author: WIEAND, Judge:

text:
    546 A.2d 67
    COMMONWEALTH of Pennsylvania, Appellee, v. Raymond YABOR, Appellant.
    Superior Court of Pennsylvania.
    Argued March 8, 1988.
    Filed June 29, 1988.
    Reargument Denied Aug. 26, 1988.

      Edward J. Daly, Philadelphia, for appellant.
    Suzan Willcox, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before ROWLEY, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

Raymond Yabor was tried by jury and was found guilty of aggravated assault, conspiracy, possession of an instrument of crime and carrying firearms on a public street. Post-trial and supplemental post-trial motions were denied, and Yabor was sentenced to serve two consecutive terms of imprisonment of not less than five (5) years nor more than ten (10) years for aggravated assault and of not less than one (1) year nor more than two (2) years for conspiracy, to be followed by a consecutive two year period of probation for possessing an instrument of crime. An appeal was filed but later dismissed due to counsel’s failure to file a brief. Thereafter, in response to a P.C.H.A. petition, Yabor was granted leave to file an appeal nunc pro tunc. Now, on direct appeal from the judgment of sentence, Yabor raises the following issues for our consideration: (1) whether the trial court erred by allowing the preliminary hearing testimony of the victim to be introduced into evidence without establishing on the record that the victim had a valid basis for asserting the privilege against self-incrimination; (2) whether the trial court erred by allowing the victim to assert the privilege against self-incrimination outside the presence of the jury; and (3) whether trial counsel rendered ineffective assistance. Finding no basis for a new trial, we affirm the judgment of sentence.

The facts which gave rise to appellant’s conviction were summarized by the trial court as follows:

On July 27, 1983, Defendant arrived nearby 3206 Ford-ham Road in Philadelphia in the rear passenger seat of a brown Cadillac (N.T. 5/22/86 p. 22). He emerged from the automobile attired entirely in white; carrying a twelve gauge shotgun (N.T. 5/22/86 p. 22). Defendant treked [sic] accross [sic] two front lawns arriving at the front door of 3206 Fordham Road (N.T. 5/22/86 p. 23). Minutes later two shots rang out. Someone who had witnessed Defendant’s dramatic arrival promptly called the police (N.T. 5/22/86 p. 23). Meanwhile, the brown Cadillac sped away (N.T. 5/22/86 p. 23). Moments later, Mr. Yabor exited the house. He was still clutching the now disassembled shotgun (i.e. “broken” into two pieces). Blood spattered his clothes (N.T. 5/22/86 p. 23). A local contractor stopped Defendant, ordering him to halt as police were on their way (N.T. 5/22/86 p. 23). However, the brown Cadillac suddenly reappeared and Defendant, ignoring the warning, leaped in the car which once again sped away (N.T. 5/22/86 p. 24). A mailman who had been cowering by his mailbox, managed to copy down the Cadillac’s license plate number before the perpetrators drove away (N.T. 5/22/86 p. 24). The complainant, who had sustained two close range shotgun blasts then stumbled outside and down his front steps (N.T. 5/26/86 p. 25). Police arrived immediately thereafter (N.T. 5/22/86 p. 25).
A short distance away from the Fordham Road incident, a passerby observed the “get away car” screech to a halt in another residential neighborhood (N.T. 5/22/86 p. 44). A person in the front passenger seat exited the car and Defendant handed him the partially disassembled shotgun (N.T. 5/22/86 p. 45). This person attempted to “break” or further disassemble the shotgun over his knee but was unsuccessful (N.T. 5/22/86 p. 45). Apparently frustrated, Mr. Yabor jumped out, broke the gun himself and threw the pieces into a city inlet (N.T. 5/22/86 p. 46). Both men entered the car and for the third time it sped off (N.T. 5/22/86 p. 47). Defendant, the driver, and the third cohort were apprehended virtually minutes afterward (N.T. 5/22/86 p. 57). Five twelve-gauge shotgun shells, (the appropriate size for the gun in question), were recovered from Mr. Yabor during his arrest (N.T. 5/22/86 p. 57). Said shotgun was recovered from the sewer and through ballistics studies was determined to be the only gun which could possibly have fired the near-fatal shots (N.T. 5/23/86 p. 116).
Finally, although Complainant was unavailable for trial, the jury heard no less than three separate statements by Complainant identifying Defendant as his assaultant [sic]. The first statement was made as Complainant was about to undergo emergency treatment (N.T. 5/23/86 p. 16). The second, made during Mr. Yabor’s preliminary hearing, was read to the jury during the Commonwealth’s case (N.T. 5/23/86 p. 94). Mr. Yabor was implicated a third time during a co-defendant’s trial. This statement was presented during this Defendant’s case-in-chief (N.T. 5/27/86 p. 30).

At trial, the Commonwealth intended to call the victim, Joseph DeLeo, as a witness to establish appellant’s identity as the man who had shot DeLeo. Before DeLeo was to testify, however, his attorney informed the trial court, the prosecuting attorney, and defense counsel that his client intended to invoke the privilege against self-incrimination if asked any questions concerning the identity of the person who had shot him. Thereafter, DeLeo was examined outside the presence of the jury and did, indeed, refuse to answer inquiries about the person who had shot him. The trial court concluded that DeLeo was unavailable as a witness and ruled that his preliminary hearing testimony could be used by the Commonwealth. The court also refused to allow defense counsel to call DeLeo as a witness for the purpose of allowing the jury to observe that DeLeo had invoked the privilege against self-incrimination.

We find no merit in appellant’s contention that he was denied the right of confrontation because the trial court refused to allow DeLeo’s invocation of the privilege against self-incrimination before the jury. The Supreme Court’s decision in Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971) is controlling. In Greene, the Supreme Court held that a witness should not be placed on the stand for the purpose of having him exercise the privilege against self-incrimination in front of the jury. More recently, this Court said:

A witness should not be placed on the stand solely for the purpose of having him exercise his privilege against self-incrimination before the jury. “If it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand. Neither side has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege ...” United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974), quoting United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir.1973). See also: Bowles v. United States, 142 U.S.App.D.C. 26, 32, 439 F.2d 536, 542 (1970), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971); Commonwealth v. Greene, 445 Pa. 228, 231-232, 285 A.2d 865, 867 (1971); Commonwealth v. Pritchard, 270 Pa.Super. 461, 468, 411 A.2d 810, 814 (1979); Commonwealth v. Hackett, 225 Pa.Super. 22, 24, n. 2, 307 A.2d 334, 335 n. 2 (1973).

Commonwealth v. Cieri, 346 Pa.Super. 77, 91, 499 A.2d 317, 324 (1985), quoting Commonwealth v. Bellacchio, 296 Pa.Super. 468, 474-475, 442 A.2d 1147, 1150 (1982). It is readily apparent, therefore, that the trial court did not err by refusing to allow appellant to call DeLeo as a witness solely for the purpose of having him invoke the privilege against self-incrimination in the presence of the jury.

Appellant’s contention that the trial court erred when it failed to determine, on the record, whether DeLeo was entitled to invoke the privilege against self-incrimination is more troubling. A similar scenario was the subject of a lengthy discussion in Commonwealth v. McGrogan, 367 Pa.Super. 394, 532 A.2d 1203 (1987). There, a panel of this Court said:

Although the United States and Pennsylvania Constitutions guarantee an accused the right to confront the witnesses against him, the Constitutions also guarantee that no person shall be compelled “to be a witness against himself” or “give evidence against himself.” U.S. Const. Amend. V; Pa. Const. Art. I, § 9. Thus, the right to confront witnesses is qualified by existing testimonial privileges of witnesses, including the privilege against self-incrimination. See Commonwealth v. Allen, 501 Pa. 525, 462 A.2d 624, 627 (1983). It is the clash of defendant’s right to confront his accusers and the witness’ right to remain silent which results in the conflict now before us.

The law provides that when a witness is unavailable for trial, his or her prior recorded testimony from a preliminary hearing may be introduced, provided the defendant had counsel and a full opportunity to cross-examine the witness during the earlier proceeding. Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980), Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977). A witness who properly invokes his constitutional right against self-incrimination is “unavailable” for this purpose. However, it must first be determined by the trial court whether a witness is entitled to invoke the privilege.

Our Supreme Court has set forth the parameters of the necessary inquiry:

When [a witness is called to testify], he or she is not exonerated from answering questions merely upon the declaration that in so doing it would be seif-incriminating. It is always for the court to judge if the silence is justified, and an illusory claim should be rejected. However, for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of all circumstances that the witness is mistaken in the apprehension of self-incrimination and the answers demanded cannot possibly have such tendency. [Emphasis in the original; citations omitted.]

