author: HOFFMAN, Judge.

text:
    565 A.2d 770
    COMMONWEALTH of Pennsylvania v. Frank NELLOM, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 15, 1989.
    Filed Aug. 29, 1989.
    Reargument Denied Nov. 13, 1989.

      Mitchell S. Strutin, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from a judgment of sentence for rape and involuntary deviate sexual intercourse. Appellant contends, inter alia, that the trial court erred in (1) granting the Commonwealth an extension of time under Pa.R.Crim.P. 1100, and (2) ruling that appellant’s character witness could be cross-examined as to her knowledge of his prior robbery conviction. For the following reasons, we agree with appellant's second contention and, accordingly, we vacate the judgment of sentence and remand for a new trial.

On March 28, 1987, appellant was arrested for robbery, rape, and involuntary deviate sexual intercourse arising out of an incident at the Pleasure Chest, an adult boutique in Philadelphia. On October 20, 1987, appellant was convicted by a jury of robbery, but because the jury was “hopelessly deadlocked” on the remaining charges, a mistrial was declared on those charges. Following the denial of appellant’s post-trial motions on the robbery charge, he was sentenced to a one-to-four-year term of imprisonment.

Appellant’s retrial on the rape and IDSI charges was initially listed for December 14, 1987. The trial was continued a number of times, and, on March 2, 1988, the Commonwealth filed a petition to extend the date for retrial pursuant to Rule 1100(c)(1). The court delayed decision on the petition until the time of trial. Appellant came to trial on May 9, 1988, and a hearing was held on the Commonwealth’s petition. On that same day, the court granted the petition, the run date was extended to June 1, 1988, and appellant proceeded to trial. On May 10, 1988, following a trial by jury, appellant was found guilty of rape and IDSI. Post-verdict motions were filed and denied. On October 12, 1988, appellant was sentenced to an aggregate term of imprisonment of twelve-to-thirty years. On October 18, 1988, appellant filed a Petition for Reconsideration of Sentence. This appeal followed the denial of the petition with present counsel appointed to replace trial counsel.

Initially, appellant contends that the trial court erred in granting the Commonwealth’s petition for an extension of time pursuant to Pa.R.Crim.P. 1100. Appellant notes that, under Rule 1100(e)(1), the Commonwealth had 120 days in which to bring him to trial. Appellant argues that, because a new trial did not commence until May 9, 1988, well beyond the February 16, 1988 mechanical run-date, and because the Commonwealth did not prove due diligence in bringing him to trial pursuant to Rule 1100(c)(3), he is entitled to be discharged. The Commonwealth, on the other hand, maintains that they were properly granted an extension because the undisputed evidence in the record establishes that they were duly diligent in proceeding to try appellant because the delays beyond the 120 days were caused by appellant’s requested continuance, his failure to be brought down, and judicial backlog. We agree.

In Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), our Supreme Court stated:

[T]he trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Id., 469 Pa. at 222, 364 A.2d at 1349-1350. The Commonwealth has the burden of showing, by a preponderance of the evidence, that it has met the due diligence requirements of Rule 1100(c). Commonwealth v. Byrd, 325 Pa.Super. 325, 331, 472 A.2d 1141, 1145 (1984). Moreover, in reviewing the trial court’s ruling, this court must consider only the Commonwealth’s evidence and so much of appellant’s evidence, as read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Hollingsworth, 346 Pa.Super. 199, 206, 499 A.2d 381, 384 (1985), allocatur denied, 515 Pa. 575, 527 A.2d 536 (1987).

At the hearing on the petition to extend the time of retrial, the Commonwealth moved the Quarter Sessions file into evidence. Appellant failed to introduce any evidence to challenge the accuracy of the facts contained in the Quarter Sessions file. It is well-settled that “a finding of due diligence may be based entirely on judicial notice taken by the hearing court of facts contained in uncontested notations in court records.” Id. 346 Pa.Super. at 213, 499 A.2d at 387. See also Commonwealth v. Lafty, 333 Pa.Super. 428, 482 A.2d 643 (1984) (due diligence established by notations in court record); Commonwealth v. Byrd, 325 Pa.Super. 325, 472 A.2d 1141 (1984) (due diligence and judicial delay established by notations in Quarter Sessions file moved into evidence by Commonwealth). The Quarter Sessions file and record reveal the following facts.

The retrial was initially listed for December 14, 1987. At a pre-trial listing on December 2, 1987, the calendar judge continued the case until January 6, 1988, pending disposition of post-trial motions and sentencing on the robbery charge. The court also certified January 6, 1988, as the earliest possible date consistent with the court’s business. At the request of appellant’s counsel, on January 6, 1988, the court continued the case to February 9, 1988, so that counsel could obtain the notes of testimony from the first trial. Accordingly, the mechanical run-date of February 16, 1988 was automatically extended thirty-four days to March 22, 1988. See Commonwealth v. Sanders, 380 Pa.Super. 78, 84, 551 A.2d 239, 242 (1988); Pa.R.Crim.P. 1100(d)(3)(ii).

On February 9, 1988, the last listing before the extended run-date, appellant was sentenced on the robbery charge. The court then listed the remaining charges for trial on April 27, 1988, certifying it as the earliest possible date (EPD). Because the case was scheduled for the earliest possible date consistent with the court’s business, this time is not chargeable to the Commonwealth. See Commonwealth v. Byrd, supra. On April 27, 1988, the court further continued the case to May 2, 1988, certifying that date as the earliest possible date. This continuance was ordered because, although a “bringdown order” had been issued for appellant’s appearance, he was not brought down from the Graterford State Correctional Institution. Likewise, on May 2, 1988, the court continued the case to May 6, 1988, because, although a writ had been issued for appellant’s appearance, he again was not brought down. The court certified May 6 as the earliest possible date. Because the May 2 and May 6, delays resulted despite the issuance of a bringdown and a writ for appellant’s appearance, they are not chargeable to the Commonwealth. See Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983) (due diligence exercised notwithstanding delay caused by failure of court’s warrant service to serve bench warrant on appellant); Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983) (no rule 1100 violation where delay caused by trial coordinator’s failure to prepare revised “bringdown” order). The record reveals that the final continuance from May 6, to May 9, 1988, was caused by excludable judicial delay, because the assigned judge was then engaged in a jury trial. See Commonwealth v. DeBooth, 379 Pa.Super. 522, 531, 550 A.2d 570, 575 (1988). Accordingly, because each continuance after the extended run-date of March 22, 1988 was caused either by appellant’s failure to appear despite the Commonwealth’s diligence or judicial delay, the trial court properly granted the Commonwealth’s petition for extension of time. See Commonwealth v. Gibbons, 379 Pa.Super. 285, 549 A.2d 1296 (1988).

Appellant next contends that the trial court erred in ruling that his character witness could be cross-examined regarding appellant’s previous conviction for robbery, which arose out of the same incident as the sexual offenses for which he was being tried. Appellant argues that the court’s ruling denied him his right to present evidence of good character. Appellant’s offer of proof on this issue, and the trial court’s ruling, occurred during the following exchange:

Mr. Mallon [appellant’s counsel]: Judge, I have a character witness and I just wanted to make it clear that in the first trial in this matter, that this man was convicted of one of the charges. And obviously, that ought not to be a subject of cross-examination of a character witness, since it is the same incident.
Mr. Sax [prosecution]: I strenuously disagree. The defendant’s reputation is different once he has been convicted of a crime of crimen falsi. Obviously that conviction is not admissible generally. And I have no intention of telling them that, that is why I didn’t ask him what the jury did in this other case. This reputation that is going to come in, I want to know if the other members of the community know about his robbery conviction.
Mr. Mallon: I object. It is the same incident. The question is whether this incident happened. And his testimony is he is innocent. The jury should know aside from the allegations this woman made against him, his reputation—
THE COURT: The questions are not what caused his reputation six months now [sic], it is what is his reputation now.
Mr. Mallon: Your Honor is ruling — that may be his position. You are ruling that he is allowed to cross-examine him about the fact that he was convicted in this very same case?
THE COURT: Yes, on the robbery.
Mr. Mallon: I strenuously object to that.
Mr. Sax: I wouldn’t say from the same case. I will say robbery—
Mr. Mallon: Well,____It is the very same case. I won’t call the witness under those circumstance[s]. But I will take an exception.
THE COURT: Very well.

N.T. May 10, 1988, at 168-69.

Appellant maintains that when a character witness testifies, that witness should be subject to cross-examination only about convictions that arose out of offenses occurring prior to the commission of the alleged offense. Because the trial court would have allowed questioning regarding a robbery that was part of the same episode as the instant offenses, appellant submits that its ruling was erroneous, and that it deprived him of his ability to present character evidence. The Commonwealth, on the other hand, would have us conclude that even though the robbery charge arose out of the same criminal incident as the sexual offenses, the mere fact that a conviction was obtained on the robbery charge prior to the retrial on the sexual offenses renders it a prior conviction for purposes of impeaching a character witness. We believe that the Commonwealth’s approach misconstrues the purpose and scope of character evidence.

