author: TAMILIA, Judge: KELLY, Judge,

text:
    619 A.2d 1070
    COMMONWEALTH of Pennsylvania, Appellant, v. David C. STREATER.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1992.
    Filed Jan. 27, 1993.

      Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for the Com., appellant.
    Mitchell A. Kaufman, Asst. Public Defender, Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and CAVANAUGH, McEWEN, DEL SOLE, BECK, TAMILIA, KELLY, POPOVICH and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

The Commonwealth takes this appeal from the Order of July 26, 1990, suppressing evidence seized as a result of the vehicle stop and subsequent arrest of appellee, David Streater.

The facts of this case, as summarized by the trial court, are as follows.

On August 6, 1989, Pittsburgh City Police Officer Joseph F. Tersak was on routine patrol in the area of Seventh Avenue and William Penn Place. He observed Mr. Streater operating a light blue vehicle with an expired registration plate. As he approached the vehicle he observed scrape marks and glue on the lower right hand side of the license plate. He suspected the plate had been altered. Mr. Streater was then asked to step out of the automobile where he was placed under arrest, handcuffed and taken to the patrol car. Due to traffic conditions attributable to the Three Rivers Regatta, Officer Tersak requested a police wagon with two (2) officers to assist him at the scene. Upon arrival, Officer Tersak asked Officer White to drive Mr. Streater’s car to Zone 2 Police Station, where it would be towed to the City Pound. Officer White testified that as he entered the automobile he observed on the front seat a bag of approximately seven pieces of suspected cocaine and a large wad of money.

(Slip Op., Ross, J., 11/27/90, pp. 1-2.) Appellee was charged with possession of a controlled substance, possession with intent to deliver a controlled substance, possession of drug paraphernalia and possession of an altered document or plate. A suppression hearing was held, following which the court concluded that because the offense which led to the stop was a violation of the Vehicle Code and appellee was a resident of the Commonwealth, the correct procedure would have been to issue a citation or obtain the necessary information for filing a complaint. Since the court concluded that appellee’s arrest was unlawful, all evidence seized as a result of the arrest was suppressed.

When reviewing the trial court’s ruling on a suppression motion we must

determine whether the factual findings are supported by the record. In making this determination, we must consider only the evidence of the prosecution’s witnesses, and so much evidence of the defense that remains uncontradicted when fairly read in the context of the record as a whole. When the evidence supports the factual findings, we are bound by such findings; we may reverse only if the legal conclusions drawn therefrom are erroneous.

Commonwealth v. Medley, 531 Pa. 279, 612 A.2d 430, 432 (1992).

The Commonwealth has framed the sole issue in this case as follows:

THE SUPPRESSION COURT ERRED IN HOLDING THE ARREST UNLAWFUL BECAUSE A POLICE OFFICER MAY ALWAYS MAKE A WARRANTLESS ARRESTS [sic] FOR MISDEMEANORS COMMITTED IN HIS PRESENCE PURSUANT TO THE COMMON LAW RULE, AS CODIFIED IN PA.R.CRIM.P. 101(2), AND OFFICER TERSAK HAD PROBABLE CAUSE TO BELIEVE THAT APPELLEE WAS IN POSSESSION OF AN ALTERED LICENSE PLATE, IN VIOLATION OF 75 PA.C.S.A. § 7122(3), A MISDEMEANOR OF THE FIRST DEGREE.

Based upon our review of the issue, we find the suppression court erred, as a matter of law, in its interpretation and application of Pa.R.Crim.P. 101(2), and we reverse.

We must begin our analysis, as did the suppression court, with the Rules of Criminal Procedure which provide the procedures for initiating criminal proceedings. Rule 101 states:

Criminal proceedings in court cases shall be instituted by:

1. filing a written complaint; or
2. an arrest without a warrant when the offense is a felony or misdemeanor committed in the presence of the police officer making the arrest; or
3. an arrest without a warrant upon probable cause when the offense is a felony; or
4. an arrest without a warrant upon probable cause when the offense is a misdemeanor not committed in the presence of the police officer making the arrest, when such arrest without a warrant is specifically authorized by statute.

Pa.R.Crim.P. 101. The suppression court went on to conclude “the Vehicle Code limits the power of the police to arrest without a warrant” (Slip Op. at 3). However, section 6304 of the Vehicle Code provides:

§ 6304. Authority to arrest without warrant.
(a) Pennsylvania State Police.—A member of the Pennsylvania State Police who is in uniform may arrest without a warrant any person who violates any provision of this title in the presence of the police officer making the arrest.
(b) Other police officers.—Any police officer who is in uniform may arrest without a warrant any nonresident who violates any provision of this title in the presence of the police officer making the arrest.
(c) Other powers preserved.—The powers of arrest conferred by this section are in addition to any other powers of arrest conferred by law.

75 Pa.C.S. § 6304 (emphasis added). The suppression court held that a motor vehicle violation, even for a misdemeanor such as section 7122(3), did not permit arrest of a local citizen except by the state police. This interpretation is erroneous because the arrest powers of police are not limited by the Vehicle Code, unless so specified, and the Code must be read in pari materia with the Crimes Code and the Rules of Criminal Procedure to determine if and when an arrest is proper. The specific language of section 6304(c) actually extends the power to arrest. 75 Pa.C.S. § 6304(c).

Out of the literally dozens of offenses under the Vehicle Code, a mere handful are designated as misdemeanors, the remainder being summary in nature. The misdemeanors are deemed to require a different treatment because of their unique qualities calling for greater arrest power and ultimately a more severe penalty. Greater arrest powers are required to assure the actor will be brought to justice and evidence obtained at the time of arrest can be secured so as to be available at trial or to prevent the continuance of the illegal activity. Examples are driving under the influence (§ 3731), homicide by vehicle (§ 3732), accidents involving death or personal injury (§ 3742), removal or falsification of identification numbers (§ 7102) and altering, forging or counterfeiting documents and plates (§ 7122), the present offense. In most of these violations proceeding by citation could result in the loss of evidence essential to the conviction as the evidence would travel with the actor and his vehicle. Arrest is necessary, as here, to preserve the evidence or to assure proper identification and availability for trial.

The analysis we employ today is not novel. In Commonwealth v. Neufer, 264 Pa.Super. 553, 400 A.2d 596 (1979), this Court held section 6304 incorporated by reference the authority to arrest for a summary offense, when that authority exists outside the Vehicle Code. In Neufer; the defendant was arrested for “pedestrian under the influence,” a summary offense under the Vehicle Code. By looking “elsewhere to determine whether any authority [exists] to make a warrant-less arrest,” Id. at 559, 400 A.2d at 599, and finding arrest authority existed in cases of drunkenness and disorderly conduct under the Second Class Township Code of 1933, 53 P.S. § 65591, the arrest was held to be valid.

Neufer, of course, was a case involving a summary offense, but its underlying principle extends to the case before us. The arrest in this case, if anything, has greater validity because of the explicit powers of police to arrest pursuant to Pa.R.Crim.P. 101. To hold otherwise requires us to find the rules of criminal procedure do not apply equally to motor vehicle cases. The rules provide that in summary offenses, unless specified otherwise, proceedings are instituted by citations. In misdemeanor cases, proceedings are commenced by written complaint or arrest without warrant when the misdemeanor occurs in the presence of the police officer, unless otherwise provided by statute (example being driving under the influence). Felony cases are instituted by written complaint, arrest without warrant upon probable cause or when the felony is committed in the presence of the police officer. There are no exceptions and special considerations to the means of instituting proceedings.

It is not disputed generally, nor is it the subject of debate in this case, that at common law a police officer was authorized to effect a warrantless arrest for any misdemeanor committed in his presence. Rule 101 is merely the codification of the common law rule. It follows, then, that if Officer Tersak had probable cause to make a warrantless arrest of appellee for a violation of section 7122 of the Vehicle Code, a first degree misdemeanor, the arrest was legal. Probable cause for a warrantless arrest exists where the facts and circumstances which are within the knowledge of the officer at the time of arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution to believe the suspect has committed or is committing a crime. Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991).

Officer Tersak testified he stopped appellee’s automobile because of the discrepancy between the temporary registration sticker on appellee’s license plate and the letters on the plate indicating it was approximately four years old. As he approached the vehicle, Officer Tersak observed a residue of glue and scratch marks where the expired registration sticker apparently had been removed, leaving only the temporary sticker, and altering the plate to make it appear to be valid.

We find, based upon his observations, Officer Tersak had probable cause to arrest appellee under Rule 101(2) for a continuing violation of section 7122. The subsequent seizure occurred pursuant to a valid arrest, and was therefore lawful. Consequently, suppression of the evidence was improper, and we remand for trial on all charges.

Order reversed; remanded for trial.

Jurisdiction relinquished.

Concurring Opinion by KELLY, J., joined by McEWEN, J.

KELLY, Judge,

concurring:

I agree with the majority’s reversal of the suppression court’s conclusion that because Officer Tersak’s initial arrest of the appellant for violation of 75 Pa.C.S.A. § 7122(3) was unlawful, all evidence seized as a result of the arrest must be suppressed. However, I disagree with the majority’s conclusion that the initial arrest of appellant was lawful under Pa.R.Crim.P. 101. This rule, the majority maintains, merely codified the common law rule permitting police officers to effectuate warrantless arrests for any misdemeanor committed in his or her presence.. I believe the majority opinion completely ignores our Supreme Court’s decision in Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (1976) where the court, in interpreting the prior Pa.R.Crim.P. 101, held that Pa.R.Crim.P. 101 does not speak to the validity of arrests under the Vehicle Code but only to the initiation of proceedings in court cases. Thus, I do not believe that Pa.R.Crim.P. 101 is a codification of the common law rule authorizing a police officer to effectuate a warrantless arrest for any misdemeanor committed in his or her presence.