Commonwealth v. Carrera, 424 Pa. 551, 553-54, 227 A.2d 627, 629 (1967). The statutory provision specifying privileges and immunities of witnesses underscores the duty of the trial judge to make the determination as to the validity of the claim: “Except defendants actually upon trial in a criminal proceeding, any competent witness may be compelled to testify in any matter, civil or criminal; but he may not be compelled to answer any question which, in the opinion of the trial judge, would tend to incriminate him____” 42 Pa.C.S. § 5941(a). [emphasis added]. Further, the United States Supreme Court has noted that “[t]he trial judge in appraising the [Fifth Amendment] claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.” Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), cited in Commonwealth v. Allen, 462 A.2d at 627. In Hoffman, the Court added that it must be “evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation why it cannot be answered might be dangerous because injurious disclosure could result.” Hoffman v. United States, 341 U.S. at 486-87, 71 S.Ct. at 818.

While it is clear that a prosecutor cannot call a witness to the stand merely to have him invoke the privilege before the jury, Commonwealth v. Bellacchio, 296 Pa.Super. 468, 442 A.2d 1147 (1982), there nevertheless must appear on the record some basis by which the court sustained the use of the privilege.

Id., 367 Pa.Superior Ct. at 399-402, 532 A.2d at 1206-1207. See also: Commonwealth v. Rolon, 486 Pa. 573, 406 A.2d 1039 (1979). Cf. Commonwealth v. Cieri, supra (adequate basis for invoking privilege where witness was charged criminally in connection with the same occurrence giving, rise to charge of homicide by vehicle against defendant); Commonwealth v. Weaver, 274 Pa.Super. 593, 418 A.2d 565 (1980) (adequate basis for invoking privilege where trial court knew of foundation for indictment against witness and determined that proposed line of questioning presented danger of incrimination to witness).

After a careful examination of the record in this case, we find no basis for determining that there was adequate reason for permitting DeLeo to invoke the privilege against self-incrimination. Although DeLeo was questioned by both the prosecuting attorney and defense counsel, the trial court did not inquire regarding the existence of a basis for asserting the privilege. The court also did not suggest that it was aware of any basis that would support an exercise of the privilege. Finally, we are unable to determine from any other part of the record whether a valid reason existed for DeLeo’s asserting the privilege. The Commonwealth argues in its brief on appeal that DeLeo’s invoking of the privilege was based on events which occurred after he had testified at appellant’s preliminary hearing. It is asserted that DeLeo assaulted appellant in retaliation for being shot and that he was arrested and charged for this offense, with the charges being dropped, however, when Yabor failed to testify against him at two scheduled preliminary hearings. From this the Commonwealth speculates that DeLeo’s basis for asserting the privilege against self-incrimination was a fear that by testifying against appellant at trial, appellant would change his mind about not testifying against DeLeo in the proceedings against DeLeo. This was not an adequate reason for allowing DeLeo to invoke the privilege. Moreover, there is no basis in this record for concluding that the trial court actually determined that DeLeo’s subsequent assault of appellant was an adequate basis upon which DeLeo could properly invoke the privilege. We are not permitted to consider allegations contained in the Commonwealth’s brief which are not part of the record as certified to us on appeal. See: Commonwealth v. Stanton, 294 Pa.Super. 516, 440 A.2d 585 (1982); Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981). See also: Pa.R.A.P. 1921. We are, therefore, constrained to hold that the trial court erred when it accepted DeLeo’s assertion of the privilege against self-incrimination without first determining that he was justified in asserting the same. See: Commonwealth v. Rolon, supra, 486 Pa. at 577, 406 A.2d at 1041; Commonwealth v. McGrogan, supra 367 Pa.Super. at 399-405, 532 A.2d at 1206-1208.

Despite our finding that the trial court erred by failing to determine whether the privilege was properly asserted, our inquiry is not at an end. This error does not automatically entitle appellant to a new trial. Instead, the trial court’s ruling is now subject to a harmless error analysis. See: Commonwealth v. McGrogan, supra, 367 Pa.Superior Ct. at 405-411, 532 A.2d at 1209-1211. In order for us to find this error harmless, however, harmlessness must appear beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 406 n. 11, 383 A.2d 155, 162 n. 11 (1978). “[A]n error cannot be held harmless unless [we] determine[ ] that the error could not have contributed to the verdict.” Commonwealth v. Story, supra, 476 Pa. at 409, 383 A.2d at 164. See also: Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982); Commonwealth v. Whiting, 358 Pa.Super. 465, 517 A.2d 1327 (1986); Commonwealth v. Kellum, 339 Pa.Super. 513, 489 A.2d 758 (1985). The Commonwealth argues that this error was harmless be-cause the evidence of appellant’s guilt was overwhelming and because the use of DeLeo’s preliminary hearing testimony was merely cumulative. We are constrained to agree.

In Commonwealth v. McGrogan, supra, we set forth the following five factors to be considered in making a harmless error determination:

(1) the importance of the witness’ testimony in the prosecution’s case; (2) whether the testimony was cumulative;
(3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution’s case.

Id. 367 Pa.Super. at 406, 532 A.2d at 1209, citing Delaware v. Van Arsdall, 475 U.S. 673,106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

Applying these factors to the instant case, we are persuaded that the trial court’s error in admitting DeLeo’s testimony was harmless beyond a reasonable doubt. Not only was the Commonwealth’s evidence overwhelming, but, more importantly, DeLeo’s preliminary hearing testimony identifying appellant as the perpetrator was cumulative. In addition to DeLeo’s testimony at the preliminary hearing, the jury heard DeLeo’s spontaneous statement, which had been made after his arrival at a hospital for treatment and in which he had identified appellant as the man who shot him. The jury also heard that DeLeo, at the trial of one of appellant’s co-conspirators, had identified appellant as his actual assailant. This evidence was offered by the defense and was properly received. Under these circumstances, it cannot be said that appellant was harmed by the jury’s learning that DeLeo had also identified appellant as the assailant at the preliminary hearing.

Appellant makes three specific averments of ineffective assistance by trial counsel.

Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant. Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986), allo. denied, 514 Pa. 629, 522 A.2d 558 (1987). To meet that burden, appellant must demonstrate that 1) the issue underlying his claim of ineffectiveness is of arguable merit; 2) the course chosen by counsel had no reasonable basis designed to serve his interests; and 3) he suffered prejudice as a result of counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, [158-160], 527 A.2d 973, 975-76 (1987); Commonwealth v. Buehl, 510 Pa. 363, 378-79, 508 A.2d 1167, 1174-75 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-5 & n. 8, 235 A.2d 349, 352-53 & n. 8 (1967).

Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988).

Appellant’s first allegation of ineffectiveness is that trial counsel failed to have the entire cross-examination of Joseph DeLeo at the preliminary hearing read to the jury. This issue has been raised for the first time on appeal. Following trial, appellant’s trial counsel filed post-trial motions. Appellant was thereafter represented by new counsel who filed supplemental post-trial motions in which numerous instances of trial counsel’s alleged ineffectiveness were raised. In the supplemental post-trial motions, however, it was not alleged that trial counsel had been ineffective for failing to offer into evidence the entirety of DeLeo’s cross-examination at the preliminary hearing. This specific issue is now being raised on appeal by appellant’s third attorney. The issue, however, has been waived. The law is clear that “a claim of ineffectiveness must be raised at the earliest stage in the proceedings at which counsel whose effectiveness is being challenged no longer represents appellant.” Commonwealth v. House, supra, 371 Pa.Superior Ct. at 27, 537 A.2d at 363. See also: Commonwealth v. Cargo, 498 Pa. 5, 19, 444 A.2d 639, 646 (1982); Commonwealth v. Seachrist, 478 Pa. 621, 624, 387 A.2d 661, 663 (1978). Because this issue was not raised at the first opportunity after appellant was not represented by trial counsel, i.e., in the filing of the supplemental post-trial motions, appellant’s first allegation of ineffectiveness has been waived and is not preserved for appellate review.

Next, appellant argues that his trial counsel was ineffective for introducing at trial the testimony of Joseph DeLeo which had been given at the trial of Michael McCarthy, one of appellant’s co-conspirators’ and in which DeLeo had identified appellant as the man who shot him. We do not agree. Our review of this testimony suggests that trial counsel attempted to use DeLeo’s testimony at the McCarthy trial in order to impeach both the spontaneous statement which DeLeo had made to police at the hospital and also the testimony which he had given at the preliminary hearing. At the McCarthy trial DeLeo had been asked if he remembered who had shot him. He answered in the negative. To refresh his recollection, he had been shown the statement which he had given to police at the hospital. After reading the statement, DeLeo had testified at the McCarthy trial as follows:

Q: After reading that, sir, does that refresh your recollection as to who it was that shot you, sir?
A: Yeah.
Q: Who was it?
A: Ray.
Q: When you say “Ray,” who is Ray, sir?
A: I don’t know.
Q: You knew him as Ray, sir?
A: That’s it.