Pennsylvania courts have long recognized the importance of character or reputation evidence in criminal trials. The purpose of this evidence is to show that the accused possesses character traits that are at odds with the alleged criminal behavior. As we noted in Commonwealth v. Luther, 317 Pa.Super. 41, 463 A.2d 1073 (1983):

Such evidence has been allowed on a theory that general reputation reflects the character of the individual and a defendant in a criminal case is permitted to prove his good character in order to negate his participation in the offense charged____ The rationale for the admission of character testimony is that an accused may not be able to produce any other evidence to exculpate himself from the charge he faces except his own oath and evidence of good character.

Id., 317 Pa.Superior Ct. at 49, 463 A.2d at 1077 (citations omitted); see also Pa.Stand.Jury Inst. § 3.06(3) (“The law recognizes that a person of good character is not likely to commit a crime which is contrary to his nature.”) A defendant who presents character testimony runs certain risks, however, character witnesses, like other witnesses, can be subjected to cross-examination. See Commonwealth v. Scott, 496 Pa. 188, 195, 436 A.2d 607, 611 (1981). Such cross-examination may include questions regarding the defendant’s prior convictions for crimes involving the relevant character trait. See id.; see also Commonwealth v. Vander Weele, 356 Pa.Super. 152, 157-58, 514 A.2d 189, 191 (1986). The purpose of this type of impeachment is to test the accuracy and completeness of the witness’s knowledge of the defendant’s reputation. Commonwealth v. Scott, supra, 496 Pa. at 192, 436 A.2d at 609; see also Commonwealth v. Peterkin, 511 Pa. 299, 318, 513 A.2d 373, 382-83 (1986) (“a character witness may be cross-examined regarding his knowledge of particular acts of misconduct by the defendant to test the accuracy of his testimony and the standard by which he measures reputation.”); Commonwealth v. Hammond, 308 Pa.Super. 139, 149, 454 A.2d 60, 65 (1982); Commonwealth v. King, 287 Pa.Super. 105, 108, 429 A.2d 1121, 1122-23 (1981). It is settled that evidence of a defendant’s character must relate to his reputation “at or about the time the offense was committed.” E.g. Commonwealth v. Luther, supra, 317 Pa.Superior Ct. at 50, 463 A.2d at 1077-78; see also Commonwealth v. White, 271 Pa. 584, 587, 115 A. 870, 872 (1922); McCormick, Handbook on the Law of Evidence, § 191, at 456 (2d Ed.1972) (character at time of alleged crime bears mostly on inference of innocence or guilt — reputation evidence confined to reputation at that time or reasonable time before).

Here, appellant’s character witness would have testified to the fact that, at the time the criminal episode occurred, his reputation in the community was that of a nonviolent, peaceful person. The inference that appellant wanted to raise was that because he had a good character, it was not likely that he committed the offenses complainant said he did. The Commonwealth could have cross-examined the character witness to show that his knowledge of appellant reputation was unreliable or incomplete. Evidence of the subsequent robbery conviction, however, would not in anyway call into question the reliability of the character witness’s testimony because, at the time the sexual offenses were allegedly committed, his reputation did not include a conviction for robbery. This is so, because the relevant time period that the witness would be speaking to only would include the time period up until the occurrence of the alleged offenses. Therefore, the trial court's ruling allowing the prosecutor to challenge the witness’s reputation testimony, by focusing on the robbery conviction, which arose out of an incident contemporaneous with the sexual offenses, and in no way was relevant to impeach the accuracy of the character witness’s testimony, was erroneous.

Finally, we find that the court’s ruling was not harmless error. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). In Pennsylvania, the importance of good character evidence is well-recognized. “[E]vidence of good character is to be regarded as evidence of substantive fact just as any other evidence tending to establish innocence and may be considered by the jury in connection with all of the evidence presented in the case on the general issue of guilt.” Commonwealth v. Luther, supra, 317 Pa.Superior Ct. at 49, 463 A.2d at 1077. Character evidence is substantive and positive evidence, not a mere “make weight” to be considered in a doubtful case. Id. (quotation and citation omitted). Our Supreme Court recently reaffirmed the importance of character evidence, holding that, when evidence of good character has been presented, the trial court must instruct the jury that “character evidence may, in and of itself, (by itself or alone) create a reasonable doubt of guilt and, thus, require a verdict of not guilty.” Commonwealth v. Neely, 522 Pa. 236, -, 561 A.2d 1, 3 (1989). See also Commonwealth v. Tenbroeck, 265 Pa. 251, 108 A. 635 (1919); Commonwealth v. Luther, supra.

The primary issue for the jury in this case was whether there had been forcible rape or consensual sexual intercourse. The jury, therefore, had to decide between the complainant’s credibility and appellant’s. Evidence of appellant’s good character was crucial because it was the only evidence that corroborated appellant’s claim of innocence.

“In a case ... where intent and credibility are decisive factors leading together acquittal or conviction, the accused’s reputation is of paramount importance. Indeed, evidence of good character may, in spite of all evidence to the contrary, raise a reasonable doubt in the minds of the jury.” Commonwealth v. Shapiro, 223 Pa.Super. 15, 19-20, 297 A.2d 161, 163 (1972).

Commonwealth v. Luther, supra, 317 Pa.Superior Ct. at 50, 463 A.2d at 1077. See also Pennsylvania Suggested Standard Criminal Jury Instructions § 3.06(3) (Evidence of good character may by itself raise a reasonable doubt of guilt and justify a verdict of not guilty); See also Commonwealth v. Neely, supra. Because appellant’s credibility was a central issue in the trial, and because of the importance of character testimony in such a case, we cannot conclude that the trial court’s error was harmless.

For the foregoing reasons, we find that the trial court erred in ruling that the Commonwealth could impeach appellant’s character witness with his robbery conviction arising out of the same incident, and thereby prevented appellant from presenting character evidence. Accordingly, we vacate the judgment of sentence and remand for a new trial.

Judgment of sentence vacated and case remanded for a new trial.

      . Appellant also contends that the trial court erred in (3) improperly charging the jury on the definition of forcible compulsion; (4) permitting the Commonwealth to introduce evidence contradicting appellant’s exculpatory version of events; and (5) refusing to conduct a more extensive inquiry into the racial biases of potential jurors. Additionally, he claims that (6) the prosecutor improperly used his peremptory challenges to strike blacks from the jury panel; (7) his sentence was excessive, and (8) trial counsel was ineffective for failing to (a) object to the prosecutor’s cross-examination of him concerning the truthfulness of his testimony; and (b) raise in post-trial motions the issue of the trial court permitting him to be tried in prison clothing. Because of our disposition of appellant’s second claim, we need not address these issues.

      . The court directed that this term was to run consecutive to the sentence imposed earlier on the robbery charge.

      . When the mistrial was declared on October 20, 1987, Rule 1100 provided, in relevant part:
      (e)(1) When a trial court has granted a new trial and no appeal has been perfected, a new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial.

        Id. at 1100(e)(1).

      . Rule 1100(c)(3) provided, in relevant part:
      (3) Such [Commonwealth motion for extension] shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.

        Id. at 1100(c)(3).
      Rule 1100 was amended on December 31, 1987, and again on September 30, 1988. Appellant’s sole argument is that the Commonwealth failed to prove its due diligence in bringing him to trial. This argument is premised on Rule 1100(c) as it existed prior to December 31, 1987. The December 31, 1987 version of the Rule makes no express provision allowing the Commonwealth to prove due diligence. Because appellant makes no argument concerning the applicability of the December 31, 1987 amended rule to his case, we will limit our discussion to the rule before the December 31, 1987 amendment.

      . Rule 1100(d)(3) states in relevant part:
      (d) In determining the period for commencement of trial, there shall be excluded therefrom:
      ******
      (3) such period of delay at any stage of the proceedings as results from:
      (i) the unavailability of the defendant or his attorney:
      (ii) any continuance granted at the request of the defendant or his attorney.

      . We note that the Commonwealth need not establish its due diligence for the listings that preceded the final listing before expiration of the mechanical run-date. Commonwealth v. Hollingsworth, 346 Pa.Super. 199, 499 A.2d 381 (1985); Commonwealth v. Burke, 344 Pa.Super. 288, 496 A.2d 799 (1985).

      . Our research has revealed no case on whether a prior conviction is determined by the date of the offense or the date of conviction in the context of character evidence.

