author: ROWLEY, Judge:

text:
    530 A.2d 458
    COMMONWEALTH of Pennsylvania v. Theodore CHASE, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 19, 1987.
    Filed Aug. 19, 1987.

      Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

      Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

Appellant Theodore Chase takes this appeal from a judgment of sentence of the Allegheny County Court of Common Pleas.

On December 5, 1986, appellant was charged with four counts of terroristic threats. On March 5, 1986, a jury found him guilty of three of the four counts. Appellant filed a timely, counseled post-trial motion on March 7, 1986 as well as a timely, uncounseled post-trial motion a few days later. The trial court denied both motions. At the sentencing hearing, the judge stated that the foreperson of the jury had been called on the day after the verdict had been rendered and a threatening message had been left on her telephone answering machine. Although the judge stated that he was not accusing appellant of the act, he proceeded to eliminate other possible persons connected with appellant who could have made such a call. He also characterized both appellant’s conduct for which he was convicted and the telephone call as “bizarre.” Appellant was sentenced to eleven and one-half to twenty-three months imprisonment for each of the three convictions, the sentences to run consecutively, and with a possibility of parole after each sentence. A motion to modify sentence was denied and this appeal followed.

At all times relevant to the instant case, appellant was an inmate at Western State Correctional Institution in Pittsburgh, PA. The victim, Dr. Michael Gilberti, the medical director at the penitentiary, had been treating appellant for a hand injury for approximately two years.

Three issues are presented for our consideration: (1) whether the evidence presented by the Commonwealth was sufficient to uphold appellant’s conviction on three counts of terroristic threats; (2) whether the Commonwealth failed to establish the extreme fear of the victim and the requisite intent of appellant necessary for a conviction of terroristic threats; and (3) whether the sentence imposed by the trial court is “illegal” due to the court’s reliance on an impermissible factor.

We find that issues one and two have been waived for failure to include them in either the counseled or the uncounseled posttrial motions. Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). Thus we do not consider or decide those issues.

In his statement of questions presented, appellant claims that his sentencing issue raises a question of the legality of the sentence because the court relied upon an impermissible factor when imposing sentence. Yet in the argument section of his brief, appellant states that the issue involves the alleged abuse of the trial court’s discretion. Because an appeal can be taken from a judgment of sentence as of right only when there is a question of the legality of the sentence, 42 Pa.C.S. § 9781, we must first determine whether the issue raised in this case concerns the legality of the sentence or the exercise of the trial court’s discretion.

In this case, the sentence imposed was undeniably within the legal limits imposed by the legislature. Appellant’s only contention is that the court considered an improper factor. Consideration of an improper factor does not make the sentence illegal, although it would render the sentence invalid and require that the sentence be vacated and the case remanded for resentencing. Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977). We hold that the appeal in this case challenges a discretionary aspect of appellant’s sentence. Therefore, his appeal is not a matter of right. However, we shall consider appellant’s notice of appeal as a “petition” for allowance of appeal. 42 Pa.C.S. § 9781(b).

In this case, the Commonwealth has not objected to appellant’s failure to include a separate statement of reasons why permission to appeal should be granted as required by Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Therefore that requirement has been waived by the appellee. Commonwealth v. Rumbaugh, 365 Pa.Super. 388, 529 A.2d 1112. However, we still must determine whether appellant has presented a suitable “ ‘statement of question’ by ‘brief reasons’ indicating a ‘substantial question’ ” is involved. Commonwealth v. Lapcevich, 364 Pa.Super. 151, 155 n. 2, 527 A.2d 572, 574 n. 2 (1987). Our examination of the statement of questions presented, and the summary of the argument contained in appellant’s brief satisfies us that appellant has presented a substantial question that the sentence imposed is inappropriate under the Sentencing Code. We therefore will exercise our discretionary jurisdiction and grant appellant’s petition to appeal.

The sentencing judge spent a considerable amount of time introducing information concerning a telephone call made to the jury foreperson the day after the verdict was rendered. The pertinent part of the sentencing procedure follows:

THE COURT: Well, your activities are all the more bizzare [sic] to me, Theodore, to be honest with you. You know, I would think to myself that if I only had that amount of time to do I could do it standing on my head, and the last thing in the world I would want is to get in a beef with someone. The answer to that is locked somewhere in the recesses of your own mind, you know. Now, this verdict was rendered on March 5, 1986. On March 5th, the foreperson, Verna Lee Langham, of your jury announced the verdict, which was a Wednesday. She was at work the next day, and she came home and went out and turned on a recording machine. Between 5:30 and 10:00 p.m. on Thursday evening there was a message on her recording device on her phone saying, “You’re a fucking ass hole for lying about the fucking verdict. I’m just calling to let you know that I know who you are.” You know, that’s bizzare [sic]. Now, I’m not saying you did that, but isn’t it strange that someone would know that Verna Lee Langham was the foreperson? When you see things like this you say to yourself, is this a rational human being? Would someone else on the jury have called her? Certainly not, no. Would the District Attorney have called her? No. Who were the witnesses in this case? Could it have been Mr. Chase’s brother or wife, or something like that? Well, you didn’t have any such witnesses, you know. So, you know, it makes you wonder. You say, you know, I wonder if Teddy was doing the same business instead of writing letters. It’s the old phone call harassment, you see.
MS. KREISMAN: Your Honor, let me say something. These gentlemen from Western Pentitentiary [sic] can verify that prisoners have to make collect calls, they can’t call direct. All prison calls are collect. I’m sure even the Court knows that from—
THE COURT: Yes, but what I’m saying is, though, isn’t it strange that he’s convicted on the 5th, and two days later the woman is out and she comes back. Who would have known she was on the jury, let alone be the foreperson?
MR. CHASE: Your Honor, I didn’t even know the people. I knew the jury was picked, but I didn’t know their names. I’m in a restricted housing unit at the institution. We don’t even have access to phone calls, Your Honor, I’m locked in a cell 24 hours a day. All phone calls are monitored, and you get one a month. It’s limited to 15 minutes, and it’s monitored by a corrections office.
THE COURT: I’ll tell you what I’m going to do, Theodore.
MR. CHASE: Not to interrupt you, Your Honor, but I was found guilty when in my belief there was no evidence to ensure sentence and to ensure this Court accordingly. How could I have left this courtroom and got that information? I’m in the restrictive housing unit, and I’m cuffed everywhere I go.
THE COURT: I didn’t say you did, I’m saying that it’s bizzare [sic] that it happened two days after you were convicted. It’s also bizzare [sic] that Dr. Gilberti received a letter two days after he was served with a law suit.
MR. CHASE: He gets on the stand and says he didn’t know anything, but the Sheriff’s Department handed it to him two days before. I mean it is bizzare [sic], and based on my past record of Terroristic Threats, what better charge to put on me?
THE COURT: Well, in light of your prior record, Theodore, like the Terroristic Threats charge, and the Court believing that you’re in need of treatment that best can be provided in an institutional setting, I’m going to sentence you. You were found guilty, by the way, at Counts 1, 2 and 3, and not guilty at Count 4, and I think the guideline sentence is appropriate in this case. Now, what I’m going to do is I’m going to sentence you on each of these three counts to 11-1/2 to 23 months incarceration, and the sentences are to run consecutively.

Our Supreme Court has held that “the correct inquiry in such a case as this is not whether the trial court considered legitimate factors in fixing sentence, but whether it considered only such factors____ Thus, a sentence based in part on an impermissible consideration is not made proper simply because the sentencing judge considers other permissible factors as well.” Bethea, supra, 474 Pa. at 579-580, 379 A.2d at 106.

We are persuaded from our reading of the trial court’s remarks prior to sentencing that the court may have considered the phone call in determining the sentence. In fact the entire discussion of the evidence concerning the phone call was brought up by the court sua sponte immediately before sentence was imposed.

It is reasonable to assume, then, that the court considered conduct similar to the one for which appellant was convicted, but for which he was not charged. We have held that such action on the part of a sentencing judge is inappropriate.

In Commonwealth v. Sypin, 341 Pa.Super. 506, 491 A.2d 1371 (1985), we vacated the sentence and remanded in a case where the appellant had been charged with deviate sexual intercourse and corruption of a nine year old boy. In sentencing, the trial court had referred to the disappearance or death of children for which the appellant not been charged. In our review of that sentencing procedure we stated:

These statements require that the judgment of sentence be vacated and the case remanded for resentencing. Appellant was not charged in connection with the disappearance or death of any child. See Commonwealth v. Be-thea, 474 Pa. 571, 379 A.2d 102 (1977) (sentence invalid if it appears that sentencing court may have relied on an impermissible consideration). Commonwealth v. Stuf-flet, 322 Pa.Super. 176, 469 A.2d 240 (1983) (improper reference to rape at sentencing when defendant not charged with rape); Commonwealth v. Karash, 306 Pa. Super. 229, 452 A.2d 528 (1982) (in sentencing defendant for burglary, court should not have referred to escape for which defendant had not been charged); Commonwealth v. Cruz, 265 Pa.Super. 474, 402 A.2d 536 (1979) (error for sentencing court to rely on unsubstantiated hearsay that defendant dealt in large quantities of drugs).

Id,., 341 Pa.Superior Ct. at 508, 491 A.2d at 1372.

When we apply the principles above to the instant case, we are persuaded that appellant’s sentence must be vacated.