(N.T. May 27, 1986 at p. 30). With respect to his testimony at the preliminary hearing, DeLeo had testified at the McCarthy trial that he was “all drugged up” at the preliminary hearing and could not recall his testimony. At appellant’s trial, defense counsel sought to use the testimony which DeLeo had given at the McCarthy trial to impeach DeLeo’s credibility and to place into doubt DeLeo’s ability to recall and recount the details of his being shot. It seems clear that the course of action chosen by appellant’s trial counsel had a reasonable basis designed to serve appellant’s interests. Therefore, we conclude that appellant’s trial counsel was not ineffective for attacking the credibility of the unavailable witness, Joseph DeLeo, through the use of DeLeo’s testimony at the McCarthy trial.

Finally, appellant argues that his trial counsel was ineffective for failing to request a mistrial because of statements made by the prosecuting attorney during closing argument which suggested that appellant had not been truthful in his testimony and which characterized the shooting as a “hit.” Appellant asserts that these remarks were both improper and prejudicial. We disagree. Concerning claims of prosecutorial misconduct the Supreme Court has said:

It is well established that a prosecutor, just as a defense attorney, must have reasonable latitude in presenting a case to the jury and must be free to present his or her arguments with “logical force and vigor.” Commonwealth v. Smith, 490 Pa. 380, 387, 416 A.2d 986 (1980), quoting Commonwealth v. Cronin, 464 Pa. 138, 143, 346 A.2d 59, 62 (1975). Counsel’s remarks to the jury may contain fair deductions and legitimate inferences from the evidence presented during the testimony. Commonwealth v. Fairbanks, 453 Pa. 90, 306 A.2d 866 (1973); Commonwealth v. Stevens, 276 Pa.Super. 428, 419 A.2d 533 (1980). The prosecutor may always argue to the jury that the evidence establishes the defendant’s guilt, Commonwealth v. Capalla, 322 Pa. 200,185 A. 203 (1936) although a prosecutor may not offer his personal opinion as to the guilt of the accused either in argument or in testimony from the witness stand. Commonwealth v. DiNicola, 503 Pa. 90, 468 A.2d 1078 (1983); Commonwealth v. Pfaff, 477 Pa. 461, 384 A.2d 1179 (1978); Commonwealth v. Cronin, supra. Nor may he or she express a personal belief and opinion as to the truth or falsity of evidence of defendant’s guilt, including the credibility of a witness. Commonwealth v. Kuebler, 484 Pa. 358, 399 A.2d 116 (1979) (where defendant’s version of events was branded a “big lie”); ABA Standards for Criminal Justice, Standards Relating to the Prosecution Function Section 5.8(b) (Approved Draft, 1971).
However, not every intemperate or uncalled for remark by the prosecutor requires a new trial. As we have stated many times:
[C]omments by a prosecutor do not constitute reversible error unless the “unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Anderson, supra at 501 Pa. [275, at] 282, 461 A.2d [208, at] 211 [1983]; Commonwealth v. Upsher, 497 Pa. 621, 627, 444 A.2d 90, 93 (1982).
Commonwealth v. Carpenter, 511 Pa. 429, 439, 515 A.2d 531 (1986); Commonwealth v. D'Ambro, 500 Pa. 303, 309-10, 456 A.2d 140 (1983). Furthermore, the prejudicial effect of the prosecutor’s remarks must be evaluated in the context in which they occurred. Commonwealth v. Carpenter, supra, 511 Pa. at 439, 515 A.2d 531, quoting Commonwealth v. Smith, supra, 490 Pa. at 388, 416 A.2d at 989.

Commonwealth v. D'Amato, 514 Pa. 471, 489-490, 526 A.2d 300, 309 (1987). We find nothing in the prosecutor’s closing remarks which would justify the granting of a new trial. As for the prosecutor’s suggestion that appellant was not being truthful, this was not a personal opinion offered to the jury, but, rather, was made in the context of an attempt by the prosecutor to highlight the conflicts between appellant’s testimony and that of the other witnesses. In such a context, the prosecutor’s statement was not improper. As for the use of the word “hit” to describe the shooting, an objection was made which the trial court sustained. The prosecutor withdrew the comment, and the court instructed the jury not to consider it. We find that the trial court’s action was sufficient to prevent any prejudice to appellant as a result of this remark. Trial counsel was not ineffective for failing to request further relief in the nature of a mistrial.

The judgment of sentence is affirmed.

      . Yabor’s conviction for carrying firearms on a public street merged with his conviction for possession of an instrument of crime for purposes of sentencing.

      . Appellant’s reliance on Commonwealth v. Sims, 513 Pa. 366, 521 A.2d 391 (1987) is misplaced. The Court in Sims held that a defendant should have been permitted to have adverse witnesses invoke their assertion of the attorney-client privilege in the presence of the jury. The ruling in Sims, however, did not overrule or otherwise call into doubt the continuing validity of the Court’s prior decision in Commonwealth v. Greene, supra. In fact, the Court in Sims said:
      In Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971), the majority opinion stated that "the jury may not draw any inference from a witness’ exercise of his constitutional rights whether the inference be favorable to the prosecution or the defense____’’ Id., 445 Pa. at 231, 285 A.2d at 867 (emphasis in original). Regardless of the wisdom of that decision (see dissent of Roberts, J.,), it is not applicable to the instant case because here we are not concerned with a constitutional privilege but rather one that is of statutory origin.

        Commonwealth v. Sims, supra, 513 Pa. at 377 n. 1, 521 A.2d at 396 n. 1.

      . During a hearing held on appellant's post-trial and supplemental post-trial motions the trial court did address the issue of DeLeo’s invoking of the privilege against self-incrimination as follows:
      I have to say that, not only did I question, but I also was in contact with Judge Mazzola, who was Mr. DeLeo's Judge in his case, who not only concurred with me, but urged me actively to sever the trials of Childs and ...
      As I said, there were several pretrial hearings, all of record in this case, that laid the foundation, more pretrial hearings than I ever care to have on another case.

        so, if it wasn’t asserted the day of trial in the in camera hearing that I held, all of us considered it only an extension of the several pretrial, on-the-record hearings that we had held regarding the rights of Mr. Childs and Mr. DeLeo.
      (N.T. August 27, 1986 at pp. 34-35). From this statement, however, we are unable to ascertain on what basis Mr. DeLeo asserted the privilege or why a proposed question regarding the identity of DeLeo’s assailant would have been incriminating to him. Moreover, this statement was made by the trial court post-trial and the numerous pre-trial hearings to which the court refers are not a part of the record which has been certified to this Court on appeal.


source: Caselaw Access Project

author: CAVANAUGH, Judge: POPOVICH, Judge,

license: Public Domain

text:
    546 A.2d 75
    John F. LANGAN and Mary Irene Langan, Court Appointed Guardians of Michael J. Langan, Incompetent, Appellees, v. HARLEYSVILLE INSURANCE CO., Appellant.
    Superior Court of Pennsylvania.
    Argued Peb. 4, 1988.
    Filed July 1, 1988.
    Reargument Denied Aug. 25, 1988.

      James A. Pruyne, Towanda, for appellant.
    Robert J. Landy, Sayre, for appellees.
    Before CAVANAUGH, OLSZEWSKI and POPOVICH, JJ.
   CAVANAUGH, Judge:

Michael J. Langan was seriously injured in an automobile accident. In the late summer of 1984, Dr. Nathaniel H. Mayer, a physiatrist at Moss Rehabilitation Hospital in Philadelphia, Pennsylvania, who had been Michael’s treating physician, recommended that it would be in Michael’s best interest for community mobility to have a van suitably equipped for his use to enable him to leave his home and travel to his therapy sessions and recreational sources. In September, 1984, acting on this recommendation, the plaintiffs below, who are the appellees herein, purchased a van at a cost of $17,494.41. Subsequently, the van was converted at a cost of $4,969.00 by the addition of a semi-automatic lift and other equipment so that Michael could get his wheelchair in and out of the van. Michael Langan is unable to drive the van.

At the time of the accident, Harleysville Insurance Company was the insurer on a policy issued to John F. Langan and Mary Irene Langan, who were appointed guardians of Michael J. Langan. The insurance company refused to pay for the van or the conversion and a civil action was commenced against it by John F. Langan and Mary Irene Langan as guardians of Michael J. Langan, an incompetent. The appellees moved for summary judgment. This was granted on October 16, 1987 in favor of the appellees and against Harleysville Insurance Co., which has appealed to this court.