      . We note that many jurisdictions have held that reputation evidence may not rebutted with convictions that occurred subsequent to the offense presently charged. See Lawrence v. State, 441 So.2d 1021, 1025-26 (Ala.Cr.App.1983) (proper cross-examination of character witness does not encompass misconduct after commission of offense charged); State v. Rivera, 612 P.2d 526 (Haw. 1980) (point in time at which accused’s character for peacefulness and nonviolence would be relevant is at time of or prior to date of commission of alleged offense); White v. State, 290 So.2d 616, 618 (Miss. 1974) (state not allowed to cross-examine character witness as to any misconduct allegedly committed by accused subsequent to date of the crime for which accused was being tried); State v. Carson, 239 S.W.2d 532, (Mo.1951) (character witnesses may be cross-examined to test good faith and credibility for acts imputed to defendant occurring before date of offense for which he is on trial); State v. Howard, 57 Ohio App.2d 1, 385 N.E.2d 308, 314 (1978) (error to permit state to impeach with character at subsequent period when good character evidence offered concerned period prior to and up to commission, of alleged offense); 5 Wigmore, Evidence § 1618 at 594-598 (Chadbourn rev. 1974). According to these states, the relevant inquiry is the defendant’s reputation at the time the alleged offenses took place and not at the time of trial.

      . We find further support for our conclusion by looking to the analogous context of computing prior record scores for sentencing purposes. In this area, both the legislature and the courts have had occasion to construe the term "prior conviction.” The 1988 sentencing guidelines state that "prior conviction” means "previously convicted” as defined in 42 Pa.C.S.A. § 2154(a). See 204 Pa.Code § 303.7, reprinted following 42 Pa.C.S.A. § 9721(e) (Purdon’s 1982 & Supp. 1989). 42 Pa.C.S.A. § 2154(a)(2), in turn, defines "previously convicted” as follows:
      (g) ... for purposes of this section “previously convicted' or "adjudicated delinquent" shall include any finding of guilt or adjudication of delinquency whether or not sentence has been imposed or disposition ordered prior to the commission of the current offense.

        Id. at § 2154(a)(2). This definition is substantially similar to that contained in the prior sentencing guidelines. See Commission on Sentencing § 303.7 (1982). In construing the prior guidelines, this court repeatedly has stated that the focus is on the time the criminal episode was committed and not the time of conviction for separate component offenses. See Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942 (1987) (three criminal convictions part of single contiguous train of criminal events with no substantial break in criminal activity, thus making defendant’s prior record score zero under sentencing guidelines), appeal denied, 516 Pa. 640, 533 A.2d 712 (1988); Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d 435 (1986) (prior convictions must precede commission of principal offense to be included in prior record score calculations) (emphasis added), allocatur granted, 514 Pa. 617, 521 A.2d 932 (1986) appeal dismissed, 517 Pa. 406, 537 A.2d 1370 (1987); but see Commonwealth v. Phillips, 374 Pa.Super. 219, 542 A.2d 575 (1988).

      . The Commonwealth argues that limited information concerning the robbery conviction could have been introduced, as long as there was no mention that it was the same incident. The Commonwealth suggests that such a procedure would minimize prejudice. We disagree. The impact on the appellant would have been no less prejudicial if the prosecutor had introduced the robbery conviction and not disclosed to the jury that the robbery conviction arose out of the same incident. The jury then would be free to infer from the evidence that appellant had engaged in violent criminal behavior on a prior unrelated occasion. Permitting such an inference would expose appellant to the risk of conviction because the jury believed he was predisposed to commit violent crimes.


source: Caselaw Access Project

author: JOHNSON, Judge. DEL SOLE, Judge, BECK, Judge, POPOVICH, Judge,

license: Public Domain

text:
    565 A.2d 777
    COMMONWEALTH of Pennsylvania v. Stephen BARNES, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 20, 1988.
    Filed Oct. 30, 1989.

      Val P. Wilson, Philadelphia, for appellant.
    Joann Verrier, Asst. Dist. Atty., Philadelphia, for Com.
    Before CIRILLO, President Judge, and BROSKY, McEWEN, DEL SOLE, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   JOHNSON, Judge.

Stephen Barnes was convicted of robbery, criminal conspiracy and possessing instruments of crime. The Honorable Marvin R. Halbert heard and denied post-trial motions. Judge Halbert sentenced Barnes to serve an aggregate term of fifteen to thirty years’ imprisonment.

Barnes appealed, raising numerous allegations of trial court error. The appeal was submitted on briefs. Prior to a decision, this court ordered argument of the case before the court en banc to consider whether the Career Criminal Program of the Philadelphia County District Attorney’s Office was constitutionally valid despite the Commonwealth’s failure to demonstrate the existence of established guidelines governing inclusion in the program and that appellant fell within any such guidelines.

This appeal was scheduled along with Commonwealth v. Simmons, 388 Pa.Super. 271, 565 A.2d 481 (1989), to consider the issue presented in both appeals relating to the Career Criminal Program. In deciding the Simmons appeal, we concluded that the defendant’s right to a non-jury trial under Pa.R.Crim.P. 1101 had not been violated and that the trial judge had not abused his discretion in rejecting a motion for recusal. We further concluded that the broad issue of the viability of the Career Criminal Program, and the review and evaluation of procedural program guidelines is beyond the appellate jurisdiction of this court. Commonwealth v. Simmons, supra.

On this appeal, Barnes challenges his trial in the Career Criminal Program, conceding that the program itself is constitutionally permissible. Barnes claims that he was entitled to a hearing at which the Commonwealth would have been required to provide the criteria governing assignments to the program and to prove that defendant met the criteria for inclusion. In fact, Barnes did have a hearing on the career criminal aspect of his omnibus pre-trial motion dated October 2, 1986. N.T., dated October 2, 1986, pages 5 — 23. Judge Halbert found no prejudice to defendant Barnes as a result of his inclusion in the program. At argument on post-verdict motions, counsel for Barnes was again invited by the court to submit evidence of prejudice arising from Barnes’ inclusion in the Career Criminal Program. Court-appointed counsel, Van Pleet Wilson, responded thusly:

Mr. Wilson: The prejudice is that, frankly, there are a lot of judges who are quite irresponsible and who don’t sentence properly and we were deprived of our right to go in front of those irresponsible judges. That sounds cynical, but that’s how it is in this city.
The Court: We are not talking about the sentencing posture. We are talking about acting as a referee, as I did, at the trial level. What was the prejudice?
Mr. Wilson: Your Honor, again, I don’t see any prejudice to the factual determination of guilt or innocence. I think you conducted a very fair trial.

N.T. dated February 18, 1987, page 9.

In the Argument section of Barnes’ Brief for Appellant, he presents a consolidation of his first five questions on appeal as follows:

THE PLACEMENT OF APPELLANT INTO THE CAREER CRIMINAL PROGRAM WITHOUT A HEARING WAS ERROR, THE DENIAL OF APPELLANT’S REQUEST FOR A HEARING WAS ERROR, THE REFUSAL OF THE PROSECUTOR TO DIVULGE THE CAREER CRIMINAL GUIDELINES WAS ERROR AND A VIOLATION OF THE TRIAL JUDGE’S ORDER TO DO SO, THE PROCEDURAL APPLICATION OF THE CAREER CRIMINAL PROGRAM IN THE INSTANT CASE WAS ERROR AND ALL OF THE ABOVE WERE VIOLATIONS OF THE CONSTITUTION, DUE PROCESS OF THE LAW AND EQUAL PROTECTION OF THE LAW.

Brief for Appellant, page 7.

Both at the hearing, pre-trial, on Barnes’ motion to declare the Career Criminal Program null and void and at the argument upon post-trial motions, the distinguished trial judge invited Barnes’ counsel to submit evidence of the prejudice suffered by Barnes as a result of his inclusion in the program. The only prejudice apparent from the record is, in the words of Barnes’ counsel, denial of the right to appear before a “quite irresponsible” judge who would not sentence Barnes “properly.” Our careful review of the record does not disclose any error by Judge Halbert in denying both the pro se Motion to Delcare [sic] the Career Criminal Program Null and Void filed September 19, 1986 and the Motion to Exclude Petitioner from the Career Criminal Program and Challenge to Same filed along with the Post-Verdict Motions on February 26, 1987. Since we have determined, in Commonwealth v. Simmons, supra, that the review and evaluation of the program guidelines is beyond our appellate review powers, we reject the first five questions presented on this appeal as subsumed in appellant’s first argument.

At Questions 6 through 9, Argument Section II, Barnes argues that Judge Halbert committed error in denying Barnes’ Petition to Reconsider Sentence and that the sentences are contrary to law. To the extent that we are asked to review the discretionary aspects of the sentence, we decline to do so. Barnes has not included in his brief a statement of reasons requiring review, and the Commonwealth has properly objected. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Moreover, the relief Barnes seeks — sentencing within the guideline range — has been removed from our consideration on this sentence by our supreme court’s decision in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987).