Accordingly, appellant’s “petition” for allowance of an appeal from the discretionary aspects of his sentence is granted, the judgment of sentence is vacated and the case is remanded for resentencing. Jurisdiction relinquished.

      . We recognize that a panel of this Court has stated that consideration of an improper factor renders a sentence “illegal.” Commonwealth v. Cowan, 275 Pa.Super. 341, 418 A.2d 753 (1980). However, the Court’s authority for concluding such a sentence to be "illegal” was the Supreme Court’s decision in Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977). Bethea does not say that a sentence for which improper factors were considered is illegal; it only states that such a sentence is “invalid.” Because Cowan provided no explanation for its deviation from Bethea, we are compelled to follow Bethea and find such a sentence to be invalid, but not illegal.

        See also Commonwealth v. Osborn, 364 Pa.Super. 505, 528 A.2d 623 (1986) in which appellant argued, inter alia, that the sentence was illegal because the trial court failed to consider relevant factors at sentencing. In Osborn, the court stated that:
      Although appellant characterizes these contentions as challenges to the legality of the sentence; we find that they are, in fact, predominately challenges to discretionary aspects of the sentence.

        Id., 364 Pa.Superior Ct. at —, 528 A.2d at 630.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    530 A.2d 462
    Thomas J. McMEEKIN v. HARRY M. STEVENS, INC., Appellant, v. DOUGLAS FURNITURE CORPORATION.
    Superior Court of Pennsylvania.
    Argued April 28, 1987.
    Filed Aug. 20, 1987.

      William P. Boyer, Canonsburg, for appellant.
    Stephen P. McCloskey, Washington, for Douglas, appel-lee.

      BEFORE: CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant, Harry M. Stevens, Inc. (Stevens), appeals from an Order of judgment entered against him, contending the trial court erred in instructing the jury as to the application of the Comparative Negligence Act (Comparative Act), 42 Pa.C.S.A. § 7102 et seq.

In 1980, Stevens operated a restaurant facility near Harrisburg. Plaintiff, in the original action, brought suit against Stevens alleging that a chair upon which he was sitting at the establishment had collapsed. Stevens joined Douglas Furniture Corporation (Douglas), the manufacturer of the chair, as an additional defendant, on both negligence and strict liability counts. On September 9, 1985, trial proceeded against Stevens in negligence, and against Douglas on a strict liability theory only. At the close of the evidence, the court charged the jury that it could assess the percentage of causal liability between Stevens and Douglas. Stevens objected, arguing that comparative apportionment applies only to situations involving multiple negligence tortfeasors; it does not apply to situations where an alleged negligence tort-feasor and an alleged strict liability tortfeasor are involved. In effect, Stevens maintains the court improperly applied the Comparative Act.

On September 20, 1985, the jury returned a verdict in the amount of $855,000 against appellant/Stevens and appel-lee/Douglas, assessing percentages of liability at seventy per cent (70%) attributable to Stevens and thirty per cent (30%) attributable to Douglas.

On September 30, 1985, Stevens filed a motion for post-trial relief, in which it argued that the trial court erred in giving the instruction on “comparative fault”, that it had preserved this issue by way of exception to the trial court’s charge and that such error warranted a new trial.

Later, on November 21, 1985, Stevens and Douglas entered a stipulation and agreed the jury verdict would be paid by the two defendants at the percentages determined by the jury, but that Stevens could pursue its motion for post-trial relief. (The plaintiff is not included in this appeal.) The stipulation also said Stevens desired to shift twenty percent (20%) of the jury verdict to Douglas, leaving Stevens responsible for fifty percent (50%) instead of seventy percent (70%) and Douglas responsible for fifty percent (50%) instead of thirty percent (30%) of the damages. An appeal was timely filed with this Court.

The issue before us for review is whether comparative liability may be applied so as to apportion liability between defendants where one defendant is responsible for negligent conduct and the other is responsible under a strict products liability theory and, if comparative liability is not applicable, whether the Uniform Contribution Among Joint Tort-Feasors Act, 42 Pa.C.S.A. §§ 8321 et seq. (Uniform Act) may be applied in such a situation.

While there is no Pennsylvania case law directly addressing the first question, a careful review of the Comparative Act leads us to conclude it was never the intention of our legislature to extend the scope of that Act to any actions except those grounded in negligence.

The doctrine or rule of comparative negligence, which ... has usually been established by a statute providing that ... the contributory negligence of the person injured will not be a complete bar to recovery, but that there shall be an apportionment of responsibility, or of damages, in accordance with the relative fault of the parties concerned, is designed to eliminate the rigors of the common-law contributory negligence rule, and, in particular, the “all or nothing” effect of that rule____

57 Am.Jur.2d § 426.

We said in our recent Opinion, Krivijanski v. Union R.R. Co., 357 Pa.Super. 196, 515 A.2d 933 (1986):

Words used in legislation are to be accorded their common meaning and usage. Brinkley v. Pealer, 341 Pa.Super. 432, 491 A.2d 894 (1985). ‘Statutes are not presumed to make changes in rules and principles of the common law or prior existing law beyond what is expressly declared in their provisions.’ Harka v. Nabati, 337 Pa.Super. 617, 624, 487 A.2d 432, 435 (1985) citing, [sic] Commonwealth v. Miller, 469 Pa. 24, 27-28, 364 A.2d 886, 887 (1976).

Id., 357 Pa.Superior Ct. at 205, 515 A.2d at 938.

A review of the Comparative Act reveals the Act is aimed only at “all actions brought to recover damages for negligence” (42 Pa.C.S.A. § 7102(a)). Further, section 7102(b) deals with apportionment among defendants in the ratio of their “causal negligence” (42 Pa.C.S.A. § 7102(b)).

The legislature could have specifically included in the statute forms of conduct not considered to be negligence; they chose, however, only to provide for actions grounded in negligence. Negligence describes a specific form of conduct and, absent a clear directive from the legislature, we do not think it appropriate to expand the scope of the legislation to include conduct which is not negligent conduct. See Krivijanski, supra. Moreover, our course is dictated by the Pennsylvania Supreme Court’s insistence upon maintaining the distinction between traditional negligence and strict products liability concepts. See Lewis v. Coffing Hoist Division, 515 Pa. -, 528 A.2d 590 (1987); Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978), and Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975).

As to the second alternative before us for consideration, we find the Uniform Act may properly be applied so that joint tortfeasors may obtain contribution from each other, despite the fact that the one joint tortfeasor has been found liable in negligence and the other in strict products liability.

In Svetz v. Land Tool Co., 355 Pa.Super. 230, 513 A.2d 403 (1986), we addressed this identical issue and concluded that of necessity, where strictly liable and negligent defendants have acted as joint tortfeasors, contribution among them can be properly awarded. In discussing the policy behind the Uniform Act, we said:

The Uniform Contribution Among Tort-feasors Act in Pennsylvania provides that a joint tortfeasor who has discharged more than his pro rata share of a common liability may seek contribution from any other tortfeasor who contributed to the loss. See: 42 Pa.C.S. § 8324(b). The doctrine of contribution is based on equity. Therefore, the Act must be examined with equity in mind. (Citations omitted).
The focus of the Uniform Act is on the relationship existing between tortfeasors rather than the manner in which several tortfeasors have been held liable to an injured claimant____ In Puller v. Puller, 380 Pa. 219, 221, 110 A.2d 175, 177 (1955), the Supreme Court observed that ‘contribution is not a recovery for the tort [committed against the plaintiff,] but the enforcement of an equitable duty to share liability for the wrong done.’... Thus, a tortfeasor’s right to receive contribution from a joint tortfeasor derives not from his liability to the claimant but rather from the equitable principle that once the joint liability of several tortfeasors has been determined, it would be unfair to impose the financial burden of the plaintiff’s loss on one tortfeasor to the exclusion of the other. It matters not on which theory a tortfeasor has been held responsible for the tort committed against the plaintiff. So long as the party seeking contribution has paid in excess of his or her share of liability, it would be inequitable under the Act to deny that party’s right to contribution from a second tortfeasor who also contributed to the plaintiff’s injury.

Id., 355 Pa.Superior Ct. at 238, 513 A.2d at 407.

Unlike the Comparative Act, the Uniform Act is not geared only toward negligence situations. In Svetz, we acknowledged,

‘Joint tortfeasors’ are defined as ‘two or more persons jointly or severally liable in tort for the same injury to persons or property....’ (42 Pa.C.S. § 8322). The statutory language does not limit the right of contribution to tortfeasors who have been guilty of negligence. Contribution is available whenever two more more persons are jointly or severally liable in tort, irrespective of the theory by which tort liability is imposed.

Id., 355 Pa.Superior Ct. at 238, 239, 513 A.2d at 407, 408.

Allowing a tortfeasor found strictly liable to recover contribution from a negligent joint tortfeasor merely effectuates the Uniform Act’s goal of achieving equity between tortfeasors without subverting policies of strict liability. Further, we determined this result is not in conflict with policy considerations which support strict liability for defective products. In discussing the purpose to be served by strict products liability, we said:

Strict liability was intended to benefit injured consumers. It was designed to enhance the consumer-plaintiff’s chances of recovery by eliminating the burden of proving the manufacturer’s negligence. Strict liability was based upon a policy determination that, as between an innocent consumer and a manufacturer of a defective product, the manufacturer should bear the loss. The focus of strict liability, therefore, must be upon the relationship existing between the plaintiff-consumer and the defendant-manufacturer. [Citations omitted.]