With respect to a motion for summary judgment, Pa.R. C.P. 1035(b) provides that such judgment may be entered if the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Helinek v. Helinek, 337 Pa.Super. 497, 487 A.2d 369 (1985); Loyal Christian Benefit Association v. Bender, 342 Pa.Super. 614, 493 A.2d 760 (1985). However, summary judgment may only be entered in those cases which are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983); Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985); Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986).

In the instant case, the parties entered into a stipulation of facts upon which the court entered summary judgment. While there is no dispute as to the facts presented, the plaintiffs below have not carried their burden of proving that they are entitled to judgment as a matter of law. The applicable provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act, which Act has been repealed, upon which the cause of action is based, stated in part at 40 Pa.S. § 1009.103:

Medical and vocational rehabilitation services means services necessary to reduce disability and to restore the physical, psychological, social and vocational functioning of a victim. Such services may include, but are not limited to, medical care, diagnostic and evaluation procedures, physical and occupational therapy, other necessary therapies, speech pathology and audiology, optometric services, nursing care under the supervision of a registered nurse, medical social services, vocational rehabilitation and training services, occupational licenses and tools, and transportation where necessary to secure medical and vocational rehabilitation services. (Emphasis added.)

The Act provided that medical and vocational rehabilitation services are covered in appropriate circumstances and went on to state that medical services may include “transportation where necessary to secure medical and vocational rehabilitation services.” The court below determined that the Act encompassed, within the meaning of transportation, the converted van which was purchased by the Langans. The basis for determining the necessity of the van was the letter from Nathaniel H. Mayer, M.D. to Harleysville Insurance Company in which he described Michael’s injuries. The letter went on to state: “In view of the above findings, Michael’s ability to be transferred to and to sit in a car is not feasible ... Because of the pathological conditions involved in his case, Michael’s best option for community mobility is to get around via van equipped suitably with a wheelchair lift ... We will be prescribing an appropriate wheelchair for Michael at another time, but I expect that he will function at that wheelchair level and, therefore, I think that a van suitably equipped for him is the best mobility device in the community to enable him to get out of the home to get to his therapies, get to his recreational sources.”

There is no doubt that the Act contemplates the furnishing of transportation where required to obtain medical and vocational rehabilitation services. It is not clear that it includes the purchase of a van that must be converted to include a chair lift and we definitely cannot say, on the basis of the record before us, that such a purchase is required in this case. First of all, Dr. Mayer’s letter states his belief that the van is the “best mobility device in the community to enable him to get out of the house to get to his therapies, get to his recreational sources.” It is doubtful that “recreational sources” fall within the ambit of “medical and vocational rehabilitation services.” Further, the record is devoid of any evidence as to how often Michael requires medical or rehabilitation services and where they are rendered. There is no indication as to whether suitable transportation could be rented or provided more economically on a basis of having a van provided when needed for transportation.

We also note that Michael is unable to operate the van so that an operator is required. Further, there is no indication on the record that the van is used solely for Michael’s benefit. In our opinion, the No-Fault Act did not intend that anyone other than the injured party could take advantage of the transportation to be provided by the insurer. A further problem in requiring the insurer to purchase the means of transportation is that this could include a continuing obligation to replace the vehicle upon the termination of its useful life.

There are no appellate cases in this Commonwealth dealing with the purchase of a vehicle to provide transportation. In Zangrilli v. State Farm Mutual Automobile Insurance Company, 131 P.L.J. 468 (Court of Common Pleas, Allegheny County, 1983) the court, following a non-jury trial, found that the insurer was responsible to pay the expenses of a properly equipped van and a snow and ice electrical melt system at the home of a paraplegic as these were necessities in his rehabilitation and training program. The opinion does not enlighten us as to the factual basis for the court’s finding of necessity, but the non-jury verdict was entered after trial and presumably evidence was submitted to substantiate the verdict.

Our neighboring state of New Jersey had difficulty in determining if the cost of a modified van used by a paraplegic could be included as part of medical expenses under its No-Fault Act. The lower court entered summary judgment against the insurer for the cost of the van. On appeal, the Superior Court, Appellate Division, reversed that part of the court’s order requiring the insurer to pay the basic cost of the van as it did not believe the legislature intended, the cost of basic transportation to be included as medical expenses. Stewart v. Allstate Insurance Company, 200 N.J.Super. 350, 491 A.2d 746 (1985). The Supreme Court reversed the Appellate Division and held that the cost of the van should be included within medical expenses. Stewart v. Allstate Insurance Company, 103 N.J. 139, 510 A.2d 1131 (1986). A key factor was that the paraplegic could herself operate the modified van and it was indispensible to her physical and emotional well-being by permitting independent transportation for activities which were prescribed as therapy. In our own case, the injured party is unable to operate the van himself.

The opinion of the Supreme Court of New Jersey should be compared with that of the Supreme Court of Utah. In Camp v. Deseret Mutual Benefits Association, Supreme Court of Utah, 589 P.2d 780 (1979), it was held that a modified van was not “medical equipment” under the terms of a health policy providing coverage for medical supplies and “medical equipment” prescribed by a physician, notwithstanding that such a van was prescribed by a physician and was needed as a result of injuries sustained by the insured’s son, who was a quadriplegic. Similarly, in Galindo v. Guarantee Trust Life Insurance Company, 91 Ill. App.3d 61, 46 Ill.Dec. 543, 414 N.E.2d 265 (1980), the court disallowed the cost of a van for a quadriplegic where the main purpose of the van was to provide transportation for the injured student so that he could continue his education.

Although these cases are not directly on point, involving as they do different statutes or definitions in an insurance policy, they nevertheless provide insight into the problems confronting courts where an insurer is called upon not merely to pay the costs of transportation of an injured person to obtain medical care as the need arises, but the actual purchase of the means of transportation. Where the insurer is called upon to purchase a vehicle, the person for whom the vehicle is to be purchased has the burden of proving that such a vehicle is the most economical and only feasible method of transporting the injured person “to secure medical and vocational rehabilitation services” and that the vehicle will be used solely for this purpose.

Obviously, in most cases, the statute does not contemplate the purchase of a vehicle and it would only be in the most unusual case where such purchase would be necessary. In the case before us, the appellees did not meet their burden of proof and the court erred in entering summary judgment.

Judgment reversed, without prejudice to appellees to submit evidence that the van in question is the most economical and only feasible method of transport to obtain medical and vocational rehabilitation services.

POPOVICH, J., files dissenting opinion.

POPOVICH, Judge,

dissenting:

I cannot join in the Majority’s determination that, under the applicable provision of the No-Fault Motor Vehicle Insurance Act repealed after the institution of the instant lawsuit, the law does not obligate the insurer to incur the cost of its insured’s purchase of a van and its subsequent conversion “necessary to secure medical and vocational rehabilitation services”. 40 Pa.S. § 1009.103 (repealed).

I find that the Majority gives too narrow a reading to § 1009.103 when it offers that the insured’s use of the van to “get to his recreational sources” discounts its being encompassed within the “medical and vocational rehabilitation services” approved under the No-Fault Act for the expenditure of monies by an insurer for its insured with regard to an almost paraplegic condition.

There is no dispute that the insured’s physician recounted how his patient’s “impairments are severe and prognostically ... not expected to remit.” This reduced the insured’s mobility function and necessitated the purchase of suitably equipped van “to enable him to get out of the home to get to his therapies____”

Under the No-Fault Act, as conceded by even the Majority, transportation aimed at rehabilitating a claimant, by means of medical and vocational services, is an approved expenditure called for under the law.

I fail to discern how the orthopedically-impaired claimant, whose condition is likely to degenerate to the point where a fusion of his knee is likely, falls outside the perimeters of the No-Fault Act because there is a possibility (which is unsubstantiated by the record) of his using the van for “recreational sources”.

Even if such were the case, I pose the following: Would not the ability to participate in some form, any form, of recreational activity be part and parcel of a complete rehabilitation program? I would think so. Further, to interact with others or merely experience the joy of accomplishing a task in a sports context, e.g., with one’s peers, cannot be minimized for it has its therapeutic benefits (psychologically) in aiding in the optimum progress and/or recovery of the injured party. Therefore, I find that the Majority has strayed afield in concluding that the insured failed to establish the non-existence of alternative, less-expensive means of traversing the streets and highways in his community to obtain the type of therapy necessary for his maximum, potential recovery. To so hold does a disservice to the insured and all of those similarly situated, at least as I read the statute in question.

Certainly, the insured’s need for the conventional forms of therapy and his accessibility to those avenues of treatment come within the perimeters of “medical and vocational rehabilitative services”. The Majority would deny the insured this admitted “coverage” because of the Majority’s speculation as to the use of the van for purposes other than those prescribed for the insured’s therapy. The record simply does not support such a syllogism.

On this same subject, I take issue with the Majority when it implies that it is the obligation of the insured to establish the non-existence of alternate sources of transportation and that the van would be used exclusively for his use.