On the sentencing, we commend Judge Halbert for bringing to our attention the inadvertent sentencing of Barnes for two inchoate crimes, conspiracy and possession of an instrument of crime. Prior to February 9, 1987, a person could not be convicted of more than one offense defined by Chapter 9 of the Crimes Code for conduct designed to commit or to culminate in the commission of the same crime. 18 Pa.C.S. § 906. We therefore will accept Judge Halbert’s request, as joined in by Barnes, and vacate the sentence imposed on the possessing instruments of crime charge, while permitting the sentence imposed on the conspiracy charge to remain. Commonwealth v. Krysiak, 369 Pa.Super. 293, 535 A.2d 165 (1987), appeal denied, 518 Pa. 637, 542 A.2d 1366.

At Questions 10 through 12, Argument Section III, Barnes contends the evidence was insufficient and the verdicts were contrary to law and the weight of the evidence. Although this case involves an indoor robbery wherein all the criminal acts occurred inside the victim’s home, Barnes seeks to rely upon contradictions between weather bureau reports and the complainant’s testimony concerning outside weather conditions to argue that the victim’s testimony-should have been excluded. Barnes cites no authority for this proposition and we have not been referred to any. Our review of the trial testimony convinces us that the evidence at trial and the reasonable inferences deducible therefrom more than sufficiently support Barnes’ convictions.

Barnes raises additional issues in his Brief for Appellant, relating to (a) the refusal to charge on the lesser included offense of assault, (b) Pa.R.Crim.P. 1100, (c) voir dire, (d) the denial of severance, and (e) denial of pre-trial motions relating to the location of the parties in the courtroom and the order in which the parties opened and closed to the jury. There was no argument or brief filed before Judge Halbert on any of these issues and they are waived. Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983).

We find no merit to the contentions raised by Barnes on this appeal. The convictions for robbery, criminal conspiracy and possessing instruments of crime are affirmed. The judgments of sentence for robbery (10 to 20 years’ imprisonment) and conspiracy (5 to 10 years’ imprisonment, to run consecutively) are both affirmed. The judgment of sentence for possessing instruments of crime (2 to 5 years’ imprisonment, to run concurrently) is vacated. Jurisdiction is relinquished.

DEL SOLE, J., files a concurring opinion.

BECK, J., files a concurring statement.

TAMILIA, J., concurs in the result.

POPOVICH, J., files a concurring and dissenting opinion.

DEL SOLE, Judge,

concurring:

I write separately only to note my disagreement with the Majority’s decision declining to review the discretionary aspects of Appellant’s sentence. Citing to Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the Majority refuses Appellant’s request to have an appellate court review the discretionary aspects of his sentence because Appellant has not included in his Brief a statement of reasons requiring review, and because the Commonwealth has objected to this deficiency.

Such decisions permitting selective review of the discretionary aspects of a sentences find their basis in 42 Pa.C.S.A. § 9781(b). It provides:

Allowance of Appeal. — The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter. It is my view that § 9781(b), which limits appellate review

to those cases where a “substantial question” exists, is prohibited by Article 5, Section 9 of the Constitution of this Commonwealth. That Article states:

There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from and administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.
(emphasis added).

The Constitution provides a defendant in a criminal proceeding with a right to have all matters reviewed which have been properly preserved at the trial court level. This “right” directly conflicts with the appellate court’s ability under § 9781 to exercise its discretion in determining whether to “grant” an appeal from the discretionary aspects of a sentence. Citing to the Constitutional provision cited above the supreme court has stated:

[A]n accused has an absolute right to appeal, Pa. Constitution, Article V, Section 9, and counsel can be faulted for allowing that right to be waived unless the accused himself effectively waived the right____ This requirement that counsel protect the appellate right of an accused extends even to circumstances where the appeal is ‘totally without merit.’

Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477, 479 (1980). A defendant’s ability to have his or her sentence reviewed by an appellate court operates as a necessary check to ensure that an appropriate punishment has been issued. The important role discretion now takes at sentencing and its limitations have been examined by the supreme court. Referring to the substantial revisions which have taken place in sentencing procedures, the court in Commonwealth v. Martin, 466 Pa. 118, 351 A.2d at 650 (1976) remarked:

At one time, sentencing by a court after a finding of guilt was purely ceremonial, since there was but one penalty at law for any given crime. However, during the nineteenth century, when incarceration became the primary mode of punishment, the practice of discretionary sentencing began. At first this took the form of executive pardons, and the judge’s duty remained only to apply the sentence mandated by law. However, discretionary sentencing soon became an integral part of judicial procedure; the sentencing court had increasing discretion in its choice of sentence.
The importance of this discretion cannot be overemphasized; many commentators argue that it is one of the most important, and most easily abused, powers vested in the trial court today. In United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2d 722, 723 (1970), Judge Wilkey, speaking for the court, states:
‘What happens to an offender after conviction is the least understood, the most fraught with irrational discrepancies, and the most in need of improvement of any phase in our criminal justice system.’
It is true that the sentence imposed is normally left undisturbed on appeal because the trial court is in a far better position to weigh the factors involved in such a determination. However, we have held that the court’s discretion must be exercised within certain procedural limits, including the consideration of sufficient and accurate information.

466 Pa. at 128-132, 351 A.2d 650. (footnotes omitted.)

The power held by those who impose a discretionary sentence is not without limits. The Constitutional provision found in Article 5, Section 9 ensures that a defendant has a right to appeal. Although this right may be waived by the defendant’s own actions, it nevertheless remains the defendant’s right. Section 9781 appears, to me, to eliminate the right to appeal. For this reason, I believe 42 Pa.C.S.A. § 9781(b) violates Article 5, Section 9 of the Pennsylvania Constitution.

Because, in my view, the discretionary aspects of Appellant’s sentence are entitled to be reviewed by this court, I have undertaken such an examination. I have found nothing improper in the sentencing procedure employed and conclude that the sentencing judge considered appropriate factors and fashioned a sentence which did not constitute an abuse of discretion.

BECK, Judge,

concurring:

I concur in the result. I agree that appellant is not entitled to relief on the basis of his placement in the Career Criminal Program for the reasons specified in my concurring statement in Commonwealth v. Simmons.

POPOVICH, Judge,

concurring and dissenting.

I dissent to that portion of the Majority’s opinion that holds that this Court is without authority to entertain and examine a challenge to Philadelphia’s Career Criminal Program by the appellant, Stephen Barnes. The reasons for my belief to the contrary are fully set forth in the Dissenting Opinion by Popovich, J. in Commonwealth v. Simmons, 388 Pa.Super. 271, 565 A.2d 481 (1989).

For the lower court to have required that the appellant first offer evidence of prejudice in being included into the Career Criminal Program, in the absence of the appellant being privy to the criteria established by the District Attorney’s office, would have, of necessity, hampered the appellant’s ability to present a case in support of his contentions against the existence and/or implementation of a Program which operated without the benefit of the accused being cognizant of the conditions under which he qualified for inclusion in such a Program.

Such a unilateral enforcement of a program does little to promote the interests of the citizenry in this Commonwealth and of an accused in the operation of the judicial system. Rather, it creates a cloak of secrecy in that arm of the judicial system (the prosecution and, in this case, the judiciary) that should be at the forefront of “openness” in the administration of our system of justice.

Because there appears to have been, at least in this writer’s eyes, a breach of the “openness” spoken of and endorsed by our Supreme Court in Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985) and Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982), in regard to the operation of our criminal justice system, I must refrain from joining in the Majority’s condonation of the Philadelphia’s District Attorney’s “office practice”, see Dissenting Opinion by Popovich, J. in Commonwealth v. Simmons, supra, of not disclosing either the criteria examined in determining whether an accused is to be admitted into the Career Criminal Program or the reasons of the individual responsible for making such a determination being stated in record form so as to allow a challenge if one is so desired by a defendant.

For the reasons herein stated, I respectfully dissent to the Majority’s resolution of the Career Criminal Program issue.


author: JOHNSON, Judge. BROSKY, Judge, TAMILIA, Judge,

text:
    565 A.2d 782
    COMMONWEALTH of Pennsylvania v. Andrew W. HANCHARIK, Appellant.
    Superior Court of Pennsylvania.
    Argued June 19, 1989.
    Filed Oct. 27, 1989.

      Phillip B. Friedman, Bradford, for appellant.
    Robert L. Saunders, Bradford, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   JOHNSON, Judge.

