d, Child Abuse — The Battered Child Syndrome, (1974). To be admissible at trial, the syndrome must be testified to by a qualified expert witness since:

“The diagnosis is dependent on inferences, not a matter of common knowledge, but within the area of expertise of physicians whose familiarity with numerous instances of injuries accidently caused qualifies them to express with reasonable probability that a particular injury or group of injuries to a child is not accidental or is not consistent with the explanation offered therefor ...”

Tanner, 675 P.2d at 542. Our Supreme Court has stated that expert testimony is permitted as an aid to the jury where the subject is beyond the knowledge or experience of the average layman. See Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976).

The diagnosis of battered child syndrome is used in connection with young children and is based upon a finding of multiple injuries in various stages of healing, primarily multiple fractures, soft tissue swelling or skin bruising. Also pertinent to the diagnosis is evidence that the child is generally undernourished, with poor hygiene, and that the severity and type of injury is inconsistent with the story concerning the occurrence of the injuries offered by the parents or others who were caring for the child. See Henson, 33 N.Y.2d 63, 349 N.Y.S.2d 657, 304 N.E.2d 358 (1973); Tanner, 675 P.2d 539 (1983); see generally 2 Am. Jur.Proof of Facts 2d, Child Abuse — The Battered Child Syndrome (1974).

When a qualified expert witness testifies that a particular child suffered from the syndrome, he or she is giving an opinion as to the means used to inflict the particular injuries based on his or her deduction from the appearance of the injuries — the types of injuries, their size, number, location and. severity. The battered child syndrome simply indicates that a child found with the type of injuries described above has not suffered those injuries by accidental means. See Annot. 98 A.L.R.3d 306 (1980). The expert’s testimony on the syndrome is not an opinion regarding the culpability of any particular defendant. Such testimony is not accusatory but, as previously stated, the testimony merely tends to show that the child was intentionally, rather than accidentally, injured. See Jackson, 18 Cal. App.3d 504, 95 Cal.Rptr. 919 (1971); Henson, 33 N.Y.2d 63, 349 N.Y.S.2d 657, 304 N.E.2d 358 (1973); Tanner, 675 P.2d 539 (1983). Additionally, the determination as to the credibility of witnesses is within the sole province of the trier of fact who is free to believe all, part, or none of the evidence. See Commonwealth v. Guest, 500 Pa. 393, 456 A.2d 1345 (1983). Defense counsel may challenge the testimony on cross-examination, but such a challenge goes to the weight to be given the testimony, not to its admissibility.

We, therefore, conclude that in appropriate factual circumstances, testimony regarding the battered child syndrome is admissible when given by a properly qualified expert witness. The admission or exclusion of evidence is a matter committed to the sound discretion of the trial court. See Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984). “Moreover, it is basic hornbook law that only relevant competent evidence is admissible at trial.” Id., 336 Pa.Superior Ct. at 619, 486 A.2d at 437. Thus, the trial court must determine whether evidence that a child suffered from battered child syndrome is relevant to the factual circumstances of each particular case. This Court has stated that evidence is relevant “if it tends to make more or less probable the existence of some fact material to the case, it tends to establish facts in issue or when it in some degree advances the inquiry and thus has probative value.” Commonwealth v. Shain, 324 Pa.Super. 456, 462, 471 A.2d 1246, 1249 (1984).

In the present case, we find that the trial court properly admitted testimony on battered child syndrome. As an explanation for Anna Mae’s injuries, appellants claimed that the child “bruised easily,” “would throw a fit,” and that some of the bruises were caused by the administration of cardiopulmonary resuscitation on the child. Dr. Catherman testified that the nature of Anna Mae’s injuries was not consistent with appellants’ assertions that they were accidental or self-inflicted. The doctor also testified that:

What I observed was injuries about her body that were in various stages of development, that is from the old, well-healed, in the distant past, rib fracture, to the healing area of laceration and abrasion and contusion over the back of the head, with evidence of some reinjury underneath it, to the bruises that were on the surface of the body, which were of a day or two, at most, in age, to injuries of very recent or fresh origin.

(N.T. April 80, 1984 at 1092.) We, consequently, find appellants’ assertion that the facts of the present case did not fall within the syndrome, to be meritless.

Similarly, we find to be meritless appellants’ argument that the trial court erred in not instructing the jury that such testimony should be received with great care and caution. The trial court adequately instructed the jury on how to consider the opinion of an expert witness.

We further find that by admitting testimony on battered child syndrome the trial court did not usurp the role of the jury on deciding an ultimate issue. As our Supreme Court explained in Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978):

As applied to the expression of an expert’s opinion, the phrase “usurping the function of the jury” is, as Dean Wigmore has well said, normally “a mere bit of empty rhetoric.” VII Wigmore, Evidence Sec. 1902, at 17 (3d ed. 1940). “... (T)he witness, in expressing his opinion, is not attempting to usurp the jury’s function; nor could he if he desired____ He could not usurp it if he would, because the jury may still reject his opinion and accept some other view ...” Id. at 21. The contention that an expert should never be permitted to express an opinion on an “ultimate issue” is similarly misconceived. “(E)ven when the very point in issue is to be spoken to, the jury should have help if it is needed.” Id. Sec. 1921, at 18. Pennsylvania cases, which recognize that the central inquiry is whether the proffered opinion will be helpful to the trier of fact in reaching a decision, are in accord. Reardon v. Meehan, supra, 424 Pa. [460] at 464-66, 227 A.2d [667] at 670-71 [1967]; Auerbach v. Philadelphia Transportation Co., 421 Pa. 594, 604-05, 221 A.2d 163, 170-71 (1966); Commonwealth v. Nasuti, supra, 385 Pa. [436] at 443, 123 A.2d [435] at 438 [1956]; Cooper v. Metropolitan Life Ins. Co., 323 Pa. 295, 186 A. 125 (1936). Compare Taylor v. Fardink, 231 Pa.Super. 259, 331 A.2d 797 (1974). See also Fed.R.Evid. 704, and Advisory Committee’s Note thereto;. Model Code of Evidence Sec. 904.

Id., 480 Pa. at 352, 390 A.2d at 178 (footnote omitted). Dr. Catherman’s testimony, in the instant case, was helpful to the jury’s understanding of the nature, extent, and severity of Anna Mae’s injuries, and was, accordingly, an appropriate subject for expert opinion.

For the foregoing reasons, we find that the trial court properly admitted expert testimony on battered child syndrome.

Appeal dismissed in part. Judgments of sentence affirmed.

