author: McEWEN, Judge:

text:
    512 A.2d 1219
    COMMONWEALTH of Pennsylvania v. Bob Allen CLAPPS, Appellant. COMMONWEALTH of Pennsylvania v. Elmer WEISKERGER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1985.
    Filed July 17, 1986.

      Charles P. Gelso, Wilkes-Barre, for appellants.
    Robert A. Graci, Assistant District Attorney, Wilkes-Barre, for Com., appellee.
    Before CAVANAUGH, McEWEN and CERCONE, JJ.
   McEWEN, Judge:

Appellants Clapps and Weiskerger were determined by a jury to be guilty of conspiracy, bribery and violating the Public Officials Ethics Act. Appellant Clapps was sentenced to serve a term of imprisonment of from six months to twenty-three and one-half months to be followed by a one year term of probation. Appellant Weiskerger was sentenced to serve a term of three years probation. We reverse the judgments of sentence and direct that each appellant be granted a new trial.

Both appellants assert in this appeal that the trial court erred in its charge to the jury upon the defense of entrapment. Each of the two appellants provides separate further assertions: appellant Clapps asserts that the uncontradicted evidence in the case established entrapment as a matter of law and that, therefore, he should be discharged; appellant Weiskerger argues that the trial court erred by permitting the prosecutor in his closing argument to comment upon the fact that appellants invoked their constitutional right to remain silent.

The case focuses upon four individuals: Walter Placek, Barbara Placek, his wife, and, of course, the two appellants. The asserted role of each, as revealed by the evidence at trial, may be briefly summarized as follows:

WALTER PLACEK was a member of the Wyoming Area School Board during the years that preceded the general election of November, 1979, and, during the years preceding that election, was a member of the coalition that composed the majority of the School Board. While a member of that majority coalition, both he and his wife found themselves beneficiaries of improved professional opportunities.
BARBARA PLACEK was the wife of Walter Placek and, while he was a member of the majority coalition of the Wyoming Area School Board during the years preceding the general election of November, 1979, she was the recipient of special employment attention at the County of Luzerne senior citizen facility known as Valley Crest Nursing Home. She was granted a two year leave so as to secure a Bachelor’s Degree and was thereafter appointed to the newly created position of Director of the Bureau of Aging at the County nursing home. When she was removed from that job by reason of her failure to meet the qualifications for that position, a further job was created at the County nursing home, that of Director of Program Development, and she was appointed to that position.
APPELLANT CLAPPS was a prominent political figure who held a position of leadership in area Democratic affairs, as well as membership upon the Exeter Borough Council.
APPELLANT WEISKERGER, a one-time member of the West Pittston Borough Council, unsuccessful candidate for election to the Wyoming Area School Board, and the treasurer of the local Republican organization, was a political ally of appellant Clapps.

The scenario which produced the charges we here review commenced with the general election of November, 1979, when four individuals aligned with appellant Clapps were elected to membership upon the nine member Wyoming Area School Board. The Clapps faction, if it was to compose a majority of the board, required, of course, the allegiance of a fifth member of the board. Placek asserted that appellant Weiskerger communicated with him on January 13, 1980, to determine whether Placek was interested in joining the Clapps coalition so that it would compose the majority on the school board. Appellant Weiskerger, during that discussion, left Placek with the impression that appellant Clapps, in return, might be able to provide job security for Mrs. Placek whose position was likely to be eliminated by reason of budgetary reductions which had caused the discharge of a number of employees at the county nursing facility. Placek testified that, as a result of that discussion with appellant Weiskerger, he contacted, two days later on January 15, 1980, the Federal Bureau of Investigation of the United States Department of Justice. As a result, Placek, in league with the FBI and through the use of FBI eavesdropping equipment, produced the evidence which resulted in the charges and convictions which are the subject of this appeal.

Once Placek had agreed to become their agent, the FBI, on January 17, 1980, installed wiretap equipment on the telephone in the Placek residence and from that date, for the next ten weeks, through March 25, 1980, recorded the many attempts by Placek to communicate with their targets by telephone. In addition, when Placek was to meet with appellants on March 24, 1980, the FBI equipped Placek with such electronic devices as would enable the FBI to eavesdrop upon and record all of the discussions between Placek and his associates, the appellants. All of the conversations recorded, whether by telephone interception or by the equipment worn by Placek, were transcribed so that the jury could follow the discussions while the tapes of the conversations were played for them by the prosecution. The testimony of Placek and the FBI recordings led the jury to determine that appellants were guilty as charged. Appellants do not urge that the evidence was insufficient to sustain the verdict, but instead assert the charges should be dismissed because Placek and the FBI solicited and induced the activity with which they are charged.

While appellants did not themselves testify, they undertook the presentation of the defense of entrapment by vigorous cross-examination of Placek, and by focus upon the enthusiastic manner in which Placek served the FBI, such as, for example, the fact that, within five days, he urged appellant Weiskerger on twenty different occasions to have appellant Clapps contact him. A collateral attack upon the prosecution was the effort of appellants to portray Placek as an unworthy individual who had used his vote to extract spoils from the system and only commenced the investigation to intimidate and coerce the county officials into preserving the position of his wife.

Our appellate role restricts our focus to the narrow legal issues that are presented to us. We may not be diverted by the asserted unworthiness of the individual who enlisted the FBI for the purpose of this prosecution. The use by political leaders of hostages to exercise political influence, manipulation and control is an ancient — and, in the present age, dishonored — practice which has, fortunately, in recent decades, been in decline. Such conduct as the prosecution here charges can only serve to erode the confidence of the people in their government and deserves, when properly uncovered, elimination and punishment. Appellants argue, however, that it was not uncovered in a proper and lawful fashion. Appellants assert that such chicanery as was practiced here is not such dread evil as would justify misuse of the federal police power that modern devices have made awesome, if not frightening. The record does not reflect the basis for the decision of the federal police to conduct the investigation without the assistance and coordination of county and state police agencies, but such usurpation by the federal police is not unusual and may not form any basis for defense. Nor may the assertion that the thrill of association with the federal police impelled their recruit to perform as a zealot — although, if there is to be the presumption that the FBI did not direct Placek to attempt to contact his quarry twenty times in five days, the question remains as to why the FBI did not maintain more effective control of their undercover agent. History has demonstrated that the performance of the centurion is more frequently witnessed in the excess. In the present time, legal philosophers express concern at the routine that finds the federal police initially targeting their prey, and then either luring or intimidating cohorts of their quarry to become informers and to conceal upon their person equipment that will broadcast conversations which, sooner than later if the agent/informant is to well serve his new masters, must include discussion of illegal activity. We need not here render judgment upon the validity of this concern nor give ear to advocacy that is more essentially the subject of a jury speech.