Id., 355 Pa.Superior Ct. at 241, 513 A.2d at 409.

Against the considerations behind strict products liability, we examined the aim of the Uniform Act:

The focus of the Uniform Contribution Among Tort-feasors Act, on the other hand, is upon the relationship between tortfeasors after a determination has been made that they are jointly liable for the plaintiff’s injury. Thus, it is only after plaintiff’s loss has been assessed against joint tortfeasors and the policy goals of strict liaiblity have been satisfied that the Act achieves significance. It then seeks to achieve an equitable apportionment of that loss among all tortfeasors who have contributed to the loss.

Id.

Thus this court decided that the Uniform Act may properly be applied to effectuate contribution between joint tort-feasors, even where one tortfeasor is adjudged liable of negligence and the other of strict products liability.

That issue having been previously decided by this Court, we find here that appellant may seek contribution from appellee, since both have been determined by the court below to be liable in tort for the same injury to the plaintiff.

We are left with the final determination which has previously not been decided by an appellate court in this state; that is, whether in assessing contribution between a negligent and a strict liability tortfeasor, apportionment should be made on a pro rata or comparative percentage basis.

As we stated earlier, contribution is based on equitable principles. It would appear to be less than equitable to require a fifty-fifty apportionment when the facts, as determined by a jury, clearly established that one of the joint tortfeasors had greater responsibility for causing the harm than the other. Appellee refers to the dissent by Wieand, J., in Dambacher v. Mallis, 336 Pa. Super. 22, 485 A.2d 408 (1984), and a statement in Pachesky v. Getz, 353 Pa.Super. 505, 510 A.2d 776 (1986) to bolster its argument that by enacting the Comparative Act in 1976, Pennsylvania adopted a system of comparative fault apportionment. Pachesky is not relevant as it deals purely with negligence and contributory negligence between a plaintiff and defendant; in Dambacher, the majority never reaches the issue.

In light of our discussion, it appears most appropriate to view this matter as one of comparative contribution once joint liability has been ascertained. As we found earlier, Svetz stands for the principle that parties found liable under theories of negligence and others liable under theories of strict liability may be joint tortfeasors and one may obtain contribution from the other. While Svetz and Rabatin v. Columbus Lines Inc., 790 F.2d 22 (3d Cir.1986) hold that the Uniform Act was applicable, neither decides the issue of apportionment.

From the enactment of the Comparative Act, we can assume the legislature intended both a move away from the common law restrictions imposed by the doctrine of contributory negligence as it applied to plaintiff and tortfeasor, as well as contribution between joint tortfeasors. While we see limitations in applying the Comparative Act under the facts of this case as discussed above, we do not believe the same strictures apply to the Uniform Act. As between joint tortfeasors, no damage is done to the expressed doctrine of comparative negligence and the distinct doctrine of strict liability in applying a concept of comparative contribution as founded on a factual determination of percentage liability. It is difficult to express a concept which has so many similarities to comparative negligence that it appears to be a play on words with differences only in semantics. However, we cannot ignore the clear legislative mandate as expressed in the language of the Comparative Act, and the equally clear distinctions between “negligence” and “strict liability” expressed by our Supreme Court. See Lewis, Azzarello and Berkebile, supra. Since Svetz permits the finding of contribution between negligent and strict liability tortfeasors, there appears to be no impediment to percentage contribution if permitted by the Uniform Act. This does not conflict with Lewis, Azzarello and Berkebile, as they govern the relationship between a plaintiff and a tortfeasor, and not that between joint tortfeasors. The problem as to when and how the percentage apportionment shall be determined is rather one of procedure and practice.

The Uniform Act speaks of liability in two respects — common liability and pro rata share (see note 4, supra, and 42 Pa.C.S.A. § 8324(b), supra). Common liability would appear to mean the total responsibility to the plaintiff on the part of both tortfeasors regardless of the manner of apportionment and would require that each be held jointly and severally liable. This would likely be the case where the injury was indivisible and the tortfeasor’s negligence was a substantial factor in causing the harm, even if another’s actions contributed to the incident. The second concept of liability contained therein is pro rata share, which necessarily means that contribution must be apportioned according to the equitable share of responsibility for the harm attributable to each.

Restatement, Torts 2d 886A, Contribution Among Tort-feasors, provides:

(2) The right of contribution exists only in favor of a tortfeasor who has discharged the entire claim for the harm by paying more than his equitable share of the common liability, and is limited to the amount paid by him in excess of his share. No tortfeasor can be required to make contribution beyond his own equitable share of the liability.

Comment h to that section states:

Method of apportionment. Subsection (2) provides that contribution is determined according to the ‘equitable shares’ of the obligation of the parties liable. There are two recognized methods for assessing the equitable shares of the joint tortfeasors.
The first method, still followed by a majority of the courts, derives from contribution among sureties and the maxim that “equality is equity,” and provides that the tortfeasors who are liable will end by paying equal shares. Thus, if A, B and C are all liable to the plaintiff for the same harm and A discharges the liability of both by paying $12,000, he will have a right of contribution against B for $4,000 and against C for the same amount. This is sometimes called pro-rata contribution. It is simpler to administer and requires a holding of what parties had fault contributing to the injury.
The second method, followed by a growing number of states, provides that contribution is based according to the comparative fault of the tortfeasors. Thus, if A, B and C are all liable to the plaintiff for the same harm and the plaintiff recovers $12,000 from A, A may maintain an action for contribution against B and C; if the court assesses A’s negligence at 50%, B’s at 30% and C’s at 20%, A can recover $4,000 from B and $2,000 from C. This method seems fairer and more equitable but administration is somewhat more difficult, since percentages of fault must be ascertained. It fits particularly in a state that has adopted the rule of comparative negligence and is, indeed, almost required for the effective administration of that rule, so that the negligence of the plaintiff can also be apportioned into the total amount of negligence of all the parties. It is sometimes called comparative contribution.

The second method suggested in Comment h appears particularly appropriate here in light of the facts of the case. As Judge Rodgers stated in his Opinion:

The question remains as to whether such contribution shall be on an equal or a comparative basis. It seems clear that comparative apportionment achieves a fairer and more equitable result.
For example, in the case at bar, there was evidence that during the three years prior to the plaintiff’s injuries, about 175 to 200 chairs, being used in the dining room of the restaurant by Stevens, either collapsed under patrons, or had been discovered by Stevens to be wobbly and unstable; and only those chairs had been repaired; that in May of 1980, two patrons of Stevens’ restaurant had suffered personal injury by reason of chair collapse, and on July 26, 1980, four days before Mr. McMeekin’s injuries, another patron had suffered injury for the same reason.
Only after the plaintiff suffered injury were all of the defective chairs sent out for repair by Stevens, which was accomplished in September of 1980, at a cost of about $3.00 per chair. Evidence was presented that the manufacturer, the additional defendant, Douglas, had made and sold these chairs with defective welds, but Douglas had also presented evidence that they had manufactured many thousands of the same type of chair, and this was the first claim that the Douglas chair had caused any personal injury.

(Slip Op., Rodgers, J., 9/24/86, p. 9.)

This factual scenario, presented to a jury, would clearly permit a finding of shared responsibility and would also provide a basis for establishing a percentage apportionment of liability. However, for reasons discussed below, we find that the charge presented to the jury by the trial court as to liability, while couched in terms of fault rather than negligence, was error and to enable a jury in this proceeding to determine a percentage degree of responsibility for contribution purposes would require a somewhat different approach. The jury should not be asked to consider the percentage of liability or fault at the close of the evidence as its primary function is to determine the liability of the negligent tortfeasor and the liability of the strict liability tortfeasor separate from each other and on two distinctly different theories. Once the jury determines if one or both parties are at fault on the separate theories, it must determine the common liability or total damages to the plaintiff. In this fashion, the jury will not confuse a trial on the respective liabilities of the tortfeasors with the right of contribution, which is a clear and distinct cause of action. See Puller v. Puller, 380 Pa. 219, 110 A.2d 175 (1955). As we stated earlier, the problem which we must resolve procedurally is the manner in which we may reach the issue of percentage share for contribution purposes before there has been a “discharge of the common liability or [one tortfeasor] has paid more than his pro rata share thereof” (42 Pa.C.S.A. § 8324(b)). It would be wasteful of judicial time and resources to require a second trial on the issue of percentage of contribution, and more difficult to make that determination at a later time, even if this was not done until after settlement or payment and at the time of the action for contribution. The procedure utilized by the court to charge the jury on comparative liability at the close of the evidence is compatible with the comparative negligence theory and statute but is inappropriate to the contribution theory which we have adopted. Contribution may be involved only after discharge and not as part of the proceeding to establish liability.