My reading of the state and law on the subject discloses that imposition of no such obligation upon the insured. I find once the insured has established a “medically necessary” reason for the purchase and adaptation of a van for his rehabilitative needs, which I find he had done at bar, then the burden of proving otherwise would fall on the shoulders of the insurer. This did not occur here with regard to the insurer. Accordingly, giving it a liberal and common sense interpretation, I find that the statute would and does afford an insured the right to reimbursement for the purchase and adaptation of a van for his rehabilitative needs. See Zangrilli v. State Farm Mutual Automobile Insurance Co., 131 P.L.J. 468 (1983); see also Stewart v. Allstate Insurance Co., 103 N.J. 139, 510 A.2d 1131 (1986) .

The possibility that the petitioner may make use of the van for purposes other than rehabilitation is pure speculation and has no place in a present review of the grant of the motion for summary judgment.

Being unpersuaded by the rationale of the Majority in reversing the actions of the court below, I would affirm the order of the court below.

      . Prior to the entry of judgment in the court below the insurance carrier did pay the cost of having the van converted.

      . The body of the letter stated with reference to Michael’s condition: I am writing to you to attempt to detail medical necessity for the Langan family for purchasing a van. Michael is now more than 18 months since his head injury. He has a spastic left hemiplegia and he has had musculoskeletal trauma to the right lower extremity, particularly in the area of the right knee. These impairments are severe and prognostically are not expected to remit. Our orthopedic consultant has indicated to us that Michael might be a candidate for a fusion of the right knee in the future if it would serve mobility purposes. In view of the above findings, Michael’s ability to be transferred to and to sit in a car is not feasible. If he should undergo knee fusion in the future, this would make it even more difficult for him to sit in a car, since his entire lower extremity will be straightened.

      . Would not the insured’s inability to operate the van on his own be even more of an indication of his need for vehicular assistance of the type at issue here. One who could motor on his/her own would appear to be a candidate for public transportation, as compared to the almost intractable insured here.
      The insured has established his need for a specialized vehicle to aid him in his efforts to recover from an obviously crippling injury. His doctor concurred in the scope of the injury and a prognosis for restricted movement, in the future, for the insured. With a forecast of limited mobility, all means to aid the injured in the road to (partial/total) recovery has been insured against by his guardians. This writer would not withdraw this opportunity from the injured, and my reading of the law and cases on the matter are not to the contrary.


author: PER CURIAM: DEL SOLE, Judge,

text:
    546 A.2d 79
    COMMONWEALTH of Pennsylvania v. Bruce HENDRICKS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 1, 1988.
    Filed July 7, 1988.
    Reargument Denied Aug. 30, 1988.

      John Packel, Assistant Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before DEL SOLE, MONTGOMERY and HOFFMAN, JJ.
   PER CURIAM:

This appeal is from the judgment of sentence for robbery, 18 Pa.C.S.A. § 3701. Appellant contends that the trial court erred in refusing to rule on his submitted points for charge before the start of closing arguments, as required by Pa.R.Crim.P. 1119(a). For the reasons set forth below, we vacate the judgment of sentence and remand for a new trial.

On May 24, 1984, appellant was arrested and charged with robbery and related offenses. Following a jury trial, on August 23, 1985, appellant was found guilty of robbery and acquitted of all other charges. Timely post-trial motions were filed and denied. Appellant was then sentenced to five-to-ten years imprisonment. This appeal followed.

Appellant contends that the trial court erred in refusing to rule on his written points for charge before closing argument, despite counsel’s timely request for such a ruling. Appellant claims that the court’s failure to timely advise him of its ruling on the submitted charges constitutes a violation Pa.R.Crim.P. 1119(a). Appellant further argues that he was prejudiced by the court’s noncompliance because defense counsel’s closing argument focused on legal theories that were contained in his points for charge that the court did not include in its instruction to the jury.

Preliminarily, we note that appellant and the Commonwealth agree that there are no reported Pennsylvania appellate decisions regarding the effect of a trial court’s failure to comply with the directives of Pa.R.Crim.P. 1119. In support of his contention that the court’s failure to observe Rule 1119(a) prejudiced his defense, appellant relies on federal case law interpreting analogous provisions contained in Fed.Rule Crim.Pro. 30. Because the effectiveness of the defense was seriously impaired by the court’s noncompliance with Pa.R.Crim.P. 1119(a), appellant claims that a new trial is warranted. We agree.

The predecessor to current Rule 1119(a) of the Pennsylvania Rules of Criminal Procedure required that the court, follcming the completion of closing arguments, charge the jury and then proceed to rule on the parties’ submitted written requests for jury instructions. On April 23, 1985, the Pennsylvania Supreme Court amended Pa.R.Crim.P. 1119(a). The rule now provides that:

Any party may submit to the trial judge written requests for instructions to the jury. Such requests shall be submitted within a reasonable time before the closing arguments ... Before closing arguments, the trial judge shall inform the parties on the record of the judge’s rulings on all written requests. The trial judge shall charge the jury after the arguments are completed. Id. (emphasis supplied). The difference in the procedure following the 1986 amendment is that the court now is required to rule on proposed written jury instructions before closing arguments and charging the jury whereas under the old procedure the court ruled on the requested jury instructions after closing arguments and the charge to jury.

The official comment to Rule 1119(a) states that the rule is patterned after Rule 30 of the Federal Rules of Criminal Procedure. See Pa.R.Crim.P. 1119(a) comment (1987) (amendment to Rule 1119(a) parallels the Fed.Rule Crim. Pro. 30). Because there is no Pennsylvania case that discusses the effect of a court’s failure to comply with Pa.R. Crim.P. 1119(a), our interpretation of the Pennsylvania rule is accordingly guided by reference to federal cases decided under Fed.Rule Crim.Pro. 30. See Cambanis v. Nationwide Ins. Co., 348 Pa.Superior Ct. 41, 45-46 n. 4, 501 A.2d 635, 637 n. 4 (1985) (where Pennsylvania rule fashioned upon federal rule then federal case law is instructive); Michigan Bank v. Steensen, 211 Pa. Superior Ct. 405, 406 n. 1, 236 A.2d 565, 566 n. 1 (1967) (where state rule parallels federal rule, federal court decisions are instructive).

Under Rule 30 of the Federal Rules of Criminal Procedure, the court is required to rule on all proposed jury instructions prior to charging the jury and closing summations. “The purpose of this rule is to require the judge to inform [counsel] in a fair way what the charge is going to be, so that they may intelligently argue the case to jury.” United States v. Wander, 601 F.2d 1251, 1262 (3rd Cir.1979) (citing Ross v. United States, 180 F.2d 160, 165 (6th Cir.1950). Failure of the court to comply with Rule 30 requires the granting of a new trial if “counsel’s closing argument was prejudicially affected thereby.” United States v. McCown, 711 F.2d 1441, 1452 (9th Cir.1983).

The potential for prejudice is often great when the trial judge allows defense counsel to proceed with closing argument under the mistaken assumption that the jury will receive a certain instruction. In such a case, defense counsel may well tailor closing argument to emphasize an instruction that the jury never receives, thus impairing the effectiveness of the argument. There looms the possibility that the actual jury instruction may contradict or repudiate the thrust of closing argument.

Id. In determining whether the defense was prejudiced, an inquiry into the appropriateness or correctness of the proposed jury instructions is irrelevant. See United States v. Harvill, 501 F.2d 295, 296-97 (9th Cir.1974). “It [is] the court’s failure to advise counsel of its ruling prior to closing argument, not the soundness of that ruling, which violate[s] Rule 30 and prejudicially affect[s] counsel’s summation.” Wright v. United States, 339 F.2d 578, 580 (9th Cir.1964). We are in agreement with the federal court’s that the primary focus of the rule should be a determination whether the defense was prejudiced for tailoring its closing argument to instructions that ultimately were not given to the jury.

Here, defense counsel, during the course of the trial, submitted his requested points for charge to the trial judge. See N.T. August 22,1985 at 2-154. After the evidence was presented but prior to the commencement of closing summations, appellant’s counsel requested that the court rule on his proposed jury instructions. The court, responding to counsel’s request, stated:

COURT: I really don’t want to get involved in points for charge now. I told you a few minutes ago I didn’t want to do that, but you want to insist that I rule on it now, and I don’t want to do that anymore____
You argue to the jury. You can argue anything you
want. I’m not bound by what you argue to the jury____
It’s untimely for me to argue about points for charge. You’re not even at closing arguments yet.

N.T. August 22, 1985 at 2-223 — 2-26. After counsel attempted to direct the court’s attention to Pa.R.Crim.Pro. 1119(a), the following exchange took place:

MR. SODROSKI [Appellant’s counsel]: If I may, Your Honor, the rule says—
THE COURT: No, you may not.
MR. SODROSKI: The rule says you must do it before. THE COURT: Before I charge, but not before the summations.
MR. SODROSKI: I disagree with the Court’s interpretation.

