author: HUDOCK, Judge. POPOVICH, Judge,

text:
    624 A.2d 144
    COMMONWEALTH of Pennsylvania, Appellee, v. Robert FOSTER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 10, 1992.
    Filed April 20, 1993.

      Gary Lysaght, Harrisburg, for appellant.
    William T. Tully, Asst. Dist. Atty., Harrisburg, for Com.
    Before POPOVICH, HUDOCK and HESTER, JJ.
   HUDOCK, Judge.

This is an appeal from the judgment of sentence imposed upon Appellant after a jury convicted him of rape and involuntary deviate sexual intercourse. Timely filed post-verdict motions were denied by the trial court, and Appellant was sentenced to an aggregate term of incarceration of twelve to twenty-four years. A timely filed motion to modify sentence was also denied. This direct appeal followed. We remand with instructions.

The relevant facts, as summarized by the trial court, are as follows:

On October 6, 1988, at approximately 1:15 A.M., Officer Kenneth A. Bittner of the Harrisburg Police Department was called to 2039 Rudy Road, Harrisburg. (N.T. 26-27). Officer Bittner entered the basement area, observed a large pool of blood on the floor and found the body of Carla Childs lying naked on a sofa bed. (N.T. 27). Forensic pathologist Cheryl L. Murray conducted an autopsy on October 6, 1988 and concluded that Ms. Childs died as the result of head injuries. (N.T. 58). The pathologist also observed a laceration in the anal region. (N.T. 51). Dr. Murray further found a small plastic fragment in the victim’s vagina. (N.T. 53).
During the early evening hours of October 5, 1988, Ms. Childs was at Dinger’s Bar located at Market and Evergreen Streets in Harrisburg with the defendant, Robert Foster. (N.T. 31). She left the bar later that evening with Foster. (N.T. 32). The couple returned to the home of Clifford McLamb, the owner of 2039 Rudy Road. (N.T. 76). McLamb stated that he was present when the couple returned home on the night of the incident and that Ms. Childs had two other male visitors before he left later that evening to take care of some family business. (N.T. 77). Jack Buie, a former boyfriend of Childs, left before McLamb but Ulysses Boulware was at the residence with Foster and Childs when McLamb departed on his errands. (N.T. 77).
Detective Robert H. Fegan interviewed Foster, Boulware and Buie. It was ascertained that Buie gave some money to Childs and he returned to her residence to inquire about her use of this money on the night of the incident. (N.T. 119). Boulware came to this residence to collect some money borrowed by Childs in preparation for his trip to Texas. (N.T. 121). On October 7, 1988, Detective Fegan had a detailed interview with Robert Foster. (N.T. 124). Foster gave the police, duirng [sic] his statement, approximately ten different versions of the activities of the night of the incident. (N.T. 125).

Trial Court Opinion at pp. 1-2.

On appeal, the following issues are raised by Appellant:

A. Whether the convictions for rape and involuntary deviate sexual intercourse must be overturned, the charges dismissed and Appellant discharged because the Commonwealth failed to exercise due diligence in bringing Appellant to trial within 365 days as required by Pennsylvania Rule of Criminal Procedure 1100?
B. Whether the suppression court erred in refusing to bar Appellant’s statements to police as violative of his rights under the Pennsylvania and United States Constitutions where they were obtained during the course of a continuous 13-hour interrogation, Appellant was the prime suspect, he reasonably believed he was in custody and the police admitted failing to mirandize him until some 2 hours into the interrogation?
C. Whether the trial court erred in permitting the jury, during deliberations, to have possession of and view a videotape reenactment made by the police with Appellant of his attempted sex acts with the victim on the night in question, which videotape was the equivalent of a confession?

Appellant’s Brief at p. 3.

Initially, Appellant asserts that the lower court should have dismissed the charges against him because the Commonwealth violated Pa.R.Crim.P. 1100 by not bringing him to trial within 365 days of the filing of the criminal complaint. We disagree. Further, we hereby adopt the hearing court’s well-reasoned memorandum opinion addressing this issue as our own for purposes of allocatur.

Next, Appellant asserts that the lower court erred in failing to suppress statements which Appellant made to police prior to being advised of his Miranda rights. This contention is without merit.

Our standard of review when assessing the propriety of a suppression court’s ruling is well settled:

In an appeal from the denial of a motion to suppress our role is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we may consider only the evidence of the prosecution’s witnesses and so much of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from those factual findings.

Commonwealth v. Fromal, 392 Pa.Super. 100, 111, 572 A.2d 711, 717 (1990) (citations omitted).

In the present case, a review of the testimony at Appellant’s suppression hearing reveals the following: Harrisburg police learned that Appellant was one of several individuals who had been with the victim on the evening of her death. On October 6, 1988, Detective Robert Fegan went to Appellant’s residence and spoke with Appellant’s girlfriend. Appellant then telephoned Detective Fegan and left a message on his answering machine informing the officer that he could be reached at 9-B Hall Manor if the officer wished to speak with him. The following day, Detective Fegan and Lieutenant Goshert went to 9-B Hall Manor. Once there, the officers spoke with Appellant for a few minutes. The officers asked Appellant for his assistance in their investigation into the victim’s death. Appellant then agreed to comply with the officers’ request that he come with them to the police station and make a statement. At approximately 5:00 p.m., the officers and Appellant arrived at the police station. Detective Fegan took Appellant to an interview room where he asked Appellant what he knew about the victim’s activity on the evening of October 5. No other police officers were present in the room.

Appellant related several conflicting statements regarding his knowledge of the victim’s activities on the evening of her death. Approximately one hour and forty-five minutes after the interview had begun, the officer and Appellant took a break and went across the street from the police station to purchase soft drinks. When they returned to the station, Appellant agreed to submit to a polygraph examination to verify his statement that he had nothing to do with the victim’s injuries. After Appellant signed a consent form to take the test, which contained a waiver of his right to have an attorney present, the test began. Appellant proceeded to give several versions of his activities and those of the victim on the night in question, ultimately admitting to having vaginal and anal intercourse with the victim after she sustained the head injuries which caused her death.

In assessing the merits of Appellant’s claim, it is necessary that we first determine whether he was in custody when he made the statements which he argues should have been suppressed, thereby requiring that he be advised of his Miranda rights. As our Supreme Court stated in Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311 (1983):

The test for determining whether a suspect is being subjected to custodial interrogation so as to necessitate Miranda warnings is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation.

Id. at 577, 459 A.2d at 314 (citations omitted).

Further, as we stated in Commonwealth v. Fento, 363 Pa.Super. 488, 526 A.2d 784 (1987):

Miranda warnings are necessary only on those occasions when a suspect is undergoing ‘custodial interrogation.’
* * * * * *
Miranda warnings were designed to shield an accused from the coercive aspects of custodial interrogations, i.e., from incommunicado interrogation in a police-dominated atmosphere, which resulted in self-incriminating statements without full warnings on constitutional rights.

Id. at 492-93, 526 A.2d at 786-87 (citations omitted).

Our review of the testimony taken at Appellant’s suppression hearing provides us with no basis to conclude that Appellant was undergoing “custodial interrogation” at the police station before being advised of his Miranda rights. The police were aware of several individuals who had been seen with the victim on the night of her death. Detective Fegan stated that Appellant was a “potential witness, somebody that could help us establish what happened, who may have been involved, to further the investigation.” (N.T. 5/29/90, at p. 35). Appellant was very cooperative with the police. After Detective Fegan visited Appellant’s residence and did not find him there, Appellant telephoned him and left a message on his answering machine informing him of where he could be reached. The police went to this address. Appellant then agreed to go “to the police station, make a statement, and help [the ofScers] out any way he could.” (N.T. 5/29/90, at pp. 35-36). The officers did not “physically deprive [Appellant] of his freedom.” Chacho, supra. Detective Fegan stated that he was fairly certain that he had told Appellant at that time that he “wasn’t under arrest or in custody, that we would take his statement and he would be free to leave.” (N.T. 5/29/90 at pp. 49-50).

Moreover, a review of the suppression hearing testimony-reveals that Appellant was not questioned in a coercive atmosphere. When they arrived at the police station, Appellant and Detective Fegan went to an interview room where the pair spoke alone for approximately one hour and forty-five minutes. They then took a break to go across the street from the police station for soft drinks. When they returned to the station, Detective Fegan advised Appellant of his Miranda rights. Appellant waived these rights, and Detective Fegan proceeded to conduct a polygraph examination of him. It was during this examination that Appellant admitted having vaginal and anal intercourse with the victim. We find no error in the suppression court’s decision.

Appellant’s final claim on appeal is that the trial court committed reversible error by allowing the jurors to take -with them during deliberations a videotape made by police of the Appellant reenacting the sexual activity which he engaged in with the victim on the night in question. This videotaped reenactment, Appellant asserts,

was tantamount to a confession, [and] permitting the jury to view it during deliberations violated Pennsylvania Rule of Criminal Procedure 1114 on the prohibition of written confessions in the jury room[.] [T]he jury ineluctably placed undue emphasis on [the videotape’s contents] rather than relying on their collective recollection of the trial testimony and evidence, and Appellant was seriously prejudiced as a result.

Brief for Appellant at 23-24. We agree that Rule 1114 was violated.

Following questioning at the police station, Appellant, Lieutenant Goshert, and Detective Fegan went to the house where the victim’s body was found. Once there, Detective Fegan requested that Appellant reenact his actions on the night of the victim’s death, including the sex acts which Appellant performed on the victim. Appellant complied with this request. The officers recorded this reenactment on videotape.