On this appeal, we are asked to determine whether spousal incompetency to testify to confidential communications under 42 Pa.C.S. § 5914 is removed by virtue of the exceptions to such incompetency set forth in 42 Pa.C.S. § 5913. We hold that it is. Since this case involved violence done upon a minor child in the care or temporary custody of the defendant/husband, an enumerated exception found in § 5913, the wife was a competent witness against her husband. There being no merit, therefore, in the defendant/husband’s assertion on appeal that defense trial counsel was ineffective in failing to object to portions of the wife’s testimony, we affirm the judgment of sentence.

A jury convicted Andrew Hancharik of involuntary deviate sexual intercourse, indecent assault, and corruption of a minor. The Honorable John M. Cleland, President Judge, entertained Hancharik’s amended motions for new trial and in arrest of judgment, denied the same, and sentenced Hancharik to an aggregate term of six to fifteen years’ imprisonment. On this direct appeal, Hancharik advances three issues:

1. Alleged trial counsel ineffectiveness in failing to call readily available character witnesses;
2. Alleged court error concerning declaration of mistrial or cautionary instruction relating to testimony about conversations between both spouses and a marriage counsel- or; and
3. Alleged trial counsel ineffectiveness with respect to wife’s testimony as to confidential communications.

At issue 1, Hancharik contends that the key issue in the case was one of credibility. Trial counsel had been provided with a list of possible character witnesses, but did not call all of them. Hancharik contends that where credibility is the key issue, counsel’s failure to call all readily available character witnesses constitutes ineffective assistance of counsel. We do not agree.

Our supreme court, speaking through Mr. Justice Papadakos, has recently restated the standard to be applied in reviewing ineffectiveness claims:

We have taken great pains to set forth the criteria that must be established when one attempts to assert the ineffectiveness of counsel. The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim.... If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests.... Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him....
In making assertions of ineffectiveness, we also require that an offer of proof be made alleging sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This is so because we frown upon considering claims of ineffectiveness of counsel in a vacuum.

Commonwealth v. Durst, 522 Pa. 2, —, 559 A.2d 504, 505 (1989), (citations omitted).

As to the alleged failure to call character witnesses, the record is clear that defense counsel thoroughly discussed possible character evidence with Hancharik and, in fact, did call one individual on a list reviewed by counsel. Not only was the decision not to call all of the witnesses made only after careful deliberation and consultation with Hancharik but the record does not establish that any of the witnesses would have been available or that their testimony would have advanced the fact-finding process. Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986), cert. denied, Peterkin v. Pennsylvania, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010, (1987); Commonwealth v. Flanagan, 375 Pa.Super. 497, 544 A.2d 1030 (1988).

We conclude that issue 1 is without merit.

At issue 2, Hancharik contends that a mistrial was mandatory following Hancharik’s wife’s testimony regarding a conversation between herself, Hancharik and a marriage counselor. During the Commonwealth’s case-in-chief, Mrs. Hancharik testified:

A After I got out of the hospital. I refused to leave the hospital unless he agreed to see a counselor with me and the doctor set it up and we seen her briefly before I was discharged on that Friday afternoon and she more or less told both of us all we needed to do was go home, have sex, everything was going to be fine in our marriage. He should forget about his relationship with [the minor victim], he could get in a lot of trouble. He at that point told the counselor that [the minor victim] liked to kiss him and she informed him he could go to jail for that.
MR. LANGELLA: I object.
THE COURT: Sustained.
MR. LANGELLA: I’d ask the court to instruct the jury to disregard any statement as to what the counselor apparently said.
THE COURT: I don’t know that the content came out. MR. SAUNDERS:
Q ....
A ....
Q ....
A ....
THE COURT: I will instruct the jury anything that the counsellor told Mr. Hancharik as part of the counseling session, that’s hearsay and not competent evidence and should not be considered by you.

Notes of Testimony, June 25, 1986, pages 49-50.

The trial court’s cautionary instruction, to the effect that the jury should not consider anything the counselor told Hancharik, was immediate, clear and adequate. Hancharik’s counsel did not move for mistrial when the testimony was presented. Nor does our review of the record disclose any reason of manifest necessity for declaration of a mistrial. We find no trial court error with regard to issue 2. Pa.R.Crim.P. 1118, Commonwealth v. Reardon, 374 Pa.Super. 212, 217, 542 A.2d 572, 574 (1988).

We turn now to issue 3, the alleged ineffectiveness of trial counsel with respect to wife’s testimony as to statements made by Hancharik to his wife. Hancharik contends ¿hat trial counsel was ineffective in failing to interpose objections, founded upon the spousal privilege, to the wife’s testimony that (a) Hancharik had informed her that he was desirous of adopting an older girl, (b) Hancharik had stated that he loved the minor victim very much and needed a daughter to complete the family, (c) Hancharik stated that he could only relax when the minor victim was around, and (d) there existed marital disharmony and a poor sexual relationship between herself and Hancharik. Hancharik relies upon 42 Pa.C.S. § 5914, which provides:

§ 5914. Confidential communications between spouses
Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.
Hancharik concedes that, under limited circumstances, a spouse will be permitted to testify against his or her mate in a criminal proceeding, wherein an act of violence by the defendant against a minor child in that defendant’s care is alleged. Prior to June 29, 1989, when the section was amended by Act No. 16 of 1989, 42 Pa.C.S. § 5913 provided:
§ 5913. Spouses as witnesses against each other
Except as otherwise provided in this subchapter, in a criminal proceeding husband and wife shall not be competent or permitted to testify against each other, except that in proceedings for desertion and maintenance, and in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them, each shall be a competent witness against the other, and except also that either of them shall be competent merely to prove the fact of marriage, in support of a criminal charge of bigamy alleged to have been committed by or with the other.

(emphasis added).

Hancharik argues that the competency exception contained in 42 Pa.C.S. § 5913 permits Mrs. Hancharik to take the stand, but she is not permitted to testify to confidential communications during marriage, by virtue of § 5914. He seemingly relies on dicta contained in a footnote in Commonwealth v. Rough, 275 Pa.Super. 50, 418 A.2d 605 (1980) to conclude that the removal of testimonial incompetency under the “violence” exception to § 5913 does not remove the incompetency barring a spouse from divulging the contents of confidential communications on the witness stand. We reject this contention.

In Commonwealth v. Rough, supra, the defendant-stepfather was convicted of rape and corrupting the morals of a minor. On appeal, he argued that the trial court erred in permitting the victim’s mother, his wife, to testify concerning a telephone conversation between the two of them. A third person had placed the telephone call, handed the telephone to the defendant, and remained in the vicinity during the phone conversation. Judge Gwilym A. Price, Jr., speaking for the three-judge panel of this court, found that the communication was not confidential inasmuch as the defendant evinced no concern about the presence of a third party and took no precautions against the reception of the contents of the conversation by the third party. 275 Pa.Super. at 64-65, 418 A.2d at 613. Judge Price went on to find that, even if the conversation should not have been admitted, it could not have contributed to the verdict and therefore must be classed as harmless error. Id.

The Rough case, therefore, cannot be viewed as holding that the privilege set forth in § 5914 overrides the exception set forth in § 5913, the judgment of sentence for rape in that case having been affirmed. In addressing the testimonial privilege, the following footnote is set forth in Rough:

6. There is no dispute that the absolute prohibition preventing one spouse from testifying against the other during coverture, codified in the Act of May 23, 1887.... [substantially re-enacted as 42 Pa.C.S. § 5913] is inapplicable due to an exception within the statute permitting testimony in proceedings involving violence against the minor child of either. Competency under this exception does not abrogate the general privilege concerning confidential communications made during marriage.

275 Pa.Super. at 64, n. 6, 418 A.2d at 612, n. 6.

We understand the footnote as indicating nothing more than this: when the exception is not applicable, the general privilege continues to be in effect.

The section upon which Hancharik relies, in seeking to exclude his wife’s testimony, § 5914, begins by pronouncing: “Except as otherwise provided in this subchapter ...” Common sense dictates that this is a clear reference to the preceding § 5913 and the following § 5915, dealing with spousal rebuttal testimony. Had the legislature intended to make the general spousal privilege concerning confidential communications overarching, it would have simply foregone the prefatory exceptions in §§ 5913 and 5915.

We find Commonwealth v. Nadolny, 163 Pa.Super. 517, 63 A.2d 129 (1949) to be strikingly similar to the case we now review. In Nadolny, the defendant had raped his sixteen-year old stepdaughter. At trial, the defendant sought to bar the testimony of his wife that the defendant had admitted commission of the offense to her. This admission was clearly a confidential communication between spouses. The trial court overruled the objection and permitted the testimony of the wife. The statute in effect at that time was the predecessor of 42 Pa.C.S. § 4913, namely 19 P.S. § 683.

The Nadolny en banc court properly assumed that the only issue to be decided was whether a consensual rape fit within the term “violence attempted, done or threatened.” The court stated:

We have no doubt that the mother of the victim is a competent witness against her husband in a criminal prosecution for statutory rape. If the offense were a common law rape, no question could arise.