      . On October 2, 1985, the trial court sentenced appellant David Rodgers to llI/2-to-23-months’ imprisonment for involuntary manslaughter and to a concurrent sentence of ll1/2-to-23-months’ imprisonment for endangering the welfare of a child. Appellant Debra Rodgers was sentenced to l!/2-to-5-years’ imprisonment for involuntary manslaughter and to a consecutive sentence of l-to-2-years’ imprisonment for endangering the welfare of a child. For sentencing purposes, the trial court declined to sentence both appellants on the charge of recklessly endangering another person, finding that it merged with the involuntary manslaughter charge. A timely motion to modify sentence was filed on October 8, 1985.
      Subsequently, the trial court vacated the sentences of October 2, 1985 and appellants were resentenced on November 27, 1985. The trial court declined to sentence both appellants on the charge of endangering the welfare of a child, finding that it merged with involuntary manslaughter for sentencing purposes. See Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616 (1985). Appellant David Rodgers was resentenced to ll1/2-to-23-months’ imprisonment for involuntary manslaughter only and appellant Debra Rodgers was resentenced to 2-to-5-years’ imprisonment for involuntary manslaughter only.

      . Additionally, appellants allege that the trial court erred in imposing a sentence on Debra Rodgers outside of the sentencing guidelines. We, however, find that appellants’ presentation of this issue to the Court does not comply with Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). In Tuladziecki, our Supreme Court stated that a party appealing the appropriateness of the discretionary aspects of a sentence must specifically comply with Pa.R.A.P. 2119(f), which states:
      (f) Discretionary aspects of sentence. An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

        See Tuladziecki, supra, 513 Pa. at 512, 522 A.2d at 19.
      In the present case, appellants' brief does not contain a separate section stating the specific reasons why this Court should allow their appeal on the issue of the appropriateness of discretionary aspects of Debra Rodgers' sentence. This failure, which violates Pa.R.A.P. 2119(f), prevents us from addressing appellants’ assertion as to why this appeal should be allowed. We, consequently, cannot fulfill our statutory duty, pursuant to 42 Pa.C.S.A. Sec. 9781(b), of exercising our discretion to determine whether "there is a substantial question that the sentence imposed is not appropriate under this chapter (the Sentencing Code).” 42 Pa.C.S.A. Sec. 9781(b). Accordingly, we dismiss appellants’ appeal with respect to the issue of the appropriateness of discretionary aspects of Debra Rodgers’ sentence.

       Medical records indicate that at the time of her death, Anna Mae exhibited the following injuries: bruises and contusions of the head and face, both ears, left elbow, right arm, left and right forearms, left and right knees and thighs, left buttocks, top and back of the left side of the pelvis, and in the center of the right flank. Most of these injuries occurred within 24 to 48 hours of death. There was also a well-healed fracture of the tenth rib, a more recent laceration of the scalp surrounded by abraded skin, and a substantial scar on her right buttock attributable to the removal of an infected birthmark. This two-and-a-half-year-old weighed 15'A pounds when she died.

      . Although not discussing the battered child syndrome, our Supreme Court’s decision in Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973), is instructive. In Paquette, when appellant-father brought his ó'/í-month-old stepdaughter to the emergency room of a hospital, she was cyanotic and had no respiration or heartbeat. Subsequently, bruises on her forehead and chin became evident. The child died four days later. Appellant-father was found guilty of murder in the second degree.
      On appeal, appellant-father claimed that the evidence was insufficient to sustain his conviction. The Court stated, inter alia:

        ... the medical evidence, offered by the Commonwealth, clearly establishes repeated and severe blows to the infant as being the origin of the factors causing death. Such a finding is completely incompatible with the defense’s theory that the injuries were either sustained by a fall from the couch to the floor or an epileptic fit while the child was in the bath. Considering the number of bruises, their severity and their positioning about the head and the face, the fact-finder was justified in rejecting the possibility of accidental or self-inflicted injury particularly when recognizing the mobility of a 6Vi month old baby.

        Paquette, 451 Pa. at 255, 301 A.2d at 840.
      Similarly, we can find no reason why the jury should not be allowed to hear and evaluate the opinion of an expert witness that the injuries in a particular case were not accidental. See infra.

      . In the first case, this Court determined that the testimony of a properly qualified expert concerning the psychological dynamics of incest and the behavioral pattern of incest victims was admissible. In reaching this determination, the Court cited cases from other jurisdictions which had allowed expert testimony concerning medically recognized syndromes in other areas; one such case concerned battered child syndrome. See Baldwin, 348 Pa.Super. at 376, 502 A.2d at 257 (citing State v. Conlogue, 474 A.2d 167 (Me. 1984)). The Court in Baldwin, however, did not address whether testimony on battered child syndrome was admissible in Pennsylvania.
      In the latter two cases, although the facts of each case contain a single reference to battered child syndrome, the admissibility of such testimony was neither raised nor addressed in those cases. See

        McIntosh, 291 Pa.Super. at 354, 435 A.2d at 1264; In the Interest of Tamela Pernishek, 268 Pa.Super. 447 at 450, 408 A.2d 872 at 873 (1979).

      . The trial court instructed the jury, inter alia, as follows:
      In deciding whether or not to accept an expert’s opinion you should consider the evidence as to his training, education or experience, as well as the reasons and facts on which his opinion is based.
      Also in deciding whether or not to accept an expert’s opinion you should bear in mind that you are not bound to accept it merely because it is the testimony of someone having special skill or knowledge.
      Since the battered child syndrome is a recognized medical diagnosis, Dr. Catherman was permitted to testify concerning the same in order that you, the jury, might be assisted in determining whether the marks on the child’s body resulted from an accident or from self-infliction, or whether they were the result of an intentional or grossly reckless or malicious act by someone other than the baby Anna Mae Rodgers.
      And medical testimony, therefore, on the battered child syndrome is admissible in a court of law in order to, for you to assess, to see whether it enables you to draw a rational inference that the child’s injuries were not accidental or self-inflicted.
      But in that regard, ladies and gentlemen, I tell you that with respect to the expert testimony concerning the battered- child syndrome, you may only accept such testimony if you believe, first of all, that the expert is properly qualified and if you believe that the underlying facts support his conclusion. If you find from the evidence, and it’s entirely up to you ...
      If you find that the facts which were assumed by the expert in forming his opinion with respect to the battered child syndrome are not supported by the evidence, then you should, accordingly, disregard the opinion in its entirety.
      In deciding which of these opinions to accept, if any, you should consider which of the two experts is better qualified by training, education or experience, to give an opinion in this case, and you should also consider the reasons and facts on which each opinion is based.
      Where there is a conflict in the testimony you, the jury, have the duty of deciding which testimony to believe, but you should first try to reconcile, that is to fit together, any conflicts in the testimony if you can fairly do so.
      (N.T. May 3, 1984 at 1917-1922.)


author: BECK, Judge:

text:
    528 A.2d 616
    Walter Paul WEIR, an Incompetent Deceased By Patricia Weir GASPER, His Guardian, Appellant, v. Aventino CIAO, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1987.
    Filed June 1, 1987.
    Reargument Denied July 29, 1987.