At trial, the court admitted the videotape as an exhibit, and the Commonwealth played the videotape for the jury. After retiring to deliberate, however, the jury requested that the videotape be sent to the jury room. Over objection by Appellant’s counsel, the trial judge granted this request. After deliberations, the jury found Appellant guilty of rape and involuntary deviate sexual intercourse, but could not reach a verdict on the homicide charge (murder of the second/third degree or involuntary manslaughter), and the trial court granted a mistrial as a result thereof.

Appellant urges us to equate videotaped confessions with written ones, reading their proscription into Pa.R.Crim.P. 1114, which provides:

Upon retiring for deliberations, the jury shall not be permitted to have a transcript of any trial testimony, nor a copy of any written confession by the defendant, nor a copy of the information or indictment. Otherwise, upon retiring, the jury may take with it such exhibits as the trial judge deems proper.

Pa.R.Crim.P. 1114 (Purdon 1989) (emphasis added).

It is tempting to accept Appellant’s argument in light of technological advances which have occurred since the Supreme Court fashioned the rule. To do so, however, would violate the well-settled rule of statutory construction that the letter of the law cannot be ignored. Still, we are not prevented from considering the reasons underlying the prohibition in Rule 1114 regarding trial transcripts, written confessions, and copies of informations and indictments in the jury room when reviewing the discretion exercised by the court with regard to other exhibits.

Because videotaped confessions are not among the items proscribed expressly by Rule 1114, the decision whether they may be sent out with the jury is for the trial court. See Commonwealth v. Riggins, 478 Pa. 222, 232-33, 386 A.2d 520, 525 (1978) (“[since exhibit was] not among the items which Rule 1114 specifically forbids the jury to have during deliberations ... the only question remaining is whether the court abused its discretion by doing so____”). In reviewing the trial court’s decision, we must employ an abuse of discretion standard:

Decisions as to what exhibits may be taken out by the jury are within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. To establish an abuse of discretion, appellant must show that the trial court disregarded or misapplied the law or that “the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record----”

Commonwealth v. Akers, 392 Pa.Super. 170, 189, 572 A.2d 746, 755 (1990) (citations omitted).

Prior to the time Rule 1114 was amended to specifically preclude written confessions from being taken to the jury room, our Supreme Court expressed concern that physical presence of the confession in the jury room would lead to overemphasis of that document by the jury at the expense of evidence presented only upon the witness stand. A review of such case law follows.

In Commonwealth v. Ravenell, 448 Pa. 162, 292 A.2d 365 (1972) our Supreme Court, although allowing a written confession to go to the jury room under the specific facts before it, nevertheless stated:

... we must caution that such procedure should be carefully employed and is not permissible when under all the circumstances it affords this portion of the testimony undue emphasis.

Id. at 172? 292 A.2d at 370. The Supreme Court in Ravenell found that the trial court did not abuse its discretion in deciding to send the confession out with the jury during deliberations because “it was a long and complicated trial and the confession contained many confusing references to the participants in the fight by nickname[.]” Id. See also Commonwealth v. Moore, 443 Pa. 364, 279 A.2d 179 (1971) (trial court did not abuse its discretion in allowing a written confession to be sent out with jury were it was complicated and because it contained references to other participants in the attack upon the victim by both name and nickname).

In Commonwealth v. Canales, 454 Pa. 422, 311 A.2d 572 (1973) , the defendant made an oral confession to the investigating officer, but said that he would not sign anything or admit anything in the presence of anyone else. After the interview was completed, the officer summarized the confession in his notes but, due to the defendant’s previous statement, did not have the defendant review or sign the notes. At trial, and over the objection of defense counsel, the trial court admitted the notes as an exhibit and also permitted them to be sent out with the jury. Our Supreme Court found that the trial court erred in admitting the notes under the past recollection recorded exception to the hearsay rule. The court then stated that, because the notes were not properly admitted into evidence, they could not qualify as an exhibit and were thus improperly sent out with the jury as an aid in deliberations. In reference to Rule 1114, the court stated that the officer’s notes were nothing more than his courtroom testimony reduced to writing and therefore equivalent to his trial testimony; an item specifically prohibited from being sent out with the jury by operation of the rale. In direct contradiction to the officer’s testimony, at trial the defendant claimed that he never made any oral statement. Our Supreme Court stated that “we cannot say that the issue of credibility between the [defendant] and the police officer was not affected by the physical embodiment of the officer’s notes which were given to the jury to consider in their deliberation.” Id. at 428, 311 A.2d at 575.

As can be seen by the above review of case law, the overriding concern regarding the allowance of written confessions to go out with the jury was that the physical presence of the item within the jury room may cause it to be emphasized over other testimony the jurors heard only from the witness stand, and they must, of necessity, rely on memory of it during the deliberation process. In June, 1974, Rule 1114 was amended to include copies of written confessions in its list of prohibited items. Clearly this same possibility of overemphasis also exists when the jury requests to review a videotaped reenactment of the crimes charged — a re-enactment which by both word and visible actions constitutes a confession. Indeed, the possibility for over-emphásis is even greater when a jury both sees and hears a criminal defendant recreate the crimes he committed. Thus, when the jury reviews (and possibly re-reviews) such a confession, it is naive to think that they will not give the videotape the very undue influence long condemned by our jurisprudence.

Throughout its brief, the Commonwealth characterizes the videotaped re-enactment of the crimes charged as merely voluntary statements made by Appellant. Our own review of the videotape convinces us that Appellant confessed to these crimes; on the tape Appellant both physically demonstrates and orally explains how he placed the victim on a bed, undressed her, and then proceeded to perform the acts in question upon her. Even if we were to characterize the videotape as only statements made by Appellant, more recent case law of this Commonwealth has expressed the same concerns expressed prior to the amendment of Rule 1114.

In Commonwealth v. Russell, 456 Pa. 559, 322 A.2d 127 (1974), the Commonwealth called a witness who was to testify that the defendant was involved in the crime at issue. When the witness took the stand, however, his testimony completely exonerated the defendant. Pleading surprise, the Commonwealth was permitted to impeach the witness through the use of a prior inconsistent statement. At the trial’s completion, the written statement was allowed to go out with the jury as an exhibit for impeachment purposes, despite defense counsel’s strenuous objection. While recognizing that the trial court is afforded discretion in determining when an exhibit should go out with the jury, our Supreme Court noted that “this discretion should be carefully exercised.” Id. at 566, 322 A.2d at 131. Upon reviewing the circumstances then before them, the Supreme Court found that, although the trial court instructéd the jury to consider the exhibit only for impeachment purposes,

the danger still persisted it might be considered as substantive evidence and in a case such as this, where the testimony as to guilt was highly conflicting could prejudice the defendant unduly. Additionally, under the circumstances, it afforded the jury the opportunity of placing greater emphasis on what was included in the statement rather than what was legally permitted.

Id.

In Commonwealth v. Dennison, 254 Pa.Super. 284, 385 A.2d 1021 (1978), the defendant in a criminal action for failing to support a bastard child, claimed that the trial court committed prejudicial error in permitting the jury to take his written confession to the jury room. The trial court recognized the proscription of Rule 1114, but ruled that the written statement by the defendant was a “love letter” and not a confession. On appeal, this Court recognized that the contents of the letter were subject to different interpretations. While obviously a love letter, the question arose as to whether it implied more, namely a confession of paternity. Finding that such an interpretation was plausible, this Court concluded that “[i]n view of the provision in Rule 1114, and the possibility the jury might conclude it was a confession, the lower court committed prejudicial error in permitting the jury to have possession of it during its deliberation.” Id. at 287, 385 A.2d at 1023.

In Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978), the defendant claimed that the trial court erred in permitting a napkin, on which a police officer had recorded one of the victim’s dying declarations, to go out with the jury during deliberations. Our Supreme Court stated that, because the napkin was not among the items which Rule 1114 specifically forbids the jury from having during deliberations, that is, a transcript of trial testimony, a written confession, or a copy of the information or indictment, or was not inadmissible as evidence generally, the only question remaining was whether the trial court abused its discretion because “by so doing that testimony was given undue emphasis.” Id. at 233, 386 A.2d at 525. The court further stated that “[i]n assessing the trial court’s exercise of discretion in this regard, it is necessary to focus upon the significance of this piece of evidence in relationship to the issues raised during the trial.” Id. Finding that the notes on the napkin were consistent with live testimony from other witnesses that the victim was heard to state before expiring that the defendant caused her injuries, and that the truthfulness of this testimony was the real issue in the case, the Supreme Court found that “[t]he physical presence of the napkin could in no way lend credence to the verity of the victim’s charges.” Id. at 233, 386 A.2d at 526. Thus, “since any emphasis that may have resulted from the trial court’s ruling related to an issue not seriously disputed,” the court did not find that the trial court abused its discretion in permitting the napkin to go to the jury. Id.