163 Pa.Super. at 519, 63 A.2d at 130. (emphasis added). On this appeal, we shall follow Nadolny.

More recently, our court has held that not only is the spouse competent to testify in domestic violence cases, she or he may be compelled to testify. Commonwealth v. Hess, 270 Pa.Super. 501, 411 A.2d 830 (1979), appeal dismissed, 499 Pa. 206, 452 A.2d 1011 (1982).

The purpose of the exception found in 42 Pa.C.S. § 5913 is to protect spouses and minors from domestic violence. This protective policy clearly outweighs the marital harmony policy which underlies the general language found in this section and in § 5914. Packel & Poulin, Pennsylvania Evidence, § 601.2, pages 370-71. (West Publ., 1987).

Even more recently, our supreme court has had occasion to construe the language found in § 5913. In Commonwealth v. Scott, 516 Pa. 346, 532 A.2d 426 (1987), the supreme court reversed this court’s attempt to broaden the meaning in § 5913 to include violence to a non-family victim where, in the same criminal episode, a spouse or minor child had also been harmed or threatened, but no criminal proceeding had been brought on that spousal/child attempted violence. The appeal involved the husband’s conviction for taking the life of a non-family member. The supreme court held that the statutory exception does not apply where the criminal proceeding is solely for violence against a victim who is neither the spouse nor within the class of protected minors.

The court stated that, the legislature having spoken on the subject, the exceptions provided could not be supplemented by judicial fiat. 516 Pa. at 351, 532 A.2d at 429. The obverse is equally true. Where the exception is spelled out in clear and unmistakable terms, that language cannot be ignored or disregarded under the pretext of pursuing the statute’s spirit. Id., 1 Pa.C.S. § 1921(b).

We conclude that defense counsel cannot be found ineffective for failing to object to the wife’s testimony as to confidential communications, since 42 Pa.C.S. § 5913, as in effect at the time, was an express and complete exception to the spousal testimonial privilege on the facts of this case. The result is exactly the same under House Bill 570, now Act No. 16 of 1989, approved June 29, 1989.

Under Section 2 of Act 16, the act shall apply to all criminal cases pending on the effective date of the act which, under Section 3, took effect immediately upon passage. Although Act 16 converts spousal incompetency to testify into a waivable spousal privilege, the Act makes mandatory the testimony of a spouse where the defendant spouse is charged with murder, rape or involuntary deviate sexual intercourse, while continuing the lack of any privilege in matters involving bodily injury or violence to family members or minors. 42 Pa.C.S. § 5913, as now in effect, provides, in pertinent part:

§ 5913. Spouses as witnesses against each other
Except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege which he or she may waive, not to testify against his or her then lawful spouse except that there shall be no such privilege:
(1) ....
(2) in any criminal proceeding against either for ... violence attempted, done or threatened upon ... any minor child in their care or custody, or in the care or custody of either of them;
(3) ....
(4) in any criminal proceeding in which one of the charges pending against the defendant includes murder, involuntary deviate sexual intercourse or rape, [emphasis added].

The legislature, by enacting the amendments to 42 Pa.C.S. § 5913, has made it abundantly clear that a spousal privilege simply does not exist in criminal proceedings where violence has been done or threatened upon a minor child in the care or custody of the spouse/defendant or where the charge against the spouse is involuntary deviate sexual intercourse. Under no analysis, therefore, could it be said that an objection to the testimony of the wife based upon a spousal privilege would have had merit.

We have found no error in the manner in which Judge Cleland handled the wife’s testimony regarding conversations with the marriage counselor and defense trial counsel’s objection thereto. We conclude that trial counsel was not ineffective in his management of character witness testimony and that any objection to the wife’s testimony concerning the communications of the husband/defendant would have been meritless.

Accordingly, we affirm the judgment of sentence.

BROSKY, J., files a concurring opinion, in which CIRILLO, President Judge, joins.

TAMILIA, J., files a concurring opinion.

BROSKY, Judge,

concurring.

I concur in the majority’s analysis of Issues 1 and 2. I also concur in the majority’s ultimate finding that appellant is not entitled to relief pursuant to Issue 3. I write separately, however, to express my vehement disagreement with the majority’s analysis of Issue 3.

The charges against appellant stem from allegations made by a ten year old girl, Kathy Youmans, who was a frequent visitor to appellant’s household. According to Kathy, appellant forced her to perform oral sex upon him during a visit on Christmas, December 25, 1985, while appellant’s wife was sleeping in another room. As part of the Commonwealth’s case-in-chief, appellant’s wife testified that appellant had told her, prior to the alleged incident, that he was desirous of adopting an older girl to complete their family, that he loved Kathy very much, and that he could only relax when Kathy was around. She further testified that her sexual relationship with appellant had been poor for several years, and that appellant had threatened her in the past to leave his relationship with Kathy-alone and “let him do things his way”.

Appellant’s trial counsel did not object to these portions of the testimony of appellant’s wife. New counsel was appointed at the post-verdict stage, and trial counsel’s ineffectiveness in failing to object to this testimony was raised in post-trial motions. In its opinion, the trial court stated that the communications in question had not been of a confidential nature, and, even if confidential, fell within an exception to the usual ban against disclosure of such communications, thereby depriving appellant’s ineffectiveness claim of any underlying merit.

It is well settled that a convicted defendant may not prevail upon a claim of ineffective assistance of counsel unless he is able to demonstrate: (1) that the issue underlying the ineffectiveness claim is of arguable merit; and (2) that the course of action chosen by counsel had no reasonable basis, independent of hindsight, in the promotion of defendant’s interests. Commonwealth v. Brandt, 353 Pa. Super. 250, 253, 509 A.2d 872, 874 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Furthermore, assuming the defendant is able to meet this two-pronged test, he must then be able to demonstrate that the claimed ineffectiveness so prejudiced his defense that he did not receive a fair trial. Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985), aff’d 515 Pa. 153, 527 A.2d 973 (1987).

With respect to the underlying merit of appellant’s claim, the relevant statutory authority pertaining to the competency of spouses to testify is found at 42 Pa.C.S. § 5913 and § 5914, which state the following:

§ 5913. Spouses as witnesses against each other
Except as otherwise provided in this subchapter, in a criminal proceeding husband and wife shall not be competent or permitted to testify against each other, except that in proceedings for desertion and maintenance, and in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them, each shall be a competent witness against the other, and except also that either of them shall be competent merely to prove the fact of marriage in support of a criminal charge of bigamy alleged to have been committed by or with the other.
Sjc jj{ sjc Sjc $ $
§ 5914. Confidential communications between spouses.
Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.

(Emphasis supplied.)

In its opinion denying appellant’s ineffectiveness claim, the trial court held that: (1) the communications involved had not been confidential within the meaning of § 5914, and (2) in the alternative, even if confidential, the communications had been divulged as testimony in a criminal proceeding against appellant for “violence” to a minor in his custody, under the § 5913 exception to spousal incompetency. On the basis of this holding, the trial court found, as does the majority now, no underlying merit to appellant’s ineffectiveness claim. I disagree with that finding.

In Commonwealth v. Rough, 275 Pa.Super. 50, 418 A.2d 605 (1980), the defendant was charged with rape and corruption of the morals of his minor stepdaughter. At trial, the defendant’s wife testified to the contents of a telephone conversation in which the defendant had blamed his wife for his sexual assault of the minor victim. In its analysis of the nature of the applicable privilege, our Court stated the following:

The applicable privilege governing testimony by one spouse against another concerns confidential communications made during a marriage----
inapplicable due to an exception within the statute permitting testimony in proceedings involving violence against the minor child of either. Competency under this exception does not abrogate the general privilege concerning confidential communications made during marriage.

Rough, supra, at p. 612. (Emphasis supplied.)

While I do not dispute the finding that the “violence” exception to § 5913 removed the incompetency of appellant’s wife to give testimony, see Commonwealth v. Nadolny, 163 Pa.Super. 517, 63 A.2d 129, 130 (1949) (“violence” exception includes “physical defilement”), I take issue with the trial court’s, and the majority’s, view of the interrelationship between § 5913 and § 5914. The above footnote from Rough makes it patently clear that the removal of testimonial incompetency under the “violence” exception to § 5913, does not remove the incompetency barring a spouse from divulging the contents of confidential communications on the witness stand.

The majority finds any reliance upon the above language from Rough to be misplaced, and rejects the above analysis based upon the following beliefs: 1) the Rough footnote is both dicta, and a mere commentary that, when the “violence” exception is not involved, the general confidentiality privilege remains undisturbed; 2) such a reading of § 5913 and § 5914 flies in the face of the rules of statutory construction, defying the common sense meaning of the language therein; and 3) the above analysis sub silentio contravenes Nadolny, which is squarely on point and should be followed as the law. I shall address the majority’s concerns seriatim.