We believe it would be permissible for the court, after a finding of liability against the joint tortfeasors, and a determination of the amount in damages on the common liability, to have the jury determine by means of special interrogatories, the percentage share of each to satisfy counts in the complaint requesting contributions. In this manner, the court could then have the jury determine, as to the common liability, what percentage was attributable to a defect in the product and what percentage was attributable to the negligence of the joint tortfeasor. Throughout, the clear distinction between the negligent tortfeasor and strict liability tortfeasor will have been maintained. This would appear to be necessary to proceed to enforcement of the right of contribution permitted by law. As provided in the Pennsylvania Trial Guide:

§ 24.16. Enforcement of the Right of Contribution
A tortfeasor has a choice of several methods by which he can enforce his right of contribution against a joint tortfeasor. If the tortfeasor is a defendant in an action in which the joint tortfeasor is a co-defendant, he can plead over against the joint tortfeasor, asserting the right of contribution. If the tortfeasor is a defendant in an action in which the joint tortfeasor is either a plaintiff or is not a party at all, he can join the joint tortfeasor as an additional defendant, asserting the right of contribution. Or the tortfeasor may seek contribution by a separate action against the joint tortfeasor, which action sounds in assumpsit. (Footnotes omitted.)

S. Feldman, Pennsylvania Trial Guide, Revision, Volume 2 at 16 (1978). Also, the defendant paying the judgment may have the judgment marked to his use, so as to enforce contribution from the other tortfeasor. See Puller at 220, n. *, 110 A.2d at 176 n. *. While somewhat more involved than the procedure utilized by the lower court, it appears unavoidable considering the restrictions contained in both the Comparative Act and the Uniform Act. The Annotation and note on Contribution, 53 A.L.R.3d 184, discuss numerous approaches and variations to this problem but do not provide a solution that we believe applicable here or under Pennsylvania law.

In view of the fact that the parties have stipulated to liability, and the issue we must resolve is the percentage each is required to pay as between a 30-70 percentage or 50-50 percentage, there need be no remand for further proceedings. We have held that Pennsylvania has moved to a doctrine of comparative contribution, derivative of legislative adoption of Comparative Negligence, law; that the Uniform Contribution Act permits contribution as between a negligent tortfeasor and a strict liability tortfeasor; and that uniformity and consistency require that comparative contribution be applied in determining the pro rata share of each. We, therefore, find that the 30 per cent attributable to Douglas is the amount of its share and the 70 per cent attributable to Stevens is the amount of its share.

Order of the lower court is affirmed.

      . The trial judge instructed the jury:
      If you find that both defendants, Stevens and Douglas, are liable to the plaintiff, your award of damages should be divided between both defendants in proportion to their relative degrees of causal liability; that is, where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of its causal liability to the amount of causal liability attributed to all the defendants against whom recovery is allowed. If you find that both defendants are causally liable, it is your duty to apportion the relative degree of liability between both defendants; that is, the liability of both defendants would total 100%, and you would apportion a percentage of that liability to each defendant.
      (T.T. 9/19/85, p. 23).

      . The court molded the jury verdict to reflect an amount for delay damages. Judgment was entered, therefore, for $501,000. The stipulation of the parties provided that the amount in controversy was about $100,000, i.e. twenty percent (20%) of the molded verdict (Slip Op., Roberts, J., 9/24/86, p. 2).

      . § 7102. Comparative negligence
      (a) General rule. — In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
      (b) Recovery against joint defendant; contribution. — Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.

      . The Uniform Contribution Among Tort-feasors Act provides (in pertinent part):
      42 Pa.C.S.A.
      § 8322. Definition
      As used in this subchapter ‘joint tortfeasors’ means two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them.
      § 8324. Right of contribution
      (a) General rule. — The right of contribution exists among joint tortfeasors.
      (b) Payment required. — A joint tortfeasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof.

      . Pro rata has generally been interpreted to mean division proportionately in accordance with the number of tortfeasors. The theory is explained in comment h to the Restatement, Torts 2d 886A. See pages 589-592, infra.


author: POPOVICH, Judge: WIEAND, Judge,

text:
    530 A.2d 469
    COMMONWEALTH of Pennsylvania v. Rose C. MERCALDE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 13, 1987.
    Filed Aug. 20, 1987.

      Rose C. Mercalde, appellant, in propria persona.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before WIEAND, KELLY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County denying the post-trial motions of the appellant, Rose Mercalde, which, in effect, activated the judgment of sentence suspended pending the disposition of said motions. We reverse.

The record indicates that the appellant appealed the summary conviction and fine imposed by a district justice for harassment to Common Pleas Court. A non-jury trial took place on May 15, 1986. The following day, the trial court mailed to the appellant its order, which reads:

The appellant’s counsel filed a “Notice of Appeal From Summary Conviction” challenging, inter alia, the procedural improprieties “in that the verdict and sentence, if any, were not announced in open court immediately upon the conclusion of the trial.” (Point 11, Paragraph h )

Although the appellant did pursue such a claim in her pro se brief to this Court, and is not responded to by the trial court in its opinion to us, we note its existence in the course of reconstructing the facts at bar, the ability of the trial court to remedy the procedural errors, and its failure to do so.

The procedural shortcomings in the case at bar are identical to those present in Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987) (Opinion by Popovich, J., with Montgomery, J. Concurring in Result and Brosky, J. Dissenting).

Accordingly, for the reasons set forth in Ragoli, which are responsive to this case as well, we reverse the order of the trial court and remand for proceedings consistent with the mandate of Ragoli Accord Commonwealth v. Adame, 363 Pa.Super. 405, 526 A.2d 408 (1987).

Order reversed and case remanded for proceedings not inconsistent with the opinion herein written. Jurisdiction is not retained.

WIEAND, J., filed a concurring and dissenting opinion.

WIEAND, Judge,

concurring and dissenting:

I agree with my learned colleagues of the majority that the procedure followed by the trial court to announce its verdict was defective and should be discouraged.

However, it is difficult to perceive that this procedural defect was prejudicial to any rights of the defendant. Therefore, it does not require that the guilty verdict be vacated. Cf. Pa.R.Crim.P. 90.

Although appellant’s pro se brief is difficult to comprehend, my own review of the record suggests that the evidence was sufficient to support the trial court’s verdict and that there was no error which compels the granting of a new trial.

Appellant also argues in her brief that she was denied the right to be heard before sentence was imposed. The record confirms that she is correct. Because the sentence was imposed by mail simultaneously with the finding of guilt, there was no separate sentencing hearing. Consequently, appellant did not have an opportunity to be heard before she was sentenced. Because this irregularity has been preserved and is properly before us, I would vacate the judgment of sentence and remand for resentencing.

      . The relevant portion of the “Notice of Appeal From Summary Conviction" reads:
      11. That the within adjudication of guilt against the Defendant was in violation of her constitutional rights under the Constitution of the United States of America, Commonwealth of Pennsylvania, as well as her rights under the Pennsylvania Rules of Criminal Procedure and include:
      a. The Defendant was denied her right to argue in mitigation of sentence at time of sentencing and was adjudicated guilty by mail.
      b. The Defendant was denied her right to argue at the demurrer stage;
      c. The Defendant was denied her right to make a final argument;
      d. The Defendant was denied her right to challenge the sufficiency of the evidence;
      e. The Defendant was denied her right to be present at time of sentencing;
      f. The Defendant was denied her right to make a statement at time of sentencing;
      g. The Defendant was denied her right to present information to the Court at time of sentencing;
      h. Pennsylvania Rule of Criminal Procedure Rule 63(e) was violated in that the verdict and sentence, if any, were not announced in open court immediately upon the conclusion of the trial.
      i. The Defendant was improperly adjudicated guilty of the offense of Harassment where proof was not beyond a reasonable doubt.
      These same claims appear at pages 5 — 6 of the appellant’s pro se brief to us.

      . We point out the persistent confusion generated by the simultaneous entry of a judgment of sentence and its suspension pending the filing and disposition of post-trial motions.
      The better practice, as discussed fully in Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987) (Opinion by Popovich, J., with Montgomery, J. Concurring in Result and Brosky, J. Dissenting), would be to enter a judgment of sentence after post-trial motions, if any are submitted, are disposed of by the trial court.

      . Appellant was never told that a petition to modify the sentence was necessary to preserve sentencing issues for appellate review. Moreover, the issue of the right to be heard goes to the legality of the sentencing procedure.


author: OLSZEWSKI, Judge:

text:
    530 A.2d 473
    COMMONWEALTH of Pennsylvania, Appellee, v. Sharon K. COMITZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1987.
    Filed Aug. 24, 1987.

      Peter D. Goldberger, Bellefonte, for appellant.
    Ray F. Gricar, District Attorney, Bellefonte, for Com., appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence imposed following appellant’s plea of guilty, but mentally ill, in connection with the murder of her infant son. After careful consideration of the briefs and record on appeal, we conclude that we must affirm.

The victim, Garret Comitz, was born to appellant, Sharon Comitz, and her husband, Glenn Comitz, on December 3, 1984. One month later, on January 3, 1985, appellant drove Garret to a point in Centre County, Pennsylvania, where a stream called Black Bear Run passes under Route 504, and dropped him into the stream. Garret’s body was found the next morning, fully clothed and lying face down in the water. As disclosed by a subsequent autopsy, the cause of death was either suffocation or exposure to the elements.

Appellant at first told state police, on the day before Garret’s body was found, that Garret had been kidnapped from her car while it was parked at a shopping center. In the. weeks that followed, however, the police uncovered evidence implicating appellant in her son’s death. The investigation eventually culminated in a complaint and information charging appellant with first and third degree murder.