In Commonwealth v. Hall, 523 Pa. 75, 565 A.2d 144 (1989), the defendant argued that the trial court erred in allowing the trial exhibits of written and tape recorded statements of witnesses to be sent out with the jury. As in the present case, the defendant asserted a violation of Rule 1114. Although the defendant conceded that these exhibits were not prohibited by rule, he argued that “the practice of allowing written and tape recorded statements to go out with the jury during its deliberations in general, could be used to circumvent the rule’s prohibition against trial transcripts by unscrupulous individuals who could manufacture such evidence specifically for trial.” Id. at 83, 565 A.2d at 148. While the Supreme Court found that the defendant pointed out “an obvious hazard of the rule,” it found no evidence of record to support such a finding in the case before it, and, therefore, found that the trial court did not abuse its discretion in permitting the written and tape recorded statements to go to the jury. In a footnote, the Court reiterated its statement in Commonwealth v. Baker, 466 Pa. 382, 398, 353 A.2d 406, 414 (1976), to the effect that “we suggest in the future that this practice should not be followed.” Commonwealth v. Hall, 523 Pa. at 83, n. 11, 565 A.2d at 148, n. 11.

Finally, in Commonwealth v. Taylor, 408 Pa.Super. 121, 596 A.2d 222 (1991), the defendant alleged that he was entitled to a new trial because the trial court erred in refusing a jury, request, after deliberation had begun, to listen to a tape recorded conversation of a drug exchange between him and a confidential informant. The defendant claimed that the trial court abused its discretion by not granting the request because neither his own counsel or the attorney for the Commonwealth objected to the request. The trial court denied the request on the basis that it “feared replay of the tape would tend to emphasize the recorded statements over other evidence in the case and would therefore be improper.” Id. at 125, 596 A.2d at 223-24, citing the trial court opinion at p. 3. A panel of this Court found that the statement by the trial court, coupled with the trial court’s indication that the quality of the production was poor, were sufficient reasons to reject the jury’s request.

Thus, in cases which do not involve actual written confessions, the courts of this Commonwealth have continued to repeat the caution about undue emphasis that our Supreme Court first expressed in cases pre-dating the amendment of Rule 1114. While argument can be made that Rule 1114 should be further amended to encompass all mediums upon which a criminal defendant’s confession can be recorded, such argument must be addressed to the Supreme Court which has exclusive rulemaking authority. On the record in the present case, however, we hold that the trial court abused its discretion in permitting the videotape to be given to the jury, upon their request, after deliberation had begun. There can be no doubt in the present case, unlike Commonwealth v. Riggins, supra, that this piece of evidence was directly related to an issue in the case, that is whether Appellant committed the crimes with which he was charged.

The Commonwealth contends that, even assuming error, it was harmless at worst. In support, the Commonwealth asserts that in both opening and closing statements, Appellant’s counsel acknowledged Appellant’s guilt of the sex crimes but not the homicide. This being so, the Commonwealth reasons, the fact that the jury may have replayed a videotaped confession of what Appellant admitted in open court, through his counsel, could not have prejudiced him. (Since a mistrial was declared because of jury deadlock on the homicide charge, any error as to that charge was rendered moot.) The argument has appeal.

Since the opening and closing remarks of Appellant’s counsel are not part of the present record, however, we cannot make that determination. We therefore remand for the purpose of having the trial court order the transcription of the opening and closing remarks of Appellant’s counsel. If the trial court finds that counsel did unequivocally acknowledge Appellant’s guilt of both the rape and involuntary deviate sexual intercourse charges, the judgment of sentence is affirmed. If the court determines that the record does not show an unequivocal admission of guilt as to both sex charges, then the judgment of sentence is reversed and a new trial is awarded. Jurisdiction relinquished.

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

POPOVICH, Judge,

concurring and dissenting.

While I join in the majority’s resolution of appellant’s first two assertions of error, I respectfully dissent from their determination that the trial court erred when, in violation of Pa.R.Crim.P. 1114, it permitted appellant’s videotaped confession to be shown to the jury, upon their request, after deliberations had begun.

The majority concludes that the lower court committed reversible error by allowing the jurors to take with them during deliberations a videotape made by police of the appellant reenacting the sexual activity which he engaged in with the victim on the night in question. Appellant asserts (and the majority agrees) that the videotaped reenactment,

was tantamount to a confession, [and] permitting the jury to view it during deliberations violated Pennsylvania Rule of Criminal Procedure 1114 on the prohibition of written confessions in the jury room[.] [T]he jury ineluctably placed undue emphasis on [the videotape’s contents] rather than relying on their collective recollection of the trial testimony and evidence, and Appellant was seriously prejudiced as a result. (Emphasis added.)

Brief for Appellant at 23-24.

Instantly, appellant was taken to the scene where the victim was found and was asked to reenact his actions on the night of the victim’s death, including the sex acts which appellant performed on the victim. Appellant complied with this request, and the police recorded this reenactment on videotape.

At trial, the court admitted the videotape as an exhibit, and the Commonwealth played the videotape for the jury. After retiring to deliberate, the jury requested that the videotape be sent to the jury room. Over objection by appellant’s counsel, the trial judge granted this request. After deliberations, the jury found appellant guilty of rape and involuntary deviate sexual intercourse but could not reach a verdict on the homicide charge (murder of the second/third degree or involuntary manslaughter), and the trial court granted a mistrial as a result thereof. Trial Transcript at 435.

Appellant urges this court to equate videotaped confessions with written ones, reading their proscription into. Pa.R.Crim.P. 1114, which provides:

Upon retiring for deliberations, the jury shall not be permitted to have a transcript of any trial testimony, nor a copy of any written confession by the defendant, nor a copy of the information or indictment. Otherwise, upon retiring, the jury may take with it such exhibits as the trial judge deems proper.

Pa.R.Crim.P. 1114 (emphasis added).

It is not our province, however, to rewrite this rule. Our supreme court’s having stated specifically that written confessions are prohibited, we may not include, by inference, videotaped or audio-taped confessions. See Commonwealth v. Riggins, 478 Pa. 222, 233, 386 A.2d 520, 525 (1978) (since exhibit was not specifically prohibited by Rule 1114, only question was whether exhibit was unduly prejudicial); Commonwealth v. Hall, 523 Pa. 75, 83, 565 A.2d 144,148 (1989). Certainly, when the Rules Committee drafted the amendment to Pa.R.Crim.P. 1114, in 1974, the technology for recording oral statements and video images was available, albeit not as commonplace as it is today. However, the Rules Committee saw fit to exclude specifically from the jury’s possession only trial transcripts, written confessions and copies of the information or indictment.

I am convinced the Rules Committee expressly excluded those written recordings of a person’s statements, i.e., trial transcripts and written confessions, because their character is markedly different from videotaped confessions (and oral confessions). Written confessions, unlike videotape confessions, are cold and faceless. However, while viewing a videotaped statement, the jury is able to view the witness’ demeanor and hear his or her personal account of the events. Thus, the jury is better able to assess the. veracity of the content of the videotape than of a written confession. Moreover, this same argument would also ring true (to a somewhat lesser degree) for taped oral confessions, where the defendant expresses his or her personal perceptions. Thus, the jurors would be able to hear the defendant’s voice and assess the veracity of the statement in much the same manner as they assess testimony at trial. This is especially true when one considers that a written confession is often not a verbatim statement but rather is a summary of the event prepared by police officers and given to the suspect for his perusal and signature.

In Hall, 565 A.2d at 148, our supreme court was presented with the question of whether the trial court erred in allowing written and tape recorded statements of two witnesses to be sent out with the. jury. The defendant therein conceded that Pa.R.Crim.P. 1114 did not specifically prohibit the jury from possessing such exhibits but argued that such exhibits could be manufactured by unscrupulous prosecutors and used to avoid the prohibition of the jury’s possession of trial transcripts during its deliberations. Our supreme court found no evidence of such behavior and also determined that the trial court did not abuse its discretion in permitting those exhibits to go out with the jury. Hall, 565 A.2d at 148. However, our high court, in a footnote, stated, “we suggest in the future that this practice should not be followed.” Hall, 565 A.2d at 148 n. 11.

Although our supreme court in Hall, supra, looked upon providing the jury with the written and taped statements with a jaundiced eye, the court did not take that opportunity to equate those exhibits with those expressly excluded by Pa. R.Crim.P. 1114. I note that had our high court desired to expand the perimeters of Pa.R.Crim.P. 1114, it would have done so in Hall, supra. Yet, the justices reaffirmed that it is within the discretion of the trial judge to permit exhibits, other than those specifically prohibited by the rule, to be sent out with the jury.

Since videotaped confessions are not among the items proscribed expressly by Rule 1114, the decision whether they may be sent out with the jury is for the trial court. See Commonwealth v. Riggins, 478 Pa. 222, 232-33, 386 A.2d 520, 525 (1978) (“[since exhibit was] not among the items which Rule 1114 specifically forbids the jury to have during deliberations ... the only question remaining is whether the court abused its discretion by doing so.... ”). As we stated in Commonwealth v. Akers, 392 Pa.Super. 170, 572 A.2d 746 (1990):

Decisions as to what exhibits may be taken out by the jury are within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. To establish an abuse of discretion, appellant must show that the trial court disregarded or misapplied the law or that ‘the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record.... ’

Id. at 189, 572 A.2d at 755 (citations omitted).

Here, we have no basis to conclude, from the record before us, that the lower court abused its discretion by allowing the jury possession of this exhibit which was properly admitted into evidence. Cf. Commonwealth v. Sparks, 351 Pa.Super. 320, 328, 505 A.2d 1002, 1006 (1986) (“[exhibits] which were released [to the jury during deliberations] were relevant, admitted into evidence, and requested by the jury. As such, the possibility that the court’s decision would prejudice appellant was at best minimal.”) The videotape was certainly relevant to the issues sub judice, and I do not believe it was unduly prejudicial.