Recently, in Commonwealth v. Bullers, 410 Pa.Super. 176, 599 A.2d 662, appeal granted, 529 Pa. 639, 600 A.2d 1257 (1991), this Court was asked to consider, “[wjhether the authority of a police officer to arrest without a warrant extends to the summary offense of underage drinking under circumstances where the violator does not exhibit disorderly conduct, a breach of the peace, drunkenness or other irregular behavior.” Id. 599 A.2d at 663. In concluding that such an arrest was not authorized, the panel opined, “We have recently stated that, ‘[w]hen vesting a group with police powers and duties, the Legislature does so with specificity.’ ” Commonwealth v. Bullers, supra, 410 Pa.Super. at 184, 599 A.2d at 666 (emphasis added), quoting Commonwealth v. Leet, 401 Pa.Super. 490, 493, 585 A.2d 1033, 1035 (1991), appeal granted, 529 Pa. 647, 602 A.2d 857 (1992). This Court in Bullers declined the invitation to extend arrest powers noting, “[0]ur legislature has demonstrated its ability to clearly and unambiguously ‘specifically authorize’ arrests in the context of summary offenses' and otherwise.” Because the legislature had not authorized the arrest in Bullers, no other authority to arrest was found to exist. Id. 410 Pa.Super. at 186, 599 A.2d at 667.

Similarly in Commonwealth v. Leet, supra, an en banc panel of this Court was asked whether deputy sheriffs had the authority to make warrantless arrests for Vehicle Code violations committed in their presence. In concluding no such authority existed, the Court recognized that the people of the Commonwealth, acting through the legislature, had vested the authority to arrest for violations of the Vehicle Code in police officers only. Commonwealth v. Leet, supra, 401 Pa.Super. at 499, 585 A.2d at 1038. The Court reasoned that for it to expand the powers of the deputy sheriff to make such arrests “would violate the tenet that when the legislature intends to vest a group with police powers, it does so with specificity.” Id.

Authority to arrest for violations of the Vehicle Code may be found in section 6304 of the Code which provides:

§ 6304. Authority to arrest without warrant.
(a) Pennsylvania State Police.—A member of the Pennsylvania State Police who is in uniform may arrest without a warrant any person who violates any provision of this title in the presence of the police officer making the arrest.
(b) Other police officers.—Any police officer who is in uniform may arrest without a warrant any nonresident who violates any provision of this title in the presence of the police officer making the arrest.
(c) Other powers preserved.—The powers of arrest conferred by this section are in addition to any other powers of arrest conferred, by laiv.

75 Pa.C.S.A. § 6304 (emphasis added). Because appellant was a resident of the Commonwealth and the arresting officer was not a member of the state police, authority to arrest in this instance must be found in another power of arrest “conferred by law.”

The majority holds such authority is found in Pa.R.Crim.P. 101(2) which states:

Criminal proceedings in court cases shall be instituted by:
2. an arrest without a warrant when the offense is a felony or misdemeanor committed in the presence of the police officer making the arrest.

Pa.R.Crim.P. 101(2). The majority concludes that because appellant was arrested for a misdemeanor violation of the Vehicle Code witnessed by the officer, his arrest was valid under Pa.R.Crim.P. 101(2). I cannot agree.

In Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (1976), our Supreme Court was asked to resolve a conflict which existed at the time between former Pa.R.Crim.P. 101 and the provision of the Vehicle Code which at the time authorized the following:

A peace officer may, upon view or probable cause without a warrant, arrest any person violating section 1037 (driving while intoxicated) of this act in cases causing or contributing to an accident.

75 Pa.C.S.A. § 1204(a). Pa.R.Crim.P. 101 did not, at the time, allow for court proceedings to be instituted by a warrantless arrest for a misdemeanor committed beyond the presence of the arresting officer. Appellee, arrested for driving under the influence, had successfully argued in Levesque that because the rule did not authorize his arrest and was in conflict with the statute which did authorize his arrest, his arrest was unlawful.

In reversing the trial court and remanding for the imposition of sentence, the Court explained, “Rules 51 and 101 (of Criminal Procedure) prescribe the means of instituting criminal process only and neither discusses nor concerns the legality of arrests.” Id. at 125, 364 A.2d at 936. The Court went on to opine:

[I]t is clear that Pa.R.Crim.P. 101 does not speak to the validity of arrests under the Vehicle Code but only to the initiation of proceedings in court cases. Therefore, as to the legality of arrests in general, or as to the power of a peace officer to effect this particular arrest, there is no conflict between the Rule and the statute. The statute controls the grant of arrest power, and the rule, as far as its contemplation at the time, governs the means of instituting proceedings.

Id. (emphasis added). However, because at the time of Levesque’s arrest, Rule 101 did not “contemplate the initiation of proceedings by an arrest for a misdemeanor not within view of the arresting officer but which arrest was specifically authorized by statute,” the Court was forced to “examine the procedure used in this case to determine its propriety.” Id.

In finding that no conflict existed between the rule and the statute, the Court concluded:

The instant procedure, arrest and contemporaneous notice that the arrest was for driving while under the influence of intoxicating liquor, substantially complied with the purpose underlying the former Rule 101 by setting the institution of proceedings against Levesque at his arrest and attaching the protection of the criminal justice system at the earliest possible moment in his confrontation with authorities.
Therefore, neither the arrest nor the procedure of instituting proceedings against Levesque may serve as the basis of a suppression of evidence instantly.

Id. at 126-27, 364 A.2d at 936-37.

From the foregoing, I find that it is the manner of initiating criminal proceedings in the court, not the power to arrest, which is governed by the Rules of Criminal Procedure. Where statutes are silent as to the grant of arrest powers, the Commonwealth may not look to the Rules of Criminal Procedure for such authority. Thus, the majority’s reliance upon Pa.R.Crim.P. 101(2) for Officer Tersak’s authority to arrest the appellant is misplaced. However, I find that Officer Tersak’s initial arrest of the appellant for violating 75 Pa. C.S.A. § 7122(3) was proper pursuant to the statutory powers of arrest granted to him by the legislature. I reach this conclusion under the following reasoning.

Most police officers in Pennsylvania have been granted specific authority by statutes, many of recent vintage, to effectuate warrantless arrests for misdemeanors committed in their presence. See 53 Pa.S.A. § 13349, enacted May 3, 1876 (granting police officers in cities of the first class powers to arrest upon view and without warrant persons committing summary offenses); 53 Pa.S.A. § 37005, enacted June 28,1951 (granting police officers in cities of the third class powers to arrest without warrant and upon view persons committing misdemeanors or violating city ordinances). It also appears that recent statutes granting “specific authority” to execute warrantless arrests for misdemeanors and violations of township or borough ordinances committed in their view have been enacted for almost every other police officer in Pennsylvania. See, e.g., 58 Pa.S.A. § 56403, enacted May 27, 1949 (first class townships); 53 Pa.S.A. § 65591, enacted July 10, 1947 (second class township); 53 Pa.S.A. § 46121, enacted February 1, 1966 (boroughs); 71 Pa.C.S.A. § 252(a), enacted December 3, 1970 (state police). Unfortunately, perhaps due to legislative oversight, a modern statute granting “specific authority” to effectuate warrantless arrests for misdemeanors committed within their view has not been furnished to police officers in cities of the second class, i.e. Pittsburgh. In fact, one learned commentator, cited earlier by the majority, has posited that specific statutory authority to effectuate warrantless arrests for misdemeanors committed in the officer’s presence exists for police officers in every municipality in this Commonwealth except Pittsburgh. See McCarthy, Warrantless Arrests in Pennsylvania, 92 Dick.L.Rev. 115, 118-19 (1987).

However, while I am in agreement with this commentator that there is no modern statutory authority existing for Pittsburgh police officers to effectuate warrantless arrests for misdemeanors committed within their view, I disagree with the .premise that the Pittsburgh police are without statutory authority to effectuate such arrests. The power to effectuate warrantless arrests for misdemeanors committed in their presence was granted by the legislature to Pittsburgh mayors when the city, with much more limited boundaries than today’s metropolis, was originally incorporated in 1816. See “An Act to Incorporate to City of Pittsburgh.” Act of March 18, 1816. The Incorporation Act of 1816 granted the mayor of Pittsburgh, as presiding officer of the select and common councils, the same powers that were vested in the mayor of Philadelphia in its Act of Incorporation of 1789. Id. Section V. See also “An Act to Incorporate the City of Philadelphia” Act of March 11, 1789 Ch. MCCCLXXXIII.

It has been said that the duties of the early mayors of Philadelphia were little more than those of a chief of police. R. Weigley, Philadelphia: A 300-Year History 23 (W.W. Norton & Company ed. 1 1982). One early mayor of Philadelphia was described as follows:

This Mr. Wharton was Mayor of the City in 1798, and for many years after. He was bold, intrepid, and very active, ready at a moment’s notice to quell a riot. His appearance at such gatherings with staff in hand, and hat tipped a little on one side of his head, with firm step, and independent authority, would scatter the ire and quell the fire of the most ferocious mob. Philadelphia never had a more efficient and popular municipal officer.

Id., citing A. Ritter, Philadelphia and Her Merchants, 46 (Philadelphia, Privately Printed 1860) (footnote omitted). See also E. Allinson and B. Penrose, Philadelphia 1681-1887: A History of Municipal Development, 101-102 (Philadelphia: Allen, Lane and Scott, 1887). Likewise, the mayors of Pittsburgh were fully empowered by the Act of Incorporation of 1816 to arrest upon view all persons committing misdemeanors in their presence.

Additionally, the first mayor of Pittsburgh, Ebeneezer Denny, and his successors, were empowered to appoint others to assist them in their quest to keep law and order on the public streets of Pittsburgh. See S. Killikelly, History of Pittsburgh: It’s Rise and Progress, 195 (Pittsburgh, B.C. & Gordon Montgomery Co. 1906).