      Alfred A. Gollatz, Media, for appellant.
    Robert J. Levis, Media, for appellee.
    Before BECK, HESTER and ROBERTS, JJ.
   BECK, Judge:

Patricia Gasper brought an equity action as guardian for her incompetent father, Walter Weir, now deceased, to set aside two real estate transfers which Weir made to his son-in-law, Aventino Ciao. The trial court denied relief and she appeals.

She asserts the trial court erred in (1) not finding a confidential relationship bétween Weir and Ciao, (2) refusing to consider after-discovered evidence, and (3) finding Weir competent at the time of the transfers. Since we find no prejudicial error of law or abuse of discretion, we affirm.

The factual background of the case is essential to an understanding of it. Ciao had lived in the Weir home for many years. He was the husband of Weir’s deceased daughter. The couple had lived with Weir and his late wife for approximately ten years. Ciao continued to live with Weir even after the death of his wife and the death of his mother-in-law. Weir and Ciao developed a close personal relationship. In 1977, Gasper asked Ciao to leave her father’s home, which he did. Gasper and her husband then moved in and cared for Weir.

Weir also owned a vacation home in Wildwood, New Jersey. Originally Gasper and her sister, Ciao’s deceased wife, inherited this property from their grandfather. When Ciao’s wife died, his wife’s one-half interest in the property passed to him. Within a month of her death in 1975, Ciao responded to Gasper’s insistence and joined her in gratuitously deeding title to the property to Weir and his wife. After Mrs. Weir died, her interest passed to her husband.

From 1977, when Ciao left the Weir home, through 1981, he and Weir continued to see each other regularly. In Fall 1981, Weir asked Ciao to take him to a lawyer because he wanted to settle his affairs. Ciao took Weir to see Neil Leibman, an attorney who had once advised Ciao against legal action to revoke his gift of the Wildwood property to the Weirs. After Weir conferred alone with Leibman, Leib-man drafted a will for him and prepared the two deeds, transferring title to the Weir residence to Weir and Ciao as joint tenants and title to the Wildwood property to Ciao. Both deeds were executed and recorded. Weir retained possession of his home, bank accounts, automobile and other assets.

In Spring 1982, Gasper discovered these transfers. Gas-per’s brother, Weir’s son, then filed a petition to have Weir declared incompetent. The orphans’ court determined he was incompetent on July 12, 1982, and appointed Gasper his guardian. She then brought the instant action to set aside the real estate transfers which occurred before Weir was declared incompetent. She bases her request on Weir’s incompetency.

I.

Appellant asserts that a confidential relationship existed between Ciao and Weir. Ciao argues it is improper for this court on appeal to consider the issue of a confidential relationship because the issue was not pleaded and was therefore waived. Although we find the issue was adequately pleaded so as to provide notice to Ciao, we nevertheless find the issue waived on other grounds. Appellant Gasper failed to assert the issue in her post-trial motions. “[OJnly issues specifically raised in post-[trial] motions can be considered and will be preserved for appeal, and issues raised only in briefs in support of those motions may not be considered.” Cherry v. Willer, 317 Pa.Super. 58, 63, 463 A.2d 1082, 1084 (1983). The object of this requirement is to permit the trial court the opportunity to review and reconsider the determination it made at trial. Appellant, having failed to assert the issue in post-trial motions, has waived it.

II.

Appellant Gasper next argues that she is entitled to a new trial because she discovered additional evidence after trial in the form of a notarized document signed by Weir. The document, which is not in Weir’s handwriting, only states, “Under no circumstances is name to be changed from Walter Weir without his consent.”

The document was brought to Gasper’s attention in December 1984, by counsel to Weir’s estate. Weir had died after the trial of the case sub judice. Having no knowledge of the document when she filed post-trial motions on July 26, 1984, Gasper could not have based a request for a new trial at that time on after-acquired evidence. However, she raised the issue in her brief supporting post-trial motions which was filed on June 3, 1985.

As we noted in Walters v, Kapiris, 159 Pa.Super. 170, 173, 48 A.2d 35, 36 (1946), an application for a new trial to consider after-acquired evidence is “not governed by the strict technical rules applicable to [other post-trial motions], but is addressed to the sound discretion of the court.”

Pa.R.C.P. 227.1(b), which provides that issues not raised in post-trial motions are waived, is not applicable to a request for a new trial based on after-acquired evidence discovered after post-trial motions were filed. In this type of situation, the preferable procedure is for appellant to petition to file supplemental post-trial motions and include therein a request for a new trial based on after-acquired evidence. Appellant’s failure to do so is not, however, fatal and we find the issue preserved.

Having concluded that the issue was not waived, we next consider whether the trial judge abused his discretion in refusing to consider the after-acquired evidence. The trial court has considerable discretion in deciding whether to consider the evidence. See Korn v. Consolidated Rail Corp., 355 Pa.Super. 170, 512 A.2d 1266 (1986) Stokes v. Thiemann, 296 Pa.Super. 112, 442 A.2d 322 (1982). Despite this, we find that the trial judge abused his discretion because he should have considered this evidence. The trial judge does not reveal his reasons for failure to consider it. From the record, however, we conclude that the evidence was relevant and presented to the court timely. At the time of submission the case was still open. The court had not yet decided the post-trial motions.

Even though we conclude that the trial judge erred in not considering the evidence, we find the error was harmless, and that appellant is not entitled to a new trial. In order to obtain a new trial based on after-acquired evidence, the petitioning party must show that the evidence could not have been obtained at the time of trial by reasonable diligence, is not cumulative, does not merely impeach credibility, and is likely to compel a different result. Ebner v. Ewiak, 335 Pa.Super. 372, 484 A.2d 180 (1984), Gamma Swim Club Inc. v. Commonwealth, Dept. of Transp., 95 Pa.Commw. 167, 505 A.2d 342 (1986).

From an examination of the record we conclude that appellant has satisfied each requirement of the test except the requirement that the after-acquired evidence is likely to compel a different result. In the case sub judice the meaning and significance of the after-acquired document is cryptic and unclear, and its probative value is thin. Therefore, we conclude that even if the court had considered the after-acquired evidence, the appellant would not have been granted a new trial. Appellant has failed to show she was prejudiced by the court’s error. Stokes v. Thiemann. Therefore, we do not grant a new trial.

III.

Appellant also argues that the court abused its discretion in finding Weir competent at the time of the transfers. The record reveals that appellant presented expert testimony of Dr. Leo Freeman, a psychiatrist, who in June 1982 first examined Weir. The examination occurred after the transfers of the real estate. Dr. Freeman had testified at Weir’s incompetency proceedings in July 1982. In the instant case, Dr. Freeman testified that Weir was suffering from Alzheimer’s disease, a degenerative organic brain syndrome, rendering him unable to perform usual mental functions. Dr. Freeman also testified that at the time of the transfers Weir was suffering from the disorder and that he was unable to function as a rational person. However, on cross-examination Dr. Freeman conceded that Weir had lucid periods.