The majority concludes that appellant was unduly prejudiced when the court permitted the jury to view the videotaped confession during its deliberations because the jury may have overemphasized the importance of this exhibit relative to the other evidence presented. Obviously, the videotaped confession is “prejudicial” to appellant’s defense, i.e., the video implicates appellant. However, it does not automatically follow that permitting the jury to view the video exhibit during deliberations prevents the jury from rendering a fair and true verdict. I am convinced the jury was capable of viewing the videotape without placing undue importance upon it, as evidenced by their inability to reach a verdict on the murder charge. Moreover, taken to its logical conclusion, the majority’s reasoning would prohibit a jury from viewing, during its deliberations, a video tape of a defendant actually committing the crime for which he is on trial. Certainly, the jury should be permitted to review such an exhibit during its deliberation. See Reed v. Texas, 794 S.W.2d 806 (Tex.Crim.App.1990) (trial court would have committed error had it not granted the jury’s request to view, during deliberations, a videotape of the defendant committing the misdemeanor offense of obstructing a passageway); Chennault v. Texas, 667 S.W.2d 299 (Tex. Crim.App.1984) (audio tapes of defendant soliciting undercover officer to murder another individual were exhibits such that they could be released to the jury and replayed without limitation); State v. Fried, 92 N.M. 202, 585 P.2d 647 (1978) (same).

I note that my conclusion today is consistent with those of a majority of the jurisdictions which have addressed the issue of whether taped confessions may go out with the jury. See, e.g., Ingram v. State, 547 N.E.2d 823 (Ind.1989) (trial court did not abuse its discretion in replaying videotaped confession, in the court’s presence, during jury deliberations), State v. Fellows, 47 Ohio App.2d 154, 352 N.E.2d 631 (1975), overruled, on other grounds in State v. Walker, 53 Ohio St.2d 192, 374 N.E.2d 132 (1978) (trial court did not err in allowing jury to review videotape of defendant in which police officers made conclusory remarks), State v. Clark, 38 Ohio St.3d 252, 527 N.E.2d 844 (1988), State v. Barbo, 339 N.W.2d 905 (Minn.1983), State v. Evans, 639 S.W.2d 792 (Mo.1982), Hampton v. State, 569 P.2d 138 (Alaska 1977), People v. Walker, 150 Cal.App.2d 594, 310 P.2d 110 (1957), State v. Reyes, 209 Or. 595, 308 P.2d 182 (1957), State v. Triplett, 248 Iowa 339, 79 N.W.2d 391 (1956) (audio recording of confession properly allowed in jury’s possession during deliberations), State v. Halvorson, 346 N.W.2d 704 (N.D.1984), Chennault v. State, 667 S.W.2d 299 (Tex.Crim. App.1984), State v. Poulos, 230 Kan. 512, 639 P.2d 477 (1982), State v. Fried, 92 N.M. 202, 585 P.2d 647 (1978) (audio recording of incriminating statements permitted in jury’s possession during deliberations), Reed v. Texas, 794 S.W.2d 806 (Tex.Crim.App.1990) (trial court would have committed error had it not granted jury’s request to view, during deliberations, a videotape of defendant committing offense with which he was charged).

Since I am convinced that it was not error to permit the jurors to view the videotape during their deliberations, I do not believe appellant is entitled to a new trial, nor do I believe it is necessary to review his counsel’s open and closing remarks for admission of guilt as to the rape and involuntary deviate sexual intercourse charges.

      . 18 Pa.C.S. § 3121.

      . 18 Pa.C.S. § 3123.

      . Appellant was also charged with criminal homicide, 18 Pa.C.S. § 2501. Because the jury was unable to reach a verdict on this charge, the trial court declared a mistrial.

      . We would add that Appellant concedes that "[a]s framed by the Rule 1100 court, the critical timeframe is from July 28, 1989 to February 4, 1990.” Brief for Appellant at 12.
      We have examined the record and conclude that the entire time period contested by the Appellant was attributable to his efforts to seek approval of and his ambivalence over ultimately having DNA testing performed. As such, the time lapse between July of 1989 and February of 1990 is assignable to the Appellant with the lower court’s grant of his request for DNA testing and results in this period being excluded from calculations for Rule 1100 purposes. Accordingly, Appellant’s request and the subsequent grant by the lower court of his request to have DNA testing conducted renders his allegation of a Rule 1100 violation merit-less.

      . It is the Commonwealth's contention that counsel for Appellant "never specifically objected at trial to the videotaped reenactment being sent to the jury room ..." and, as such, the basis for the claim of a Pa.R.Crim.P. 1114 violation had not been preserved for appellate review. See Brief for Commonwealth at 35-37. Our examination of the record is to the contrary.
      In an exchange between Appellant’s counsel and the trial court, the preservation of the Rule 1114 issue was discussed as follows:

        [APPELLANT'S COUNSEL]: Your Honor, just to bring the record up to date, I think earlier there were questions which were not entered into the record. And those questions were — I forget what time that the jury had presented those questions to the Court, but they requested that they be provided with a copy of the videotaped confession/reenactment of Robert Foster and also that they be provided with a tape of the 911 call and a transcription of that tape. I did not object to the admission of the tape of the 911 call being sent up or the transcription of that. However, I did object to the Court at that particular time about the jury being permitted to review that videotaped, I don’t know how the Court wants to paraphrase it but it’s videotape/'confession/re-enactment. I did object to that, Your Honor.

      THE COURT: You did. And I indicated, and we all agreed, that we would put your — we didn't have the reporter there at that time. • And I agreed that we’d give you an opportunity to put that on the record at a subsequent time. We’ll note your objection. I overruled it at that time, and we’ll give you an exception with regard to the Court's ruling.
      (N.T. 2/15/91 at p. 421).
      It is evident from the notes of trial that Appellant’s counsel stated the basis for his objection to the jury having access to the videotape as a "confession” by the accused. This clear objection on the record was sufficient to alert the trial court that counsel was not in favor of the jurors having access to a "videotape/confession/re-enactment” incriminating to his client. See Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349, 351 (1977). Accord Commonwealth v. Wilson, 485 Pa. 409, 402 A.2d 1027, 1029 (1979); Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391, 411 n. 24 (1975), cert. den. 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976); Commonwealth v. Canales, 454 Pa. 422, 311 A.2d 572, 575 (1973).
      We conclude that, under established case law, the Appellant’s objection to the jury’s access to the videotaped confession placed the court on notice of the procedural ground for the contention sufficient to preserve the issue for our review. See Wilson, supra; Mulgrew, supra; Martin, supra, Canales, supra.

      . In both Commonwealth v. Ravenell, supra, and Commonwealth v. Moore, supra, the Supreme Court allowed the written confessions to go to the jury because the trial was long and complicated or because the confession itself was confusing. In contrast, upon review of the present case, we find that the jury’s request for the videotape does not appear of record. Hence, we are without information upon which to judge the need for the videotaped confession in the case sub judice.

      Both Appellant and the Commonwealth cite to decisions in our sister jurisdictions in support of their respective arguments. While these cases are instructive on the interplay of case law, statutes, and rules of criminal procedure in those jurisdictions, we do not find them persuasive given our case law and Rule 1114. We are satisfied that sufficient Pennsylvania precedent supports our decision on this issue.

      . But see, Franklin v. State of Wisconsin, 74 Wis.2d 717, 247 N.W.2d 721, 725 (1976) (allowing jury to have tape recording of confession in the jury room "presents the danger of overemphasis of the confession relative to testimony given from the witness stand.”), State of New Mexico v. Ross, 85 N.M. 176, 510 P.2d 109, 111 (1973) ("Playing [audiotape of defendant making incriminating statements] ... to the jury was error because it gave undue prominence to the recorded testimony.”).


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    624 A.2d 156
    COMMONWEALTH of Pennsylvania v. Donies DEHONIESTO, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1993.
    Filed April 29, 1993.

      Jon S. Pushinsky, Pittsburgh, for appellant.
    Thomas Farrell, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before TAMILIA, HUDOCK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgments of sentence for kidnapping, unlawful restraint, simple assault, possessing instruments of crime and criminal conspiracy. Appellant, Donies Dehoniesto, presents the following issues for our review.

I. THE EXCESSIVE DELAYS EXPERIENCED BY [APPELLANT] BETWEEN CONVICTION AND SENTENCING AND DURING THE APPELLATE STAGE VIOLATE HIS CONSTITUTIONAL RIGHTS TO A SPEEDY TRIAL AND TO DUE PROCESS.
II. THE EVIDENCE OF RECORD IS INSUFFICIENT TO ESTABLISH EACH ELEMENT OF KIDNAPPING, UNLAWFUL RESTRAINT AND POSSESSION OF AN INSTRUMENT OF A CRIME BEYOND A REASONABLE DOUBT.
III. THE GUILTY VERDICTS RENDERED BY THE COURT ARE AGAINST THE WEIGHT OF THE EVIDENCE.
IV. [APPELLANT’S] TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO REPRESENT HER COUNSEL [sic].

Appellant’s brief at i-ii. For the reasons that follow, we affirm.

The procedural history of this case is as follows. Appellant was arrested on August 1, 1984, and charged with kidnapping, unlawful restraint, aggravated assault, terroristic threats, possessing instruments of crime, and criminal conspiracy. The terroristic threats and indecent assault charges were subsequently nolle prossed. Appellant was then convicted of the remaining charges following a bench trial on March 5 and March 21, 1985.

Following his conviction, appellant filed post-trial motions in April, 1985. Appellant was released on bond pending the disposition of these motions and his appeal.