Among the powers conferred by the charter, under the head of “the powers and authorities now vested by law in the Select and Common Councils of the City of Philadelphia,” was the right to establish a nightly watch. By the ordinance establishing the city government, in accord with the charter, the Mayor was given authority to appoint the High Constable and four City Constables, and each constable was required to give a bond in the sum of $1,500 for the faithful performance of the duties of his office. The Mayor might remove any constable at will. The constables were enjoined to preserve the peace, and arrest all disorderly persons, especially on Sunday, and were also to attend court, the market, and the Councils, according to appointment. The fee for each day’s attendance at the market was 75 cents. It was further ordained that the Mayor should have power to appoint the Captain or Superintendent of the Watch to take care of the oil, wick and utensils of the city, and to render an account monthly to the Mayor of the quantities of every article received and remaining on hand; to take care that the watchmen perform them duties and to report forthwith to the Mayor all omissions or breaches of duty; and to aid the watchmen in preventing murders, robberies and other disorders. The • Superintendent and watchmen were empowered to arrest all persons found disturbing the peace, or whom they should have cause to suspect of any unlawful or evil design, and drunken, disorderly or riotous persons, and to taken them before the Mayor or some Alderman.

F. Harper, Pittsburgh of Today: Its Resources and People, 201 (New York, American Historical Society 1931). See also Pittsburgh, “An Ordinance for the Establishment of a Permanent Watch” (March 26, 1836); Pittsburgh, “A Supplementary to an Ordinance Entitled ‘An Ordinance for the Establishment of a Permanent Watch’ ” (August 7, 1839); Pittsburgh: “An Ordinance Empowering the Mayor to Act in Certain Case of the Breach of the Public Good Order” (April 4, 1845); Pittsburgh: “An Ordinance Authorizing the Mayor to Commission Private Watchman” (May 23, 1848).

Subsequently, in 1857, the legislature passed a “Supplementary to an Act to Incorporate the City of Pittsburgh.” In this supplementary act, the legislature endowed the Pittsburgh City Councils with the powers to pass an ordinance establishing a permanent day and night police force. The act stated that the powers of the Pittsburgh Police Department were both the duties imposed upon police by law and the ordinances of the city. The act also placed the power for setting the police department’s rules and regulations with the mayor. See “Supplementary to an Act to Incorporate the City of Pittsburgh” Act of May 16, 1857, No. 598, section 16. The Common and Select Councils of the City of Pittsburgh, shortly thereafter, passed an ordinance establishing the police department in December, 1857. See Pittsburgh: “An Ordinance Establishing a Police in the City of Pittsburgh” (December 7, 1857).

The powers of the Pittsburgh Police to effectuate warrant-less arrest for misdemeanors committed within view were clearly stated by the Common and Select Councils in an ordinance passed on December 27, 1869. This ordinance clarified the duties of the Pittsburgh Police as follows:

It shall be the duty of the police of the city of Pittsburgh, upon view, or upon information made and warrant issued, to arrest all persons who may be found engaged in, or charge with violating the public peace, disorderly conduct, lewd, indecent or lascivious behavior upon the streets or other public places, creating riots or gambling, and all vagrants, common street beggars, common prostitutes, habitual disturbers of the public peace, known or reputed pickpockets, burglars, thieves, watch-stuffers, person who practice any trick, game or device with intent to swindle, persons who abuse their families, and suspicious person who can give no reasonable account of themselves and bring the same before the mayor of the city ...

See Pittsburgh, Ordinance Book 2. 515, § 1 (December 27, 1869) (emphasis added).

Thus, the power of the Pittsburgh Police Department to make arrests for misdemeanors committed in their presence was unquestionably established as a result of powers endowed on the Common and Select Councils by the legislature in the Act of May 16, 1857. A bill which was enacted seventeen years before the legislature changed its methodology for granting powers to the cities of this Commonwealth according to each city’s respective population.

In 1874, our legislature enacted “The Classification of Cities Act” dividing the cities of this Commonwealth into three classes. This Act states that the powers and duties of the officers of cities of the first, second, and third class, now in existence by virtue of the laws of this Commonwealth shall remain as provided by this Act. “The Classification of Cities” Act of May 23, 1874, No. 152 section 1. “The Classification of Cities Act” then proceeds to discuss the powers of the mayors of third class cities permitting the mayor to appoint a chief of police, while making no mention of first and second class cities. The chief of police was granted the power to arrest without warrant and upon view, any person guilty of a breach of the peace, vagrancy, riotous conduct or drunkenness. Id. section 31. Accordingly, the powers of the mayor of Pittsburgh and his appointed police department to arrest upon view for both misdemeanors and violations of city ordinances remained as they had been before the passage of the “Classification of Cities Act.” See Woods’ Appeal, 29 P.L.J. 264 (1882) (upholding the powers of Pittsburgh police to arrest without warrant the inmates of a disorderly house).

In 1887, the legislature passed an “Act in Relation to the Government of Cities of the Second Class” which states as follows: “The police power of taking informations, making arrests and preservation of the peace, heretofore vested in the mayor, shall hereafter vest in the mayor and the police magistrates.” “An Act in Relation to the Government of Cities of Second Class,” Act of June 14, 1887, No. 263 section 7. However, the fact that the legislature directed the mayor to share his powers of arrest with the police magistrates did not alter the powers of the Pittsburgh police department to arrest upon view and without warrant persons committing misdemeanor or violating city ordinances in their presence. The undisputed powers of the Pittsburgh police to arrest wrongdoers on view and without warrant was clearly recognized by the legislature in “An Act Relating to and Defining the Powers and Duties of Police Magistrates in Cities of the Second Class” Act of June 16, 1891, No. 233. In section 3 of this act, the legislature stated the powers of the police magistrates as follows:

The said police magistrates shall likewise have full and complete power, jurisdiction and authority to administer oaths and examine witnesses, and hear, determine and punish, according to the laws and ordinances of such city, all cases of arrests upon view, or upon information made and warrant issued, by the police of the city in which such police magistrate may reside or be appointed, of all persons who may be found engaged in or be charged with drunkenness, disorderly conduct, selling liquor contrary to law, maintaining a disorderly house or bawdy house, lewd, indecent or lascivious behavior on the streets or elsewhere, gambling, creating riots or disturbances, vagrants, beggars, prostitutes, disturbers of the public peace, known or reputed pickpockets, burglars, thieves, watch staffers, cheating, swindling, persons who abuse their families, and suspicious persons who can give no reasonable account of themselves, or violating any of the laws or ordinances of such city.

Id. (emphasis added). Thus, the June 16, 1891 Act recognized the Pittsburgh police power to arrest upon view. As there has been no legislation enacted abrogating these powers in the interim, the powers of the Pittsburgh Police Department to arrest upon view for misdemeanors committed in their presence remains the same today as it has been since the ordinance clarifying its duties was passed in 1869.

Moreover, the City of Pittsburgh in 1891 was much smaller geographically than today’s metropolis. Much of the city’s growth between 1891 and 1933 has been attributable to the consolidation of various smaller cities and boroughs with the City of Pittsburgh. The City of Allegheny, at one time the twenty-seventh largest city in the United States, before its consolidation with the City of Pittsburgh, see Smull’s Legislative Handbook 1905, p. 224, had its own separate government and police force as did the various boroughs which also consolidated with Pittsburgh during this time period. All of these separate municipal or borough police forces were granted the powers to make warrantless arrests of persons committing misdemeanors in their view through either the “Classification of Cities Act of 1874” or the “Boroughs Act of 1897,” Act of June 4, 1897, No. 101. The powers of these defunct police departments passed to the Pittsburgh Police Department upon their absorption into the Pittsburgh Police Department.

Thus, I find the Pittsburgh Police Department is sufficiently empowered by the legislature to effectuate warrantless arrests for misdemeanors committed in their presence, thereby alleviating the need to erroneously utilize Pa.R.Crim.P. 101 for a purpose for which it was not intended. Accordingly, I find that Officer’s Tersak’s initial arrest of the appellant for the misdemeanor of possession of an altered license plate was lawful pursuant to the other powers conferred by law stated in 75 Pa.C.S.A. § 6304(c). Therefore, the evidence seized through this lawful arrest was improperly suppressed by the trial court. Hence, .1 concur in the result of the majority opinion.

McEWEN, J., joined this concurring opinion by KELLY, J.

      . The Commonwealth has certified that the suppression Order terminates or substantially handicaps its prosecution of appellee. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . 35 P.S. 5 780-113(a)(16).

      . Id., § 780-113(a)(30).

      . Id., § 780-113(a)(32).

      . 75 Pa.C.S. § 7122(3).

      . As one commentator noted: "An initial problem exists for anyone trying to determine when such 'specifically authorized’ arrests can take place. These grants of power are not collected in any one place, but instead they are scattered throughout the Crimes Code, the Vehicle Code, and elsewhere.” McCarthy, Warrantless Arrests in Pennsylvania, 92 Dick.L.Rev. 105, 114 (1987).

      . Section 7122 provides:
      Altered, forged or counterfeit documents and plates.

        A person is guilty of a misdemeanor of the first degree if the person, with fraudulent intent:
      (3) has possession of, sells or attempts to sell, uses or displays a certificate of title, registration card or plate, driver's license, inspection certificate, proof of insurance or any other document issued by the department, knowing it to have been altered, forged or counterfeited.

      . Act of May 16, 1857, No. 598, section 16 provides as follows:
      It shall be the duty of the councils of said city, as soon after the passage of this act as practicable, to provide for an efficient day and night police in said city; the number and compensation of said police shall be fixed by ordinance, but no ordinance decreasing the number and compensation of the police shall take effect before the next succeeding annual city election after the passage of this act, unless said ordinance so decreasing said number or compensation shall have been first approved by the mayor; and besides the duties imposed on the police by law and the ordinances of said city, the said police shall be subject to such lawful rules and regulations as the mayor shall from time to time prescribe.
      (emphasis added).