As we have noted, both appellants assert that the trial court erred in its instruction to the jury upon the defense of entrapment. There is, however, a threshold issue we must first address, namely, the contention of the Commonwealth that appellants were not entitled to any instructions upon entrapment because appellants did not admit to any of the elements of the offenses charged. Thus, the argument goes, any instruction upon entrapment was an unwarranted benefit to appellants and cannot constitute error. The prosecution relie? for its position upon the ruling of this Court in Commonwealth v. McGuire, 339 Pa.Super. 320, 488 A.2d 1144 (1985). The defendant there testified on his own behalf and acknowledged that he had, at the insistence of undercover police, delivered a package which contained drugs, but denied that he had the requisite intent for guilt because he did not know the contents of the package. Thus, there was evidence to support either (1) the finding that the defendant lacked the requisite intent, or (2) the finding that the defendant was entrapped. As a result, the defendant was entitled to have the issue of entrapment submitted to and decided by the jury by reason of our ruling that “[t]he entrapment defense will be available to defendants ... who admit to at least some of the elements charged”. Id. 339 Pa.Super. at 333, 488 A.2d at 1151. The Commonwealth quite adeptly seizes upon that ruling to urge that the entrapment defense is not available to appellants, who entered pleas of not guilty, because, by reason of their failure to testify, they had not met the McGuire requirement of admission of “at least some of the elements charged”. Id.

Thus, we are confronted with the question of whether an accused, who has exercised his privilege not to testify, but who has contested each element of the offense charged by a plea of not guilty, by cross-examination of prosecution witnesses, by the presentation of defense witnesses, and in argument to the jury, is entitled to have the court instruct the jury upon the defense of entrapment. While the courts which have addressed this issue are divided, a majority have held that the entrapment defense is available to such an accused, provided that the accused has not presented any evidence that is inconsistent with the defense of entrapment. U.S. v. Henry, 749 F.2d 203, 210-211 (5th Cir.1984); U.S. v. Groessel, 440 F.2d 602, 605 (5th Cir.1971); cert. denied, 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971); U.S. v. Valencia, 645 F.2d 1158, 1172 (2nd Cir.1980); People v. Pagliuca, 119 Ill.App.3d 906, 913, 76 Ill.Dec. 254, 261, 458 N.E.2d 908, 915-916 (1983); Ransom v. State, 630 S.W.2d 904, 906 n. 2 (Tex.App. 1982). See U.S. v. Stanley, 765 F.2d 1224, 1232-1233 (5th Cir.1985); U.S. v. Demma, 523 F.2d 981, 984-985 (9th Cir.1975) (“inconsistency theory” does not apply where defendant does not take the stand because he has not denied the crime.) But cf U.S. v. Whitley, 734 F.2d 1129, 1139 (6th Cir.1984) (non-testifying defendant must admit guilt to urge entrapment); State v. Nilsen, 134 Ariz. 431, 432, 657 P.2d 419, 420 (1983) (where defendant does not testify he still must admit to elements of offense by stipulation or in other affirmative manner).

We are of a mind that the majority view is the preferable position. Nor is it inconsistent with our decision in McGuire, or with the notion of entrapment as it exists in this Commonwealth. We, therefore, hold that an accused, who fails to testify in his own defense and does not otherwise offer testimony inconsistent with his assertion of entrapment, is entitled to raise the defense of entrapment, provided, of course, there is some valid basis for the assertion of entrapment. “Any other holding would ‘raise a serious Fifth Amendment question’ ”. U.S. v. Henry, supra, 749 F.2d at 1011, quoting U.S. v. Annese, supra, 631 F.2d at 1047. Since all of the prerequisites for the rule we here announce are present, namely, (1) there is some evidence to support the assertion that entrapment occurred, and (2) appellants did not themselves testify or otherwise offer evidence or testimony inconsistent with an entrapment defense, appellants were entitled to have the court deliver an instruction to the jury upon the defense of entrapment.

We are now able to proceed to a consideration of the claim of appellants that the trial judge delivered to the jury an erroneous instruction upon the defense of entrapment. In ages past, the presentation of the defense of entrapment called for focus upon and scrutiny of the predisposition of the accused to commit the crime charged — a process that became known as the “subjective” standard because it did not focus at all upon the tactics and conduct of the police, but solely upon the character of the accused, a focus that would, of course, provide reflections that would vary with each individual. The “subjective” standard was renounced by our legislature when, in 1972, it adopted the “objective” test by enactment of the Crimes Code, Act of December 6, 1972 P.L. 1482, No. 334, § 1, effective June 6, 1973, 18 Pa.C.S. § 313, and decreed that the test for determining whether an accused was entrapped was whether the conduct of the police offended the factfinders’ sense of justice. Commonwealth v. Jensch, 348 Pa.Super. 142, 145, 501 A.2d 687, 689 (1985); Commonwealth v. McGuire, supra 339 Pa.Super. at 326, 485 A.2d at 1148; Commonwealth v. Thompson, 335 Pa.Super. 332, 339, 484 A.2d 159, 163 (1984); Commonwealth v. Taylor, 299 Pa.Super. 113, 119, 445 A.2d 174, 177 (1982); Commonwealth v. Danko, 281 Pa.Super. 97, 100, 421 A.2d 1165, 1167 (1980); Commonwealth v. Stokes, 264 Pa.Super. 515, 518, 400 A.2d 204, 206 (1979); Commonwealth v. Manley, 252 Pa.Super. 77, 86, 380 A.2d 1290, 1294 (1977), vacated on other grounds, 491 Pa. 461, 421 A.2d 636, (1980); Commonwealth v. Jones, 242 Pa.Super. 303, 311, 363 A.2d 1281, 1285 (1976). See Smith v. Pennsylvania State Horse Racing Commission, 92 Pa.Cmwlth. 472, 474, 501 A.2d 303, 305 (1985). Thus, it was error for the trial court to use the “subjective” standard in the instruction to the jury upon the defense of entrapment. We hasten to emphasize that it is only the more recent opinions upon this issue that have clarified the test to be used when the defense of entrapment under 18 Pa.C.S. § 313, is applicable, and that the trial court did not have the benefit, of those rulings and the certainty brought to this issue by their holdings. In any event, the judgment of sentence imposed upon the appellants must be reversed and a new trial granted them.

Appellant Clapps further asserts that all of the evidence in the case, including, of course, the prolonged ten week operation, as well as the intensive efforts of Placek, on behalf of and at the direction of his FBI mentors, to trigger discussion of trading his vote for the job of his wife, establishes entrapment as a matter of law. The end does not justify the means, urges appellant, nor does the invidious invite the insidious. Appellant Clapps relies upon the incessant manner in which Placek urged appellant Weisker-ger to arrange a meeting with Clapps for Placek and asserts (1) that all discussions followed the revelation by Placek that his vote was for sale, (2) that Placek admitted that he encouraged appellants to come to a decision to bribe him, (3) that Placek insisted that the control of the school board by the Clapps faction would be more advisedly accomplished by the acquisition of the Placek vote than by waiting sixteen months until the next school board election to secure a fifth vote, and (4) that Placek admitted that appellant Clapps never promised Mrs. Placek continued county employment. The Commonwealth, on the other hand, argues that the conversations between Placek and appellants establish with certainty that it was appellants and not Placek who initiated discussions upon the exchange of the vote for the job.