Trial counsel withdrew her appearance in April, 1986 and current counsel was appointed by the court to handle post-trial matters. No ruling on the post-trial motions had been issued by the court as of the time new counsel was appointed. Amended post-trial motions and a supporting memorandum were filed on May 17, 1988. The Commonwealth filed its response to the amended motions on June 23, 1988.

Arguments on post-trial motions were not held by the court until May 19, 1989. Post-trial motions were denied on September 11, 1990. On September 14, 1990, appellant filed a supplemental post-trial motion/petition for writ of habeas corpus requesting relief due to the trial court’s excessive delay in disposing of the case. This motion was denied at sentencing. Appellant was thereafter sentenced to two consecutive terms of incarceration of 364 days-to-2 years minus a day on the kidnapping and conspiracy counts respectively. Additionally, appellant was to serve three years of probation following these sentences.

Appellant’s motion to modify/reconsider sentence was denied and on October 16, 1990, appellant filed a notice of appeal. The trial court has not filed an opinion addressing the issues raised in post-trial motions.

The following facts underlying appellant’s criminal conviction were elicited at trial. On August 1, 1984, Dorothy Hunt [hereinafter “victim”] was met at the front door of her home by her ex-boyfriend, appellant. Appellant held a gun to the victim’s head, threatened to shoot her if she screamed, and told her to come with him. The victim then entered the back seat of appellant’s car. Thereafter, appellant picked up McKinley Reed [hereinafter “co-defendant”] at a bus stop near the victim’s home. Appellant, co-defendant and the victim then drove for approximately one-half hour to Schenley Park.

Once in the park, appellant stopped the car, retrieved a knife from the glove compartment of the car, and forced victim to a secluded spot. The victim was subsequently forced to remove her clothes. Appellant then beat her and cut her back and chest.

Thereafter, the victim was taken back to the car where she was again beaten. Approximately an hour-and-a-half after she was picked up from her house, appellant returned the victim to her home at which time she instructed her sister to call the police.

Appellant first contends that the excessive delay between his conviction, sentencing and the filing of his appeal violated his Sixth Amendment right to a speedy trial and his due process rights under the Fourteenth Amendment. Specifically, appellant argues that as five-and-a-half years elapsed between appellant’s conviction and sentencing and two years have passed since the appeal was filed, the delay should be credited toward appellant’s remaining term of incarceration and period of probation. We disagree.

Appellant’s due process claim and speedy trial claim involve the same considerations. Commonwealth v. Glass, 526 Pa. 329, 332, 586 A.2d 369, 373 (1991) (“[t]he same considerations applicable in the context of a speedy trial claim are applicable to a claimed due process violation based on delays in proceedings.”) Thus, these two claims will be addressed together.

It is well-settled that the merits of appellant’s due process and speedy trial claim are to be assessed under the four factors delineated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). These factors were described in Commonwealth v. Glover, 500 Pa. 524, 528, 458 A.2d 935, 937 (1983) as follows:

In determining whether a defendant’s constitutional speedy trial right has been violated, it must first be determined whether the delay itself is sufficient to trigger further inquiry. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981). If the delay is sufficient to trigger further inquiry, the reviewing court must balance the length of the delay with the reason for the delay, the defendant’s timely assertion of his right to a speedy trial, and any resulting prejudice to the interests protected by the right to a speedy trial. Barker v. Wingo, supra; Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980).

Id.

The Commonwealth concedes that the five-and-a-half year delay in the case sub judice mandates further inquiry. See, e.g., Commonwealth v. Glass, 526 Pa. 329, 586 A.2d 369 (1991) (51 month delay between the conclusion of trial and sentencing sufficient to trigger further inquiry). Thus, this court must inquire into the other three factors.

Although we find that the Commonwealth must bear responsibility for that portion of the five-and-a-half year delay resulting from the judicial misadministration of the present ease, see Glass at 335, 586 A.2d at 372 (ultimate responsibility for judicial misadministration must rest with the government as opposed to defendant), we find that this factor is outweighed by appellant’s failure to assert his right to a speedy trial in a timely fashion and the fact that appellant was not prejudiced by the delay.

In Glover, the court was presented with a similar situation whereby a 49 month delay between the defendant’s conviction and sentencing was found attributable to the Commonwealth. The court, however, denied the defendant relief as this factor was outweighed by the fact that the defendant failed to file a motion to dismiss until 37 months after his conviction and had demonstrated only minimal prejudice. Similarly, in the case at bar, although appellant was convicted on March 21, 1985, appellant did not assert that his speedy trial due process rights had been violated until September 14, 1990, over five years after his conviction and two years after the filing of his amended post-verdict motions.

Furthermore, appellant has failed to show how his interests protected by the right to a speedy trial have been unduly prejudiced. The interests protected by the Sixth Amendment are as follows: to prevent oppressive pre-trial incarceration; to minimize anxiety and concern of the accused; and to limit the possibility that the defense will be impaired. Glover, 500 Pa. at 529, 458 A.2d at 938. Here, appellant was released on bail for a majority of the five-and-a-half years. Hence, he can not claim to have suffered from oppressive pretrial incarceration. Moreover, none of the defense witnesses have died or become otherwise unavailable by virtue of the delay. Thus, appellant’s defense was not impaired.

Appellant argues, however, that as a result of the delay he suffered anxiety because he faced a potential prison term and was unable to make employment and marriage plans. These claims, however, ring hollow in light of the fact that appellant waited more than five years to assert his right to a speedy trial. Moreover, such a claim establishes only minimal prejudice. See Barker. After balancing the foregoing four factors, we find that appellant’s Sixth and Fourteenth Amendment rights were not violated.

Appellant next contends that the evidence is insufficient to establish each element of kidnapping, unlawful restraint and possession of an instrument of crime. These claims will be addressed seriatim.

The test for reviewing a sufficiency claim is well-settled:

[Wjhether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.... This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt....

Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988) (citations omitted), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). See also Commonwealth v. Jackson, 506 Pa. 469, 471-73, 485 A.2d 1102, 1103 (1985); Commonwealth v. Brady, 385 Pa.Super. 279, 282, 560 A.2d 802, 804 (1989).

Regarding appellant’s conviction for kidnapping, 18 Pa.C.S.A. § 2901(a) provides:

A person is guilty of Kidnapping if he unlawfully removes another a substantial distance under the circumstances from the place where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following intentions:
(2) to facilitate the commission of any felony or flight thereafter
(3) to inflict bodily injury on or to terrorize the victim or another.

Id. Appellant contends that the removal of Ms. Hunt was merely incidental to the commission of another offense and not far enough to constitute a substantial distance. Specifically, appellant argues that in light of the Commonwealth’s evidence, the objective of appellant’s conduct was only to persuade Ms. Hunt, through á violent assault, to accede to appellant’s demands for money. This argument, however, is meritless.

The language of § 2901(a) establishes that the statute will apply notwithstanding the fact that the defendant intended to commit another offense after unlawfully transporting the victim. In the present case, the victim was taken by gunpoint from her home and transported to an isolated area where appellant beat and terrorized her. Thus, from the evidence the factfinder could reasonably find that victim’s isolation exposed her to an increased risk of harm. Therefore, we find that appellant’s forced removal of the victim was not simply incidental to appellant’s violent assault. See Commonwealth v. Hughes, 264 Pa.Super. 118, 399 A.2d 694 (1979) (court sustained appellant’s conviction for kidnapping where victim was taken two miles to an isolated area where she was raped and thereafter returned).

Appellant’s argument that the victim was not removed a substantial distance is also meritless. According to the testimony of Officer Johnson, appellant was taken a distance of approximately six miles to Schenley Park. In Hughes, the court found two miles sufficient to establish the “substantial distance” element of the kidnapping statute. See also Commonwealth v. Campbell, 353 Pa.Super. 178, 509 A.2d 394, alloc. denied 516 Pa. 625, 532 A.2d 436 (1986) (court found the “substantial distance” element satisfied as appellant drove approximately two miles in the victims car). Hence, we find that the evidence was sufficient for appellant’s kidnapping conviction.

Appellant next contends that the evidence was insufficient to support his unlawful restraint conviction. Under 18 Pa.C.S.A. § 2902, a defendant is guilty of unlawful restraint when he:

(1) restrains another unlawfully in circumstances exposing him to serious bodily injury; or
(2) holds another in a condition of involuntary servitude.

Id. Here, appellant forced the victim six miles from her home to a park, forced her to disrobe and then assaulted her. Clearly, the evidence was sufficient to support appellant’s conviction for unlawful restraint.

Appellant next asserts that the evidence was insufficient to support his conviction for possession of an instrument of a crime. 18 Pa.C.S.A. § 907 entitled “Possession of instruments of crime” provides:

(a) Criminal instruments generally. — A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.
(c) Definitions. — As used in this section the following words and phrases shall have the meanings given to them in this subsection:
“Instrument of crime.”
(1) Anything specially made or specially adapted for criminal use;
or
(2) anything commonly used for criminal purposes and possessed by the actor under circumstances not not manifestly appropriate for lawful uses it may have.

Id. Appellant argues that his possession of an exacto knife was neither an object regularly used by criminals nor one which is physically altered in such a fashion as to demonstrate a criminal objective. Thus, he asserts that the evidence does not meet the criteria of the statute. We disagree.