      . It is interesting to note that the City of Allegheny, a city of the third class at the time of the passage of the "Classification of Cities Act of 1874,” grew through population expansion into a city of the second class before its consolidation into the City of Pittsburgh in 1906. However, Allegheny’s ascension into the status of a city of the second class did not cause its police department to lose its powers to make warrantless arrests for misdemeanors committed in its police officers’ presence despite the failure of the "Classification of Cities Act of 1874” to so state. Through the application 53 Pa.C.S.A. § 22101, all laws relating to cities of the third class continued to apply to cities of that class which passed into a city of the second class through an increase in population. See also Commonwealth v. Macferron, 152 Pa. 244, 25 A. 556 (1893); Commonwealth v. Wyman, 137 Pa. 508, 21 A. 389 (1891).

      . I also believe that it would be prudent for the legislature to pass a modern statute reaffirming these powers for police officers in cities of the second class.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    619 A.2d 1080
    COMMONWEALTH of Pennsylvania v. Joseph RHONE, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1992.
    Filed Jan. 27, 1993.

      Norris E. Gelman, Philadelphia, for appellant.
    Marilyn F. Murray, Asst. Dist. Atty., Philadelphia, for Com., appellee.

      Before CAVANAUGH, BECK and BROSKY, JJ.
   BECK, Judge:

We decide, inter alia, whether the district attorney’s closing statement alluding to appellant’s failure to testify constituted prosecutorial misconduct. We find it did not. Because we find no merit in any of appellant’s challenges, we affirm the judgment of sentence.

Appellant was sentenced to life in prison for first degree murder, five to ten years for conspiracy, and two and one half to five years for possession of an instrument of crime. The case against appellant was based entirely on circumstantial evidence.

On November 5, 1975, Herschel Williams, also known as the Jolly Green Giant, was shot to death as he entered his car with his two young children in front of their home. Very shortly after the shooting, appellant and two other men were arrested for Williams’ murder. After a suppression hearing in which the court ruled that some of appellant’s statements to police would be admissible at trial, appellant failed to appear for trial. After nearly thirteen years of attempting to locate appellant, police discovered him in Philadelphia and he was brought to trial in 1991.

Several civilian and police witnesses testified for the Commonwealth. The civilian witnesses established that on the day of the murder, three men in a green Cadillac were present on the street where Williams lived. Two of the men wore brown hats; one of the hats was identified as a brown jeff cap. The two men who wore hats left the car and were seen approaching Williams from opposite sides of the street, whereupon they shot him repeatedly. None of the witnesses was able positively to identify appellant as one of the shooters. Within minutes of the shooting, a call went over police radio describing the vehicle involved in the shooting. Police stopped a car matching the description and arrested its occupants, including appellant. At the time of his arrest, appellant was wearing a brown jeff cap. In addition to testimony regarding the events on the day of the shooting, the Commonwealth offered police testimony that appellant had been seen the day before, in the same green Cadillac, driving behind the victim’s car.

At the time of his arrest, appellant acknowledged in a statement to police that he was present at the scene of the shooting, but claimed to have been in the car the entire time. He stated that he heard the gunshots but did not witness Williams’ murder. When apprehended thirteen years later in his daughter’s home, appellant reached for a loaded gun on the mantle in response to the forced entry of police into the home. Appellant did not testify at trial.

Appellant’s first allegation of error is that in his closing, the prosecutor improperly referred to appellant’s failure to testify at trial, and that such reference constitutes reversible error. The prosecutor’s comments must be placed in context. In his summation to the jury, the defense attorney made remarks which are pertinent to appellant’s claim of error. Therefore, a review of defense counsel’s closing statements, as well as those of the prosecutor, is necessary. Referring to inconsistencies in two statements of appellant admitted at trial, defense counsel, Norris Gelman, stated:

Now, Mr. Rhone gives this statement and he waives his right to a lawyer, says I don’t want to remain silent, I will talk to you. And he talks. Now, admittedly the second statement to [Detective] Stephans is inconsistent with the first statement to [Detective] Muldoon. Not so bad. He didn’t trust him. Muldoon was much brighter than he was, he didn’t really approach him properly. Plus people lie when they are in police custody and told we are talking to you about the murder of the Jolly Green Giant. People don’t want to talk about their friends, people don’t want to talk about who got out of the car. It’s very natural. That’s a natural reaction.

At the end of his summation, defense counsel Gelman made the following statement:

I can do no more. We trust juries to keep us safe. You have to be sure before you can convict a person of murder. It is as Mr. Casey [assistant district attorney] says the most serious crime. My client pled not guilty, he meant it. He meant it. This evidence, ensconced in this evidence is not just a reasonable doubt—one reasonable doubt is enough not to convict—but several.

When the assistant district attorney, Mr. Casey, delivered his closing to the jury, he made the following statements:

I of course have a closing that I prepared. We don’t just wander in off the street and talk to you. But before I go into the the closing I have prepared, the defense attorney said several things that I want to address immediately before going into a prepared closing.
A couple of other things the defense attorney said is that the Defendant pled not guilty and he meant it. I don’t know if he meant it or not. He pled not guilty. If he hadn’t pled not guilty you would not be here. Saying you are not guilty is the way you get this case to trial; that’s what it means, it is not testimony under oath. I can’t cross-examine him, I could say, hey, pal, you pled not guilty, tell me about this gun that you reached for on the mantle, what do you think about that, were you trying to continue your flight. I can’t do that and you can’t hold it against the Defendant—
Mr. Gelman: Objected to. That is objected to.
The Court: Let him finish what he was saying.
Mr. Casey: You can’t hold it against the Defendant that he didn’t testify. But, but keep in mind that he did not testify, it is the defense attorney who has said these things. The defense attorney, not the Defendant. Because you have seen cross-examination—
Mr. Gelman: That is objected to again, Your Honor, and move to strike.
Mr. Casey: The defense attorney didn’t say that?
Mr. Gelman: I said he pled not guilty.
Mr. Casey: And that he meant it. That is the way we got to trial.
Mr. Gelman: I object and I move to strike.
The Court: Well, he is answering what you said about he meant it, okay.
Mr. Gelman: We object and move to strike.
The Court: Well ...
Mr. Casey: I assume I can proceed?
The Court: Whenever you say something he has a right to answer it.
Mr. Casey: He also said, well, it is a natural reaction for people to lie to the police. It is? What is that, Psychology 302? Only the guilty hide and lie, that is part of concealment. Kid walks by a cookie jar, knocks it off the table, says it wasn’t me, mom, it was Charlie. Because they have something to hide they lie. That’s why people lie: They are concealing things. The judge is going to tell you flight, concealment, give rise to an inference of a guilty mind. The Defendant didn’t say that when he was talking to the police, it was just a natural reaction to lie. Once again the defense attorney said that to you. So everything the defense attorney said that the Defendant thought or believed is not evidence. Because it came from the defense attorney’s mouth, not from the defendant’s mouth. And once again you can’t hold it against the Defendant and I absolutely believe—
Mr. Gelman: That is objected to again.
Mr. Casey: If he don’t want to—
Mr. Gelman: Move to strike, motion for mistrial.
The Court: Denied.

Despite the Commonwealth’s argument to the contrary, we do not believe that appellant’s challenge to these statements is waived merely because counsel failed to request a prompt curative instruction. We find that defense counsel’s objections, motion to strike and request for a mistrial were sufficient to preserve the issue for appeal.

Under the authority of the United States Constitution and Pennsylvania law, counsel is prohibited from commenting on a defendant’s decision not to testify at trial. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (fifth amendment prohibits prosecutor from commenting that defendant refused to tell his side of the story, notwithstanding state statute that allowed such comment); 42 Pa.C.S.A. § 5941 (prohibiting comment on criminal defendant’s exercise of right to remain silent at trial). Permitting such comments allows the prosecutor to use a defendant’s failure to take the stand as evidence against him, “which in the minds of the jurors would be indicative of guilt.” Commonwealth v. Henderson, 456 Pa. 234, 238, 317 A.2d 288, 291 (1974). In Henderson, the prosecutor told the jury that all of the witnesses cooperated in the trial process by coming in to testify and “doing what they’re supposed to do.” He then noted that the defendant looked harmless because “he [hadn’t] said a word and [was] quiet.” Id. at 236-37, 317 A.2d 288. The court found that the statements by the prosecutor tended to indicate that the defendant had some sort of duty to testify and that because he did not testify, the jury could infer that he was guilty. Id. at 238, 317 A.2d 288. Other statements by prosecutors have been ruled improper because the inference of guilt was obvious. See Commonwealth v. Brenizer, 467 Pa. 347, 356 A.2d 784 (1976) (prosecutor delivered lengthy commentary on the possible explanations for defendant’s not guilty plea); Commonwealth v. Russo, 283 Pa.Super. 421, 424 A.2d 536 (1980) (prosecutor challenged defendant to testify in presence of jury).