Id. at 2-226 — 2-27. Appellant’s counsel informed the court that Rule 1119 had been amended and by its very terms required the court to rule on submitted points for charge prior to closing arguments. Id. at 2-227. Thereafter, the court repeated its previous ruling and counsel again objected. Id.

Counsel then proceeded to address the jury based upon defense theories contained in his requested instructions. A substantial portion of counsel’s closing argument was devoted to emphasizing the question of the complainant’s credibility. See N.T. August 23, 1985 at 2-241 — 2-250. The focus of counsel’s credibility argument was on the legal maxim, “falsus in uno, falsus in omnibus”, the translation of which is “false in one, false in all”, as it related to prior inconsistent statements made by the complainant. Following appellant’s closing argument, the trial court judge, out of the presence of the jury, forthrightly recognized her error and concluded that she did not have to advise the parties in advance of her ruling on their requested points for charge. N.T. August 23, 1985 at 2-267. The court, nevertheless, denied appellant’s requested points for charge on the issue of the complainant’s prior inconsistent statements and the “falsus in uno, falsus in omnibus” maxim. Id. at 2-269.

In its opinion, the trial court acknowledges that under the amended Rule 1119(a), it was error not to advise counsel of its ruling on the requested points for charge prior to appellant’s closing argument. The court, however, concludes that appellant’s requested instruction was incorrect and, therefore, the error was harmless. See Trial Court Opinion at 21. We do not agree.

Preliminarily, we note that we agree with federal precedent that it is not relevant whether the requested jury instructions are accurate. See United States v. Harvill, supra; Wright v. United States, supra. Instead, the court’s failure to advise counsel of its ruling prior to closing arguments is sufficient to impair the effectiveness of counsel’s summation and prejudicially affect appellant’s defense. See United States v. Wander, supra; Wright v. United States, supra. In this case, appellant’s counsel, specifically, requested the court rule on his points for charge prior to his summation, in order to allow him to prepare an effective summation that would not contradict the court’s instruction. See United States v. Wander, supra. Counsel, however, was not afforded that opportunity and consequently, his closing argument was severely weakened by the court’s subsequent instruction to the jury. See N.T. August 22, 1985 at 2-228 — 2-266. Because the court failed to inform counsel of its ruling on his requests pursuant to Rule 1119(a), counsel’s closing argument was based upon a theory of defense that the court rejected and the jury never received. See Wright v. United States, supra. As a result of the court’s failure to substantially comply with the directives of Rule 1119(a), see United States v. Wander, supra at 1262, appellant’s closing argument was rendered meaningless. See Id.; United States v. McCown, supra; United States v. Harvill, supra. Accordingly, we conclude that the court’s failure to inform counsel of its ruling on the requested points for charge prior to closing arguments and the jury instruction, was prejudicial to appellant’s defense and warrants a new trial be granted. Judgment of sentence reversed and case remanded for a new trial. JURISDICTION IS RELINQUISHED.

DEL SOLE, J., files a concurring opinion.

DEL SOLE, Judge,

concurring:

I agree with the majority’s determination that the effectiveness of Appellant’s trial defense was seriously impaired by the trial court’s noncompliance with Pa.R.Crim.P. 1119(a) and that a new trial is warranted in the instant case. I must disagree, however, with the majority’s determination that prejudice to the defendant automatically arises in every such instance.

In the instant case, the record shows that Appellant’s attorney unsuccessfully requested the trial court to rule on his points for charge prior to presenting his closing argument. Following the court’s refusal to inform counsel of its ruling on the requested points for charge prior to closing argument, a major portion of defense counsel’s argument was based on the issue of the alleged victim’s prior inconsistent statements and the “falsus in uno, falsus in omnibus” maxim. The trial court subsequently rejected the point for charge in question, and the jury was never given the instruction. Thus, the record shows that Appellant’s defense was indeed prejudiced by the trial court’s actions.

However, a finding of prejudice is not necessary in all cases. For example, in cases where counsel’s request for a point for charge is not ruled on by the trial court prior to closing argument as mandated under Pa.R.Crim.P. 1119(a) but the point is eventually approved and given by the trial court, there is no prejudice to the defendant. Therefore, while I agree with the majority’s determination of prejudice in the instant case, I feel that they go too far in their determination that a defendant is prejudiced in all cases where the trial court fails to inform counsel of its rulings on requested points for charge prior to closing arguments pursuant to Pa.R.Crim.P. 1119(a). I would require a showing of prejudice.

      . Appellant also contends that trial court erred in failing to specifically instruct the jury on the effect of prior inconsistent statements. Because of our disposition of this case, we need not address this contention.

      . Prior to July 1, 1985, Pa.R.Crim.Pro. 1119(a) provided:
      Any party may submit to the trial judge written requests for instructions to the jury. Such requests shall be submitted within a reasonable time before the closing arguments, and at the same time copies thereof shall be furnished to the other parties. The trial judge shall

        charge the jury after the arguments are completed, and shall then rule on all written requests. Id. (adopted January 24, 1968, effective August 1, 1968) (emphasis added).

      . Rule 30 provides:

        At the close of the evidence or at such earlier time as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to all parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury. The court may instruct the jury before or after the arguments are completed or at both times. No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.
      Fed.Rules Crim.Proc.Rule 30, 18 U.S.C.A. (emphasis supplied).

      . The Commonwealth contends that appellant did not timely object and thus, has waived his claim. We note, however, that the record is replete with appellant’s counsel’s timely objections. See N.T. August 23, 1985 at 2-223, 2-226, 2-227. Accordingly, the Commonwealth’s contention that appellant has failed to preserve his claim under Rule 1119(a) must fail.

      . We express no opinion as to the legal validity of the maxim "falsus in uno, falsus in omnibus” nor the propriety of its use as a jury instruction in this Commonwealth. See Burns v. Pepsi-Cola Metropolitan Bottling Co., 353 Pa.Superior Ct. 571, 580, 510 A.2d 810, 814 (1986) (applicability of maxim of "falsus in uno, falsus in omnibus” as jury instruction reviewed and found to be properly withheld based on facts not accuracy).


author: KELLY, Judge:

text:
    546 A.2d 83
    COMMONWEALTH of Pennsylvania v. Fred THEK, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 10, 1987.
    Filed July 14, 1988.

      Marshall E. Anders, Stroudsburg, for appellant.
    Michael E. Weinstein, District Attorney, Milford, for Com., appellee.
    Before WIEAND, KELLY and HESTER, JJ.
   KELLY, Judge:

Appellant, Fred Thek, Jr., appeals from judgment of sentence imposed following his conviction of statutory rape, rape, involuntary deviate sexual intercourse, indecent assault, incest, corruption of minors, and terroristic threats. We reverse and remand for a new trial.

Appellant contends on appeal that: (1) trial counsel rendered ineffective assistance; (2) the trial court erred as a matter of law in its instruction to the jury based upon the jury’s question concerning the forcible compulsion element of the charge of rape; (3) the charges against the appellant should have been dismissed since he was not brought to trial within the period mandated by Rule 1100; (4) counts 1. XI, XV, XVI and XVII of the information filed against the appellant should have been dismissed; (5) the trial court erred as a matter of law in improperly restricting the cross-examination of the alleged victim thereby denying the appellant his right to confront witnesses against him; and (6) the judgment of guilty of the charge of terroristic threats should have been arrested and the appellant should be discharged thereon as the jury’s verdict in this regard was against the weight of the evidence. After a thorough review of the record and the applicable authority, we find appellant’s first, fourth and sixth issues have merit. Accordingly, we vacate the judgment of sentence and remand for a new trial in accordance with this opinion.

FACTS AND PROCEDURAL HISTORY On November 13, 1985, the appellant was arrested and charged with the crimes of statutory rape, rape, involuntary deviate sexual intercourse, indecent assault, incest, corruption of minors, and terroristic threats. The charges arose from appellant’s sexual abuse of his minor daughter.

The criminal information alleged that: the statutory rape occurred during the summer of 1980 through 1981 (count I); the incest occurred during the summer of 1980 through 1981 (count XI) and during the period from the summer of 1980 through November 5, 1985 (count XVII); and the corruption of minors charge was based upon actions which occurred from the summer of 1980 through November 5, 1985 (count XV). The information contained no date or time period when the terroristic threats occurred (count XVI). The remaining counts relate to acts which occurred on October 16, October 22, and November 5,1985 (counts II-X, XII, XIII and XIV).

Defense counsel filed numerous pre-trial motions to dismiss, which were denied. The trial was originally scheduled for the May Term, but was continued to the July Term upon the motion of the Commonwealth due to the victim’s advanced pregnancy.