As knives are commonly used for criminal purposes, the exacto knife used by appellant to assault the victim, satisfies the first condition of definition (2). Regarding the second condition, we must look at the context in which the instrument was used. See Commonwealth v. Eddowes, 397 Pa.Super. 551, 558, 580 A.2d 769, 774 (1990). Appellant used the exacto knife to carve his name into the victim’s chest and back. This was sufficient to show an intention to use the exacto knife criminally. See Commonwealth v. Hall, 304 Pa.Super. 489, 450 A.2d 1018 (1982) (Commonwealth must show beyond a reasonable doubt defendant’s intent to use the weapon criminally; a showing of more than mere possession is required.) For the foregoing reasons, we find that the evidence was sufficient to establish appellant’s conviction for possession of an instrument of crime.

Appellant next claims that the verdicts were against the weight of the evidence. Specifically, appellant argues that the testimony of the Commonwealth witnesses is replete with inconsistencies. We disagree.

Initially, we note that “a trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155-1156 (1986).

Appellant’s weight of the evidence claim rests upon alleged inconsistencies in the testimony of various witnesses. Essentially, appellant avers that his witnesses were more believable. However, we must defer to the findings of the trial court as findings of credibility are within the sole province of the finder of fact. Commonwealth v. Shaver, 501 Pa. 167, 173, 460 A.2d 742, 746 (1983). After carefully reviewing the notes of testimony and the record, we do not find that the verdict is so contrary to the evidence to shock the court’s sense of justice.

Finally, appellant contends that trial counsel was ineffective. Specifically, appellant argues that trial counsel was ineffective for failing to subpoena all credit card records to corroborate the testimony of appellant and his mother regarding the alleged gifts the victim purchased for appellant. He also asserts that counsel was ineffective for failing to subpoena school attendance records to verify the testimony of numerous defense witness that the victim spent time with appellant during school hours. Appellant argues that these records would have bolstered his theory that the victim accused him of committing the crimes in question to punish appellant for breaking off their relationship and to provide her with an explanation for the expenses she incurred when buying gifts for appellant. We disagree.

In reviewing a claim of ineffectiveness, we first note that counsel is presumed to be effective. Commonwealth v. Pierce, 515 Pa. 153,159, 527 A.2d 973, 974 (1987). In order to prevail on an ineffectiveness claim, appellant must show that his underlying contention possesses arguable merit, that the course chosen by counsel had no reasonable basis designed to serve his interest, and the counsel’s conduct prejudiced him. Commonwealth v. McBee, 513 Pa. 255, 261, 520 A.2d 10, 13 (1986), Commonwealth v. Perlman, 392 Pa.Super. 1, 5, 572 A.2d 2, 4-5 (1990). Because we find that appellant was not prejudiced by trial counsel’s alleged ineffectiveness, appellant’s claim must fail.

To demonstrate prejudice, appellant must show that “but for counsel’s error, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). We agree with the Commonwealth that the aforementioned records pertained only to collateral factual matters. Such records would not refute the events which transpired on August 1, 1984 and which were corroborated by the testimony of the victim, her mother and the photos depicting her injuries. Thus, appellant’s final contention must fail. For the foregoing reasons, we affirm.

Judgment of Sentence affirmed.

      . 18 Pa.C.S.A. § 2901.

      . 18 Pa.C.S.A. § 2903.

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 907.

      . 18 Pa.C.S.A. § 903.

      . The charge of aggravated assault was reduced to simple assault.

      . Appellant’s assertion was contained in his post-trial motions/petition for writ of habeas corpus.

      . Appellant claims that informal attempts to obtain action on the case were made prior to appellant’s petition for writ of habeas corpus. However, none of the correspondence between appellant and the court is included in the record.

      . Appellant further claims that the delay adversely affected his ability to "refresh memories, gamer exculpatory evidence and mount a defense in the event of retrial.” Appellant's brief at 22. However, appellant does not specify what memories need refreshing nor how the discovery of exculpatory evidence was hampered.

      . Appellant argues that involuntary servitude requires the extraction of forced labor and as appellant never demanded labor from the victim appellant's conviction for unlawful restraint can not stand. Appellant's argument is meritless.
      In Commonwealth v. Wells, 313 Pa.Super. 557, 460 A.2d 328 (1983), this court expressly rejected the argument appellant now espouses. In Wells, the court held that simply holding an individual subject to the will of another was sufficient to establish unlawful restraint.


text:
    624 A.2d 162
    COMMONWEALTH of Pennsylvania, v. Harry W. STRUTT, Sr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1993.
    Filed April 29, 1993.

      Jon S. Pushinsky, Pittsburgh, for appellant.
    James Gilmore, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before TAMILIA, HUDOCK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an October 4, 1991 judgment of sentence for rape, involuntary deviate sexual intercourse, incest and indecent assault. Appellant, Harry Strutt Sr., contends that the verdict was against the weight of the evidence and that his trial counsel was ineffective. For the reasons that follow, we reverse and remand for a new trial.

On December 5, 1989, appellant was charged with rape, involuntary deviate sexual intercourse, indecent assault and incest. On February 7, 1991, after a non-jury trial, appellant was found guilty on all charges. Sentencing was deferred to permit the preparation of a pre-sentence report. On March 28, 1991, newly appointed counsel filed a motion for leave to file post-trial motions nunc pro tunc, which was granted. Post-verdict motions were filed and denied after a hearing on October 4, 1991. Appellant was sentenced on the rape conviction to a term of imprisonment of fifty-four to one hundred and eight months, and to an identical concurrent term of imprisonment on the conviction for involuntary deviate sexual intercourse. No sentence was imposed on the other convictions. On October 15, 1991, appellant filed a motion to reconsider sentence which was denied. This timely appeal followed.

The relevant facts of the case are as follows. On November 9, 1989, two of appellant’s children, Joseph Strutt, then sixteen years old, and Harry Strutt Jr., who is mentally handicapped and was nineteen years old at the time, visited appellant at his work place to celebrate Joseph’s birthday. After finishing work, appellant took his sons to two neighborhood bars where he consumed three beers and his sons had soft drinks. The three then went to a restaurant for dinner. After dinner, they went to appellant’s apartment. Once at appellant’s apartment, Joseph went to use the bathroom which was located eight to ten feet down the hall from the apartment. N.T. 2/7/91 at 62. While Joseph was in the bathroom, for approximately fifteen to twenty minutes, the Commonwealth asserts that appellant disrobed from the waist down, removed Harry Jr.’s pant’s and inserted his penis in Harry Jr’s rectum while berating him for being retarded. N.T. 2/7/91 at 21-23.

Appellant first argues that the verdict is against the weight of the evidence. The trial court believed the victim’s testimony to be creditworthy and discounted appellant’s testimony. Appellant argues, however, that in the instant case the victim’s testimony is extremely suspect. Appellant points out that the victim is mentally retarded and had been subject to psychiatric hospitalization in the recent past. Appellant also contends that the totality of the circumstances in the case indicate that appellant’s' version of the events in question was more believable. We disagree.

The testimony of a sexual assault victim standing alone is sufficient weight to support a conviction. Commonwealth v. Cody, 401 Pa.Super. 85, 89, 584 A.2d 992, 993 (1991); appeal denied, 527 Pa. 622, 592 A.2d 42 (1991). Furthermore, in reviewing a weight of the evidence claim we look to see if the “verdict was so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative.” Commonwealth v. Jenkins, 396 Pa.Super. 395, 391, 578 A.2d 960, 962 (quoting, Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989)). The decision whether to grant a new trial is within the trial court’s discretion, and we review that decision under an abuse of discretion standard. Id. Furthermore, since issues of credibility are left to the trier of fact, the trial court, sitting as fact finder, was free to accept all, part, or none of a witness’s testimony. See Commonwealth v. Farquharson, 467 Pa. 50, 59, 354 A.2d 545, 550 (1976). After carefully reviewing the notes of testimony and the record, we do not find that the verdict is so contrary to the evidence as to shock this court’s sense of justice. Accordingly, we find that the verdict was not against the weight of the evidence.

Appellant next contends that trial counsel was ineffective. Specifically, appellant argues that trial counsel was ineffective because he failed to elicit critical testimony and/or conduct effective cross-examination of Commonwealth witness Joseph Strutt. We agree, and accordingly reverse the judgment of sentence and remand for a new trial.

To prevail on a claim of ineffectiveness, appellant must show that his underlying contention possesses arguable merit, that the course chosen by counsel had no reasonable basis designed to serve his interests, and that counsel’s conduct prejudiced him. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). Additionally, when as here, appellant’s claim of ineffectiveness encompasses counsel’s failure to elicit favorable testimony, he must demonstrate that the absent evidence would have been beneficial to the defense. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).

At a post trial proceeding newly appointed counsel for appellant elicited testimony from Joseph Strutt that, upon his return from the bathroom, the door to appellant’s apartment was open, that both appellant and the victim had their pants up and that neither of them appeared disheveled in any way, and that the victim was not crying. N.T. 10/4/91 at 22-24. Additionally, at the post-trial proceeding Joseph Strutt testified that appellant accompanied the boys home that evening, that the victim sat next to the appellant on the bus, and that both appellant and the victim acted “normally” toward each other. N.T. 10/4/91 at 24-25.

At trial the only questions counsel asked Joseph Strutt concerning what he observed when he came back from the bathroom shortly after the alleged incident took place were as follows:

Q. And you came back. Were they still in the same
bedroom?
A Yes.
Q. Did your brother say anything to you?
.A. No, he did not.

N.T. 2/7/91 at 58.