While the rule prohibiting comments is clear, the fact that this case falls within an exception to the rule is equally clear. A comment regarding a defendant’s failure to take the witness stand is proper if it is made fairly and is not an attempt to raise an adverse inference in the mind of the jury. Commonwealth v. Miller, 205 Pa.Super. 297, 208 A.2d 867 (1965). In Commonwealth v. Hess, 378 Pa.Super. 221, 548 A.2d 582 (1988), appeal denied, 522 Pa. 618, 563 A.2d 887 (1989), we noted that where a comment constitutes a “fair response” to a statement made by defense counsel, no error has occurred. Id. 548 A.2d at 587. In Hess, defense counsel, in his opening to the jury, explained what the defendant would testify to at trial; however, the defendant never took the stand. The court ruled that the prosecutor’s comments regarding the fact that the defendant remained silent and was not cross-examined were justified. The Hess court explained:

The comments by the prosecution were advanced to counter the inaccurate statements made by appellant’s counsel at the start of trial.... [W]e agree with the trial court’s reasoning in refusing to exclude the prosecutor’s comments: “[N]ot allowing the prosecutor to comment on this would have given the defense an unfair advantage ... To prohibit such comments would open the door for a whole new style of defense, i.e., have defense counsel say what his client is going to say but then don’t call him. In other words, a way for defense to get testimony in without cross examination.”

Id. (citations omitted).

In the instant case, defense counsel took it upon himself to offer reasons, not in evidence, why appellant’s statements were inconsistent. Further, defense counsel mentioned appellant’s plea of not guilty first and told the jury that appellant meant it when he entered that plea. The prosecutor responded to both of those assertions by reminding the jury that it was the defense attorney, and not appellant, who gave them that information. We believe that the prosecutor’s remarks were not an attempt to raise an adverse inference in the mind of the jury, but instead constituted a fair response to the statements made by defense counsel.

Case law supports our conclusion. See Commonwealth v. Young, 477 Pa. 212, 383 A.2d 899 (1978) (where defense counsel submits that defendant’s cooperation with police was more consistent with innocence than guilt, prosecutor’s reminder to jury that it was not known what defendant thought was proper); Commonwealth v. Torres, 329 Pa.Super. 58, 477 A.2d 1350 (1984) (defense counsel’s opening statement that defendant was frightened, and that was why he fled, opened the door for prosecutor to state to jury that they did not hear that evidence from the defendant). See also Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976) (where defense counsel sought to use defendant’s silence as an affirmative denial, prosecutor could comment on silence), cert. denied, 429 U.S. 1044, 97 S.Ct. 746, 50 L.Ed.2d 757 (1977).

Because the prosecutor’s comments were designed to counter fairly those of defense counsel, we find that they were not improper under a constitutional or statutory analysis.

Appellant’s next allegation of error concerns a reference made by the police detective who questioned appellant regarding Williams’ murder. Again the Commonwealth argues waiver but we find none. Defense counsel’s objection and request for mistrial were sufficient to preserve the issue. A request for curative instruction is not mandatory here. See Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980) (issue waived where no request for curative instruction or motion for mistrial).

The following exchange took place between the prosecutor and the detective:

Q: When you got him down to Room 07, what if anything did you tell him about—
A: I told him that we were investigating the death of Herschel Williams, also known as the Jolly Green Giant, and that I would like to interview him and would he like to take a polygraph—excuse me.

Any reference to a polygraph test which raises an inference of guilt or innocence, is inadmissible. Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971), cert. denied, 405 U.S. 1046, 92 S.Ct. 1320, 31 L.Ed.2d 589 (1972). We agree with the trial court that the detective’s error was innocent and did not raise an inference as to the guilt of appellant. Further, the trial court’s striking of the remark from the record and subsequent instruction to the jury regarding stricken remarks insured that no prejudice resulted. Commonwealth v. Upchurch, 355 Pa.Super. 425, 513 A.2d 995, appeal denied, 514 Pa. 630, 522 A.2d 558 (1986).

Appellant next asserts that it was error for a police detective to testify that he did not believe appellant was telling the truth when he gave his statement to the detective. Defense counsel made a timely objection to the testimony and moved to strike.

On direct examination, the detective testified about the substance of the statement he elicited from appellant; on cross examination, defense counsel attempted to portray appellant as completely cooperative with the detective at the time the statement was given. On re-direct, the prosecutor asked the detective if he knew whether appellant was trying to “con” him or was cooperating with him. In response, the detective stated that he believed appellant was not telling the entire truth.

This issue is controlled by Commonwealth v. O’Shea, 523 Pa. 384, 567 A.2d 1023, cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 180 (1990), which holds that where a party attempts to present an incomplete and one-sided picture of a defendant’s behavior, the Commonwealth is entitled to explore other possible motives for that behavior. Id. 567 A.2d at 1032-33. In the instant case, defense counsel attempted to present his client as cooperative, raising an inference that he was telling the truth. The defense, of course, is permitted to make such a presentation and to invite the inference; however, the Commonwealth is also permitted to respond. The detective’s testimony was not improper.

Appellant also challenges the testimony of an FBI agent who related to the jury the agency’s attempts to locate appellant over the previous thirteen years. The agent, who was the custodian of records for the FBI, summarized for the jury his review of records concerning appellant. His status as custodian and his method of review and testimony are all proper under the law. See Commonwealth v. Graver, 461 Pa. 131, 334 A.2d 667 (1975) (police records custodian permitted to list various officers’ recorded observations of activities at nuisance bar).

Appellant further alleges error in the trial court’s instruction regarding circumstantial evidence. We begin by noting that counsel is not entitled to the jury instruction of his choice. Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983). The wording of an instruction is vested in the broad discretion of the trial judge and is proper as long as it is adequate, accurate and clear. Id. 470 A.2d at 70. Here, the trial judge instructed the jury in accordance with the Pennsylvania Suggested Standard Jury Instruction § 7.02A. Upon examination of the charge as a whole, we find it was fair and proper. Commonwealth v. Wortham, 471 Pa. 243, 369 A.2d 1287 (1977).

The next claimed error regards evidence presented at trail that allegedly concerned prior criminal activity of appellant. The prosecution elicited from various police witnesses their previous sitings of appellant in the company of the two other individuals with whom he was arrested. The witnesses also testified to seeing appellant at the victim’s store and to knowing appellant by reputation and through prior contacts. None of the statements offered by the police witnesses was objected to at time of trial and the issue therefore is waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Lastly, we find appellant’s argument that the verdict is against the weight of the evidence because it is based on circumstantial evidence meritless. While we are permitted to review a trial court’s refusal to grant a new trial based on a challenge to the weight of the evidence, our task in doing so is to decide only whether the trial court abused its discretion; we do not pass on nor reevaluate the credibility of the witnesses. Commonwealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111, 114 (1991). The fact finder is free to believe all, part or none of the evidence. Id. Further, a conviction based on circumstantial evidence is entirely proper. Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963). There was no abuse of discretion in denying appellant’s motion for a new trial. We refuse to and are not permitted to second-guess the jury where ample evidence of guilt was presented. See Murray, 597 A.2d at 114-15.

Judgment of sentence affirmed.

      . Indeed, the prosecutor noted in both instances that the jury was not permitted to hold appellant’s silence against him in determining their verdict.

      . We note that even if this issue had been preserved, the testimony of the officers did not reveal prior criminal activity, but merely their knowledge of appellant’s identity through seeing him with others known to them or "stopping” him. See Commonwealth v. Statks, 484 Pa. 399, 399 A.2d 353 (1979). Further, comments regarding the victim’s drug activity were elicited by the defense as well as the prosecution and cannot now form the basis of an allegation of error.


author: BECK, Judge: JOHNSON, Judge,

text:
    619 A.2d 1086
    Gwendolyn Sebastian HILL v. James HILL, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 26, 1992.
    Decided Feb. 3, 1993.

      John P. Simpkins, Philadelphia, for appellant.
    Vivian A. Sye-Payne, Philadelphia, for appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   BECK, Judge:

In the context of shared legal custody, we address the issue of the decision-making authority of each parent.

Appellant-father appeals from a custody order that purportedly grants shared legal custody to both parents while permitting the mother’s decisions about the child to prevail in the event of a conflict between the parents. Appellant argues that while the order provided for shared legal custody, the effect of the order was to award sole custody to the mother. We agree with appellant and remand.

This appeal arises out of a dispute over the custody of the parties’ two minor daughters. The parties are presently separated and their divorce action is pending. On January 17, 1989, the court entered a custody order upon agreement of the parties. The order provided inter alia for shared legal and physical custody. Under the agreement, the mother had physical custody during the week and the father had weekend physical custody.

About a year after the agreed order, mother filed a petition to modify the custody order. She requested custody of the children on alternate weekends. She did not request sole legal custody. Several months later, to counter the mother’s petition, father filed a petition for sole legal custody. He also filed a petition to hold mother in contempt for intentionally violating the terms of the existing order. The trial court consolidated the contempt and custody matters. The judge then heard argument on all outstanding issues. His order granted the parties shared legal custody with the provision that in the event of conflict, the mother’s decision shall prevail.

Father’s appeal raises three issues:
1) Whether the trial court abused its discretion in consolidating the petition for contempt with the petition to modify and vacate the temporary custody order;
2) Whether the trial court erred in refusing to permit appellant’s counsel to question the parties’ two minor daughters; and
3) Whether it was an abuse of discretion for the trial court to have denied father the right to make major decisions affecting the best interest of his daughters.

I

First, Father contends that the trial court should not have consolidated the petition for contempt and the petitions to modify the custody order. In Azinger v. Pennsylvania Railroad Co., 262 Pa. 242, 105 A. 87 (1918), our supreme court addressed consolidation:

The question [of consolidation] is one that must necessarily be left to the discretion of the trial judge and where the issues are the same and they arise out of the same transaction, and it does not appear the trial of the cases together would tend to place the objecting party at a disadvantage, or give an undue advantage to his adversary, the action of the court in ordering cases to be tried together will not be reversed.

Id. at 247, 105 A. at 88 (citations omitted).

Rule 213 of the Pennsylvania Rules of Civil Procedure, which is consistent with Azinger, swpra, governs this issue:

(a) In actions pending in a county which involve a common question of law or fact or which arise from the same transaction or occurrence, the court on its own motion or on the motion of any party may order a joint hearing or trial on any matter in issue in the actions, may order the actions consolidated, and may make orders that avoid unnecessary cost or delay.