It is well established that the determination of whether police conduct constitutes entrapment is a question for the jury, unless the evidence clearly establishes entrapment as a matter of law. Commonwealth v. Thompson, supra 335 Pa.Super. 332, 484 A.2d 159 (1984). When all of the evidence enables but one conclusion, namely, that the police induced the commission of the crimes, the conclusion of entrapment may be reached as a matter of law but, otherwise, the question of whether entrapment occurred must be submitted to the jury. Commonwealth v. Manley, supra 252 Pa.Super. at 86, 380 A.2d at 1294. The state police conduct in Thompson was, of course, so flagrant that entrapment was clearly established as a matter of law since the accused there was a male, middle aged, uniformed, local police officer who was essentially seduced by an undercover state trooper who was female, young, attractive and blonde. The accused local officer and the undercover agent were social companions over a ten month period and had engaged in gestures of endearment. When her continual chiding of the local officer about his failure to secure drugs for her, and his romantic interest in pleasing her made him desperate, he succumbed and obtained a small quantity of marijuana for her. Our eminent colleague, Judge Frank J. Mon-temuro, Jr., writing for this Court said:

[T]he use of a young, blond female to coax a middle aged male after months of kissing and socializing, into committing a minor crime is not police conduct which presents the ‘mere opportunity’ to commit a crime. As this case clearly shows, opportunity and inducement are two separate consequences of police activity. The latter occurred here.

Id. 335 Pa.Super. at 344, 484 A.2d at 166. The facts of the instant case do not, however, reveal such inducement. Rather, our study of the record compels the conclusion that the trial court properly submitted the question of entrapment to the jury since the evidence in this case does not require the conclusion that the police induced the crime. A most significant factor in reaching that conclusion is the fact that the federal police did not commence participation in the operation until Placek brought to them the assertion that appellants would trade upon the employment of his wife to secure his vote. Accordingly, we may not accept the assertion of appellant Clapps that the evidence established entrapment as a matter of law, and again leave for the finder of facts on remand the determination of whether entrapment occurred.

Our order that a new trial may be held makes it unnecessary for us to address the further assertion of appellant Weiskerger that the prosecutor in closing argument expressed remarks that composed improper comment upon the decision of appellant Weiskerger not to testify in his defense at the trial. The Commonwealth responds that the remarks of the prosecutor were triggered by contentions that had been presented during closing argument by defense counsel. It would not be purposeful to here recount the text of the closing jury arguments of the adversaries which underlie their assertions to us. Perhaps, however, since the case is to be tried anew, it would be prudent to observe that, as abundant as the prosecutor may view his justification, the privilege against self incrimination is so sacred and the prohibition against comment so certain that such remarks as were here made could well have jeopardized the conviction.

The judgment of sentence imposed upon each appellant is reversed. New trial granted. Jurisdiction relinquished.

      . 18 Pa.C.S. § 903.

      . 18 Pa.C.S. § 4701.

      . 65 P.S. § 403(b).

      . The requirement that a defendant admit at least some of the elements of the offense charged stems from the theory that it is inconsistent for an accused to take the stand and deny the commission of the crime and then assert a right to a charge on entrapment. See Commonwealth v. McGuire, supra, 339 Pa.Superior Ct. at 330, 488 A.2d at 1150. See also U.S. v. Annese, 631 F.2d 1041, 1047 (1st Cir.1980).

      . 18 Pa.C.S. § 313. Entrapment
      (a) General rule. — A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
      (1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
      (2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
      (b) Burden of proof. — Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment.
      (c) Exception. — The defense afforded by this section is unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.

      . In Commonwealth v. Thompson, supra 335 Pa.Super. at 342, 484 A.2d at 165 n. 10, this Court acknowledged that some confusion had existed concerning whether the “subjective” or "objective” test was to be used when dealing with 18 Pa.C.S. § 313.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    512 A.2d 1226
    COMMONWEALTH of Pennsylvania, v. Patrick NEARY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 7, 1986.
    Filed July 17, 1986.

      Janet J. Schoen, Assistant Public Defender, Stroudsburg, for appellant.
    John B. Dunn, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before CIRILLO, President Judge, and WIEAND, and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This matter comes before this Court on appeal from a judgment of sentence for robbery and criminal conspiracy to commit robbery. The relevant events occurred on December 22, 1981 at approximately 1:40 p.m., when two masked individuals, one of whom was armed, robbed the Bushkill Branch of the First Eastern Bank located on Route 209 in Monroe County, Pennsylvania. Secluded within the sack of money taken by the robbers was a bait pack consisting of marked money and false currency containing cartridges of red dye and tear gas designed to explode when opened. A bank guard witnessed the robbers leaving the scene in a green Cadillac bearing a tan and black New Jersey license plate fastened to the rear of the vehicle in an inverted position. This witness immediately reported the description of the vehicle to police and indicated that it was traveling south on Route 209 towards Marshall’s Creek. A second witness, who was proceeding in the same direction as the alleged get-away car, testified that he saw a green Cadillac exit the bank parking lot and within one-half mile he noticed red smoke pouring from the car’s interior. He immediately thereafter smelled the odor of tear gas as the two occupants hung their heads from the car windows. This witness also phoned the state police and provided them with a description of the car and its direction of travel. A third witness, who was walking in the area of the bank at the time of the robbers’ escape, not only told the state police that he observed the scenario staged immediately outside the bank, but also was able to describe the driver of the vehicle who was later identified as appellant, Patrick J. Neary.

In response to a police broadcast summarizing the information presented by these witnesses, local police sighted appellant’s vehicle and notified the state police who were in pursuit of the robbers. Within a short distance of the area in which the vehicle was last seen, the state police observed the Cadillac swerve out of control in what appeared to be an attempt to avoid apprehension. Consequently, the officers detained appellant’s vehicle. As the alleged robbers were being removed from the car, one state policeman testified that he observed an unzipped, dye-stained gym bag on the floor of the car containing such items as clothing and money. Upon searching the inside of the bag, the officer confiscated one or more guns. Appellant and his passengers were then arrested and charged with robbery, conspiracy and crimes committed with firearms. An inventory search of the car’s interior later was conducted at the state police barracks in Swiftwater, Pennsylvania.

Appellant’s motion to suppress evidence seized during both searches was denied by the lower court on March 18, 1982. Following a two-day jury trial in May of 1982, appellant was convicted of robbery and conspiracy to commit robbery; however, a new trial was ordered due to prejudicial statements made by the prosecutor during closing arguments. The Superior Court affirmed the judgment granting appellant a new trial. In September of 1984, appellant again was convicted of these charges and subsequently filed motions in arrest of judgment and for a new trial. These motions were denied on August 7, 1985. Thereafter, appellant was sentenced to ten to twenty years imprisonment on the robbery conviction and a consecutive sentence of five to ten years on the conspiracy conviction. In response to appellant’s motion for reconsideration of sentence, the lower court resentenced appellant on the conspiracy conviction to a consecutive term of two and one-half to five years incarceration. Appeal was taken to this Court on October 23, 1985.