It seems clear the the testimony of Joseph Strutt at the post-trial proceedings would have been favorable to appellant. Joseph Strutt was the only person other than the victim and appellant to be at the scene shortly after the alleged sexual assault. He also accompanied appellant and the victim on the bus ride home after the alleged incident. Therefore, his testimony concerning the circumstances upon his return from the bathroom which indicated that the apartment door was open, that appellant and the victim were fully clothed, that the victim was not crying, and that both appellant and the victim sat together on the bus and acted normally, would seem to support appellant’s contention that no sexual assault took place. Accordingly, we find that appellant’s underlying contention possesses arguable merit.

We must now examine whether counsel’s failure to question Joseph Strutt about these matters had a reasonable basis designed to effectuate appellant’s interests. For “in order to hold that counsel was constitutionally ineffective ‘it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.’ ” Commonwealth v. Mickens, 409 Pa.Super. 266, 280, 597 A.2d 1196, 1203 (1991) quoting, Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983).

In the instant case, a deposition of appellant’s trial counsel conducted as part of post-sentencing proceedings, indicates that the failure of trial counsel to question Joseph Strutt more fully about his observations shortly after the alleged incident was not part of any strategy. When asked about his failure to question Joseph Strutt about the appearance of appellant and the victim when he returned from the bathroom, counsel stated that there was no reason for his lack of questioning. N.T. 10/25/91 at 8. Moreover, when questioned about other details he neglected to elicit from Joseph Strutt on cross-examination, trial counsel merely expressed his belief that such information would have been helpful to appellant, and did not provide any explanation for his failure to do so. N.T. 10/25/91 at 6-10. Finally, trial counsel did not even talk to Joseph Strutt until shortly before trial in the hallway outside of the courtroom. N.T. 10/25/91 at 6. Therefore, it seems likely that trial counsel’s failure to question the witness in any detail about his observations stemmed from a lack of preparation rather than from trial strategy. Accordingly, we believe that there was no reasonable basis for counsel’s failure to elicit favorable testimony from Joseph Strutt.

Our final area of inquiry concerning appellant’s claim is to determine whether appellant was prejudiced by counsel’s ineffectiveness. In the present case, because of the the lack of any dispositive physical evidence or witnesses to the alleged assault, the outcome of the trial was dependent upon a credibility contest between appellant and the victim. Therefore, any testimony which would have cast doubt upon the victim’s version of the incident was crucial to the defense. See Commonwealth v. McCaskill, 321 Pa.Super. 266, 468 A.2d 472 (1983).

Thus, the testimony of Mr. Joseph Strutt, concerning the circumstances upon his return from the bathroom which indicated that appellant and the victim both had their pants up, that the apartment door was open, that the victim was not crying, and that both appellant and the victim sat together on the bus ride to the victim’s house and acted normally, would cast doubt upon the victim’s testimony. We therefore conclude that trial counsel’s failure to question Joseph Strutt about his observations when returning to appellant’s apartment shortly after the alleged sexual assault took place, prejudiced appellant. Accordingly, we reverse the judgment of sentence and remand for a new trial.

Reversed and remanded. Jurisdiction relinquished.

      . 18 Pa.C.S.A. § 3121.

      . 18 Pa.C.S.A. § 3123(1).

      . 18 Pa.C.S.A. § 4302.

      . 18 Pa.C.S.A. § 3126(1).

      . The Commonwealth argues in its brief that appellant has waived this issue, as it was not raised in post-trial motions. After carefully examining appellant’s post-trial motions we believe that appellant has sufficiently preserved this issue for appeal.

      . Because of our disposition of this issue, we need not address appellant’s other allegations of trial counsel's ineffectiveness.


author: OLSZEWSKI, Judge:

text:
    624 A.2d 166
    Robert L. JONES and Merry B. Jones, His Wife, Appellants, v. Christian T. WAGNER and Ines Olivares, His Wife, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1993.
    Filed April 29, 1993.

      Robert L. Jones, Media, for appellants.
    Larry R. McDowell, Philadelphia, for appellees.
    Before OLSZEWSKI, TAMILIA and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the order entered by the Honorable. Samuel Salus, granting defendants’/appellees’ demurrer to plaintiffs’/appellants’ amended complaint. Appellants’ trees were extending into appellees’ property. After appellees’ clipped the protruding branches, appellants initiated this action seeking monetary relief for the damage done to their trees. The trial judge held that no cause of action exists for the type of damages sought, and dismissed appellants’ complaint with prejudice. We affirm.

When considering a ruling on preliminary objections in the form of a demurrer, our standard of review is well settled:

All material facts set forth in the complaint as well as all the inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be in favor of overruling it.

Muhammad v. Strassburger, et al., 526 Pa. 541, 548, 587 A.2d 1346, 1349 (1991), cert. denied, — U.S.-, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991) (quoting Vattimo v. Lower Bucks Hospital, 502 Pa. 241, 243-245, 465 A.2d 1231, 1232-1233 (1983) (citations omitted)).

The complaint alleges that appellants and appellees are adjoining landowners with a fence separating their properties. Appellants are the owners of a row of tall hemlock trees. While appellants were on vacation, appellees trimmed the branches of the trees to the extent that the branches hung over the boundary line separating the neighbors’ property. Complaint ¶ 5. Appellants seek the replacement value of each of the twenty-six trees which adorn the property line, a combined figure of approximately $31,000.

Appellants’ theory for recovery is one that has not been addressed by an appellate court in this Commonwealth. Appellants claim that appellees are liable to them at law since appellees, having suffered no appreciable damage by the overhanging branches, are not entitled to exercise a self-help remedy by trimming the trees. Thus, appellants claim that appellees’ action, pursuing a remedy without a right, renders appellees liable for damage to the trees. This theory mischaracterizes the common law of encroachments.

The issue of whether a landowner who suffers a trespass caused by overhanging tree limbs, branches, or roots is entitled to a self-help remedy has been considered at length by other jurisdictions. Michaelson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1935); Smith v. Holt, 174 Va. 213, 5 S.E.2d 492 (1939); Gostina v. Ryland, 116 Wash. 228, 199 P. 298 (1921); Sterling v. Weinstein, 75 A.2d 144 (D.C.Ct.App.1950); Whitesell v. Houlton, 2 Haw.App. 365, 632 P.2d 1077 (1981); Cannon v. Dunn, 145 Ariz. 115, 700 P.2d 502 (1985). See generally, Annotation, Encroachment of Tree, Shrubbery, or Other Vegetation Across Boundary Line, 65 A.L.R.4th 603. While there does exist some conflict regarding when a landowner may institute an action for injunctive or monetary relief against an adjoining landowner whose trees overhang the property line, one common thread connects all of these cases: the landowner whose land is encroached by the overhanging branches may trim the limbs to the extent of the encroachment. As the District of Columbia Court of Appeals cogently stated in Sterling, supra: “[W]e think that the cases are in agreement that trees ordinarily aren’t nuisances; that overhanging branches which merely cast shade or drop leaves on the land are not nuisances; that if under any circumstances overhanging branches or protruding roots do constitute a nuisance it is only when they do sensible or substantial harm; and that, whether nuisances or not, a landowner may always cut away to his property line branches and roots from trees of the adjoining owner.” Id. at 147 (emphasis added).

Appellants’ contention that appellees were required to suffer sensible harm before availing themselves of a remedy is only relevant if the appellees seek their remedy in a court of law or equity. Under the laws of the jurisdictions who have confronted the issue, and henceforth ours, a showing that encroaching tree limbs, branches, or roots have caused sensible damage is not a pre-condition to exercising a self-help remedy.

The genesis of the “appreciable, sensible harm” distinction is sagely described by the Washington Supreme Court in the aged, yet hardly antiquated, case of Gostina v. Ryland, supra. In Ryland, appellees’ property was encroached by appellant’s pine tree. They brought an action for damages under a state statute making any obstruction with a landowner’s free use of his property a nuisance. The court explained that while a self-help remedy is always available for an aggrieved landowner at common law, it is not clear when the court will entertain the landowner’s action for damages or injunctive relief:

Nuisances by act of commission are committed in defiance of those whom such nuisances injure, and the injured party may abate them without notice to the party who committed them; but nuisances from omission may not be thus abated, except be it to cut the branches of trees which overhang the public road, or the private property of the person who cuts them. The permitting of the branches of those trees to extend so far beyond the soil of the owners of the trees is an unequivocal act of negligence. The security of lives and property may sometimes require so speedy a remedy as not to allow time to call on the person whose property the mischief has arisen to remedy it; in such a case a person would be justified in abating the nuisance from omission without notice. In all other cases of such a nuisance, persons should not take the law into their own hands, but follow the advice of Lord Hale, and apply to a court of justice.
Trees whose branches extend over the land of another are not nuisances, except to the extent to which branches overhang the adjoining land. To that extent they are technical nuisances, and the person over whose land they extend may cut them off, or have his action for damages, if any have been sustained therefrom, and an abatement of the nuisance against the owner or the occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.
It may be understood that any erection upon one man’s land, that projects over the land of another, as well as any tree whose branches thus project, doing actual damage, or anything that interferes with the rights of an adjoining landowner, is an actionable nuisance.
From ancient times it has been a principle of law that the landowner has the exclusive right to the space above the surface of his property. To whomsoever the soil belongs, he also owns the sky to the depths. The owner of a piece of land owns everything above it and below it to an indefinite extent.
On the same principle it is held that the branches of trees extending over adjoining land constitute a nuisance — at least in the sense that the owner of the land encroached may himself cut off the offending growth.
But whether a suit for injunction and damages may be maintained without proof of actual damage is a point upon which the authorities are not very clear or satisfactory. According to some decisions, sensible, appreciable damage must be shown in order to give overhanging branches the character of nuisance; in other words, the fact that the branches extend over another’s land does not constitute them a nuisance per se.