Pa.R.C.P. 213(a)

Based on the above Rule we find the court did not abuse its discretion in consolidating this matter. Corbett v. Weisband, 380 Pa.Super. 292, 551 A.2d 1059 (1988), appeal denied, 524 Pa. 607, 569 A.2d 1367 (1989); Lohmiller v. Weidenbaugh, 302 Pa.Super. 174, 448 A.2d 583 (1982).

All petitions dealt with the custody order, its implementation and possible violations. On some vague rationale father maintains that consolidation was prejudicial to his rights. We find father misperceives this matter.

As to the contempt petition the trial court made a clear finding of fact stating in conclusion “there being no evidence of any willful or intentional violation of the Order of Court, father’s petition for contempt is dismissed.” Contrary to father’s assertion, the record supports the trial court’s decisions. The judge properly limited the testimony to questions relevant to intentional violation of the custody order: Thus, father was not prejudiced by consolidation.

II

Second, father alleges that the trial court erred in refusing to permit his counsel personally to question the parties’ daughters. Father waived this claim when he failed to contest the judge’s procedure during trial.

Ill

Finally, Father asserts that the trial court’s order effectively granted mother sole legal custody. We agree. While the stated intent of the order was to award shared legal custody to both parents, the effect of the order is to grant mother sole legal custody. We point out that mother never requested sole legal custody. The language in the order giving rise to appellant’s objection is “In the event of disagreement, Mother’s preference shall prevail.” We conclude the court’s order is a hybrid, not recognized by statute or decisional law, and effectively deprives father of shared legal custody.

Legal custody is defined by statute as “the legal right to make major decisions affecting the best interest of a minor child, including, but not limited to, medical, religious and educational decisions.” 23 Pa.C.S.A. § 5302.

The concept of shared legal custody was discussed extensively by this Court when it was confronted with “that most difficult of custody determinations—the choice between two very competent and loving adults.” In re Wesley J.K., 299 Pa.Super. 504, 511, 445 A.2d 1243, 1246 (1982). Attempting to fashion the best remedy for this unfortunate dilemma, this Court instructed the trial court as follows:

An alternative to the traditional sole custody arrangement is “shared” or “joint” custody wherein legal custody is shared while physical custody is alternated by the agreement of the parties. The philosophic premise of shared custody is the awarding to both parents of responsibility for decisions and care of the child. In the past non-custodial, conscientious parents have been frustrated by the second-class status to which the law has assigned them. It was difficult to develop healthy relationships to a child where their role may have been limited to a weekend parent whose counsel was not sought in decisions affecting the child. Shared custody allows both parents input into major decisions in the child’s life.

Id., 299 Pa.Super. at 512, 445 A.2d at 1247 (footnotes omitted). See also 23 Pa.C.S.A. § 5302 (defining “Shared custody” as “an order awarding shared legal or shared physical custody in such a way as to assure the child of frequent and continuing contact with and physical access to both parents”).

In the instant case, the judge sought dual objectives in his order, to grant the parties shared legal custody and at the same time to forestall the parties from returning to court in the event of a disagreement. In so doing, however, the court gave the father authority in name only and deprived him of a legal remedy because he was already awarded “shared legal custody.” There is no provision in the law for the order the court issued.

This Court is neither unaware of nor unconcerned with the fact that granting shared custody involves an inherent risk that couples may reappear on the courthouse steps for further resolution of their conflicts. In Wesley, however, this Court determined that the benefits of shared decision-making authority outweigh concern for judicial expediency.

Trial courts may fear that shared custody will impose additional burdens on them because they will be drawn into conflicts between parents when they disagree on decisions affecting the child. While theoretically this may be, we trust this will happen only rarely. Giving both parents legal and physical responsibility for the child should attenuate the animosity and the “have not” feeling that so often existed in the non-custodial parent which caused the non-custodial parent to petition regularly for custody. If shared custody proves unworkable because parents cannot agree and seek frequent court intervention, then the trial court may have to consider withdrawing the shared custody status.

Wesley, supra, 299 Pa.Super. at 504, 445 A.2d at 1249.

It is abundantly clear in the above passage that the concept of shared legal custody does not contain the principle of giving one parent final authority in the event of a dispute.

Furthermore, in order to support a decision of shared custody, the court must make a determination that the parties are capable of cooperating, even minimally. We point out that although the trial judge in this case responded to the litigants sensitively and intelligently, he neglected to make an on the record finding as to whether the parents are able to cooperate, even minimally. Such a finding is essential to an award of shared custody. The rationale behind this requirement is that if the parties are unable to cooperate minimally shared custody is unworkable and inappropriate. However, no more than a finding of minimal cooperation is required based on the pragmatic realization that no couple, divorced or intact, agrees on every important decision in the upbringing of their children. If the court intends to award shared custody, then the order must be premised on the parties’ equality in decision-making. One of the predicates of a shared custody order is a finding by the court that the parties are capable of cooperating minimally. Here, the record does not indicate whether the order of shared custody was premised upon such a finding.

In light of the foregoing, we remand this case to the trial court for further proceedings in accordance with this opinion. Jurisdiction relinquished.

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

JOHNSON, Judge,

concurring and dissenting:

I concur with the result reached in the Majority Opinion regarding Father’s first and third issues. However, not only do I conclude that Father’s second issue has not been waived, but I also conclude that this Court must address this issue in order to completely dispose of the issues presented to this Court, in a matter being remanded for further proceedings.

Father alleges, in his second issue, that the trial court erred in refusing to permit counsel to question the parties two minor daughters. The Majority states that this issue was waived because Father failed to contest the trial court’s procedure at trial. I find this issue to be preserved for our review.

Counsel for Father, upon hearing the trial court’s planned procedure for interviewing the children, requested that counsel be permitted to question the children. The trial court refused and allowed no further discussion on this issue. While Father’s counsel did not ask the court for an exception to its ruling on this issue, the taking of an exception is no longer required in order to preserve an issue for review. See Pa. R.Civ.P. 227(a). After the trial court’s order, Father also raised this issue in his Concise Statement of Matters Complained of on Appeal, as no post-trial motions are permitted in cases involving custody. Pa.R.Civ.P. 1915.10(b). Father and Mother have also completely briefed this issue for consideration on this appeal. I conclude that Father’s second issue was preserved for review. Thus, our decision should include a determination of this issue, despite the fact that the outcome of the case will remain unchanged.

Father contends that Rule 1915.11, of the Pennsylvania Rules of Civil Procedure, mandates that counsel for the parties must be permitted to question the children who are the subject of a custody action. That Rule states in pertinent part:

(b) The court may interrogate a child, whether or not the subject of the action, in open court or in chambers. The interrogation shall be conducted in the presence of the attorneys and if permitted by the court, the parties. The attorneys shall have the right to interrogate the child under the supervision of the court. The interrogation shall be part of the record.

Father relies on the statement by this Court in Gerald G. v. Theresa G., 284 Pa.Super. 498, 426 A.2d 157 (1981), as dispositive on this issue. In Gerald G., we vacated a custody order by the trial court due to deficiencies in the record which made it impossible for this Court to evaluate the case on appeal. Id. at 503, 426 A.2d at 160. There, the issue of whether counsel should be permitted to personally question a child, who is the subject of a custody dispute, was not before the Court. Rather, in dicta, we described the procedure to be generally followed when interviewing a child in a custody dispute, as guidance to the parties and the trial court in developing a complete record. Id. at 503, 426 A.2d at 161.

Father also relies on Sutliff v. Sutliff, 361 Pa.Super. 194, 522 A.2d 80 (1987), to support his contention that the order of the trial court should be reversed because his counsel did not personally question the children. In Sutliff, we again reversed a custody order due to the fact that there was an incomplete record for appellate review. The Sutliff trial court interviewed the child in question and dismissed the child from the witness stand notwithstanding the fact that counsel for the mother indicated that there were additional questions which should be asked of the child. Id. at 198, 522 A.2d at 82. In that case, we reversed the custody order because the trial court’s failure to entertain any questions from counsel resulted in an incomplete record for review in this Court. Id. at 198, 522 A.2d at 82..

In the present case, the trial court stated that it alone would question the children. However, the trial court also indicated that questions would be accepted from counsel and that the trial court itself would pose those questions to the children. The children were then questioned by the trial court, in the presence of counsel for both parties, on the issues raised in the custody dispute. After completing its questioning, the trial court asked counsel if they had any questions for the children. Counsel for Father clearly indicated that he had no further questions.

The plain language of Rule 1915.11 states that questioning of children who are the subject of a custody dispute, by counsel for the parties, will be under the supervision of the court. The trial court did not, as Father alleges, deny counsel the right to pose questions to the children but, rather, exercised supervision of the questioning by permitting the questions to be posed through the trial court during its examination of the children. At no time during the questioning, did counsel for Father object to the questions which the trial court asked of the children. Moreover, in this appeal, Father does not allege how this exercise of the court’s supervision over counsels’ questioning of the children prejudiced him. Father also fails to indicate what, if any, additional questions he would have posed to the children in order to further clarify the issues raised in this custody dispute.

In both Gerald G. and Sutliff, swpra, we reversed the order of the trial court because we were presented with an incomplete record for review on appeal. In the present case, Father does not contend, nor would I find, that review in this Court has been hindered by the trial court posing questions to the children rather than allowing adversarial questioning of the children by counsel. Rule 1915.11(b) permits the trial court to exercise its discretion to supervise the questioning of children during a custody hearing; Absent a gross abuse of that discretion, a reviewing court will not interfere in the procedure used by the trial court. Since Father fails to establish that he was prejudiced or that the record is incomplete, I would conclude that there was no gross abuse of discretion on the part of the trial court in conducting its interrogation of the children. Because this case is being remanded, the trial court’s procedure with regard to questioning the parties’ minor daughters should be upheld.