Appellant now contends that the lower court erred: (1) in failing to suppress certain evidence obtained during the search of the car since no probable cause existed for the police to stop the vehicle; (2) in refusing to grant appellant’s request for a mistrial when the jury viewed him being escorted unhandcuffed by uniformed guards to the courthouse; (3) in refusing to grant his demurrer to the conspiracy charge; (4) in refusing to order the alleged co-conspirator to answer questions posed by appellant’s counsel on direct examination; (5) in not recusing itself because of alleged bias against appellant; (6) in refusing to grant appellant a continuance when his witness failed to appear; and (7) in considering certain convictions which were challenged by appellant in ordering sentence. We will address these arguments seriatim.

Upon review of appellant’s first allegation that his Fourth Amendment rights were violated when the police stopped and searched his vehicle, we are constrained to disagree. It is generally well accepted that when individuals proceeding in an automobile are forced to interrupt their travel at police direction, such action clearly amounts to a seizure of those individuals and basis for that stop must meet Fourth Amendment standards. Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975). Such seizure, however, will not be unreasonable under the Fourth Amendment where probable cause exists at the time of that seizure. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

Probable cause exists where “the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555 (1925).
In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949).

Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327, 333 (1959).

We believe that under the facts and circumstances here the police had probable cause to believe that the occupants of the vehicle had robbed the First Eastern Bank in Bushkill, Pennsylvania. Our review of the record indicates that when the state policemen approached appellant’s car, they not only were aware that an armed bank robbery had occurred but they were also provided with a description of the robbers’ vehicle and a direction of their travels. In addition, the state troopers were informed that a local policeman had sighted a vehicle similar to the one described via a police broadcast within a short distance of the area in which the robbers were apprehended. Moreover, the swerving movement of the vehicle provided further indication that the occupants were attempting to avoid apprehension. Consequently, we believe that the seizure was supported by sufficient probable cause.

Appellant next contends that the seizure of his dye-stained gym bag by one of the state policemen was a violation of his Fourth Amendment rights. We disagree. Our Court has previously held that where police have a right to be in the position of observation they can lawfully seize objects in plain view provided, however, that the incriminating character of the evidence is apparent. Commonwealth v. Yacoubian, 339 Pa.Super. 413, 489 A.2d 228 (1985). Since the officers in the instant case were aware that the dye pack had exploded as the robbers were escaping from the scene, we therefore must conclude that the seizure of the dye-stained gym bag by the state trooper can be justified under the plain view doctrine and did not infringe appellant’s legitimate expectation of privacy.

The further warrantless search and seizure of items contained within the gym bag, such as the dye-stained money, clothing and weapons, can be justified on the basis of a warrantless search of an automobile. Traditionally, our Courts have been lenient in allowing some departure from the warrant requirement for certain automobile searches because of vehicles’ inherent mobility and the “diminished expectation of privacy generally accorded automobiles because of their open construction, their function, and their subjection to a myriad of state regulations”. Commonwealth v. Milyak, 508 Pa. 2, 8, 493 A.2d 1346, 1349 (1985) citing Commonwealth v. Timko, 491 Pa. 32, 38, 417 A.2d 620, 623 (1980) citing United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); see also, South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976); Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1978). In justifying a warrant-less search of an automobile, our Pennsylvania Supreme Court has stated:

(A)n officer must have independent probable cause to believe that a felony has been committed by the occupants of the vehicle, or that it has been used in the furtherance of the commission of a felony, or the officer must have a basis for believing that evidence of a crime is concealed within the vehicle, or that there are weapons therein which are accessible to the occupants.

Commonwealth v. Lewis, 442 Pa. 98, 101, 275 A.2d 51, 52 (1971). Under this standard, we must necessarily conclude that where there exists probable cause related to the vehicle or its occupants, a search of the vehicle is permissible. Milyak, 508 Pa. at 8, 493 A.2d at 1349 (1985). Based on the facts stated above, the state policeman acted properly in seizing the gym bag and its contents. Moreover, the search and seizure of the contents of this bag was permissible under United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (the Court permitted the warrantless search of closed containers found within a vehicle).

Appellant’s next contention that the trial court erred in refusing to grant a mistrial after several jurors observed him being led from the jail to the courthouse is without merit. In such instances, we have continuously held that a “brief accidental sighting of a defendant in custodial trappings, without more, is not so inherently prejudicial as to significantly impair the presumption of innocence to which the defendant is entitled.” Commonwealth v. Miller, 247 Pa.Super. 132, 138, 371 A.2d 1362, 1365 (1977).

In the present case, the appellant was observed on several occasions being escorted by two uniformed sheriff’s deputies. Although appellant was not handcuffed, he was being held on the arm by the deputies. After conducting a voir dire examination of a juror involved in one of the incidents, the trial court concluded that no prejudice resulted from the sighting and the motion for mistrial was therefore denied. The trial court ruling is consistent with Commonwealth v. Mayhugh, 233 Pa.Super. 24, 336 A.2d 379 (1975), in which case we held that a brief and inadvertent sighting of the defendant in the custody of deputy sheriffs in a manner similar to the case at bar did not result in prejudice sufficient to warrant the granting of a mistrial. The trial court therefore correctly ruled on this issue.

Nor are we persuaded by appellant’s next argument that the trial court erred in refusing to grant appellant’s demurrer to the conspiracy charge on the basis that there could not have been an agreement to conspire since the alleged co-conspirator, Mr. Ehly, was unable to form the necessary intent to enter into such an agreement. The raison d’etre for this allegation is an order of the lower court dated April 5, 1983 in which the alleged co-conspirator was declared incompetent to stand trial due to his long history of alcohol and drug abuse and a psychotic brain disorder. We are keenly aware that the crime of conspiracy requires proof of more than a single participant, however, this does not mean that a valid conviction for conspiracy against one defendant must be held in limbo pending the outcome of all alleged co-conspirators, or that a valid conspiracy conviction must subsequently be nullified as a result of an acquittal of the other(s) charged. Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980); Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983) (acquittal of defendant’s unindicted co-conspirator on charges relating to the same transaction underlying defendant’s case did not require reversal of defendant’s conviction for conspiracy). In the instant case, the co-conspirator was not declared incompetent until April of 1983, some one and one-half years after the robbery occurred. It is our belief that a declaration of incompetency to stand trial is unrelated to a determination of whether the alleged co-conspirator formed the requisite intent at the time of the crime to enter into the conspiracy. Consequently, we affirm the trial court’s decision denying appellant’s demurrer.

With respect to appellant’s next contention that the trial court erred in refusing to order the alleged co-conspirator, Mr. Ehly, to answer questions posed by appellant’s attorney on direct examination, we disagree. An accused in a criminal case is guaranteed “the right to offer the testimony of witnesses, and to compel their attendance, if necessary ...” pursuant to Article I, Section 9 of the State Constitution and the Sixth Amendment to the Federal Constitution. Commonwealth v. Rolon, 486 Pa. 573, 406 A.2d 1039 (1979) citing Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967). Nevertheless, the witness so compelled to testify also has a corresponding privilege against self-incrimination as guaranteed by Article I, Section 9 of the State Constitution and the Fifth Amend ment of the Federal Constitution. The standard by which the trial court determines whether such a witness must testify has been enunciated by our Supreme Court in Commonwealth v. Carrera, 424 Pa. 551, 227 A.2d 627 (1967), when it stated: “For the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination and the answers demanded cannot possibly have such tendency.” Id., 424 Pa. at 553, 554, 227 A.2d at 629.