To counteract Dr. Freeman’s testimony, appellee called Neil Liebman, Weir’s attorney. Liebman had interviewed Weir before preparing the will and transfers. Liebman, testifying as a fact witness, noted that he questioned Weir before drafting the will to ascertain whether Weir was of sound mind, oriented, in touch with reality and able to understand the nature and dispositions of his property. Liebman testified as to his conversation with Weir and detailed the substance of the questions and answers. It appears that the trial judge, as the trier of fact, believed Liebman’s testimony and found it was not in conflict with Dr. Freeman’s concession that Weir had lucid moments. On that basis, the judge concluded that Weir was competent at the time of the transfers.

Appellant argues that the trial judge abused his discretion in accepting Liebman’s testimony on competency because he is a lawyer with no expertise in mental health matters. First, we note that observations of lay witnesses on the question of competency are admissible. Girsh Trust, 410 Pa. 455, 189 A.2d 852 (1963). We find that appellant’s reliance on dicta in Hagopian v. Eskandarian, 396 Pa. 401, 153 A.2d 897 (1959), cert. denied, 361 U.S. 938, 80 S.Ct. 381, 4 L.Ed.2d 358 (1960) does not support her position. Hagopian in dicta stated that “[ejxpert testimony is needed when transactions fall within the penumbra between competence and incompetence, when the light of reason may come and go unbidden.” 396 Pa. at 404, 153 A.2d at 899. In the instant case, the court had the opportunity to hear expert testimony and indeed considered it. Expert testimony, however, is by no means conclusive. In the instant case, the finder of fact considered the expert’s testimony but did not find the expert’s conclusion persuasive.

We note that the principle in the Commonwealth is “the testimony of those who observed the speech and conduct of the person on that date [execution of the instrument whose validity is challenged] outranks testimony as to observations made prior to and subsequent to that date, although the latter testimony is admissible and entitled to weight.” Girsh Trust, 410 Pa. at 477, 189 A.2d at 862. Clearly a lay witness may testify to the mental condition of a person, when the facts on which the opinion is based are stated. Id., Owens Estate, 167 Pa.Super. 10, 74 A.2d 705 (1950).

We cannot accept appellant’s contention that Leibman, a lay witness, is not competent to testify as to his own observations about Weir’s competency. The chancellor as fact-finder did not abuse his discretion in accepting Leib-man’s testimony and finding it credible.

Decree affirmed. Jurisdiction relinquished.


text:
    528 A.2d 620
    COMMONWEALTH of Pennsylvania v. Gordon L. GRAHAM, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 28, 1987.
    Filed June 10, 1987.
    Reargument Denied July 27, 1987.

      William C. Kaczynski, Pittsburgh, for appellant.
    Dennis M. McGlynn, Johnstown, for Com., appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

Appellant takes this appeal from an order which denied his claim for relief under the Post-Conviction Hearing Act. Upon review, we find it necessary to reverse the order of the PCHA court and remand the case for a new trial due to the improper and prejudicial closing remarks made by the prosecutor at Appellant’s trial.

As a result of evidence gathered when the police executed a search warrant at Appellant’s home, Appellant was charged with possession with intent to deliver marijuana, possession of LSD and possession of a prohibited offensive weapon, a sword cane. Charges were also filed against Appellant for receiving stolen property, in the form of an electronic scale. During the search the officers also discovered certain firearms which Appellant had on earlier dates reported stolen. Based upon that discovery, two counts of false reports to law enforcement authorities were lodged against Appellant. After a jury trial, Appellant was convicted on all charges. Appellant was subsequently sentenced and a direct appeal was timely filed, which proved to be unsuccessful. See Commonwealth v. Graham, 334 Pa.Super. 170, 482 A.2d 1277 (1984). A petition for post conviction relief was later filed on Appellant’s behalf by newly acquired counsel. The petition alleged among other claims, that trial counsel was ineffective for failing to object to the prosecutor’s improper closing remarks. A hearing was held on the petition where testimony was taken on other outstanding issues. Although trial counsel was present at the hearing, he was not called as a witness. Thereafter, the PCHA court issued an order denying Appellant’s petition, which order is the subject of our review.

When confronted with a claim of ineffective assistance of counsel, a reviewing court must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit and, if so, it must be determined whether the course chosen by counsel had some reasonable basis designed to serve the client’s interest. Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986). A finding of ineffectiveness also requires a showing that counsel’s action or inaction was prejudicial to the defendant. Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984). In light of this standard, we turn to an examination of the alleged ineffectiveness of Appellant’s trial counsel.

Appellant specifically claims that his trial counsel failed to object to improper closing remarks made by the prosecutor. Appellant characterizes these comments as expressions of the prosecutor’s personal opinion as to Appellant’s credibility and his testimony elicited at trial. It is Appellant’s position that he was prejudiced by these remarks and denied a fair trial.

“It is well established that a district attorney must have reasonable latitude in presenting a case to the jury and that he must be free to present his arguments with ‘logical force and vigor’.” Commonwealth v. Brown, 332 Pa.Super. 35, 480 A.2d 1171, 1176 (1984) citing Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980) and Commonwealth v. Cronin, 464 Pa. 138, 143, 346 A.2d 59, 62 (1975). Although it is proper for the prosecutor to make fair deductions and legitimate inferences from the evidence and argue to the jury that the evidence establishes the defendant’s guilt, a prosecutor may not offer his personal opinion as to the guilt of the accused. Commonwealth v. Brown, supra.

‘It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or any evidence of guilt of the defendant.’ ABA Standards RElating to the Prosecution Function § 5.8(b) (Approved Draft 1971). However, ‘not every injudicious or improper comment by the prosecutor or the court is of such nature and quality that a new trial must be granted.’ Commonwealth v. Taliaferro, 273 Pa.Superior Ct. 151, 417 A.2d 213 (1979). Instead, as the Supreme Court has noted: Where an improper remark is made by the prosecutor, the ultimate test as to whether a reversal of the judgment of sentence is required must depend upon a finding of the reasonable impact of the statement on the jury’s factfinding function. Where the remarks are of such a nature that would seriously threaten the jury’s objectivity and is [sic] likely to deprive an accused of a fair trial, curative instructions are inadequate Commonwealth v. Brown, 489 Pa. 285, 298, 414 A.2d 70, 76 (1980).

Commonwealth v. Warren, 298 Pa. Super. 349, 353, 444 A.2d 1209, 1211 (1982).

In the instant case Appellant points to specific instances to demonstrate his claim. Appellant first highlights the prosecutor’s comments made concerning evidence that a shotgun which Appellant had reported stolen was later discovered during the search of his home. Appellant testified that he truly believed the gun was stolen when he made the report, however, in fact, it was located under his couch. Appellant explained that he was unaware of its placement due to the total disarray of his home after the burglary. With respect to this testimony, the prosecutor stated:

This is my favorite story. Let’s take a look at this weapon. This is Commonwealth’s Exhibit No. 4. This was in the first burglary, okay. I don’t know much about weapons at all, but to my untrained eye, this does not appear to be a $4.00 weapon. And yet when the burglar was in Graham’s house he took this weapon from the corner by the door and hid it under the couch. Does that make any sense? Absolutely none, that’s totality unbelievable. (emphasis added).