      . The criteria established for shared custody are: 1) both parents must be "fit,” capable of making reasonable child-rearing decisions, and willing and able to provide love and care for their children; 2) both parents must evidence a continuing desire for active involvement in the child’s life; 3) both parents must be recognized by the child as a source of security and love; 4) a minimal degree of cooperation between the parents must be possible. See Wesley, supra and Andrews v. Andrews, 411 Pa.Super. 286, 601 A.2d 352 (1991).

      . Case law requires that the trial court:
      provide us with a complete record and a comprehensive opinion which contains a thorough analysis of the record and specific reasons for its ultimate decision. The appellate courts require an opinion which demonstrates that the trial judge in a custody case has analyzed the record as a whole and has dealt with significant factual disputes in a manner which will .enable the appellate courts to understand the reasons for the decision and to make an intelligent evaluation of the opinion and of the testimony....

        Schwarcz v. Schwarcz, 378 Pa.Super. 170, 548 A.2d 556 (citations omitted); see also V.B. v. M.L.T.B., 321 Pa.Super. 36, 467 A.2d 880 (1983).


author: CIRILLO, Judge: HESTER, Judge,

text:
    619 A.2d 1357
    COMMONWEALTH of Pennsylvania v. William GLOVER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 16, 1992.
    Filed Jan. 27, 1993.

      Christine M. Adair, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, TAMILIA and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying appellant William Glover’s petition for post-conviction relief. We reverse and remand for a new trial.

In August of 1982, Glover was tried before a jury and convicted of murder in the first degree and possession of an instrument of crime. New counsel filed post-trial motions, which were denied. Glover’s third counsel represented him at sentencing and on direct appeal. Glover received a sentence of life imprisonment on the murder conviction and a concurrent two and one-half to five year sentence for the possession of an instrument of crime conviction. On direct appeal, this court affirmed the judgment of sentence. The Pennsylvania Supreme Court denied allocatur. The United States District Court for the Eastern District of Pennsylvania thereafter denied habeas corpus relief.

On January 22,1988, Glover filed a pro se petition under the Post Conviction Hearing Act, [PCHA] 42 Pa.C.S. §§ 9541 et seq., alleging ineffectiveness of counsel generally. Thereafter, Christine M. Adair, Esq. was appointed to represent Glover. Counsel filed an amended petition alleging trial counsel was ineffective for failing to present character evidence and that all subsequent counsel were ineffective for failing to raise this issue.

A PCHA hearing was held before the Honorable James D. McCrudden, at which time Glover presented six witness who testified , that they would have been available for trial and that they would have testified to Glover’s good character. Following the hearing, Judge McCrudden denied Glover’s request for collateral relief. This appeal followed. Glover raises the following issue for our review:

Was trial counsel ineffective in failing to present testimony as to appellant’s good character and reputation, in violation of appellant’s constitutional rights?

When evaluating ineffectiveness claims, the threshold inquiry is whether the underlying claim is of arguable merit, for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If the claim has arguable merit, the appellant must then establish that the particular course of action chosen by counsel had no reasonable basis. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, the appellant must establish that counsel’s action or inaction prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

At the PCHA hearing, trial counsel candidly admitted that he did not pursue the issue of character witnesses with his client. Counsel explained:

Because if we had discussed it, I think, it would have ... triggered something in my mind. I would have said, well, you don’t have any real conviction here, we can go with character witnesses. And it is a case where I was looking for character witnesses because it was a close case. This was a close case, it was tried in front of Judge Theodore B. Smith. And Judge Smith gave a very strong character evidence charge. He was very good with character. And my best recollection is that I did not discuss ... character testimony with Mr. Glover.... I think I should have asked about character witnesses, given the fact that [Glover] had no convictions and I knew that those arrests could not come in, I knew it. And if they tried to bring them in, I could have gotten a mistrial.

Recently, in Commonwealth v. Carter, 409 Pa.Super. 184, 597 A.2d 1156 (1991), this court addressed a similar issue. In Carter, the appellant alleged counsel was ineffective for failing to present character witnesses on his behalf. The court concluded that this claim had arguable merit. No evidentiary hearing had been held, and therefore the court remanded for a determination of whether counsel had explored this possibility with Carter, or whether counsel had a reasonable basis for not doing so. The court stated:

If, as appellant has alleged, character witnesses could have been obtained for his trial, then trial counsel’s failure to inform appellant of that option may have deprived appellant of an available defense having substantial potential for success.

Id. at 199, 597 A.2d at 1163 (emphasis added). In Carter, the majority explained that the rationale for the admission of character evidence is that “an accused may not be able to produce any other evidence to exculpate himself from the charge he faces except his own oath and evidence of good character.” Id. at 196, 597 A.2d at 1161. The court held that “counsel had a duty to consider possible defense strategies and to discuss with his client options which are available. A criminal defendant cannot be expected to offer to counsel potential character witnesses if counsel has not discussed with him the possible use of such evidence.” Id. at 197-198, 597 A.2d at 1162.

When reviewing an ineffectiveness claim, we do not require the highest caliber of criminal defense skills; a minimum level of competency is the standard by which we judge counsel’s performance. Commonwealth ex rel. Washington v. Maroney, supra. Here, counsel admitted at the PCHA hearing that this was a close case and that the defendant had no prior convictions which could be used to discredit proposed character evidence on cross-examination or rebuttal. Counsel conceded that he did not pursue the issue of character witnesses with his client. Cf. Carter, supra. Moreover, counsel was unable to give any reason for his failure to confront his client with this proposal, nor did he attempt to rationalize the decision as one based on trial tactics or strategy. Essentially, counsel acknowledged his error. This was an oversight which, in his candor and forthrightness, counsel recognized. We find, therefore, that this claim is of arguable merit and that counsel had no reasonable basis for failure to pursue this issue with his client. Pursell, supra; Commonwealth ex rel. Washington v. Maroney, supra.

Failure to call a witness on defendant’s behalf is not, however, per se ineffectiveness. Counsel need not discuss all strategic options with his or her client. Carter, 409 Pa.Super. at 196-97, 597 A.2d at 1162. However, if that option is fundamental to the client’s defense and requires consultation with and input from the client in order to define and implement the strategy, then we will require counsel to inform the client accordingly. See Commonwealth v. Saxton, 516 Pa. 196, 200-201, 532 A.2d 352, 354 (1987); see also American Bar Association Standards for Criminal Justice 4-3.1(a), 4-3.1(b), 4-3.8, 4-6.2(a). Nonetheless, if counsel fails to discuss the option of presenting character witnesses, as was the case here, we may find ineffectiveness only if appellant establishes prejudice. Pierce, supra. Our review of the prejudice prong of the ineffectiveness test necessitates an examination of the entire record.

The Commonwealth presented evidence from Dolores Gay who testified that at 9:35 p.m. on September 3, 1979, she saw a hooded man, whom she identified as the defendant, fire his handgun at the victim, John Campbell, outside the Last Stop Cafe. She stated that she heard one shot, and that she viewed this from the front steps of her home, about 60 feet away from the scene. Ms. Gay also testified that John Campbell always wore a hooded sweater. On cross-examination, Ms. Gay acknowledged that in her initial interview with Detective Gerrard, which was typewritten by Detective Gerrard and signed by Ms. Gay, she was asked, “Did you see Rifle the night of the shooting?” to which she responded, “No.” Apparently, “Rifle” was the defendant’s nickname. Ms. Gay explained in her testimony that during the interview she had initially lied to Detective Gerrard because she did'not want to get involved, but later in the interview she corrected her statement.

Shirley Rogers also testified on behalf of the Commonwealth. She stated that one month after the incident she was walking and overheard the defendant tell his girlfriend that he had killed “Johnny.” Ms. Rogers stated: “Well, the exact words was [sic]: Yeah, I kilt [sic] the m-----f——, and the name Johnny; and he ain’t worried about nothing.” One year later, Ms. Rogers saw the defendant in a neighborhood bar and, after she rebuffed his attempts at familiarities, he stated to her, “I kilt [sic] once, and I’ll kill again.” On cross-examination, Ms. Rogers testified that in her signed statement, which was taken approximately two months after the incident, there was no indication of the conversation to which she testified on direct examination. She further stated that she did mention it during her interview, but could not account for why it was written down by the detective conducting the interview. “Well, as I was talking, I thought they [were] writing everything down I said.”

Another witness, Robert Gay, Ms. Gay’s brother, testified that on the night in question he was in the Last Stop Cafe and, after hearing four or five shots outside, he saw the victim stagger inside. Mr. Gay went outside. Mr. Gay testified that he did not see anyone outside, but he did see a Cadillac fitting the description of the car owned by the defendant about four minutes after the shooting. Mr. Gay also testified that there w’ere two cars fitting that description in the neighborhood and that he did not see the driver of the Cadillac on the night in question. Mr. Gay also testified that when the police rescue van arrived, the victim, in response to police inquiry, stated, “Rifle did it.”

To counter the Commonwealth’s evidence, the defense presented two police officers. Detective John Minges testified that he had interviewed the victim on three occasions in the hospital prior to the victim’s death, and that the victim appeared lucid and stated that he did not know who had shot him. Detective Minges testified that the victim did not give him any information that would have been helpful in determining who shot him. Officer Raymond Leahy also testified for the defense. Officer Leahy testified that he assisted in getting the victim into the police rescue van. He stated that he was at the head of the stretcher on which the victim was placed, and that he did not hear the victim state “Rifle did it.”