The following discussion reportedly took place at sidebar prior to Mr. Ehly being called to the stand, involving Judge Vican, Assistant District Attorney Lear, Ms. Tiracchia, appellant’s attorney and Mr. Rosenblum, attorney of record for Mr. Ehly.

MS. TIRACCHIA: I’d like to put on the record that I want to call Raymond Ehly as a witness to testify on behalf of my client. Mr. Ehly was a co-defendant in this case originally and is accused along with my client, Patrick Neary, of committing the robbery at First Eastern Bank.
THE COURT: I have an understanding that he has been adjudicated by this court to be an incompetent and is currently housed at Farview State Hospital.
MR. ROSENBLUM: If I may amend that, he has been found by the psychiatrist to be incompetent to stand trial based upon his inability to comprehend the charges that he’s facing as well as his inability to participate in his own defense. The psychiatrist further found that he’ll never be competent to stand trial. I met with my client briefly and I’m pleased to report that he recognized me. I have advised him that his Fifth Amendment privileges will be exercised, that I will so inform the Court and instruct counsel for both sides. I do no (sic) believe he should be called to the witness stand because I don’t believe he has the foggiest idea of what is going on and I sincerely mean that and I think it will be disruptive of the trial because it will force me to speak for him, if I may, for any questions that are asked of him. I don’t think he can formulate the appropriate words at this point in time, I really don’t.
THE COURT: So, he’s going to exercise his right to the Fifth Amendment?
MR. ROSENBLUM: That’s correct.
THE COURT: Anything else?
MR. ROSENBLUM: Well, on behalf on my client, I would object to his being called.
THE COURT: Charges are still pending against him?
MR. ROSENBLUM: They certainly are.
MR. LEAR: The Commonwealth really has no position in regard to this particular matter, it’s a defense request to call him. The Commonwealth only makes sure that— knowing that Mr. Ehly had counsel, Mr. Rosenblum, that Mr. Rosenblum was notified and requested to come over. We’re taking no position with regard to everything else.
MR. ROSENBLUM: I have to take the position — almost an adversarial position. I don’t believe that a witness may be called, where counsel is on notice that the witness is going to exercise the Fifth Amendment. I know if the Commonwealth did it the defense would have grounds for mistrial.
THE COURT: That’s right.
MR. ROSENBLUM: I believe the case law is that you can’t call a witness who is going to exercise the Fifth Amendment privilege, but I don’t know if I have standing to object.
THE COURT: I don’t either.
MR. ROSENBLUM: But I object.
MR. LEAR: Mr. Rosenblum, you are making a motion to the Court to quash the subpoena to compel his attendance?
MR. ROSENBLUM: I can’t do that because there is nothing wrong with subpoenaing him here. I object to his being called as a witness.
MS. TIRACCHIA: Well, my client has asked that he be called and wants him called.
THE COURT: Naturally your client is not interested in seeing this thing resolved properly, he want errors on the record and that’s all he wants, it’s very obvious the way this case has been conducted.
MR. ROSENBLUM: At the very least I’ll need substantial time with my client if he is, in fact, going to be called and I will be very frank with the Court, I’ll (have) a typed statement prepared for him to read, I don’t think he’s competent to do anything else.
THE COURT: Can he read?
MR. ROSENBLUM: I assume he can. I mean, his mental status was such that prior to his commitment to Farview, he had insisted that he had never been in any trouble prior to this incident. The man had served four years in the state penitentiary. The man is delusional, I really cannot, with any degree' of accuracy, predict anything that will come out of his mouth. At least tomorrow I’ll have had a type written one for him to read.
THE COURT: Make a handwritten one. The Commonwealth is not objecting to it and if he wants the guy to come forward, he’ll have to stand up and say he wants to plead the Fifth Amendment. If I don’t permit him to testify it will give Neary another appeal issue and we wouldn’t have some appellate judge in Philadelphia saying we abused this. We’ll have someone down there find that this is a wonderful idea and rather than give those people a chance to backbite, we’ll make him testify.
(End Sidebar discussion.)
******
RAYMOND CHRISTOPHER EHLY, called as a witness on behalf of the Defendant, being duly sworn according to law, testified as follows:
DIRECT EXAMINATION
BY MS. TIRACCHIA:
Q. Mr. Ehly, do you know Patrick Neary?
A. I refuse to answer the question, I am exercising my Fifth Amendment right to remain silent.
MS. TIRACCHIA: May we approach the Bench, Your Honor.
(Sidebar discussion off record.)
Q. Mr. Ehly, are you willing to answer any questions about what happened on December 22, 1981?
A. I refuse to answer the question, I am exercising my Fifth Amendment right to remain silent.
MS. TIRACCHIA: I ask that the witness be excused.
THE COURT: You are excused, Mr. Ehly.
MR. ROSENBLUM: May I be excused, Your Honor.
THE COURT: Yes.

It is apparent to us that Mr. Ehly would have incriminated himself if he had been obliged to testify given the evidence of record suggesting Mr. Ehly’s complicity in the robbery. Even more significant, we question this witness’s ability to testify inasmuch as he had been declared incompetent to stand trial in his own case. Consequently, we must conclude that the trial court properly refused to compel Mr. Ehly to testify.

Appellant next assigns as error the trial judge’s failure to recuse himself from presiding at the second trial following a statement made by the trial judge at a bail reduction hearing during the first trial. It is appellant’s position that this statement indicated the trial judge’s belief that appellant was guilty of the crimes charged. Moreover, appellant listed several other acts committed by the judge during the course of the second trial which demonstrated his prejudice against appellant. After a studied review of this matter, we fail to detect the existence of, or even the appearance of, any impropriety in either the judge’s remarks or through his acts which would have indicated his prejudice or bias against appellant. It is noteworthy that not only was the jury not exposed to any comments made by the judge, but such remarks were within the judge’s right to comment on the strengths and weaknesses of the case. Moreover, our courts will not even find the appearance of any impropriety merely because the presiding judge participated in an earlier stage of a proceeding. Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982).

Appellant further alleges error by the trial court in refusing to grant a continuance when his witness failed to appear. It is well settled in our case law that if testimony which an absent witness would give is merely cumulative or available from another source, then a continuance may be properly denied. Commonwealth v. Howard, 466 Pa. 445, 353 A.2d 438 (1976). In the present case, the absent witness had previously testified under oath at thé first trial of the defendant on the same charges and stated during his contempt proceeding that he would not have added to nor modified his earlier testimony. Thus, since the absent witness’s testimony was available at the time of appellant’s request for continuance, the trial court properly denied appellant’s motion.

Lastly, appellant contends that the trial court erred during the resentencing hearing by considering a report of criminal convictions compiled by the FBI. Appellant argues that certain convictions contained in the report were erroneously attributed to him and that a review of the entire report was an “impermissible consideration” which rendered the sentence invalid pursuant to Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977). The FBI report, which was obtained during the presentencing investigation, assigned to appellant six prior convictions occuring between 1967-1983. Appellant challenged three of the six convictions, claiming he was not the person responsible for those crimes. In Commonwealth v. Charles, 339 Pa.Super. 284, 488 A.2d 1126 (1985), we noted that the burden of alleging invalid prior convictions listed in a presentence report is on the defense and that if the allegations appear to have merit, the court should inquire into the circumstances surrounding the convictions. In the present case, the probation officer, after describing the method by which the data in the FBI report was compiled, testified that the information was accurate and that all convictions contained therein were attributable to appellant. Since appellant offered no evidence in support of his allegation, we are satisfied that the trial court’s inquiry of the challenged convictions was sufficient to satisfy the standard set forth in Charles and, therefore, we affirm the trial court’s decision.