Appellant initially entered a plea of not guilty to each offense. Thereafter, however, appellant agreed to plead guilty but mentally ill to the charge of third degree murder. At the change of plea hearing held June 14, 1985, the trial court accepted appellant’s plea, finding that appellant was mentally ill at the time of the offense. After changing her plea and prior to being sentenced, appellant was examined by Dr. Robert Sadoff, a prominent forensic psychiatrist. At that time appellant was placed under hypnosis and, while hypnotized, acknowledged that she had killed Garret.

Following testimony and argument at sentencing, the trial court determined that appellant was not currently “severely mentally disabled,” see 42 Pa.C.S. Sec. 9727, and then sentenced appellant, by order filed October 29, 1985, to a term of eight to twenty years imprisonment. Appellant filed a “Petition to Amend Sentence,” which the trial court denied, treating the petition as a motion to modify sentence. Appellant then filed a timely notice of appeal on November 25, 1985. Appellant’s counsel subsequently withdrew and were replaced by appellate counsel, who entered his appearance on May 6, 1986.

Before addressing the issues on appeal, we observe that appellant’s mental condition has been the focus of attention in this matter. According to various medical records and reports received into evidence, appellant has a history of depressions associated with her family and with childbirth. Records from Geisinger Medical Center, for example, disclose that appellant suffered from postpartum depression following the birth of her first child, Nicole. Appellant also became depressed, according to the evidence, while pregnant with Garret. Deborah Gette, a close church friend, testified that she had two long telephone conversations with appellant a few days before Garret was born. At that time, appellant expressed concern over her depression, telling Ms. Gette that she was afraid that what happened with Nicole would happen with the new baby. The evidence demonstrates that appellant continued to be depressed after Garret’s birth, appellant’s doctor having ordered her to take medication for that depression.

The evidence presented at sentencing concentrated on appellant’s mental condition at the time she murdered Garret as well as appellant’s prognosis for the future. Dr. Sadoff, an expert witness for appellant, testified that he believed appellant had “dissociated” at the time of Garret’s death, and characterized appellant’s dissociation as “somewhere towards the pathological or abnormal as an atypical association nearing or approaching multiple person-ality____” N.T. 10/25/85, 15. Dr. Sadoff thought that the hypnosis confirmed appellant’s dissociation, stating that it also allowed appellant an opportunity to express information concerning Garret’s death that she had repressed. Dr. Sadoff further testified that he believed appellant required comprehensive psychiatric treatment, preferably as an outpatient, as he did not think appellant would receive adequate therapy on an inpatient basis. He stated that he did not believe appellant represented a risk to her daughter Nicole, indicating that, in his opinion, appellant did not do anything to harm Nicole in 1980. See footnote 2.

Dr. Stephen Ragusea testified for the Commonwealth. Dr. Ragusea expressed his opinion that appellant was mentally ill but indicated that there was no evidence that she was actually psychotic at the time of the crime. Having reviewed a videotape of the hypnotic session, Dr. Ragusea found the session to be flawed and concluded that the tape contained no evidence that appellant was a multiple personality or that appellant had experienced a dissociative reaction. Concerning the future, Dr. Ragusea remarked that, given that appellant had a history of family depressions and had herself suffered major depressions, “we are likely to see long periods when (appellant) will probably function fine, punctuated by periods when she will not. During those periods wherein she does not function well I think we have to make sure that people don’t get hurt as a result of her problem.” N.T. 10/25/85, 77. Dr. Ragusea concluded that appellant had a profound psychological problem as well as a behavioral problem (in that she killed a small child), which together called for intensive inpatient treatment.

Appellant presents the following questions for our review: (1) Whether a mother’s psychiatric condition is necessarily a “substantial ground tending to excuse ... (her) criminal conduct” under 42 Pa.C.S. Sec. 9722(4) where she has killed her newborn baby during a psychotic postpartum depression of sufficient severity to support a plea of “guilty but mentally ill” and, whether appellant’s prior counsel were therefore ineffective for failing to include this question in their motion to modify sentence; (2) whether the sentencing court abused its discretion in ruling that the aggravating factors in this case balanced out the mitigating factors, including substantial mental illness; and (3) whether appellant’s prior counsel were ineffective in representing appellant at sentencing due to their failure to familiarize themselves with and present the known scientific facts concerning atypical dissociative reactions in postpartum psychosis.

Preliminarily, we observe that appellant’s second issue, which contests a discretionary aspect of the trial court’s sentence, was neither raised at sentencing, nor included in a motion to modify sentence. Appellant did file a “Petition to Amend Sentence,” which the trial court treated as a motion to modify sentence filed in accordance with Pa.R.Crim.P. 1410. That petition, however, merely requested the trial court to reconsider its sentence in light of psychiatric and psychological reports from Dr. Joseph Silverman which had not been available at the time of sentencing. Importantly, appellant did not raise, either in the petition or at the hearing on the petition, the allegation which she now asserts with respect to her second issue, i.e., that the trial court abused its discretion in ruling that the aggravating factors in this case balanced out the mitigating factors. As a result, appellant’s second issue has not been preserved for our review. Commonwealth v. Duden, 326 Pa.Super. 73, 473 A.2d 614 (1984) (issue whether trial court considered improper factors in imposing sentence waived by defendant’s failure to raise objection either at sentencing hearing or in petition to modify sentence).

We now address the merits of appellant’s first and third issues, both involving claims of ineffective assistance of counsel. When confronted with an allegation of ineffectiveness, we first ascertain whether the underlying issue is of arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986). If so, we then consider whether the course chosen by trial counsel had some reasonable basis designed to effectuate his client’s interests. Id.; Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984), cert. denied, 469 U.S. 963, 105 S.Ct. 361, 83 L.Ed.2d 297. Finally, we determine whether appellant established that he was prejudiced by the ineffectiveness. Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987); Commonwealth v. Buehl, supra; Commonwealth v. Verdekal, 351 Pa.Super. 412, 506 A.2d 415 (1986). Significantly, once we conclude that the underlying issue is without arguable merit or that counsel’s actions had a reasonable basis designed to effectuate his client’s interests, our inquiry is at an end.

Appellant’s first ineffectiveness claim concerns the trial court’s findings at sentencing that, at the time of the offense, appellant had suffered a dissociative reaction caused by the birth of her second child and that, nevertheless, “there was no explanation tending to excuse or justify (appellant’s) actions.” N.T. 10/25/85, 131. Appellant argues on appeal that the latter finding, made by the trial court in considering the propriety of a sentence of probation, see 42 Pa.C.S. Sec. 9722, was erroneous. The level of mental illness which supports a plea of guilty but mentally ill (here a dissociative episode), appellant suggests, necessarily requires a finding that there were substantial grounds tending to excuse the offender’s conduct under 42 Pa.C.S. Sec. 9722(4). Appellant concludes that, because the trial court did not find substantial grounds favoring probation under that provision, the court based its sentence in part on an error of law and that, consequently, her prior counsel were ineffective in their failure to raise this error in their motion to modify sentence.

Upon review, we find that the underlying claim of trial court error is without arguable merit. We conclude specifically that a mental condition which supports a plea of guilty but mentally ill does not as a matter of law constitute a substantial ground tending to excuse the criminal conduct under 42 Pa.C.S. Sec. 9722. Rather, we find that such a determination depends upon the facts of each case.

Appellant cites 18 Pa.C.S. Sec. 314 of the Crimes Code on offenders who are found guilty but mentally ill and 42 Pa.C.S. Sec. 9727 of the Sentencing Code on the disposition of such offenders, in support of her contention otherwise. We do not agree with appellant’s interpretation of these statutory provisions. The excuse provision is one of twelve grounds set forth in 42 Pa.C.S. Sec. 9722 which, “while not controlling the discretion of the trial court,” is to be “accorded weight in favor of an order of probation.” 42 Pa.C.S. Sec. 9722. Although Section 9722 includes the excuse provision as a ground favoring probation, it mentions nothing relating that provision to the sentencing of persons who have been found or who have pleaded guilty but mentally ill.

In contrast, 42 Pa.C.S. Sec. 9727, which was enacted at the same time as 18 Pa.C.S. Sec. 314, specifically addresses the disposition of defendants found guilty but mentally ill or whose plea of guilty but mentally ill has been accepted under the provisions of 18 Pa.C.S. Sec. 314, providing that such defendants “may have any sentence imposed on (them) which may lawfully be imposed on any defendant convicted of the same offense.” 42 Pa.C.S. Sec. 9727. Section 9727 continues, requiring that, before imposing sentence, the sentencing court “hear testimony and make a finding on the issue of whether the defendant at the time of sentencing is severely mentally disabled and in need of treatment pursuant to the provisions of the ... ‘Mental Health Procedures Act.’ ” Id. The section then prescribes the action to be taken for offenders who are severely mentally disabled and in need of treatment and concludes with a provision allowing the court, in cases where an offender who is found guilty but mentally ill is placed on probation, to make treatment a condition of probation.

Importantly, as the Commonwealth points out, despite this comprehensive attention to the problem of mentally ill offenders, nowhere did our legislature provide that a finding of mental illness sufficient to support a guilty plea under 18 Pa.C.S. Sec. 314 requires that the sentencing court find a substantial ground tending to excuse the defendant’s conduct under 42 Pa.C.S. Sec. 9722. Indeed, to the contrary, Section 9727(a) allows a trial court to reject a sentence of probation and impose a sentence of total confinement on defendants who have been found to be mentally ill under the provisions of 18 Pa.C.S. Sec. 314. For these reasons, we conclude that a plea of guilty but mentally ill under 18 Pa.C.S. Sec. 314 does not require a finding in favor of probation under 42 Pa.C.S. Sec. 9722(4) in every case.