Id. 116 Wash, at 232, 199 P. at 300.

Thus, there is no question that a branch overhanging a landowner’s property line is a technical trespass which he may alleviate by exercising self-help, as did appellees here. They were entitled to trim the encroaching branches without regard to the degree of physical harm done to their property. The redressable harm caused by the trees is that of the trespass onto appellees’ property, not physical damage done to their land.

Although self-help is always available to a landowner whose neighbors’ trees protrude onto his property, it is also necessary to address the available judicial remedies. In some jurisdictions, damage caused by encroaching branches and roots are never actionable, self-help being the landowner’s only remedy. This is referred to as the “Massachusetts Rule.” Michaelson v. Nutting, supra; Richmond v. General Engineering Enterprises, 454 So.2d 16 (Fla.Dist.Ct.App., 1984). Others require proof of some “sensible or substantial” damage before an action for damages in trespass are available, Smith v. Holt, supra, while some jurisdictions allow both actions at law and at equity upon this showing. Cannon v. Dunn, supra (and cases cited therein). Hawaii allows an action upon a showing of actual damage or upon “imminent danger” of damage. Whitesell v. Houlton, supra; see also, Pierce v. Casady, 11 Kan.App.2d 23, 711 P.2d 766 (1985). Finally, some jurisdictions hold that proof of damage only determines the amount of damages recoverable, and not whether a cause of action exists. These jurisdictions, however, are ones in which statutes, not common law, recognize the existence of the cause of action. Rautsaw v. Clark, 22 Ohio App.3d 20, 488 N.E.2d 243 (1985). We must now decide how Pennsylvania should address the issue.

It is a fundamental maxim of law which states that an owner of realty has a cause of action in trespass against any person who has committed a trespass upon his lands, and it is not necessary for the landowner to allege any actual injury or damage as an element of the cause of action. 37 P.L.E., Trespass § 6 (and collected cases). There is no need to allege harm in an action for trespass, because the harm is not to the physical wellbeing of the land, but to the landowner’s right to peaceably enjoy full, exclusive use of his property. See, Houston v. Texaco, Inc., 371 Pa.Super. 399, 538 A.2d 502 (1988), alloc. den. 520 Pa. 575, 549 A.2d 136 (1988). Moreover, as Prosser notes:

Any physical entry upon the surface of the land is a trespass, whether it be by walking upon it, flooding it with water, casting objects upon it, or otherwise. One may commit a trespass upon the vertical surface of another’s premises, as well as the horizontal — as where he piles dirt or attaches wires against a boundary wall. But the interest in exclusive possession is not limited to the surfaces; it extends above and below. There is a property right in the air space above the land, which may be invaded by overhanging structures, or telephone wires, by thrusting an arm above the boundary line, or by shooting across the land, even though the bullets do not fall upon it.

Prosser, Torts (5th ed., 1984); See also Restatement (Second) of Torts, § 159 (trespass may be committed above the surface of the earth). Thus, an aggrieved landowner has a cause of action against an adjoining landowner whose trees overhang the boundary line. Otherwise, his right to enjoy exclusive peaceable use of his property is diminished.

The continuing presence of the branches and trees overhanging property lines indicates that the nature of the relief afforded to the aggrieved landowner is not limited to monetary relief. The Restatement notes that a continuing trespass is committed by the “continued presence of a structure, chattel, or other thing which the actor has tortiously placed there, whether or not the actor has the ability to remove it.” Restatement (Second) of - Torts § 161(a). An actor places branches “tortiously” on another’s property when he is subject to liability in tort, that is, when he is trespassing onto another’s property. Id., comment a. As we have noted, a trespass occurs by a mere overhang. Furthermore, given the rather unremarkable observation that trees will tend to grow, the trespass, even if remedied once, is bound to recur just as soon as the trees or shrubbery regenerate. See, Graybill v. Providence Twp., 140 Pa.Commw. 505, 593 A.2d 1314 (1991) (recurring flooding on plaintiffs land caused by defendant’s conduct is a continuing trespass). Thus, the trespass is “continuing” and the possessor of land is entitled to pursue a proper remedy.

Our Supreme Court has continually held that equity is available to a landowner who suffers trespasses of a continuing nature:

It is hornbook law that a Court of Equity possesses jurisdiction to enjoin repeated trespasses on land as well as to enjoin a nuisance. In Tri Cities Water Co. v. City of Monessen, 313 Pa. 83, 85,169 A. 159, it is said: “There is no doubt equity has power to grant a restraining order preventing actual or threatened trespasses of a continuing character. Gray v. Philadelphia & Reading Coal & Iron Co., 286 Pa. 11, 132 A. 820.”

Gardner v. County of Allegheny, 382 Pa. 88, 102, 114 A.2d 491 (1955). Furthermore, the recurring nature of the trespass is one that cannot be redressed in one action. Our courts have held that in such a case, the aggrieved landowner may maintain successive actions to cure the harm. Comment b to § 161 of the Restatement (Second) of Torts provides:

The actor’s failure to remove from the land in the possession of another a structure, chattel or other thing which he has tortiously erected or placed on the land constitutes a continuing trespass for the entire time during which the thing is wrongfully on the land and ... confers on the possessor of the land an option to maintain a succession of actions based on the theory of continuing trespass or to treat the continuance of the thing on the land as an aggravation of the original trespass.

Id.; see, Sustrik v. Jones and Laughlin Steel Corp., 413 Pa. 324, 197 A.2d 44 (1964). We are convinced that Pennsylvania law, as embodied in the Restatement, entitles a landowner to protect his property interest by maintaining an action to compel a person who has caused a trespass to remove it. It is not suggested anywhere that a showing of harm is a prerequisite to recovering in trespass. A landowner in this Commonwealth may avail himself of every available remedial avenue in an effort to protect the incidents of land ownership. Anything less, in our view, is a travesty.

Therefore, based on the reasoning above, we conclude that Pennsylvania law affords a full panoply of remedies to a landowner whose property is encroached by overhanging branches or tree limbs. First, an aggrieved landowner is entitled to exercise a self-help remedy by either trimming or lopping off the branches to the extent his property is encroached. Second, if the landowner has incurred reasonable expenses in the course of exercising a self-help remedy, he may recoup those expenses from the trespasser. Third, he may, on a trespass theory, seek equitable relief compelling the trespassing neighbor to remove the trees to the extent of the encroachment and seek appropriate incidental and consequential damages. We emphasize that Pennsylvania law requires no showing of physical harm or damage to the land before a possessor of land can enforce his right to freely enjoy unencumbered and exclusive use of property he rightfully possesses.

Since appellees in this case were only exercising their right to trim the branches and limbs of appellants’ encroach-' ing trees, they may not be held liable in damages for doing so. See, Rosa v. Oliviera, 115 R.I. 277, 342 A.2d 601 (1975) (damages not available for harm to encroaching shrubbery caused by party exercising common law right to self-help).

The order granting appellees’ preliminary objections in the form of a demurrer is affirmed.

      . The only exception to the ancient rule that a landowner owns his property "to the heavens” is in aviation, where a landowner cannot claim a trespass if aircraft flies above his land and does not substantially interfere with his use thereof. Restatement (Second) of Torts, § 159(b) (incorporating United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946)); accord, Gardner v. County of Allegheny, 382 Pa. 88, 114 A.2d 491 (1955).

      . We do note that Pennsylvania follows the Restatement (Second) of Torts in private nuisance situations. Kembel v. Schlegel, 329 Pa.Super. 159, 478 A.2d 11 (1984). The Restatement, §§ 821F and 822, holds a private citizen liable in nuisance for an unreasonable and intentional invasion of the private use and enjoyment of another’s land. While the type of harm sufficient to permit recovery for nuisance is generally a question for the factfinder, we have held, quoting the Restatement, that ”[t]he law does not concern itself with trifles, and therefore, there must be a real and appreciable invasion of the plaintiff’s interests before he can have an action" for a private nuisance. Kembel, at 167, 478 A.2d at 15. The nature of the equitable relief in the case of a possessor of land who suffers a continuing trespass of encroaching tree branches, however, is not a nuisance. It is a trespass and as such no degree of harm is necessaiy to enforce its abatement.

      . This comment contains a qualification. The Restatement notes that a continuing trespass is not a trespass at all if the actor causing the trespass has obtained an easement by adverse possession. Restatement (Second) of Torts § 161, comment d. We cannot help but wonder whether the continued presence of encroaching tree branches, held openly, notoriously, hostilely, and continually for 21 years would create a prescriptive easement in the airspace which they hang. If this would be the case, and we can find no Pennsylvania law which would indicate that a prescriptive easement is not available in this situation, a landowner who suffers actual harm for the first time during the tree owner’s twenty-second year of hostile ownership, might very well be precluded from seeking a judicial, or even self-help, remedy. This result, while not entirely unforeseeable, is anomalous. However, if an action is available without a showing of damage, the landowner has no reason to complain if a neighbor’s tree causes damage after the prescriptive period has run. See, contra, Pierce v. Casady, 11 Kan.App.2d 23, 711 P.2d 766 (1985) (holding that airspace is generally not subject to prescriptive rights).