Judgment of sentence affirmed.

      . While the lower court opinion indicated that only one of the two robbers was armed, appellant’s brief notes that both robbers were armed.

      . Although not directly raised in this appeal, we note that appellant’s sentence for the robbery and conspiracy convictions does not exceed the statutorily prescribed limit. 18 Pa.S.C.A. Sec. 1103.

      . Several other challenged convictions occurring before 1967 were disregarded following the resentencing hearing in that such convictions were uncounscled and therefore invalid. See Commonwealth v. Calvert, 463 Pa. 211, 344 A.2d 797 (1975). This change was reflected in the reduction of appellant's sentence for the conspiracy conviction from five to ten years imprisonment to two and one-half to five years imprisonment.


author: DEL SOLE, Judge: ROWLEY, Judge,

text:
    512 A.2d 1234
    COMMONWEALTH of Pennsylvania v. Kathleen DOLLMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 24, 1986.
    Filed July 16, 1986.

      Timothy E. Finnerty, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   DEL SOLE, Judge:

Kathleen Dollman was tried before a jury in December, 1984 on a charge of criminal homicide. Although she argued a justification defense, the jury found her guilty of voluntary manslaughter and she was sentenced to a prison term of three to six years. This appeal followed the denial of her post trial motions.

The bizarre facts in this case are as follows. A human skull containing a bullet hole was found on June 18, 1980 near the home of the Appellant. The residents of the neighborhood, including the Appellant, were questioned but the skull remained unidentified. Four years later, prompted by a call from an informant, Kathleen Dollman was arrested and confessed to shooting her husband. Police and forensic investigation confirmed that the skull found in June, 1980 belonged to Edward Weismantle, Dollman’s husband. Dollman told police that she shot her husband on December 22, 1979 because of the abuse she and her children were suffering at his hands. She and her thirteen year old son, with the help of a fifteen year old neighbor, buried the body in the cellar of her home. A few months thereafter, her son (and co-defendant) hacked the head from the victim’s body and placed it in a plastic garbage barrel. The family dog found the head in the garbage barrel and carried it off. This is how the skull happened to be found and the police alerted, although the skull remained unidentified for another three years. After the skull was discovered, the Appellant drove to Ohio and threw the murder weapon into a lake.

In 1982, Appellant and a friend named John Orlando disinterred the victim’s remains and burned them in her fireplace. What evidence of the corpse remained was put into a bag and left for the garbage pickup. Appellant and Orlando watched as the garbage truck carted the bag away.

In 1984, a friend of the Appellant who knew of the crime told the story to a social worker who immediately informed the police. The Appellant was located in Nashville, Tennessee where she was arrested by the local police and brought back to Pittsburgh. Her son was arrested in Pittsburgh and he stood trial with his mother.

The first issue raised in this appeal by Kathleen Dollman is whether the lower court abused its discretion when it denied the Appellant’s motion to sever her case from that of her son. She claims she was prejudiced by the joint trial because first, her son exercised his right not to testify at the trial and she thus was deprived of his testimony to support her justification defense; and second, his confession, which was admitted into evidence in redacted form, included material prejudicial to her. She claims the evidence that her son mutilated the victim’s body, even though this was done without her knowledge, put her in a bad light.

The critical factor we must consider in reviewing this issue is whether the Appellant was unfairly prejudiced by the trial court’s decision to consolidate the charges against Dollman and her son. We must weigh the possibility of prejudice and injustice against the consideration of judicial economy. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981). The Appellant has the burden of showing that the consolidation of the trial was a manifest abuse of discretion or created a clear injustice. Commonwealth v. Iacino, 490 Pa. 119, 415 A.2d 61 (1980). We find that she has failed to carry her burden on this issue.

Appellant’s contention that she was deprived of the testimony of her chief witness to the victim’s abuse of the family is without merit. Her son’s confession was read into the record and it contains a great deal of support for the Appellant’s story that the victim was violent. (Trial Transcript, pp. 128 ff.) A psychologist also provided testimony that the victim was abusive. (Trial Transcript, pp. 229 ff.); Appellant’s aunt (Trial Transcript pp. 524 ff.), and her probation officer, (Trial Transcript, pp. 530 ff.), testified that the Appellant was beaten by Weismantle. The Appellant testified at length on the subject herself, and there was testimony from her also in the two confessions which were read into the record, one confession offered by the prosecution and one offered in her own defense. Given the abundance of this corroborative testimony we do not find that the Appellant was prejudiced by being deprived of the in-court testimony of her son. We might also add that the Appellant cannot be sure that the son would have been willing to testify in her behalf.

The Appellant contends that she was also prejudiced by the joint trial because her son’s confession, though redacted to remove information concerning her guilt, contained a discussion of the co-defendant’s decapitation of the corpse. Her son, however, exonerated her by stating she had no knowledge of what he was doing. We find therefore she was not prejudiced unfairly by this evidence.

Appellant’s second allegation of error is that the trial court erred in admitting evidence of subsequent conduct by the Appellant and her co-defendant which was highly prejudicial. She lists in her brief three acts, testimony about which should have been excluded because of their remoteness to the crime and the highly prejudicial nature of the acts. These are evidence that the co-defendant had decapitated the corpse; evidence that the Appellant threw away the gun a few months after the crime; and evidence that she and Orlando burned the remains in 1982. Appellant argues that even if there were probative value to this evidence, it is far outweighed by the prejudicial impact of this material.

In deciding whether to admit evidence, potential prejudice is always a factor to be considered and evidence which is logically relevant should be excluded where its probative value is outweighed by the unfair prejudice which would result from its admission. Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973) (citations omitted). The decision whether to admit evidence that may be relevant but may also be unfairly prejudicial is a matter committed to the sound discretion of the trial court whose decision will not be reversed absent an abuse of discretion. Commonwealth v. Underwood, 347 Pa.Super. 256, 500 A.2d 820, 823 (1985). With this standard of review in mind we will analyze this issue raised by the Appellant in two steps: first, we ask whether the evidence complained of was relevant, and secondly, if relevant, was it so prejudicial that its admission amounted to an abuse of the trial court’s discretion.

Evidence is relevant if it tends to establish a fact material to the case or tends to make facts at issue more or less probable. Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984); Commonwealth v. Doe, 316 Pa.Super. 1, 462 A.2d 762 (1983). The Commonwealth has argued that the evidence of the disposition of the corpse and the disposal of the murder weapon is relevant because the jury may infer guilty consciousness from such facts. The Commonwealth was seeking a conviction for first degree murder in this case and therefore the prosecution introduced this evidence to support the case against Appellant by showing her guilty state of mind and allowing the jury to infer intent from the subsequent acts of the Appellant and her co-defendant. To support this argument the Commonwealth cites as authority Commonwealth v. Soli, 273 Pa.Super. 158, 417 A.2d 216 (1979), wherein a jury was permitted to hear evidence of the murder of a co-actor which occurred subsequent to the crime for which Soli was on trial. The motive for the subsequent murder was to cover up for the murder which was at issue in the case and thus held to be relevant.