Regarding the discovery of a large sum of money in Appellant’s home, the prosecutor remarked:

He has worked a little more than two years in the last ten. His wife has not worked in ten years. And yet he saved at least $30,000.00 from that bag. That it just unbelievable, incredible, and must be disregarded. (emphasis added).

On the issue of Appellant’s possession of a stolen scale, the prosecutor reviewed the testimony in the following manner:

Now he bought it in a bar. Met a total stranger in a bar, went into the parking lot with this person that he never met before, paid him $150.00 for something that he says he didn’t know how to operate, he didn’t even know if it worked. But he paid $150.00 for it, does that make any sense at all. That is not in anyway believable, (emphasis added).

The prosecutor told the jury the following concerning Appellant’s defense on the charges that he possessed marijuana with the intent to deliver:

Mr. Graham would have you believe that his 26 pounds of marijuana was for his personal use. Now, let’s take Trooper Cipollini’s statement of the number of grams in a joint or a cigarette of marijuana. He said half a gram. Mr. Graham over here says one and a half to two, maybe. It we take his estimate, Trooper Cipollini’s that comes to 27,000 cigarettes of marijuana. At 40 a day, which I also find incredible. At 40 a day we’re talking about years and years of supply. That is unbelievable, totally unbelievable. (emphasis added).
The jury was also told:
Mr. Graham is what is known as a manufacturer of marijuana. By his own admission, he grew this himself. I don’t necessarily believe at all, but he told you that he grew it. (emphasis added).

The final remarks objected to by Appellant involve Appellant’s testimony that he never gave the police certain serial numbers when reporting his weapons as stolen. This testimony was contrary to the police officer’s recollection. During his closing the prosecutor argued:

Mr. Graham’s accusations that the Chief lied are totally unbelievable and should be disregarded by you. (emphasis added).

These remarks made by the prosecutor could not be characterized as anything other than his personal opinion of the evidence presented on Appellant’s behalf and Appellant’s credibility. Such as expression of personal belief was clearly improper. (Contrast: Commonwealth v. Sparks, 351 Pa.Super. 320, 505 A.2d 1002 (1986), where comments as to credibility were not expressions of personal belief but argument designed to persuade the jury that the witness deserved to be believed.) Because Appellant’s trial counsel did not object to these comments, Appellant was not afforded the benefit of curative instruction. See: Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983), where immediate, emphatic instructions were given to the jury and the prosecutor was admonished for suggesting that the defendant’s version of the events was out of a story tale.

We can conceive of no reasonable explanation for counsel’s failure to object. The remarks here were directed to a jury. This in unlike a case where a trial judge is sitting as fact-finder and concerns regarding improper prejudicial remarks are lessened if not eliminated. See: Commonwealth v. Stantz, 353 Pa.Super. 95, 509 A.2d 351 (1986). Further, after examining the entire record we cannot say the prosecutor’s comments were motivated by and commensurate with prior attacks of a Commonwealth witness by defense counsel. See: Commonwealth v. Gwaltney, 497 Pa. 505, 442 A.2d 236 (1982).

The closing argument made on behalf of the Commonwealth herein contained numerous improper statements. The prosecutor repeatedly told the jury that in his mind Appellant’s testimony was “unbelievable” which amounted to saying that in his opinion Appellant lied on the stand. In a few instances the jury was even instructed to disregard the defendant’s version of the events. We find the cumulative effect of these remarks necessarily prejudiced the jury by seriously threatening its objectivity. Commonwealth v. Stantz, supra.

It is for these reasons we reverse the order of the PCHA court and remand the case for a new trial.

Order reversed. Case remanded for a new trial.

      . Because of our decision based on this issue, we find it unnecessary to consider Appellant's additional allegations of ineffective assistance of counsel.


author: KELLY, Judge:

text:
    528 A.2d 623
    COMMONWEALTH of Pennsylvania v. Kenneth L. OSBORN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1986.
    Filed June 18, 1987.

      Leonard Ambrose, Erie, for appellant.
    Douglas W. Ferguson, Assistant District Attorney, Mead-ville, for Commonwealth, appellee.
    Before DEL SOLE, KELLY and POPOVICH, JJ.
   KELLY, Judge:

This case involves the consolidated appeals of appellant, Kenneth Leroy Osborn, from his conviction, after a jury trial on May 14, 1985, of terroristic threats (18 Pa.C.S.A. § 2706), and his conviction, after a jury trial June 11-12, 1985, of rape (18 Pa.C.S.A. § 3121). These convictions arose from entirely separate criminal episodes. However, because both appeals involve identical questions regarding the admissibility of evidence of appellant’s prior perjury conviction and the legality of the sentences imposed, they have been consolidated on appeal pursuant to Pa.R.A.P. 513.

The terroristic threats conviction arose from appellant’s threat to burn down the barn of a man who had testified on behalf of a neighbor of the appellant, against whom appellant had instituted summary civil proceedings before • a district justice. Appellant denied threatening the former witness. The jury, however, found the appellant guilty. Post-verdict motions and supplemental post-verdict motions were denied.

The rape conviction arose from appellant’s use of a shotgun to compel his girlfriend’s sister-in-law to engage in non-consensual intercourse. Appellant admitted having intercourse with the victim, but claimed it occurred earlier in the evening, at a different location, and that it was consensual. The jury, however, found the appellant guilty. Post-verdict motions and supplemental post-verdict motions were denied.

Following a sentencing hearing on December 30, 1985, appellant was sentenced to a , term of imprisonment of ten (10) to twenty (20) years on the rape conviction and a concurrent term of two (2) to four (4) years on the terroristic threats conviction. A motion to modify sentence was filed and denied. These timely appeals followed.

On appeal, appellant contends that: the trial court erred (in both cases) by permitting the Commonwealth to use the appellant’s prior perjury conviction for rebuttal purposes; the trial court erred (in the rape case) by permitting the victim to testify concerning statements made by the appellant after the rape regarding violent crimes appellant said that he had previously committed and others he intended to commit, and counsel was ineffective in failing to request cautionary instructions regarding these statements; counsel was ineffective (in the rape case) in failing to seek suppression of the shotgun; the trial court erred (in the rape case) by failing to declare a mistrial, and counsel was ineffective in failing to request cautionary instructions following the victim’s unsolicited statement of her willingness to take a lie detector test; and the sentences imposed upon the appellant for each conviction were illegal in that the trial court failed to consider relevant sentencing factors, gave an inadequate statement of reasons for imposing sentence, and had inadequate grounds for sentencing in the aggravated minimum range for the rape conviction and for deviating from the sentencing guidelines in sentencing on the terroristic threats conviction. We cannot agree.