With respect to the precedential effect of the Rough footnote, the majority maintains, as a starting point, that, as the applicability of § 5914, and not § 5913, formed the basis of appellant’s claim, the reference to § 5913 was dicta, and in any event, consistent with the majority analysis.

On the contrary, I find the reference to have been part of a logical progression in the Superior Court’s competency analysis, as well as completely contradictory to the majority’s reading of the interplay between these two statutes.

If the majority’s position is correct, and the § 5913 “violence” exception to incompetency automatically dissolves all spousal incompetency, including the incompetency to testify to confidential communications, our Court would not have been required to resolve whether § 5914 applied to the conversation in question. An appellate court may, and should, affirm the trial court where correct on any ground, see Butler v. DeLuca, 329 Pa.Super. 383, 478 A.2d. 840, 843 (1984). Thus, a finding that the § 5913 “violence” exception had already made the testimony admissible regardless of confidentiality, would have obviated the need for further discussion. It was because of their finding that § 5913 had not opened the door to all testimony, that our Court was required to scrutinize the content and circumstances of the conversation.

Moreover, Rough’s interpretation of the interplay between § 5913 and § 5914 is not consistent with the majority’s analysis herein. Rough could not have been any clearer than in its statement “(C)ompetency under this exception does not abrogate the general privilege concerning confidential communications made during the marriage....”. To read this statement as does the majority, i.e. that the confidentiality privilege still exists where the exception does not apply, would appear rather facile: as § 5914 remains on the books, it is patently obvious that the confidentiality privilege remains viable in some context.

The key to the meaning of this statement is to be found in the first sentence of the footnote: “(T)here is no dispute that the absolute prohibition preventing one’s spouse from testifying against the other during coverture, ..., is inapplicable due to an exception ... ”. (Emphasis supplied.)

The privilege of spousal immunity involves two separate, but related, forms of immunity. There is the “absolute privilege” which bars any testimony whatsoever on the part of the defendant’s spouse, now codified at § 5913. Apart from this “absolute privilege”, there is the related but independent prohibition against disclosure on the stand by the defendant’s spouse of confidential communications, as codified at § 5914.

Where I believe the majority has gone astray is in giving an overly narrow reading to what it means, for purposes of § 5913, to testify against one’s spouse.

The majority fails to recognize what is implicitly recognized in Rough: the content of a spouse’s testimony needn’t consist purely of the disclosure of words and actions revealed only in the confidence of the marital relationship. It is entirely conceivable that a defendant’s spouse would be in a position to testify to purely objective observations, or statements openly made in the presence of third parties, as would any other witness. The “absolute privilege” of § 5913 would bar the spouse from giving testimony to such observations and statements, despite the fact that they were not discovered in any confidential marital setting, or through any confidential communication, based on the legislative assumption that it is undesirable to permit spouses to give any testimony whatsoever against each other. The “violence” exception is the legislature’s recognition that, where violence has been visited upon a minor, the policy favoring the preservation of the marital relationship should give way to protection of the minor, and permitting testimony by the defendant’s spouse to objective observations and openly spoken words is but a minor intrusion upon that relationship.

Under § 5914, however, the legislature has recognized a limitation upon the degree of intrusion that is desirable. They have recognized an independent prohibition against the disclosure by a spouse, otherwise qualified to testify by removal of the bar of § 5913, of those words and actions revealed in the confidence and trust one naturally imposes in one’s spouse.

§ 5914, unlike § 5913, does not contain a “violence” exception. Despite the majority’s strained attempts to read the exception of § 5913 into § 5914, the logical import of this legislative omission is obvious. While the “violence” exception of § 5913 allows the defendant’s spouse to take the stand, the door is not meant to be thrown open to allow any and all testimony: the bar against disclosure of private behavior and discussions is intended to remain.

It has been held that, while the general bar of spousal incompetency set forth in § 5913 is extinguished upon death or divorce, the bar against a spouse divulging § 5914 confidential communications remains intact after death or divorce. See Commonwealth v. Clark, 347 Pa.Super. 128, 500 A.2d 440, 441, 442 n. 1 (1985); Commonwealth v. Peluso, 240 Pa.Super. 330, 361 A.2d. 852, 856 (1976), rev’d on other grounds 481 Pa. 641, 393 A.2d 344 (1978); Hunter v. Hunter, 169 Pa.Super. 498, 83 A.2d 401, 403 (1951). This, clearly, is in recognition of the legislature’s express limitation upon the amount of intrusion into the marital relationship that is to be tolerated: the legislature has recognized, simply put, that some things should never be disclosed, even after the marital relationship has ceased to exist, without the consent of the party who has entrusted his husband or wife with his or her secrets.

If the total removal of § 5913 incompetency by death or divorce does not open the door to the disclosure of § 5914 confidential communications, it is illogical and inconsistent to interpret the removal of § 5913 incompetency under the “violence” exception as abrogating the confidentiality privilege. This is precisely why our Court in Rough was obligated, once it found that the “absolute privilege” of § 5913 had been removed by the “violence” exception, to determine if the testimony admitted had permitted the defendant’s spouse to betray the trust inherent in the marital setting.

Moving, then, to the second of the majority’s concerns, it could be said that the above discussion alone demonstrates why it neither contravenes legislative intent, nor yields an “absurd” result, to read § 5913 and § 5914 in the fashion I now suggest. The majority, however, believes this reading ignores the “(E)xcept as otherwise provided in this subchapter” prefacing clause to § 5914, which, it insists, must refer to the exceptions to incompetency listed in § 5913.

This view, however, ignores the significance of the legislature’s inclusion of § 5915 in the relevant subchapter, which provides as follows:

§ 5915. Testimony by spouse in rebuttal
In any criminal proceeding brought against the husband or wife, if the defendant makes defense at the trial upon any ground which attacks the character or conduct of his or her spouse, the spouse attacked shall be a competent witness in rebuttal for the Commonwealth.

This provision, apparently, removes the bar of incompetency under either § 5913 (which contains the same “(E)xcept as otherwise provided in this subchapter” clause) or § 5914, where applicable. Unlike the majority, I fail to see why the preface to § 5914 must be read as referring to both § 5913 and § 5915. I believe it rather obvious that the preface as stated in both § 5913 and § 5914, was intended to permit the defendant’s spouse to defend himself or herself against the defendant’s slurs. As with the balancing of interests engaged in by the legislature in formulating § 5913 and § 5914, it is clear that the legislature determined that the usual policies favoring marital relations should give way when the defendant has seen fit to waive the protections of marriage, and impune the character and conduct of his or her spouse.

Finally, I would dispute the majority’s conclusion that the above analysis, in effect, contravenes Nadolny. While it is likely that Nadolny’s admission of guilt to his wife was made in a confidential setting (although the facts as given do not give the circumstances of their conversation), there is no indication that Nadolny ever raised the bar of confidentiality in his arguments either in the lower court or on appeal. While an appellate court is free to affirm the trial court on a correct rationale sua sponte, Butler, supra., it may not reverse upon an issue not raised by appellant, and therefore is precluded from considering potential grounds for reversal sua sponte. Pa.R.A.P. 302, 2116(a). Only issues of appealability or jurisdiction may be considered sua sponte. See Richards v. Trimbur, 374 Pa.Super. 352, 358, 543 A.2d. 116, 118 (1988).

In light of the foregoing, I cannot and do not concur in the majority’s laudable but misguided attempt to secure what may be desirable testimony in criminal cases involving violence-ridden domestic situations, through a patent misreading of the interrelationship between § 5913 and § 5914.

I would thus proceed in my analysis to a determination as to whether the involved communications were confidential.

Upon review of the content and circumstances of the communications, I do not agree with the trial court finding that the statements pertaining to Kathy were not intended to be confidential. While appellant’s desire to adopt an older child was not a secret, it cannot be averred that statements pertaining to his inability to relax in Kathy’s absence, and his threats to his wife warning her not to interfere in his relationship with Kathy, were not made in the confidence of the marriage. Such statements permit an inference that appellant’s relationship with Kathy had abnormal overtones, and in all likelihood would not have been made but for the trust and confidence that the marital relationship inspires. Rough, supra, 418 A.2d at pp. 612-13.

Furthermore, I do not find confidential intent lacking on the basis of appellant’s willingness to testify to these statements at trial, as did the trial court. Following the testimony of appellant’s wife, appellant was placed in the position of having to negate the inferences created by her testimony, and naturally wished to put the statements in a more favorable light. Had appellant’s trial counsel raised objection to the wife’s testimony, appellant would not have been compelled to address the divulged statements.

Hence, I find arguable merit to appellant’s ineffectiveness claim.