We agree with the Commonwealth that evidence of acts to conceal a crime, such as disposing of the murder weapon and disposing of the victim’s body are relevant to prove intent or state of mind. We find the evidence which is questioned here analogous to evidence of flight or of change in appearance, which our courts have held to be relevant and which may be admitted, along with other evidence, as an inference of guilt. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811, 824 (1985); Commonwealth v. Coyle, 415 Pa. 379, 203 A.2d 782 (1964).

The next step in our analysis is to ask whether the evidence complained of, that is the co-defendant’s decapitation of the corpse, the disposal of the gun, and the burning of the remains was so prejudicial that it outweighs the probative value it might have. Not all relevant evidence is admissible, and evidence which is relevant may be excluded if it will confuse, mislead of prejudice the jury. Underwood, supra, 347 Pa.Superior Ct. at 262, 500 A.2d at 823. Of course most of the evidence offered in a criminal case by the prosecution will prejudice the defendant, but evidence which would create a tendency to move the jury to decide a case on an unfair basis, especially an emotional basis, may be excluded when it lacks substantial probative value. See McCormick, Handbook of the Law of Evidence, § 185 (2d ed. 1972).

As we have noted above, we do not find that the evidence that Jack Beauchamp decapitated the corpse prejudiced the defendant unfairly, in light of the fact that Beauchamp stated that he did this without his mother’s knowledge. Nor do we find it was error to admit evidence that Dollman threw away the murder weapon. As we have stated before, evidence from which a jury may infer a sense of guilt, such as disposing of a murder weapon, is admissable to show intent when there is other evidence of guilt.

The evidence that Dollman and her friend Orlando dug up the victim’s body two and one half years after the crime was committed and burned it in the fireplace, piece by piece, is on the other hand, far more prejudicial than it is probative. The grisly details of this process, recited by Orlando at trial and repeated by being read into the record as part of the Appellant’s confession, are shocking and provide little to prove the facts which were at issue at the trial. The fact that the Appellant shot her husband was hardly at issue at all since the Commonwealth had obtained a confession from the Appellant. Her guilty conscience may have been inferred from the facts that she did not report the shooting, that she buried the body, that she covered up his disappearance by telling his family that he went to California, and by the fact that she threw away the gun she used to kill him. Testimony about the final attempt to destroy the remains was unnecessary to prove the prosecution’s case.

We also fail to see how this evidence was used by the prosecution to disprove Dollman’s justification defense. The Appellant had the burden of proving that she was justified in shooting him because he posed a threat to her and to her children. What she did with the body almost three years after the fact in no way advances this inquiry.

It is with reluctance that we reverse judgment of sentence. We do so with the knowledge that our scope of review of this type of evidentiary ruling made by a trial court is a narrow one. The facts presented in this case are such that we find that it was error to have admitted evidence of the burning of the victim’s body and therefore a new trial must be granted.

Judgment of sentence reversed. Case remanded for a new trial. Jurisdiction relinquished.

ROWLEY, J., files a dissenting statement.

ROWLEY, Judge,

dissenting:

I respectfully dissent. In my judgment the granting of a new trial under these circumstances invades the sound discretion vested in the trial judge and exceeds the narrow standard of appellate review assigned to us. The evidence complained of was relevant. My review of the record does not indicate that the appellant was unfairly prejudiced or that the jury was confused or misled by its introduction. In fact, the record suggests the contrary. The Commonwealth sought a conviction for first degree murder. The jury, instead, convicted appellant of only voluntary manslaughter. Therefore, I would affirm the judgment of sentence.


author:
KELLY, Judge:
      OLSZEWSKI, Judge,

text:
    512 A.2d 1238
    COMMONWEALTH of Pennsylvania v. Curtis SAWYER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 15, 1986.
    Filed July 16, 1986.

      Curtis Sawyer, in propria persona.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, OLSZEWSKI and KELLY, JJ.
   KELLY, Judge:

Defendant-appellant Curtis Sawyer appeals from Orders denying his petition filed under the Post Conviction Hearing Act (PCHA) and denying his motion for recusal. The court below denied the petition without appointment of counsel or a hearing. For the reasons stated below, we vacate the Order denying the PCHA petition and remand for appointment of counsel. The Order denying appellant’s recusal motion is affirmed.

The procedural history of this case is difficult to follow but necessary for resolution of the issues. Following a bench trial before the Honorable Samuel Strauss the appellant was convicted of burglary, receiving stolen property, and criminal conspiracy. Post-trial motions were denied, and the defendant appealed. Appellant was represented by newly-appointed counsel, who raised several issues relating to trial counsel’s effectiveness. While appellant’s appeal was pending before the Superior Court, he filed a pro se PCHA petition, alleging only after-discovered evidence. Two weeks later, he notified the lower court by letter that he wished to withdraw this petition. Subsequently, the Superior Court entered an Order remanding appellant’s direct appeal for a hearing in the lower court on the ineffectiveness of counsel claim. Prior to the hearing, the Commonwealth filed a brief in the lower court, addressing both the ineffectiveness of counsel and the after-discovered evidence claims. At the evidentiary hearing, the sole issue addressed was the alleged ineffectiveness of trial counsel, which was the issue raised on direct appeal. Although the after-discovered evidence claim raised in the PCHA petition was not mentioned during the evidentiary hearing, the lower court referred to. the proceedings, in open court, as a “post-conviction hearing.” Several months later, the lower court filed an Opinion and Order. The Opinion addressed only the ineffectiveness issues, but concluded with an Order stating that appellant’s PCHA petition was denied. The record was then transferred back to the Superior Court, which affirmed the order. Nearly two years later, appellant filed his current PCHA petition. The appellant, acting pro se, alleged several ineffectiveness issues which had not been raised in the previous appeal. In the petition, appellant claimed that he was indigent, and requested that counsel be appointed to represent him. The appellant also filed a pro se motion requesting that Judge Strauss recuse himself from the case. Both the PCHA petition and the recusal motion were denied, without appointment of counsel. In support of its denial, the lower court cited an earlier order, where it had referred to the evidentiary hearing as a hearing on appellant’s PCHA petition. The court further stated that, “[u]nder the Post Conviction Hearing Act, you have but one opportunity to file for relief ... [TJherefore, his application is denied.” (Order of 2/3/83). Appellant then filed the instant appeal.