At the PCHA hearing, it was established that six witnesses were available to testify as to Glover’s good character. Additionally, trial counsel acknowledged that this was a close case. Even had the Commonwealth presented a stronger case, evidence of good character may still have been sufficient to create a reasonable doubt. See Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981) (evidence of the defendant’s good character, despite the strength of the Commonwealth’s case, may be sufficient to create a reasonable doubt); see also Commonwealth v. Stoner, 265 Pa. 139, 108 A. 624 (1919); Commonwealth v. Luther, 317 Pa.Super. 41, 463 A.2d 1073 (1983); cf. Commonwealth v. Neely, 372 Pa.Super. 519, 539 A.2d 1317 (1988) (reputation evidence is not to be used merely to tip the balance where the Commonwealth’s case is weak, but may raise doubt even when the case against the defendant is strong; however, if all other other facts prove defendant guilty beyond reasonable doubt, he is not free to go simply because has has previously had a good reputation); see generally Packel & Poulin, Pennsylvania Evidence § 404.2 (1987).

Here, the jury was precluded from hearing positive and substantial character evidence which, if believed, may have been sufficient to raise a reasonable doubt and require an acquittal. The Pennsylvania Supreme Court has stated:

Evidence of good character is always admissible for the defendant in a criminal case; it is to be weighed and considered in connection with all other evidence in the cause, it may of itself, in some instances, create the reasonable doubt which would entitle the accused to an acquittal. The rule itself is not merely merciful. It is both reasonable and just. There may be cases in which, owing to the peculiar circumstances in which a man is placed, evidence of good character may be all he can offer in answer to a charge of crime. Of what avail is good character, which a man may have been a lifetime in acquiring, if it is to benefit him nothing in his hour of peril.

Commonwealth v. Cleary, 135 Pa. 64, 84, 19 A. 1017, 1018 (1890).

The PCHA court, in its opinion denying collateral relief, reviewed the Pennsylvania Supreme Court’s decisions in Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981) and Commonwealth v. Neely, 522 Pa. 236, 561 A.2d 1 (1989), as well as Glover’s arrest record. After noting the crucial nature of character evidence, the court summarized trial counsel’s testimony at the PCHA hearing. The court also stressed trial counsel’s familiarity with the law of character evidence, pointing out that counsel “had argued successfully in Superior Court that trial counsel was ineffective for not objecting to impeachment of character witnesses by arrests only ...” Counsel’s successful appeal in that case, Commonwealth v. Cabeza, 300 Pa.Super. 483, 446 A.2d 958 (1982), took place just prior to Glover’s trial. In concluding, the PCHA court stated that “given this criminal history, to present evidence of good character and reputation for honesty may well have been futile or subject to reputation by the prosecution.” The PCHA court then denied Glover’s PCHA petition.

We are unable to reconcile the Scott decision with the PCHA’s court somewhat unexpected conclusion here. Scott is particularly relevant in the context of this case since its holdings bear directly on the circumstances here. The Scott court held: (1) a defendant ,is entitled to a charge that character evidence alone may be sufficient to raise a reasonable doubt and thus justify acquittal; and, (2) cross-examination of character witnesses on their knowledge of the accused’s prior arrests is prohibited. Id. at 192-93, 436 A.2d at 609-10. Applying the law of Scott, as well as various other decisions in the Commonwealth, it is clear that counsel’s omission had no reasonable basis and prejudiced Glover. See Pierce, supra; see also Commonwealth v. Luther, 317 Pa.Super. 41, 463 A.2d 1073 (1983) (decision of defense counsel to forego character testimony in a rape prosecution where there are only two direct witnesses involved was ill advised and counsel was found ineffective); cf. Commonwealth v. Schultz, 335 Pa.Super. 306, 484 A.2d 146 (1984) (defense counsel’s failure to request instruction that evidence of good character may by itself be sufficient to raise a reasonable doubt, or to challenge its absence, constituted ineffective assistance); Commonwealth v. Simler, 320 Pa.Super. 342, 467 A.2d 355 (1983) (Cirillo, J., dissenting) (where counsel testified at a hearing that there was a potential character witness whom he had considered calling, but decided not to do so for tactical reasons, majority found counsel ineffective).

In several other cases, this court has disposed of this issue and determined that a new trial was not warranted. We examine those cases briefly to illustrate why, in this particular case, justice requires that we afford the defendant relief.

In Commonwealth v. Ferrari 406 Pa.Super. 12, 593 A.2d 846 (1991), the defendant alleged that his trial counsel was ineffective for failing to present character evidence on his behalf. There, the defendant testified and his testimony was confirmed “from beginning to end” by various defense witnesses. Id. at 25, 593 A.2d at 852. This court reasoned that because the sole issue was not one of the credibility of the defendant versus that of the Commonwealth’s witnesses, see Commonwealth v. Simler, 320 Pa.Super. 342, 467 A.2d 355 (1983); Commonwealth v. Luther, supra, the defendant had failed to establish that “but for the act or omission challenged, there is a reasonable probability that the result would have been more favorable to appellant.” Id., quoting Commonwealth v. Wells, 396 Pa.Super. 70, 78, 578 A.2d 27, 31-32 (1990). Having failed to establish prejudice, the defendant’s claim of ineffectiveness failed. Here, the defendant did not take the stand and, therefore, the rationale underlying the Ferrari decision in not applicable here. Moreover, we are of the opinion that the defendant in this case has established that but for counsel’s failure to call character witnesses, there is a reasonable probability that the result would have been an acquittal.

In Commonwealth v. Mickens, 409 Pa.Super. 266, 597 A.2d 1196 (1991), this court once again recognized that counsel may be found ineffective when he or she fails to use character evidence on the defendant’s behalf if there is no reasonable basis for failing to do so. Id. at 279, 597 A.2d at 1203. The facts of that case led this court to conclude that trial counsel was constitutionally effective. At the post-trial hearing, counsel testified that he was not ignorant of the option of calling character witnesses and had in fact discussed this option with his client and, for tactical reasons, decided that that option was not worth pursuing. The trial court found this testimony credible. We concluded that counsel had a reasonable basis for his decision and, therefore, was not ineffective:

Because counsel’s decision not to present character witnesses was made after consultation with appellant and was based upon appellant’s responses to counsel’s inquiries and counsel’s experience as a trial lawyer, the trial court could properly conclude that counsel’s performance was reasonable.

Id. at 281, 597 A.2d at 1204. Unlike Mickens, counsel in the instant case stated that he did not consult with his client about character witnesses. In fact, counsel stated that he thought “he should have asked about character witnesses[.]”

In its brief, the Commonwealth argues that the six witnesses presented at the PCHA hearing would not have been helpful because of “familial ties.” The Commonwealth states: “Defendant has presented no witnesses that knew him from any non-familial community interactions.” This statement is not accurate. Although four of the six witnesses presented at the PCHA hearing were related to Glover, one of the character witnesses was Glover’s mother, one was his mother-in-law, one was his uncle, and one was the mother of his son, the other two witnesses were unrelated to the defendant.

In Commonwealth v. Weiss, 530 Pa. 1, 606 A.2d 439 (1992), the Pennsylvania Supreme Court stated: “Although familial character witnesses generally lack the credibility of unbiased non-familial witnesses, an attitude that they are per se worthless, is sufficient evidence of counsel’s incompetency.” Id. at 8, 606 A.2d at 443. The court found that the defendant was prejudiced and that defense counsel was ineffective for failing to call character witnesses. The Weiss court noted:

The only issue then, was whether appellant or someone else was responsible for what happened. Considering there was no overwhelming evidence of guilt in this case, credibility of the witnesses was of paramount importance, and counsel’s error not to employ character witnesses, familial or otherwise, undermined appellant’s chances of instilling reasonable doubt in the minds of the jury and resulted in prejudice to the appellant.

Id. at 9, 606 A.2d at 443.

Similarly, here there was no overwhelming evidence of guilt; the Commonwealth’s case was based upon a witness’s identification of a hooded man from a distance of 60 feet in the evening in an area lit by a neon bar sign and a streetlight and circumstantial evidence which was, in part, refuted by the police officers testifying on behalf of the defense. Had counsel presented available character witnesses, the jury may have found reasonable doubt. We conclude, therefore, that counsel’s failure to do so resulted in prejudice to the defendant. Pierce, supra; see also Weiss, supra.

We do not reach this decision lightly. We are well aware of the frenzy ignited when a defendant, long since tried, convicted and imprisoned, is granted a new trial. At the cost of upsetting what for some time seems ordered, our correction of inevitable errors is necessary to give meaning to the defendant’s constitutional right to counsel and to further the pursuit of justice. In this case, justice requires that we grant the defendant a new trial and allow him the opportunity to present character witnesses in his defense.

Reversed. Case remanded for new trial. Jurisdiction relinquished.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I must respectfully Dissent. I would affirm on the Opinion of the Court below. Moreover, the absence of character witnesses, in my judgment was not prejudicial due to the fact that appellant’s decision not to take the stand would indicate his credibility was not a crucial part of his defense.

      . The Post Conviction Hearing Act was amended effective April 13, 1988, and renamed the Post Conviction Relief Act.

      . Glover’s PCHA hearing was held on March 25, 1991 and June 13, 1991. The Commonwealth stipulated at the June 13 hearing that at the time of trial Glover had no prior convictions.

      . In Neely, the Pennsylvania Supreme Court held that a criminal defendant is entitled to a jury charge that evidence of good character or reputation may, in and of itself, create a reasonable doubt of guilt and require a verdict of not guilty.

      . Prior to trial, Glover had three previous arrests for drug offenses and one arrest for harassment, reckless endangerment, simple and aggravated assault; this latter arrest was withdrawn for lack of evidence.

      . Justice McDermott warned that the decision in Weiss “should not be blindly applied to all those cases where an attorney made a tactical decision to eschew the calling of character witnesses." Weiss, 530 Pa. at 10, 606 A.2d at 444 (McDermott, J., concurring). As we have clarified above, this case does not fall within the sweep of that warning.