We now address whether the trial court erred when it found no explanation tending to excuse or justify appellant’s conduct in this case. After a careful review of the record, we conclude that it did not. As appellant notes in her brief, the trial court did state at sentencing that appellant’s mental illness was brought on by an atypical dissociative episode. According to sections of The Diagnosis and Statistical Manual (D.S.M. III) (American Psychiatric Association, 1980), appended to Dr. Ragusea’s report to the sentencing court,

(t)he essential feature (of dissociative disorders) is a sudden, temporary alteration in the normally integrative functions of consciousness, identity, or motor behavior. If the alteration occurs in consciousness, important personal events cannot be recalled. If it occurs in identity, either the individual’s customary identity is temporarily forgotten and a new identity is assumed, or the customary feeling of one’s own reality is lost and replaced by a feeling of unreality. If the alteration occurs in motor behavior, there is also a concurrent disturbance in consciousness or identity, as in the wandering that occurs during a Psychogenic Fugue.

Id. Specific dissociative disorders include psychogenic amnesia, psychogenic fugue, multiple personality and depersonalization disorder. Id. Atypical dissociative disorder, however, is defined as

... a residual category to be used for individuals who appear to have a Dissociative Disorder but do not satisfy the criteria for a specific Dissociative Disorder. Examples include trance-like states, derealization unaccompanied by depersonalization, and those more prolonged dissociated states that may occur in persons who have been subjected to periods of prolonged and intense coercive persuasion (brainwashing, thought reform, and indoctrination while the captive of terrorists or cultists).

Id. According to this literature then, “atypical dissociative disorder” lacks precise definition and, in fact, includes any one of several different mental states. Indeed, the experts who testified and submitted reports in this case presented conflicting views as to the extent to which appellant dissociated as well as the nature of that dissociation at the time she murdered Garret. It was therefore for the trial court to resolve any conflicts and to decide what weight the different views should be given. Commonwealth v. Whitfield, 475 Pa. 297, 300-302, 380 A.2d 362, 364-365 (1977) (“Psychiatric testimony, like any other evidence, is for the trier of fact to consider and to determine what weight it should be given.”).

We observe that, although indicating that appellant had suffered an atypical dissociative reaction, the sentencing court found that appellant was aware at that time that her conduct would cause serious harm. Given this finding, as w;ell as the experts’ disagreement on appellant’s dissociation, we conclude that the trial court did not err when it found that appellant’s mental condition did not constitute substantial grounds tending to excuse her conduct.

We note further that a sentencing court’s determination under 42 Pa.C.S. Sec. 9722(4) involves merely one factor to be considered in deciding the more comprehensive question of the propriety of a sentence of probation versus a sentence of partial or total confinement. The latter decision is left to the sound discretion of the sentencing court, which, we conclude, has not been abused in this case. Importantly, the record indicates that the sentencing court carefully considered the relevant and appropriate factors, including appellant’s mental illness, in deciding that it must reject a sentence of probation and impose a sentence of total confinement. See 42 Pa.C.S. Sec. 9722 and 42 Pa.C.S. Sec. 9725. In fact, the record shows that the court’s focus in rejecting probation was not appellant’s mental condition at the time of the murder, but rather the future undue risk the court believed appellant represented as a result of her current mental illness.

For these reasons, appellant’s claim of trial court error is without arguable merit and her prior counsel, therefore, were not ineffective in failing to raise it.

Appellant’s second claim of ineffectiveness relates to her representation at sentencing. Appellant observes that her prior counsel specifically argued at sentencing that the facilities available in prison were not adequate to treat appellant and to prevent a recurrence. In so arguing, appellant contends, defense counsel implied that a recurrence was possible. As a result, appellant continues, defense counsel endorsed the Commonwealth’s position that appellant poses a future danger to other persons and, consequently, should receive a long sentence. Appellant asserts that certain scientific literature supports her contention to the contrary, i.e., that a recurrence of her dissociative disorder is impossible and that therefore, she does not pose a future danger to other persons. Appellant claims her prior counsel were ineffective for failing to discover and utilize this information to argue for a shorter sentence.

After careful examination of the record, we find that the issue underlying appellant’s claim lacks arguable merit and conclude that, in any event, the course chosen by defense counsel had a reasonable basis designed to effectuate appellant’s interests. The scientific material set forth in appellant’s brief addresses dissociative syndromes found in puerperal patients, i.e., women experiencing childbirth. Appellant quotes from one treatise which compares puerperal patients with dissociative syndromes to patients who are schizophrenic.

A final difference is that with treatment — and sometimes without it — a florid dissociative process will suddenly clear, the patient will feel well, will have little or no recollection of her psychosis, and will never again have a recurrence. While not unheard of in nonpuerperal schizophrenia, it is much less common than in postpartum dissociative syndromes.

J. Hamilton, Postpartum Psychiatric Problems, 67-68 (1962). Appellant contends that this observation remains valid today, citing additional literature on postpartum psychiatric disorders and quoting one source as stating that there is a general consensus that puerperal psychoses have an excellent prognosis. For the reasons which follow, we do not find appellant’s prior counsel ineffective for failing to present this information.

We observe initially that appellant’s prior counsel did present evidence indicating that the risk that appellant would have a recurrence was low. First, appellant’s counsel submitted evidence disclosing that appellant had undergone a tubal ligation following Garret’s birth. Thus, the sentencing court was well aware of the fact that appellant could no longer have children and, therefore, could not become depressed in connection with the birth of another child. Second, appellant’s prior counsel elicited testimony from Dr. Sadoff regarding the risk to Nicole. Dr. Sadoff stated specifically that he saw no need to incarcerate appellant in order to protect her daughter, as he believed Nicole would not be at risk were appellant to be treated on an outpatient basis. Finally, in their petition to amend sentence, defense counsel requested reconsideration based upon the most recent psychological reports of Dr. Silver-man, appellant’s treating psychiatrist immediately prior to her incarceration. In that report, Dr. Silverman stated that appellant’s “dissociation in the service of a depression” was “highly unlikely to occur again except in connection with a depression, used here in the sense of a biochemical disturbance of the brain, accompanied by characteristic clinical symptoms.” Dr. Silverman also indicated in that report that the danger to Nicole would be negligible were appellant to continue to live with her. In view of the foregoing, we find that appellant’s prior counsel sufficiently alerted the sentencing court to the evidence supporting the view that a recurrence was unlikely and that appellant therefore did not pose a risk to others.

We note additionally that all of the experts in this case, including those testifying and submitting reports on appellant’s behalf, believed that appellant required some kind of treatment. In the face of these views, we believe it was within the realm of sound strategy for defense counsel to focus on appellant’s need for treatment and the inadequacy of the facilities available for such treatment were appellant to be incarcerated. Significantly, in mentioning the possibility of a recurrence, appellant’s prior counsel were not arguing for a long sentence, but rather, for a sentence which would enable appellant to receive the therapy her doctors believe she required. Accordingly, we conclude that appellant’s claim satisfies neither the arguable merit nor the reasonable basis prongs of the ineffectiveness test. Having disposed of each of appellant’s claims and having found no grounds for relief, we affirm.

Judgment of sentence affirmed.

WIEAND, J., concurs in the result.

      . We note that appellant filed an application to quash a supplemental brief filed by appellee. The application having been referred to this panel for decision, we conclude that we will grant it. Accordingly, we have not considered appellee’s supplemental brief in deciding the issues raised on appeal.

      . Those records describe an incident in which Nicole was hospitalized when 17 days old because she was having difficulty breathing. A report on Nicole’s pediatric history and physical examination states that Nicole experienced periods of cyanosis at that time and that she had developed a heart murmur. The report also describes appellant's condition, however, indicating that appellant “began to claim that she had held the baby’s nose to cause it to die and that she wanted to return to a household that would include just she and her husband.” The report notes that appellant became extremely depressed and was admitted to DuBois Hospital at that time for psychiatric support, concluding that the incident exacerbated an existing postpartum depression.

      . According to Ms. Gette’s testimony, appellant told her that when she had had Nicole, she had wished that she had not had a baby and that things would return to the way they were prior to Nicole’s birth. Appellant also stated that she could not be left alone with Nicole at that time because she was afraid she was going to kill her. Ms. Gette noted, however, that appellant did not mention actually trying to kill Nicole. N.T. 10/25/85, 98.

      . Dr. Sadoff defined a dissociative reaction as the mental condition which results when a person dissociates his intellect from his feelings and explained that such reactions run a continuum from normal dissociations such as everday distractions and sleepwalking to abnormal dissociations as where one has a multiple personality. N.T. 10/25/85, 14-15.