Trial commenced on July 8, 1986. On July 10, 1986, the jury found the appellant guilty on all counts. Thereafter, trial counsel filed timely post-verdict motions. On October 8, 1986, current counsel filed an entry of appearance and requested leave to file supplemental post-verdict motions nunc pro tunc which was granted.

On February 23, 1987, an evidentiary hearing was held regarding alleged ineffective assistance of trial counsel. Five witnesses were called, including an attorney qualified as an expert in criminal law. By opinion and order dated May 8, 1987, the trial court denied appellant's post-verdict motions. On May 28, 1987, appellant was sentenced to an aggregate term of imprisonment of ten to twenty-three years. This timely appeal followed.

I.

Appellant’s first contention is that he was rendered ineffective assistance of counsel and therefore he is entitled to a new trial. He claims counsel was ineffective for the following reasons: (1) introducing the report of the Commonwealth’s expert and placing before the jury the Commonwealth’s expert’s opinion that the victim was credible; (2) eliciting from the victim on cross-examination testimony relating to alleged sexual abuse in Arizona in 1979; (3) failing to call witnesses to impeach and rebut statements made by the victim; (4) failing to call proper character witnesses; (5) failing to produce those witnesses who could testify concerning previous false accusations of rape made by the victim; (6) failing to lay proper foundation for the introduction of the victim’s school and medical records; and (7) failing to object to the introduction of the picture of a normal male scrotum area, during the rebuttal testimony of Dr. Umkey. After a thorough review of the record and applicable case law, we find appellant’s first claim of ineffectiveness has merit. Accordingly, we vacate judgment of sentence and remand for a new trial. In light of our disposition on appellant’s first claim of ineffectiveness, we need not address appellant’s remaining ineffectiveness contentions.

The burden of establishing ineffective assistance of counsel rests upon the appellant. Additionally, the law presumes that counsel is effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987). “In this Commonwealth we have long used, to gauge the ineffectiveness of counsel’s stewardship, the test set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).” See Commonwealth v. Petras, supra, 534 A.2d at 484 citing Commonwealth v. Saxton, 516 Pa. 196, 201, 532 A.2d 352, 354 (1987) (citing cases). In Commonwealth ex rel. Washington v. Maroney, supra, the process of measuring the ineffectiveness of counsel was described by our Supreme Court as follows:

Our task ... encompasses both an independent review of the record,____and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives____ We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.

235 A.2d at 352-53. (Emphasis in original). Our Supreme Court also made clear that, for relief to be granted, the accused must demonstrate that counsel’s ineffectiveness worked to his prejudice:

Since our test requires that we examine the approach employed by trial counsel in light of the available alternatives, a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.

235 A.2d at 353 n. 8. (Emphasis added). See also Commonwealth v. Petras, supra, 534 A.2d at 485.

Thus, in order to establish a claim of ineffectiveness, appellant must establish that: by act or omission counsel was arguably ineffective; counsel’s act or omission could not have had a reasonable basis designed to effectuate appellant’s interests; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different. Commonwealth v. Petras, supra, 534 A.2d at 485; see also Commonwealth v. Pierce, 515 Pa. 153, 159-60, 527 A.2d 973, 975-76 (1987).

With these principles in mind, we now consider appellant’s claim. Appellant maintains that trial counsel rendered him ineffective assistance by introducing into evidence the report of the Commonwealth’s expert. Appellant contends that by introducing this report counsel placed before the jury the expert’s opinion of the credibility of the victim. Therefore, appellant argues, the report was inadmissible as a matter of law and counsel’s use of it constituted ineffective assistance of counsel. We agree.

In Commonwealth v. Pearsall, 368 Pa.Super. 327, 534 A.2d 106 (1987), we addressed this particular issue and summarized the admissibility of such testimony as follows:

In Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1985), this Court held that expert testimony regarding the general behavioral and psychological characteristics of child sexual abuse victims was admissible in a case involving child sexual abuse. In Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), our Supreme Court held that expert testimony as to the veracity of a child sexual abuse victim impermissibly encroached upon the province of the jury and that the trial court abused its discretion by admitting such evidence. Upon review of the majority and concurring opinions in Commonwealth v. Seese, supra, we find nothing to suggest that our holding in Commonwealth v. Baldwin, supra, has been disturbed. We note that there is a fundamental distinction between expert testimony which supports the credibility of a witness inferentially by establishing that a witness’ testimony is consistent with the acts and responses evidenced in known child abuse cases, and expert testimony which presumes to pass directly upon the veracity of a particular witness. We read Commonwealth v. Seese, supra, to permit the former and prohibit the latter. Cf Kozak v. Struth, 515 Pa. 554, 531 A.2d 420 (1987) (expert opinion based upon the totality of conflicting evidence usurped jury's function).

534 A.2d at 108-09 n. 1.

In Commonwealth v. Davis, 359 Pa.Super. 626, 515 A.2d 617 (1986), a panel of this Court construed Baldwin to permit an expert, who never examined the victim, to testify that children who report sexual abuse generally do so based on actual experience and that children do not generally fantasize or fabricate such experiences. Our Supreme Court reversed the decision in Davis, finding that the testimony invaded the province of the jury by presuming to pass upon the veracity of the witness. The court also found that to the extent that Baldwin permitted such testimony it was in conflict with Seese and it was to that extent overruled. See Commonwealth v. Davis, 518 Pa. 77, 79-84 & n. 1, 541 A.2d 315, 316-18 & n. 1 (1988). We find that the recent decision in Davis supports and clarifies the distinction suggested in Pearsall. We also find the distinction to be controlling in the instant case.

The record reveals that trial counsel introduced into evidence, during cross-examination of the victim, the report prepared by the Commonwealth’s expert, Ralph Battinieri. (N.T. 7/8/86 at 51). Later, during direct examination of Mr. Battinieri, the prosecutor read into evidence the following statement contained in the report: “[P.T.] presents every clinical feature reported and observed in children who have been sexually assaulted within the family. Without reservation, her account of ongoing sexual abuse, beginning at age eleven, and continuing throughout much of her adolescence, is credible.” (N.T. 7/8/86 at 102-03). (Emphasis added). Moreover, the following exchange between the prosecuting attorney and the expert witness occurred on re-direct examination:

Q. ... You were asked by Mr. Sposito regarding your concern for the credibility of [P.T.], when she said to you, when she told you the story about the chickens being decapitated and the dog being killed. You indicated you said initially yes, it could have some affect on her credibility. After conducting the rest of your examination were you concerned about her credibility at that time?
A. No, sir, not at all.

(N.T. 7/8/86 at 138). (Emphasis added). A review of the report itself discloses that it contained four stateménts relating to the credibility of the victim. (Defendant’s Exhibit No. 3). While there is nothing objectionable per se about statements that the physical evidence and the victim’s statements were consistent with physical evidence and statements in known child abuse cases, the expert in this case exceeded the permissible bounds of such testimony when he went on to specifically state that the victim “was credible.” Such testimony invaded the province of the jury by presuming to pass directly upon the veracity of the witness. As such, that portion of the report as well as the opinion testimony of the expert were inadmissible and trial counsel erred in permitting its introduction into evidence. See Commonwealth v. Davis, supra; Commonwealth v. Seese, supra. No objectively reasonable basis for permitting the admission of that evidence existed. Furthermore, we find that the testimony was necessarily prejudicial to appellant as the victim’s credibility was the linchpin of the prosecution’s case. Cf. Commonwealth v. Davis, supra, 518 Pa. 83-86, 541 A.2d at 318-19. Consequently, appellant must be awarded a new trial. See Commonwealth v. Davis, supra; Commonwealth v. Seese, supra; cf. Kozak v. Struth, supra.

II.

Appellant’s fourth argument is that counts I, XI, XV, XVI, and XVII of the information should have been dismissed as they were barred by the statute of limitations.

The trial court, in denying appellant’s motion to dismiss, reasoned that 42 Pa.C.S.A. § 5554(3) tolled the running of the statute of limitations on all counts until the victim reached the age of maturity. We find the trial court’s reliance on Section 5554(3) to dismiss appellant’s contentions entirely was misplaced.

In Commonwealth v. Guimento, 341 Pa.Super. 95, 491 A.2d 166 (1985), this Court held that criminal liability may not be imposed upon acts committed outside the limitations period. See also 42 Pa.C.S.A. § 5552. Nor can the legislature enact a law which extends the statute of limitations so as to revive a case for which the statutory period has already run, as such a statute would be violative of the ex post facto clause of Article 1 Section 17 of the Pennsylvania Constitution. Id., 341 Pa.Superior Ct. at 98, 491 A.2d at 168. Cf. Maycock v. Gravely Corp., 352 Pa.Super. 421, 508 A.2d 330 (1986) (after action has become barred by an existing statute of limitations, no subsequent legislation will remove the bar or revive the action).