Upon review of the record, the briefs of the parties and the well-reasoned opinions of the Honorable Richard Thomas, President Judge, we find no merit in these appeals. Accordingly, we affirm the judgments of sentence.

I.

Under 42 Pa.C.S.A. § 5912, “[i]n a criminal proceeding, a person who has been convicted in a court of this Commonwealth of perjury, ..., shall not be a competent witness for any purpose, although his sentence may have been fully complied with, unless judgment of conviction has been judicially set aside or reversed, or unless the proceeding is one to punish or prevent injury or violence attempted, done, or threatened to his person or property, in which cases he shall be competent to testify.” See Commonwealth v. Myers, 485 Pa. 519, 403 A.2d 85 (1979); Commonwealth v. Meholic, 341 Pa.Super. 342, 491 A.2d 848 (1985). Appellant in the instant case admits that he was convicted of perjury in 1967.

Prior to trial on the terroristic threats charge, the Commonwealth moved to have the appellant declared incompetent to testify pursuant to 42 Pa.C.S.A. § 5912. On May 13, 1985, the Honorable Robert L. Walker denied the motion, but ruled that, if the appellant testified at trial, evidence of his prior conviction for perjury could be used for impeachment purposes. Judge Walker reasoned that precluding a convicted perjurer from testifying on his own behalf would be unconstitutional. Trial Court Opinion (No. 1985-161, terroristic threats case) at 4.

Appellant argues that not only was he competent to testify in spite of his prior perjury conviction, but that under the rules set forth in Bighum, Roots, and their progeny, evidence of his prior conviction for perjury was not admissible to impeach his credibility at trial. We, however, decline to construe the rules announced in Big-hum and Roots so as to create the “warm comfortable refuge for seasoned liars” which appellant seeks. Cf. Commonwealth v. Alicea, 498 Pa. 575, 583, 449 A.2d 1381, 1385 (1982) (McDermott, J., dissenting).

It is a fundamental tenet of American jurisprudence that an accused has a right to testify on his own behalf. It is well-accepted, though, that the opposing party may impeach the credibility of the defendant by introducing before the trier of fact evidence of his prior convictions. See Commonwealth v, Lewis, 350 Pa.Super. 595, 597-98, 504 A.2d 1310, 1312 (1986) (en banc). In Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1961), our Supreme Court explained the basis of the rule permitting the admission of prior conviction evidence as follows:

This rule of evidence is founded on common sense and logic. If a defendant offers himself as a person worthy of belief, the jury has a right to know what kind of man he is — to aid in accessing his credibility. His previous record is admissible for this purpose just the same as testimony of prior reputation for veracity is evidence for the jury’s consideration. 178 A.2d at 474. Thus, evidence of a prior conviction is properly admissible to establish that the accused is not worthy of belief.
However, it is not admissible to establish that an accused has a propensity to commit the crime or type of crime of which he is accused. Nor is it admissible to establish that the accused is a habitual lawbreaker who should be punished and confined for the good of the community regardless of whether he might be innocent of the present charge. Therein lies the potential for undue prejudice inherent in such evidence. In some cases it may be difficult or impossible for the jury to limit its consideration of the prior conviction evidence solely to the issue of credibility. See Commonwealth v. Roots, supra, 393 A.2d at 365-66; see also Commonwealth v. Johnson, 340 Pa.Super. 26, 33-84, 489 A.2d 821, 825 (1985) (Wieand, J., dissenting).

Recognizing this potential for undue prejudice, our Supreme Court in Commonwealth v. Bighum, supra, decided to limit the rule in Butler by holding that:

Since the avowed purpose of using prior convictions in rebuttal is to cast doubt upon the defendant’s veracity generally as a witness, it is important to limit the convictions used to crimes involving dishonesty or false statement.

307 A.2d at 262. The court in Bighum also adopted the balancing approach espoused in United States v. Luck, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965), for the determination of the admissibility of evidence of prior crimen falsi convictions.

In Commonwealth v. Roots, supra, our Supreme Court stated:

We here reiterate, and to some extent, refine the factors that should be considered in the balancing equation. It is to be stressed that the list is not to be considered exhaustive or exclusive, but rather illustrative of the type of considerations that should influence the decision.

393 A.2d at 367. The court then set forth the following factors to be considered:

1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) The likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; (4) the strength of the prosecution’s case and the prosecution’s need to resort to the evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant’s credibility.

393 A.2d at 367.

“Roots, Bighum, and their progeny require that the trial court balance various factors in determining, essentially, whether the probative value of the prior conviction evidence outweighs the risk of unfair prejudice inherent in such evidence.” Commonwealth v. Stinnett, 356 Pa.Super. 83, 91, 514 A.2d 154, 158 (1986). Consequently, we must reject the reasoning of the trial court that perjury convictions are admissible per se. Rather, we must agree with appellant that the admissibility of evidence of appellant’s prior perjury conviction must be determined under the rules set forth in Bighum, Roots, and their progeny. However, an analysis of the Roots factors establishes that the evidence was in fact admissible; thus, we may affirm despite the trial court’s assignment of a wrong reason for admission. See Commonwealth v. Terry, 513 Pa. 381, 399, 521 A.2d 398, 409 (1987).

First, the essence of penury is deceit and false swearing. 18 Pa.C.S.A. 4901 et seq.; see e.g. Commonwealth v. Hawkins, 445 Pa. 279, 284 A.2d 730 (1971) (for a statement to be a perjured one, it must be willfully and corruptly false). Consequently, a prior conviction of perjury is a manifestly appropriate basis upon which to impeach a defendant’s credibility.

Second, Roots requires that the court consider the tendency of the nature and extent of the prior conviction evidence to smear the character of the accused and suggest a propensity to commit the crime charged in determining which, if any, prior crimen falsi convictions should be admitted for impeachment purposes. It is, however, patently clear that no such tendency for undue prejudice existed in the instant case as the Commonwealth requested and the trial court permitted only a single prior perjury conviction to be admitted in rebuttal. Cf. Commonwealth v. Perrin, 484 Pa. 188, 194-95, 398 A.2d 1007, 1011 (1979) (admission of single larceny conviction); Commonwealth v. Bailey, 354 Pa.Super. 51, 55, 511 A.2d 180, 184 (1986) (admission of single burglary conviction). Moreover, the prior perjury conviction does not, as convictions of other crimes might, suggest any propensity to rape or to commit terroristic threats (which is the undue prejudice the rule seeks to prevent).

Third, the appellant’s age and circumstances weigh both for and against admission of the prior conviction. Appellant was thirty years old and fully responsible for his conduct when he was convicted of penury. Cf. Commonwealth v. Bailey, supra, 511 A.2d at 183 (appellant was 25 years old at time of prior conviction). On the other hand, the penury conviction’s probative value is clearly diminished by its age (at trial it was sixteen years old). Cf. United States v. D'Agata, 646 F.Supp. 390 (E.D.Pa.1986) (16 year old perjury conviction excluded under Federal Rules of Evidence); Commonwealth v. Williams, 286 Pa.Super. 444, 449, 429 A.2d 22, 24 (1981) (Montemuro, J. concurrring) (8 year old burglary convictions were too stale).