      . In the interest of judicial economy, we note that, in any event, appellant’s second issue is without merit. Sentencing is a matter within the sound discretion of the trial court. Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760 (1986), allocatur denied, 514 Pa. 624, 522 A.2d 49 (1987). 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 decision. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). We have reviewed the record and are satisfied that the trial court adequately discharged its sentencing responsibilities as set forth in the Sentencing Code, 42 Pa.C.S. Sec. 9701 et seq. The sentence imposed falls within the standard range of the sentencing guidelines. Moreover, the record shows that the trial court considered and evaluated all of the relevant factors present in this case, including the mitigating factors cited by appellant. As the trial court correctly noted, however, it had to balance what appellant required in light of her mental illness with what the law and society required. Importantly, nothing in our statutory or case law mandates, as appellant suggests, that a defendant who suffers an atypical dissociative episode at the time of the crime receive a sentence within the mitigated guideline range. Indeed, as discussed infra, our legislature has provided that a defendant whose plea of guilty but mentally ill is accepted under the provisions of 18 Pa.C.S. Sec. 314 may have any sentence imposed on him which may lawfully be imposed on any defendant convicted of the same offense. 42 Pa.C.S. Sec. 9727(a). As our Supreme Court has recognized, mental illness alone cannot absolve a defendant from criminal responsibility. Commonwealth v. Tempest, 496 Pa. 436, 437 A.2d 952 (1981). For these reasons, we cannot conclude that the trial court abused its discretion in balancing the factors present in this case.

      . This conclusion assumes that total confinement may lawfully be imposed on any defendant convicted of the same offense. See 42 Pa.C.S. Sec. 9727(a).

      . Dr. Martin Orne stated in his report, for example, that, although there could have been a dissociation, there was no convincing evidence showing a multiple personality or even a profound dissociative reaction, while Dr. Sadoff testified at sentencing that he believed appellant had dissociated and that her dissociation approached the pathological or abnormal, nearing a multiple personality.

      . Commonwealth v. Scarborough, 313 Pa.Super. 521, 460 A.2d 310 (1983) (imposition of a proper sentence is a matter committed to the sound discretion of the trial court); Commonwealth v. Wicks, 265 . Pa.Super. 305, 401 A.2d 1223 (1979).

      . We note that the sentencing court read and considered this report and concluded that it contained nothing which would require the court to reconsider its sentence.

      . Indeed, as Dr. Ragusea noted in his report and at sentencing, assuming that depression was the precipitating event in this case, depression may result from many causes other than childbirth.


text:
    530 A.2d 480
    COMMONWEALTH of Pennsylvania v. Robert SHEAFF, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 20, 1986.
    Filed Aug. 28, 1987.

      Louis Lipschitz, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant was found guilty by a jury of burglary and was sentenced to seven and one-half to fifteen years incarceration. This is an appeal from the judgment of sentence entered after denial of appellant’s post-trial motions.

We find no need to address appellant’s sufficiency of the evidence argument because appellant failed to properly preserve this issue for appellate review in his post-trial motions. In his post-trial motion, filed December 9, 1983, appellant framed the sufficiency of the evidence issue in “boilerplate” fashion, and thus did not preserve the issue for appellate review as required by Commonwealth v. Holmes, 315 Pa.Super. 256, 259-60, 461 A.2d 1268, 1270 (1983). See Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985); Comment to Pa.R.Crim.P. 1123. While appellant did file a supplemental post-trial motion on February 8, 1984, where he reasserted his sufficiency of the evidence argument with the requisite specificity, the record does not show that appellant ever sought the necessary permission of the trial court to file this supplemental post-trial motion nunc pro tunc. Whether a defendant can file additional reasons for a new trial is a matter of discretion with the trial court. Commonwealth v. Talley, 456 Pa. 574, 318 A.2d 922 (1974).

This Court, in its recent Opinion in Commonwealth v. Kelly, 365 Pa.Super. 28, 528 A.2d 1346 (1987), quoted the Pennsylvania Supreme Court in Talley as follows:

The Supreme Court, in deciding the trial court did not abuse its discretion in refusing to permit the defendant to file additional reasons for a new trial, stated:
The rule provides that a defendant may request leave to file additional reasons for a new trial. This does not imply that a defendant can file these as a matter of right, but it is a matter of discretion with the trial court. In the facts of this case, we fail to see an abuse of that discretion.
Id., 456 Pa. at 579, 318 A.2d at 924.

We then went on to say:

Rule of Criminal Procedure 1123(a), which is derivative of the rule cited in Talley (19 P.S. 1123) (footnote omitted), states:
Rule 1123. Post-Verdict Motions
(a) Within ten (10) days after a finding of guilty, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may be considered which were raised in pretrial proceedings or at trial, unless the trial judge, upon cause shown, allows otherwise. Argument, a hearing, or both shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions that are stated specifically and with particularity may be argued or heard. If the grounds asserted do not require a transcript, neither the filing, argument, nor hearing of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony.
While the earlier version of Rule 1123 permitted additional time to file motions, if allowed by the court within the initial seven-day period, only those motions filed during the seven-day period or within such further time as the Court permitted could be argued at post-trial motions or on appeal. The current Pennsylvania Rule of Criminal Procedure 1123(a) is a recodification of the original Rule 1123 and, in addition to increasing the time for filing motions to ten (10) days (to provide uniformity with the Rules of Civil Procedure), the rule added the provision: ‘If the grounds asserted do not require a transcript, neither the filing, argument, nor hearing of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony/ While a custom appears to have developed whereby counsel, in filing original and timely post-trial motions, reserves the right to file additional motions, nothing in the rules permits unilateral extension of time, and in no event may supplemental motions be filed and heard nunc pro tunc unless filed in a réasonable time and with approval of the court.
We hold that the supplemental post-verdict motions did not preserve the issues for review (whether filed or merely submitted) despite the fact that the court below addressed them on the merits. Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210 (1983). Accordingly, the aforementioned issues have been waived.

To summarize and clarify our position in this case and the cases cited herein, we hold that permission must be requested and granted on the record before supplemental post-trial motions may be filed. Counsel may not simply reserve the right to file such motions by adding a notation to that effect in the original post-trial motions. In order to preserve the right to file supplemental motions after the transcript is received, a request must be approved in advance in a timely fashion. If permission is granted, and supplemental motions are filed, an allegation that could have been raised without the need for a transcript is still considered to be waived. See Talley, supra. This procedure is required by the mandate of Pa.R.Crim.P. 1123(a).

Since we find appellant’s sufficiency argument waived, we will not review issues which have not been properly preserved for review. However, since appellant’s remaining arguments were properly raised in his post-trial motions, we will address them.

Appellant contends the trial court erred in admitting portions of a police report which contained the statement of a police officer — the partner of a testifying officer — who was not available to testify at the time of trial. We find no merit in this argument due to the fact that appellant’s counsel himself referred to the non-testifying officer’s report and even had a portion of that report admitted into evidence through testimony (N.T. 12/2/83, pp. 57-60). Appellant cannot now argue that it was error for the trial court to allow the Commonwealth to admit into evidence the full text of the non-testifying officer’s report as hearsay (N.T. 12/2/83, pp. 77-79), when appellant’s counsel “opened the door” for such testimony by first referring to the report. As we stated in Commonwealth v. McCabe, 345 Pa.Super. 495, 498 A.2d 933 (1985): “If a defendant delves into what would be objectionable testimony on the part of the Commonwealth, the Commonwealth can probe further into the objectionable area.” (Citations omitted.) Thus we find no error in admitting the report due to appellant’s effective waiver of objection by first referring to the report.

Appellant claims that the trial court erred in refusing to strike for cause a juror, Mr. Driscoll, who was employed as a crime investigator by a local community organization partially funded by the city and state governments. In Commonwealth v. Jones, 477 Pa. 164, 168, 383 A.2d 874, 876 (1978), our Supreme Court held “that one’s status as a law enforcement officer in and of itself is insufficient to require disqualification as a juror in a criminal case.” In quoting our earlier Opinion in Commonwealth v. Colon, 223 Pa.Super. 202, 206-7, 299 A.2d 326, 328 (1972), the Supreme Court stated:

The categories of relationships which automatically call for removal should be limited because it is desirable to have a jury composed of persons with a variety of backgrounds and experiences. We believe that an enforcement officer is capable of professional objectivity in considering the case of a defendant accused of a crime against society. Absent any real relationship to the case, the removal of an enforcement officer should depend on the sound exercise of discretion by the trial judge. (Emphasis added by the Court).

Id., 477 Pa. at 168, 383 A.2d at 876. Further, the Jones, supra, Opinion went on to adopt the following two-tier analysis we established in Colon, supra, to determine whether a police officer or law enforcement official could serve as a juror in a criminal case:

1. If a police officer has a ‘real relationship’ to the case, he must automatically be excluded from serving on a criminal jury.
2. If a police officer does not have a ‘real relationship’ to the case, he must be viewed in light of the traditional test for qualifications for jurors with the same scope of appellate review.

Id., 477 Pa. at 169, 383 A.2d at 876-7. “The [traditional] test for determining whether a prospective juror should be disqualified is whether he or she is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor.” Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. den., — U.S. —, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986).

Juror Driscoll did not have a “real relationship” to this case and thus would not fall under the first tier of the Colon, supra, test (N.T. 12/2/83, pp. 9-10). During a side bar voir dire, Mr. Driscoll stated that his appraisal of the evidence in a case where the defendant is charged with burglary would be unaffected by his ten or twelve years of experience investigating burglaries and other crimes. Further, the juror responded that his prior experience would not affect his decision with respect to the defendant/appellant (N.T. 12/2/83, pp. 4-7). Therefore, based on the record, we find no abuse of discretion on the trial judge’s part in qualifying Juror Driscoll. Colson, supra.