However, as stated above, we may affirm the trial court if correct on any ground. Butler, supra. I would do so, as I cannot say that trial counsel could not have had a reasonable basis for his failure to object.

Part of appellant’s theory of defense was that the charges had resulted from his wife’s jealousy of his relationship with Kathy, and from her bitterness in connection with their impending divorce. Hence, it is possible that trial counsel had merely wished to discredit the charges by permitting the challenged testimony, and then by introducing appellant’s own testimony pertaining to these statements, in which appellant spoke at length about his wife’s irrational jealousy and mischaracterization of what was, in appellant’s eyes, a normal father-daughter relationship. While this trial strategy was a gamble, the test is not whether more reasonable trial strategies were available, but rather, whether trial counsel had some reasonable basis for the strategy chosen. Maroney, supra, 235 A.2d at p. 352.

Trial counsel offered no explanation for his chosen strategy at the post-verdict evidentiary hearing. However, post-verdict (now appellate) counsel deliberately chose not to interrogate trial counsel upon this point, and elected to present the testimony of appellant only, pertaining to trial counsel’s failure to call various character witnesses. With respect to the strategy behind trial counsel’s failure to object to Mrs. Hancharik’s testimony, post-verdict counsel agreed to “waive any argument other than what’s in the memorandum” in support of post-verdict motions. (Post-Verdict Hearing Transcript, p. 2.) As such, appellant has chosen to rely upon the record to support his current ineffectiveness claim.

Moreover, it is well settled that this Court may find counsel’s actions effective if any reasonable basis for those actions exists. Commonwealth v. Osborn, 364 Pa.Super. 505, 520, 528 A.2d 623, 630 (1987). Hence, where the record before us is sufficient to determine that there exists a plausible basis for counsel’s strategy, and that basis is not inherently unreasonable, there is no requirement that the actual reason for counsel’s actions be determined at an evidentiary hearing. Commonwealth v. Marsh, 460 Pa. 253, 333 A.2d 181, 183 (1975). I believe the record below is sufficient for this Court to make such a determination.

As I cannot deem the apparent chosen strategy inherently unreasonable, I would find that appellant has failed to satisfy the second prong for demonstrating ineffectiveness.

It is for this reason that I concur in the majority’s ultimate refusal to grant appellant relief pursuant to Issue 3, and would affirm the judgment of sentence.

TAMILIA, Judge,

concurring:

I agree with the majority that the testimonial privilege announced by the legislature at 42 Pa.C.S. § 5914, providing that a spouse is not competent to testify against his/her wife or husband, is qualified by section 5913 which abolishes the privileges in family matters including situations involving violence or attempted violence against a spouse or children in the care or custody of either of them. To hold otherwise would be to shift the intent of section 5913 and to create an in-road in that section, which was never intended by the legislature.

The thrust of section 5913 must be measured against the evolution in the law concerning interspousal and interfamilial immunities, both testimonial and in regard to confidential communications, particularly within the past twenty-five years. The immunity or privilege derived from the common law concept of “oneness”, the sanctity of marriage and the preservation of confidential and private relationships. Statutory law has been codified in most jurisdictions to deal with modern realities and the recognition that the common law privileges and immunities become a shield to protect wrong doers and to legally coerce the spouse (usually a wife) and children into submission by tyrannical, abusive and dangerous spouses. Early examples of relief granted by the legislature are 48 P.S. § 131 Right of action; jurisdiction; spouses competent witnesses (Act of May 23, 1907, P.L. 227 § 1) (deserted wife shall be competent to be a witness against her husband to obtain support and maintenance); 48 P.S. § 91, mother to have same power and control over minor child as father; right of action for injuries to child (Act of June 26, 1895, P.L. 316 § 1) (each party in habeas corpus action claiming child is on equal footing and right to be heard). Commonwealth ex rel. Horisk v. Horisk, 90 Pa.Super. 400 (1927). In more recent times, the Protection from Abuse Act, 35 P.S. 10181 et seq., permits action between family members regarding physical or sexual abuse, and by an adult household member or parent on behalf of a child; the Child Protective Service Law, 11 P.S. 2201 et seq., provides at section 2222 Hearings and Evidence, “(2) ... any privilege of confidential communication between husband and wife ..., shall not constitute a ground for excluding evidence at any proceeding regarding child abuse or the cause thereof. The neutering of these immunities and privileges has also spread into the tort field, from domestic relations and criminal law exceptions, to provide that interspousal immunity for tort actions between spouses be abolished.” See Hack v. Hack, 495 Pa. 300, 433 A.2d 859 (1981), and between parent and child, Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971). The final bulwark of interspousal immunity was the bedroom and the common law protection of the spouse (male) from a charge of spousal rape. Under Lord Hale’s contract theory, common law may be stated, “but a husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retreat.” One of the rationales for this concept was that since the wife was chattel and her husband’s property, rape was nothing more than a man making use of his own property. The question posed to contemporary legal scholars and courts is, “When a woman says I do, does she give up her right to say I won’t?” Pennsylvania has moved into the forefront of those states which has demystified the common law mantel of immunities and accorded the spouse (wife) the equal protection of the law afforded by federal and state constitutions. In 1985, the legislature enacted a law making it a crime for a person to commit a sexual assault or to inflict involuntary deviate sexual intercourse upon a spouse. 18 Pa.C.S.A. § 3201. This Court declared the statutory intent to further a compelling state interest in protecting the fundamental right of each individual to control the integrity of his or her own body and, as such, does not clearly and palpably violate a spouse’s right to privacy. Commonwealth v. Shoemaker, 359 Pa.Super. 111, 518 A.2d 591 (1986), appeal denied 515 Pa. 605, 529 A.2d 1080 (1987). Carrying this movement to its most forward point, the legislature, by Act No. 1989-16, effective June 29, 1989, made the testimonial privilege waivable on the part of the witness in a criminal proceeding and eliminated it entirely in desertion and maintenance cases, criminal proceedings involving bodily injury or attempted or threatened violence against the spouse or their minor children or children in their care, and in criminal cases charging murder, involuntary deviate sexual intercourse or rape.

From the above, it is clear that there is a steady and determined response to interspousal and interfamilial violence which was previously condoned at common law under the rubric of the privacy and sanctity of the family in which the state has no power to intervene.

The trend through state and federal rules and case law is toward divesting the accused of the privilege to bar adverse spousal testimony. In 1958, thirty-one jurisdictions including Alaska and Hawaii then allowed an accused a privilege to prevent adverse spousal testimony. By 1980, the number had declined to 24. The federal courts, like Pennsylvania to some degree, have determined that the basis for the rule should be modified so that the witness spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). The note at 93 ALR 3d 1005-1018, Competency of Spouse to Testify Against Other in Prosecution for Offense Against Child or Both or Either, covers the multitude of positions taken on this issue.

Under the strict common-law rule of incompetency, one spouse could not testify against the other, regardless of the offense charged, including a sex offense against the defendant’s stepdaughter. But an exception to the common-law rule was developed for prosecutions involving a crime against the person of the witness spouse, and it has been held that the exception would extend to prosecutions involving violent crimes and sex offenses against the child of either spouse____ Similarly, under statutes providing an express exception for prosecutions involving an offense against the child, the courts have held that the defendant’s spouse would be competent to testify.

Id. at 1024, note 2(a) (footnotes omitted) (emphasis added).

It is, therefore, clearly evident that the only sensible and consistent position for this Court to take in resolving a possible conflict between section 5913 and section 5914 is to hold that the exception made regarding spousal testimony for offenses against a child in the home is not limited by section 5914 having to do with confidential communications between spouses. Finally, it is clear the legislature could not have intended the absurd result that it is permissible for a parent to testify against the other spouse in a case under the P.F.A., or the Child Protection Law, where the issue had to do with abuse or sexual assault against the child but not in a case of rape or sexual assault charged against the father. Commonwealth v. Nadolny, 163 Pa.Super. 517, 63 A.2d 129 (1949).

The testimony presented by wife was admissible and I agree with the majority that the judgment of sentence must be affirmed.

       There is no dispute that the absolute prohibition preventing one spouse from testifying against the other during coverture, ..., is

      . If any portion of the Rough opinion could be classed as dicta, it is that portion which the majority herein finds to be the holding of Rough: the discussion on whether admission of the conversation, even if erroneous, would have been harmless error. Once the Court had found the conversation admissible, it should not have proceeded to consider the question of harmless error.

      . 1 Hale P.C. 629. Hale was Chief Justice of the Court of Kings Bench from 1671 until 1675. Cited in Warren v. State, 255 Ga. 151, 336 S.E.2d 221 (1985).

      . Griffin, In 44 States, It's Legal to Rape Your Wife, 21 Student Lawyer.