The first issue which we must resolve is whether the court below properly denied appellant’s PCHA petition, without appointment of counsel or an evidentiary hearing. The applicable provision of the PCHA, 42 Pa.C.S.A. § 9551, provides:

§ 9551, Pauper petitions.
(a) General rule. — If the petition alleges that the petitioner is unable to pay the costs of the proceeding, the court may order that the petitioner be permitted to proceed as a poor person and order a transcript of the proceedings delivered to the petitioner.
(b) Appointment of counsel. — If the petitioner is without counsel and alleges that he is without means to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested and the court is of the opinion that a hearing on the petition is so required, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel. The appointment of counsel shall not be required if the petitioner’s claim is patently frivolous and without trace of support in the record____

(Emphasis added). Thus, under the provisions of the Act, the lower court may deny counsel if the petition presents an obviously meritless claim. The Act conflicts, however, with Rules 1503 and 1504 of the Pennsylvania Rules of Criminal Procedure, which provide in part:

Rule 1503. Appointment of counsel.
(a) Except as provided in Rule 1504, when an unrepresented petitioner satisfies the court that he is unable to procure counsel, the court shall appoint counsel to represent him.
Rule 1504. Summary dispositions.
Appointment of counsel shall not be necessary and petitions may be disposed of summarily when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he either was afforded the opportunity to have counsel appointed or was represented by counsel in proceedings thereon.

(Emphasis added). In short, according to the Rules, counsel must be appointed unless the court determines that the issues raised have been previously litigated. The conflict between Section 9551 and Rule 1504 is resolved by Rule of Criminal Procedure 1507, which provided that the Post-Conviction Hearing Act is suspended insofar as it is inconsistent with the Rules. Our courts have previously held that the necessary factors listed in Rule 1504 prevail over those set forth in Section 9551, and that a pro se petition for post-conviction relief may not be summarily dismissed unless “a previous petition involving the same issue or issues has been finally determined adversely to the petitioner” in a counseled proceeding or one which he knowingly waived his right to assistance of counsel. Commonwealth v. Finley, 497 Pa. 332, 334, n. 1, 440 A.2d 1183, 1184, n. 1 (1981); Commonwealth v. O’Nealel, 315 Pa.Super. 1, 6, 461 A.2d 318, 320 (1983). The proper procedure is for the trial judge to make a determination as to the indigency of the petitioner, and, if petitioner is found to be indigent, the trial judge should appoint counsel to assist in the preparation of an amended petition under the Act. Commonwealth v. Finley, supra; Commonwealth v. Adams, 465 Pa. 389, 350 A.2d 820 (1976). “It is not determinative that the issues raised in the pro se petition were considered by the court to lack arguable merit. Only after counsel has had an opportunity to review and amend the petition should a decision be made as to whether to grant a hearing.” Commonwealth v. O’Nealel, 315 Pa.Super. 1, 6, 461 A.2d 318, 320-321 (1983). The failure to appoint counsel for a petitioner who alleges indigency is reversible error, where the issues raised have not been previously decided in a counseled proceeding. See Commonwealth v. Davis, 328 Pa.Super. 321, 476 A.2d 1351 (1984); Commonwealth v. Hicks, 321 Pa.Super. 545, 468 A.2d 1123 (1983); Commonwealth v. Note, 319 Pa.Super. 593, 466 A.2d 703 (1983), aff'd. per curiam, 506 Pa. 432, 485 A.2d 766 (1984). Reversal for failure to appoint counsel is necessary regardless of whether the current petition is appellant’s first or is one of a number of petitions. See Commonwealth v. Miller, 325 Pa.Super. 163, 472 A.2d 698 (1984); Commonwealth v. Cochran, 261 Pa. Super. 236, 396 A.2d 375 (1978).

On appeal, the Commonwealth asserts that the current petition is appellant’s second PCHA petition. The Commonwealth further argues that, since appellant previously raised allegations of ineffectiveness in his direct appeal, “the general issue of ineffectiveness has been finally litigated” (Commonwealth’s brief at 11), and counsel therefore need not be appointed. We disagree. A petitioner alleging ineffectiveness of counsel is not barred from seeking relief under the Act merely because he has previously unsuccessfully asserted an ineffectiveness claim, so long as the specific allegation of ineffectiveness has not previously been litigated. See for example, Commonwealth v. Wat-lington, 491 Pa. 241, 420 A.2d 481 (1980).

In summary, the lower court erred in denying appellant’s petition without first determining whether counsel should be appointed. We therefore vacate the Order denying the petition and remand to the court below. The trial court shall determine whether appellant is unable to procure counsel, and shall appoint counsel if necessary. If the court appoints counsel, appellant must be permitted to amend his petition with the aid of counsel before the court determines whether appellant is entitled to an evidentiary hearing on his petition.

One further issue remains. Appellant also appealed from the Order denying his motion to recuse the trial judge from considering the petition. A party alleging that the judge should have been disqualified must produce some evidence of the necessity for that disqualification, in order to prevail on appeal from an order denying a recusal motion. Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976); Commonwealth v. Baker, 299 Pa.Super. 241, 445 A.2d 544 (1982). In the instant case, appellant’s affidavit in support of the recusal motion contained only general allegations that the judge had made previous rulings adverse to the appellant, and was therefore somehow biased against him. These vague and patently frivolous assertions are not sufficient to support a claim of bias or prejudice. See Commonwealth v. Council, 491 Pa. 434, 421 A.2d 623 (1980); Commonwealth v. Baker, 299 Pa.Super. 241, 445 A.2d 544 (1982). The Order denying appellant’s recusal motion is therefore affirmed.

The Order denying appellant’s PCHA petition is vacated and the case is remanded for appointment of counsel. The Order denying the recusal motion is affirmed. Jurisdiction relinquished.

CAVANAUGH, J., joins in this opinion.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

Although I heartily join Judge Kelly’s decision affirming the lower court’s denial of the recusal motion, I am, however, reluctant to concur with his decision to remand this case for a determination of appellant’s indigence. If it were not for appellant’s claim of “layered” ineffectiveness of counsel, I would be compelled to affirm the trial court decision since it appears that the arguments raised in the present PCHA petition were either finally litigated or waived with respect to trial counsel’s representation. 42 Pa.C.S.A. Sec. 9541 et seq.; Pa.R.Crim.P. 1501 et seq.; see also, Commonwealth v. El-Amin, 321 Pa.Super. 46, 467 A.2d 886 (1983) (Cercone, P.J.). Moreover, those issues of trial counsel’s ineffectiveness which were not raised by his then newly appointed appellate counsel are deemed waived. Commonwealth v. Thomas, 335 Pa.Super. 323, 484 A.2d 155 (1984).

I, as well as this Court, look with disapproval upon a defendant’s efforts to obtain relief from criminal convictions by abusing ineffective assistance of counsel claims where counsel clearly has provided reasonable and conscientious legal services. Commonwealth v. Hudson, 336 Pa.Super. 174, 485 A.2d 487 (1984).

      . 42 Pa.C.S.A. § 9541 et seq.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 3925.

      . 18 Pa.C.S.A. § 903.

      . N.T. 7/3/80, p. 4.

      . The lower court stated that it had denied appellant’s request to withdraw the earlier PCHA petition. Appellant claims that he never received word that his request was denied. No Order denying the request is contained in the Record.

      . After filing the instant appeal, appellant filed a petition for appointment of counsel in this Court. This petition was referred to the lower court for disposition. One day later, the lower court denied the petition without a hearing. Appellant therefore continues to proceed pro se in this appeal.