Lastly, appellant argues that because the prosecutor engaged in misconduct, asked objectionable questions, made inappropriate comments and advanced improper arguments to the jury throughout the course of the entire trial and in closing argument to the jury, he was deprived of a fair trial. In support of this argument appellant lists some nineteen examples of what he claims to be prosecutorial “misconduct.”

Not every intemperate, irrelevant, unwise or improper remark by a prosecuting attorney is grounds for a mistrial. Commonwealth v. Harvey, 345 Pa.Super. 237, 498 A.2d 378 (1985). When the appropriateness of a prosecutor’s statements are in question, a new trial will not be granted unless it is inevitable that the prosecutor’s remark prejudices the defendant to such a degree that it prevents the jury from weighing the evidence and rendering a true verdict. Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984); Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982); Commonwealth v. Frazier, 331 Pa.Super. 128, 480 A.2d 276, (1984).

Upon a thorough review of the record and specifically those areas cited by appellant’s counsel, we find that we are in full agreement with the trial judge’s assertion that while the prosecutor may have acted in a rude manner at times, his overall conduct did not unduly prejudice the jury so that they could not weigh the evidence and render a true verdict. In passing we note, without making a ruling, that the transcripts indicated that trial counsels’ demeanor boardered on mutual animosity.

The most critical matter, dealing with alleged prosecutorial misconduct, that appellant raises concerned Mr. Lipschitz’s, the defense counsel, cross-examination of one of the police detectives concerning his decision not to fingerprint the automobile and evidence therein, which appellant was said to have used in perpetrating the burglary of a small store. Also in question are certain comments made by the prosecuting attorney, Mr. Carpenter, on this matter during his closing argument to the jury. No attempts to obtain fingerprints were made by police in this case. Police found in the automobile defendant/appellant’s driver’s license, marked as Exhibit “C-2”, and a rental agreement for the automobile, marked as Exhibit “C-3”, which agreement listed the appellant as an additional driver for the automobile. After having cross-examined the police detective as to why he had not attempted to obtain fingerprints from the stolen merchandise in the automobile, defense counsel continued:

Q. I hand you C-2 and ask you whether or not this is a good surface to retain fingerprints?
A. Yes, sir.
Q. You made no test of that, did you?
A. No, sir, it wasn’t necessary.
Q. I didn’t ask you if it was needed.
A. I’m qualifying my statement.
Q. All I want to know is whether or not you made any effort to check on the fingerprints on that license?
A. No, sir.
MR. CARPENTER: Would you like to ask him if it was needed?
MR. LIPSCHITZ: Mr. Carpenter, when you’re on this side of the fence, you ask your questions.
THE COURT: Counsel, please.

(N.T. 12/3/86, p. 134.) Appellant now maintains this comment by the prosecutor improperly suggested to the jury that the prints, if investigated, would have belonged to the appellant.

Further, on redirect examination of the police detective concerning his decision not to obtain fingerprints from the scene, the prosecutor began:

Q. Detective Perks, would you agree that it’s easy to second guess things?
MR. LIPSCHITZ: If your Honor please. That’s a philosophical question.
MR. CARPENTER: It’s a truism.
MR. LIPSCHITZ: I don’t think it has any pertinence and I object.
THE COURT: Monday morning quarterbacking.
MR. LIPSCHITZ: The Eagles would never lose.
BY MR. CARPENTER:
Q. Would you think that if you did a hundred things, Mr. Lipschitz could find the one hundred and first thing that you should have done?
MR. LIPSCHITZ: I object. That’s too much flattery for me to take.
THE COURT: Sustained.

(N.T. 12/3/86, p. 136-7.) Appellant now claims this was improper questioning on the part of the prosecution and that it also acted to prejudice the jury.

The prosecution then proceeded to question the detective on general procedures for fingerprinting and the fact that the red powder used could damage the merchandise of the victim’s store. Additionally, the witness testified to the limited number of fingerprint technicians in the police department and the large number of felonies committed in the city of Philadelphia each year. Additionally, after having the detective explain smear prints and overlayed prints, the detective testified as to the large number of store employees and police officers that were present at the scene of the crime and who had handled the stolen merchandise in their efforts to place it back in the store. The officers present had touched the car and the glove compartment, as well as the driver’s license and rental agreement. Earlier testimony disclosed the trunk had the tools used in the break-in and leather gloves.

Lastly, the detective testified the appellant had been returned to the scene. Over objection of defense counsel, the prosecutor continued:

BY MR. CARPENTER:
Q. So that if somebody who doesn’t believe the police were to hear that under those circumstances the police testified that they recovered fingerprints from this briefcase or from this car, would he be inclined to believe that the fingerprints were placed there before or after the arrest?
MR. LIPSCHITZ: I object to the question.
THE COURT: I think that that is really asking for too much supposition on the part of the officer. Objection sustained.
BY MR. CARPENTER:
Q. What do you think Mr. Lipschitz would say?
MR. LIPSCHITZ: I still object.
THE COURT: Sustained.
MR. LIPSCHITZ: What I would say would not look good or sound good right now.

(N.T. 12/2/83, pp. 145-6.) Appellant claims the prosecutor’s improper question over a sustained objection was prejudicial.

Upon a review of the transcript of the trial, we are convinced the above remarks made by the prosecutor during direct examination and on redirect examination did not have an adverse effect on the appellant either individually or cumulatively. While some of the remarks were unnecessary, they were not prejudicial in manner. Unlike Commonwealth v. Hickman, 319 Pa.Super. 261, 466 A.2d 148 (1983), the preeminent purpose of the trial — the determination of the guilt or innocence of the accused — was not subordinated by these remarks. We believe the jury was not hampered by these remarks from weighing the evidence and rendering a verdict.

Finally, appellant argues that the prosecutor made certain improper comments concerning the police investigation and fingerprint matter during his closing argument to the jury. We find it more helpful in maintaining the proper context of these remarks to first refer to the following remarks made by defense counsel during his closing argument.

Why didn’t the police examine all of the items and determine whose fingerprints were on there? There was some testimony that they wouldn’t come out clear. Why not try it and find out? That would have absolved Mr. Sheaff. I say to you that the reason that they didn’t want to try it is because they must have been satisfied, in their own minds, that these fingerprints would not establish Mr. Sheaff’s presence at the place. (Emphasis added.)

(N.T. 12/5/83, p. 223). Further, “I submit to you that it should, because if they had done it, if they found any deposits or shreds of wood or deposits from the wood on the floor on any garment worn by Mr. Sheaff, the odds are we wouldn’t be here.” (N.T. 12/5/83, p. 226-7.) Additionally, defense counsel stated: “I submit, had this investigation been complete, had all of the items been presented to the jury which would have resulted from a complete investigation, the odds are Mr. Sheaff would not be here to stand trial.” (N.T. 12/5/83, p. 234.)

In response to these comments by appellant’s trial counsel, the prosecutor stated in his closing argument:

[Mr. Lipschitz] said if they did look for [fingerprints] it would have exonerated him if they hadn’t found his fingerprints there. But that’s not true. Because we know that if you wore gloves, such as were found in the trunk, you don’t leave a fingerprint. So the fact that they didn’t find fingerprints wouldn’t have exonerated him.
Now turning it around. Would the fact that they did find fingerprints or testified that they found fingerprints, would that prove the defendant’s guilt beyond a reasonable doubt, such as Mr. Lipschitz said there wouldn’t have been any case, he would have pled guilty? Would it?
It’s up to you, ladies and gentlemen. You have to go by your recollection. My recollection is that when arguing, Mr. Lipschitz said that had they looked for fingerprints, had they looked for bits of wood and found them, that there wouldn’t have been any trial, that we wouldn’t be here. All that means is that he would have pled guilty, rather than demanding a jury trial.

(N.T. 12/5/83, p. 251-2.)

We find the prosecutor justified in addressing appellant’s trial counsel’s closing comments concerning the adequacy of the police investigation and the lack of fingerprints. Appellant’s counsel argued to the jury that had fingerprints been taken at the scene, appellant would have been “absolved” and more importantly that a trial would not have been necessary. This was a purely hypothetical argument on appellant’s part. Appellant cannot now contend, after having presented this scenario, that it was improper for the prosecutor to address this matter in his closing argument. By stating that defendant/appellant would have pled guilty, the prosecutor was simply presenting a different conclusion to be drawn by the jury from the appellant’s hypothetical fingerprint search, in direct opposition to the one drawn by appellant’s counsel. We find that neither inference was of a prejudicial nature which would affect the jury’s weighing of the evidence and rendering of a verdict and do not warrant a new trial.

Accordingly, we affirm.

Judgment of sentence affirmed.

       We note that Commonwealth v. Rosko, 353 Pa.Super. 307, 509 A.2d 1289 (1986) is inapposite as there, a rule applicable to the Post Conviction Hearing Act (Pa.R.Crim.P. 1123(f)) was applied, whereas in an original case, the proper rule is Pa.R.Crim.P. 1123(a).

      . The trial judge did give a cautionary instruction to the jury which served to restrict their consideration of the statement to only those issues which had been testified to directly by the officer (N.T. 12/2/83, p. 79).