However, where the legislature amends a statute of limitations to provide a longer limitations period or enacts a statute which tolls the running of the statute of limitations before the prior limitations period has expired, in the absence of language in the statute to the contrary, the amendments will be construed to apply so as to extend the period within which the prosecution is to be commenced. See Commonwealth v. Harvey, 374 Pa.Super. 289, 542 A.2d 1027 (1988) (the five year statute of limitations for rape, 42 Pa.C.S.A. § 5552(b) applies prospectively to any prosecution commenced after its effective date on a cause of action which has not already expired regardless of whether the crime for which the prosecution is commenced occurred prior to or after the effective date of the act).

Prosecutions for statutory rape, incest and corruption of minors must commence within two years of the date of the offense. 42 Pa.C.S.A. § 5552(a). We find, based upon the face of the record, that the applicable statute of limitation periods as to count I (statutory rape — summer 1980-1981) and count XI (incest — summer 1980-1981) expired prior to the adoption of 42 Pa.C.S.A. § 5554(3); and therefore, those counts must be dismissed.

On the other hand, at least some of the criminal acts upon which count XV (corruption of minors — summer 1980 through November 1985) and count XVII (incest — summer 1980 through November 5, 1985) were predicated occurred within the limitation period. Therefore, on remand the information should be amended to exclude allegations relating to acts committed outside the limitations period. Pa.R. Crim.P. 150; Pa.R.Crim.P. 225(b)(3); Commonwealth v. Allem, 367 Pa.Super. 173, 532 A.2d 845 (1987); Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980).

III.

Appellant’s sixth and final argument is that the Commonwealth failed to prove with a reasonable degree of certainty, the approximate date of the commission of the offense of terroristic threats (count XVI). Therefore, appellant argues, the act may have been committed outside the limitations period and would have been barred.

In Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975), our Supreme Court ruled that as a criminal defendant, appellant has a right both to be tried within the statutory period and to be afforded the benefit of responding to charges fixed with reasonable certainty to a specific date within that statutory period. Commonwealth v. Devlin, supra; Commonwealth v. Levy, 146 Pa.Super. 564, 23 A.2d 97 (1941). For purposes of ensuring the appellant’s right to sufficiently specific charges so he can adequately prepare a defense, it has been held that testimony establishing a continuous course of conduct over a period of time satisfies the appellant’s due process rights. Commonwealth v. Niemetz, supra.

In the instant case, the information itself was facially defective as it did not contain any date or time period as to when the offense of terroristic threats occurred. Moreover, the only evidence presented at trial which related to the crime of terroristic threats, was the victim’s testimony:

403
Q. Well, you told us that, but was there ever any comments about his relationship with your mom in terms of getting in the middle of it?
A. He said he would kill me.

(N.T. 7/7/86 at p. 18). While this testimony establishes the elements of the crime of terroristic threats, the record is devoid of any testimony as to when the above terroristic threat was made. As no testimony was presented indicating a continuous course of conduct with regard to this particular charge, we find that neither the reasonable certainty requirement nor the statute of limitations requirement were met. Hence, we are compelled to discharge the appellant on this count rather than remand to allow the Commonwealth to amend the information and proceed on the charge at a new trial.

CONCLUSION

Based upon the foregoing, judgment of sentence is vacated and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

WIEAND, J., concurs in the result.

      . Though we remand on other grounds, we note that we find no merit to this claim. Indeed, review of the trial court's supplemental charge discloses that if there was error in the charge on this issue, it was in favor of the appellant. Nonetheless, on remand we call the trial court's attention to Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), which provides clear instruction as to the proper construction of the "forcible compulsion” requirement in cases such as this. The recent plurality decision in Commonwealth v. Mlinarich, 518 Pa. 247, 542 A.2d 1335 (1988) does not alter our opinion on this issue. The narrow voluntariness issue presented in Mlinarich is in no way applicable to this case, and Rhodes is otherwise undisturbed.

      . If this claim had merit, we would discharge entirely rather than remand; however, we find this claim is also without merit. On April 25, 1986, the Commonwealth filed a timely Rule 1100(c) petition requesting an extension of time to commence trial on the basis that the victim was in the advanced stages of pregnancy. Appellant argues that because the victim was able, physically and emotionally, to be interviewed by a psychotherapist on April 29, 1986, the victim could have testified and the trial court abused its discretion in granting the petition. Appellant’s argument is predicated on the erroneous assumption that the physical stress of being interviewed and counseled by a psychotherapist who is trained to treat victims of incest is comparable to the physical stress likely to be experienced upon being cross-examined by the alleged abuser’s attorney in open court regarding the incestuous sexual abuse she suffered. We find that the Commonwealth met its burden of proof and the trial court did not abuse its discretion in granting the timely Rule 1100(c) petition.

      . In view of our disposition of issues one, four and six, we need not address appellant's claim that the trial court improperly limited cross-examination.

      . The test is objective rather than subjective. If the court determines that a reasonable basis designed to effectuate the appellant's interests exists for a particular act or omission, then, regardless of counsel’s purported subjective motivations for the act, appellant cannot be said to have been denied a fair trial. The reasonableness of the act or omission precludes a finding of ineffectiveness. Commonwealth ex rel. Washington v. Maroney, supra. See also Kitrell v. Dakota, 373 Pa.Super. 66, 73, 540 A.2d 301, 305 (1988).

      . In addition to the statement read into evidence by the prosecutor, noted in the text supra, the following statements were also contained in the report:
      Clinically the report provided by [P.T.] is, without reservation, credible in every respect and indicates a child who has endured both emotional and sexual abuse — and has, most probably protected, to some degree, both her siblings and mother from the violence of her natural father ... Her report is credible____
      (Defendant’s Exhibit No. 3 at 8-9). (Emphasis added).
      ******

        Given the credibility of [P. ’s] report, a full investigation of all the children is warranted.
      (Defendant’s Exhibit No. 3 at 11). (Emphasis added).

      . We note that there was an objectively reasonable basis for using the report. The prosecution’s entire case rested on the testimony of the victim and the expert. Defense counsel sought to discredit the expert’s testimony by impressing upon the jury the fact that the psychotherapist’s only source of information was the victim, and that the information upon which he based his findings was not credible. (See N.T. 7/8/86 at 53-66, 103-38, and 139-40). There was, however, no objectively reasonable basis for failing to have the inadmissible statements regarding the expert’s assessment of the child victim’s credibility redacted prior to the report’s introduction into evidence, nor for failing to object when the prosecution read into the record the expert’s opinion as to the victim’s credibility and when the prosecutor reinforced that evidence on re-direct examination.

      . Count XVI relates to the terroristic threats charge which will be addressed in Section III, infra.

      . § 5554. Tolling of Statute
      Except as provided by Section 5553(e) (relating to disposition of proceedings within two years), the period of limitations does not run during any time when:
      (3) a child is under 18 years of age, where the crime involves injuries to the person of the child caused by the wrongful act, or neglect, or unlawful violence, or negligence of the child’s parents____
      (As amended 1985, July 10, P.L. 193, No. 49, § 1, effective in 60 days).
      The 1985 amendment added subsection (3) which tolled the running of the statute of limitations on those acts occurring on or after September 8, 1983.

      . The effective date of 42 Pa.C.S.A. § 5554(3) was September 8, 1985. As the statute of limitations had not yet expired as to acts committed on or after September 8, 1983, and 42 Pa.C.S.A. § 5554(3) tolled the running of the statute of limitations period from September 8, 1985, to November 13, 1985, when the instant proceedings commenced, it follows that on remand the information should be amended to include only incidents of incest or corruption of minors occurring on or after September 8, 1983.
      We note further that although criminal liability may not be imposed upon acts committed outside the limitations period, evidence of criminal acts committed outside the limitations period may be admissible to corroborate evidence of those acts committed within the limitations period. See Commonwealth v. Allem, 367 Pa.Super. 173, 182 n. 3, 532 A.2d 845, 849 n. 3 (1987).

      . Although neither the trial court nor the Commonwealth has directed us to any specific reference in the notes of testimony indicating either a specific date fixed with a reasonable degree of certainty, or a continuous course of conduct, we did find a vague reference to a time period in Mr. Battinieri’s report. Mr. Battinieri states, "Her father continued to force her compliance by threatening to ‘kill me’ or himself____” (Defendant’s Exhibit No. 3 at 7). A statement made in the beginning of that same paragraph suggests that the threats were made after the victim was fourteen and continued until she left in November, 1985. However, we find this vague reference is insufficient to support a conclusion that the Commonwealth met its burden of proving beyond a reasonable doubt that the terroristic threats occurred within the statutory period on a reasonably certain date.