Fourth, appellant testified and denied his guilt in both cases. (N.T. 5/14/85 at 47-632; N.T. 6/12/85 at 136-157 & 204-207). In the terroristic threats case, appellant presented testimony from Rose Monsour that she had overheard the victim, Mr. Williams, state, “well we’ve got the cops believing Kenny made that phone call.” (N.T. 5/14/85 at 6). Appellant presented further testimony from two witnesses who stated that the appellant merely drove past Mr. Williams’ house. (N.T. 5/14/85 at 14-25). In the rape case, appellant presented testimony from Rose Monsour that the victim, her sister-in-law, told her on Christmas Day (three days before the rape) that she was going to get appellant to go out with her and then cry rape. (N.T. 6/11/85 at 171-172). Appellant also presented testimony from three witnesses who each confirmed at least part of appellant's version of the incident. (N.T. 6/11/85 at 182-185, 186-193 & 193-203). Although the Commonwealth’s evidence was sufficient to sustain the verdict in each case, it was not overwhelming. Rather, credibility of the witnesses was the linchpin upon which both of the cases turned.

Fifth and finally, a review of the trial transcripts reveals no adequate alternate grounds for impeachment. Although appellant testified and was cross-examined in both cases, neither cross-examination yielded any significant contradiction or impeachment. (N.T. 5/14/85 at 54-64; N.T. 6/12/85 at 147-157).

Upon review of the record and consideration of the factors and principles set forth in Commonwealth v. Roots, supra, we find that the prior perjury conviction was properly admissible in both trials, and that the trial court’s failure to apply the Roots analysis to determine admissibility was harmless as application of the analysis confirms admissibility. We note that we find no merit in appellant’s procedural challenges with regard to this issue.

II.

Appellant next contends that the trial court erred in admitting testimony regarding statements made by the appellant to the rape victim after the rape was completed concerning specific acts of violence committed by the appellant in the past, and other violent acts which he intended to commit in the future. Appellant argues that the testimony was prejudicial, and therefore, inadmissible. Appellant argues further that if the testimony was admissible, reversible error exists in the failure of counsel to request and the failure of the trial court to deliver adequate cautionary instructions. We cannot agree.

The admissibility of evidence is a matter left to the sound discretion of the trial court, and an appellate court may only reverse upon a showing that the trial court abused its discretion. Commonwealth v. Bartlett, 446 Pa. 392, 400, 288 A.2d 796, 799-800 (1972). Even evidence of prior crimes may be admissible, where such evidence is relevant to prove something other than the defendant’s propensity for committing crimes. Commonwealth v. Claypool, 508 Pa. 198, 204, 495 A.2d 176, 178 (1985). In Commonwealth v. Freeman, 295 Pa.Super. 467, 476, 441 A.2d 1327, 1332 (1982), this Court explained, “... unexplained absence of hue and cry that one might expect to ensue from rape casts doubt on the existence of the rape itself.” (Emphasis added). This is particularly true where, as here, the assailant was previously known to the victim, and the theory of defense was that the intercourse was consensual. Thus, the fact of appellant’s statements was highly relevant to explain the victim’s delay in reporting the crime.

Consequently, we find no abuse of discretion in the trial court’s decision that the probative value of evidence outweighed its obvious potential for prejudice. Cf. Commonwealth v. Claypool, supra. As Justice McDermott aptly noted in Claypool, “[a] ‘threat’ can be as palpable as a steel blade, the muzzle of a gun, or a ticking bomb. If the tool one uses to accomplish a criminal purpose prejudices him, so much the worse for him.” Commonwealth v. Claypool, supra, 508 Pa. at 206, 495 A.2d at 180. (McDermott, J., concurring).

We note that although there was no specific instruction requested or given with respect to this evidence, the court did state in its jury charge:

... one of the firm rules is that when a person is on trial for a criminal offense, the jury cannot and should not know that they have committed or have been convicted of other criminal offenses, less the jury might go out and say well, if this person did something at a time in the past, he might have done this, thats kinda human nature, but that’s unfair.
The fact that a person stepped outside the law in the past does not constitute evidence that they did it,____

(N.T. 6/12/86 at 222). While a more direct cautionary would have been preferred, we find that the instruction given was adequate and that counsel was not ineffective in failing to request further instructions.

III.

Appellant next contends that the trial counsel in the rape case was ineffective in failing to request the suppression of a shotgun which was seized during a search of appellant’s residence. Appellant argues that the affidavit of probable cause contained in the search warrant was fatally defective, and that counsel was therefore ineffective for failing to challenge its admission. We cannot agree.

This contention was fully addressed and adequately disposed of in the opinion of the learned trial court. Trial Court Opinion (No. 1985-106, rape) at 3-5. Additionally, we note that counsel’s decision not to challenge admission of the shotgun was reasonable where: 1) numerous witnesses, including the defendant, testified as to the existence and location of the shotgun in appellant’s residence (see N.T. 6/11/85 at 29, 42-43, 154-55, 165 & 178); and 2) the theory of defense was that prior to having consensual sex with appellant, the victim had decided to make up a rape story using common knowledge regarding appellant, including her knowledge of the existence and location of the gun. (N.T. 6/11/85 at 3-17, 165 & 178). Counsel’s actions are deemed effective if any reasonable basis exists for them; hence, counsel in the instant case was not ineffective in failing to seek the suppression of evidence which was consistent with the theory of defense presented at trial. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

IV.

Appellant next contends that trial counsel was ineffective in failing to request a mistrial or cautionary instructions following the victim’s statement that she was willing to take a polygraph examination. Appellant argues further that the trial court erred in failing to grant a mistrial or issue cautionary instructions sua sponte. While we agree that the unsolicited reference by the victim regarding her willingness to take a polygraph examination was improper and properly stricken, we find no reversible error in the failure to request or grant a mistrial or cautionary instructions.

The following exchange took place at trial:

Q. The defendant indicated through his attorney in opening statements that he had intercourse with you in the back lot of Truck World that night?
A. Well, that’s a blatant lie. I have never been at Truck World in my life.
Q. Just answer my question, did you have intercourse with him in the back lot of Truck World on December 28, 1984?
A. No. I told you I’d take a polygraph test.
Q. I know you would.
Mr. Rodgers: We object to that, Your Honor.
The Court: Strike it.

(N.T. 6/11/85 at 49).

Appellant argues that this reference to the victim’s willingness to take a polygraph examination was highly prejudicial and unfairly bolstered her credibility. We agree that the testimony was improper; however, we find that appellant has greatly exaggerated the potential prejudice from the victim’s unsolicited remark and the Commonwealth attorney’s response.

The reference challenged in the instant case did not imply that appellant had taken a test or that she had passed such a test. Cf. Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1975) (results inadmissible); Commonwealth v. Johnson, 441 Pa. 237, 272 A.2d 467 (1971) (same); Commonwealth v. Pechalski, 310 Pa.Super. 199, 456 A.2d 569 (1983) (results inadmissible at sentencing); Commonwealth v. Pfender, 280 Pa.Super. 417, 421 A.2d 791 (1980) (results inadmissible even by stipulation). Nor was the reference ambiguous in this respect. Cf. Commonwealth v. Miller, 497 Pa. 257, 439 A.2d 1167 (1982). Rather, the reference expressed only a willingness to take such a test. Consequently, we find that the above cited cases are factually distinguishable, the order to strike the remarks was an adequate response, and counsel was not ineffective in failing to request cautionary instructions which might have focused undue attention on the unsolicited remark.

V.

Finally, appellant contends that the sentence imposed was illegal in that the. trial court failed to consider relevant sentencing factors, to set forth sufficient reasons for the sentence imposed, and to set forth adequate reasons for sentencing appellant in the aggravated range for the rape conviction and outside and in excess of the guideline ranges for the terroristic threats conviction. We cannot agree.

Although appellant characterizes these contentions as challenges to the legality of the sentence; we find that they are, in fact, predominately challenges to discretionary aspects of the sentence. Upon review of appellant’s brief, we find further that appellant has failed to set forth a separate concise statement of reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(b) as required by Pa.R.A.P. 2119(f). See Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). As no motion to correct this defect has been filed pursuant to Pa.R.A.P. 2501, appellant’s challenges to the discretionary aspects of sentence are not properly before this Court.

To the extent that the contentions may be considered to have raised challenges to the legality of sentence, we find that the trial court considered the scant mitigation evidence presented (N.T. 12/30/85 at 7-11), but that it was clearly outweighed by the aggravating circumstances of these cases and the appellant’s record as a career criminal. (N.T. 12/30/5 at 30-37). Though brief (N.T. 12/30/85 at 38-40), the trial court’s statement of the reasons for sentencing appellant in the aggravated minimum range for the rape conviction and above and outside the guideline ranges for the terroristic threats conviction were adequate to fulfill the requirements of Commonwealth v. Riggins, 474 Pa. 507, 378 A.2d 1229 (1977). The court reasoned that the nature of the offenses, the appellant’s extensive criminal record, and the fact that appellant’s conduct “terrorized the community,” warranted the sentences imposed. Upon review of the record, we agree, Indeed, the sentence of a concurrent term on the terroristic threats conviction could reasonably be characterized as lenient.

Based upon the foregoing reasons, judgments of sentence are affirmed.

      . We note that the Commonwealth’s attempt to apply 42 Pa.C.S.A. § 5912 to the appellant would seem to conflict directly with Pennsylvania Constitution Article 1, section 9 which provides in pertinent part, "in all criminal proceedings the accused hath a right to be heard by himself and by counsel." Though the issue is not before us instantly, it would appear that 42 Pa.C.S.A. § 5912 may only, constitutionally, be applied to witnesses other than the accused in a criminal trial. See 1 Pa.C.S.A. § 1925.

      . Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973); Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978).

      . The trial court reasoned:
      Defense Counsel cited Commonwealth vs. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), and Commonwealth vs. Roots, 482 Pa. 33, 393 A.2d 364 (1978), as evidence of a severe restriction on introduction of prior convictions as the changed attitude of our appellate courts. We are aware of and need not here review the tests, guidelines and balancing of equities discussed in these cases.

      We acknowledge that had the 1967 conviction been for a ‘standard felony or misdemeanor crimen falsi’, its remoteness would have precluded its admission under Bighum and Roots. However, the case here at issue focused dramatically on the credibility of the Defendant..... Since the Legislature felt that perjury was such an onerous offense that a convicted perjurer was precluded from ever testifying as a witness, and even though this Court felt this penalty to be legislative overreaching, we felt that justice; and common sense mandated that the jury should be made aware of the Defendant’s conviction of this offense (however long ago it occurred) in passing upon his credibility. We feel that when a jury of one’s peers in a public jury trial finds unanimously and beyond a reasonable doubt that a person has ignored their oath to God and willfully given false testimony, that a subsequent jury of peers has a right to consider that fact, along with all other credibility tests, in deciding a case where guilt or innocence focuses on credibility. Given that remoteness in time may negate the introduction of prior convictions as an attack on credibility, we feel that a perjury conviction evidences such a shocking and deliberate attempt to undermine the viability of the justice system that remoteness loses its significance.
      Trial Court Opinion (No. 106, rape) at 7-8; Trial Court Opinion (No. 161, terroristic threats) at 5-6. (Emphasis added). While we agree that the evidence of appellant's prior perjury conviction was admissible in the instant case, we cannot accept the per se rule of admissibility suggested by the trial court. Even if we agreed that justice and common sense dictated such a rule, we could not escape the clear mandate of Bighum, Roots, and their progeny which emphatically rejects such per se rules.

      . A pre-trial hearing was held on the Commonwealth’s motion to declare appellant incompetent under 42 Pa.C.S.A. § 5912. After this hearing, the trial court ruled that the prior perjury conviction would be admissible for impeachment purposes. Thus, the pre-trial determination required, upon request, was afforded. See Commonwealth v. Duffy, 355 Pa.Super. 145, 150, 512 A.2d 1253, 1256 (1986). Appellant argues, however, that appellate review of the decision to permit the admission of the prior conviction evidence is thwarted by the absence of a record of the hearing before Judge Walker as required by Pa.R.Crim.P. 9030. We find the record, the briefs of the parties and the opinions of the trial court sufficient to provide an adequate basis for review. Moreover, appellant has given no indication of any particular prejudice arising from the absence of a transcript of the pre-trial hearing, nor has he availed himself of the appropriate remedy set forth in Pa.R.A.P. 1923.

      . The victim, Debra Jean Monsour, testified that after the rape, appellant told her that: he was an ex-convict; he had "pimped better broads;” that he had hired two men to run Rose Monsour’s first husband, Piser, off the road; he watched while they drug Piser from the car and beat him with a tire jack; his presence prevented an armed neighbor from coming to Piser’s aid; that he was planning to blow-up a trailer in Pittsburgh; and that he had broken into Rose’s mother and father-in-law's home and had torn it apart. (N.T. 6/11/85 at 30, 35-36). Mrs. Monsour explained that appellant was trying to scare her, and that by the time she got home she was absolutely terrified. (N.T. 6/11/85 at 36).

        . Had counsel requested an additional instruction, the trial court would have been forced to review the potentially prejudicial testimony, thereby reinforcing it. We note that while the jury charge did not contain cautionary instructions directly addressed to the challenged evidence, neither did the trial court's summary of the evidence presented by the Commonwealth contain a direct reference to the evidence in dispute. (N.T. 6/12/85 at 230-231). Counsel’s decision to forego further cautionary instructions, thus, had a reasonable basis.