author: OLSZEWSKI, Judge: KELLY, Judge,

text:
    574 A.2d 1107
    COMMONWEALTH of Pennsylvania, Appellant, v. Carl Vernon NELSON, Carl Vernon Nelson, Carl V. Nelson, Carl Vernon Nelson.
    Superior Court of Pennsylvania.
    Submitted Oct. 10, 1989.
    Filed May 8, 1990.

      Rene Heilman, Asst. Dist. Atty., Warren, for Com., appellant.
    Kenneth L. Crosby, Warren, for appellee.
    Before OLSZEWSKI, KELLY and JOHNSON, JJ.
   OPINION BY

OLSZEWSKI, Judge:

This is an appeal by the Commonwealth from an order granting appellee relief under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. (“PCRA”). Appellee, Carl Vernon Nelson, filed a pro se petition for post-conviction relief on September 9, 1988, which was supplemented by an amended petition filed by counsel on December 6, 1988. Appellee’s amended petition alleged, inter alia, violation of appellee’s rights under the United States Constitution and the Pennsylvania Constitution, ineffective assistance of counsel, and a plea of guilty unlawfully induced.

The undisputed facts, as summarized by the PCRA judge, are as follows:

On August 25, 1977, Defendant was arrested for the slaying of Jess Perry and his attempt to kill Perry’s daughter. As a result of plea negotiations on charges of homicide, Defendant entered a guilty plea to third degree murder and attempted murder, and in doing so [inculpated] Thomas Eaton and gave sworn statements Eaton had solicited Defendant to murder the victim, giving him the murder weapon and ammunition to do so. As a result Eaton was charged with solicitation of murder and violation of the Uniform Firearms Act. Eaton was granted a change of venue to Mercer County on those charges, and Defendant was subpoenaed from his imprisonment to the trial by the District Attorney as a Commonwealth witness. Prior to Defendant’s perjured testimony, he had recanted his accusations against Eaton to Eaton’s counsel which was also known by the District Attorney of Warren County, and this possible recantation at the Eaton trial was made known to the trial Judge with a request the Court call Defendant as a court witness in the Eaton trial. Without counsel, Defendant was compelled by the Court to testify [on October 11, 1978] and consummated his perjury, notwithstanding Defendant’s attempt to plead the Fifth Amendment, which was denied by the Court. As a result of the recantation, Defendant was charged in Warren County with the aforesaid perjury and false statements. Court-appointed counsel was assigned to Defendant on these charges, and again Defendant entered a plea of guilty before the Warren [County] Court with his counsel advising the Court there was no viable defense.
On December 7, 1988, after argument on Defendant’s petition, [the P.C.R.A. court] granted Defendant leave to withdraw his guilty plea to the perjury and false statement charges, however, conditioned the withdrawal granting leave to the Commonwealth to supplement the records of both Warren and Mercer County courts that would show any evidence that would reasonably require a different disposition. At the Commonwealth’s request [the court] held an evidentiary hearing with Defendant present and represented by court-appointed counsel. At this hearing [the court] gave the Commonwealth wide latitude to show any evidence Defendant was not entitled to the relief sought.

P.C.R.A. court opinion at 4-5. On March 3, 1989, the PCRA court issued an order granting appellee leave to withdraw his guilty pleas to perjury and false swearing. From this order the Commonwealth appeals. Because the PCRA court properly determined that appellee was entitled to relief, we affirm its decision.

The Commonwealth’s sole issue in this appeal is, “Whether appellee’s testimony exculpating Eaton at Eaton’s trial was compelled, where appellee, aware of his fifth amendment rights, freely and voluntarily testified on direct examination, and subsequently claimed the fifth amendment on cross-examination?” This argument relates only to whether the requirements of 42 Pa.C.S.A. § 9543(a)(2) were met by appellee.

I.

In reviewing an order granting a PCRA petition, we follow the same standard applicable under the former Post Conviction Hearing Act (“PCHA”). We look to whether the PCRA court’s determination is supported by evidence of record, and is otherwise free of legal error. Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981). This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding. Commonwealth v. Stokes, 294 Pa.Super. 529, 440 A.2d 591 (1982).

II.

In order to set aside a plea of guilty under the former PCHA, a defendant was required to demonstrate three things: first, the existence of constitutionally infirm incriminating evidence; second, that the guilty plea was primarily motivated by the existence of such evidence; and third, that the defendant was incompetently advised by counsel to plead guilty rather than stand trial. Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970) (“Marsh I”). Accord Commonwealth v. Marsh, 460 Pa. 253, 333 A.2d 181 (1975) (“Marsh II”); Commonwealth v. Miller, 494 Pa. 229, 236-237, 431 A.2d 233, 236 (1981). The criteria stated in Marsh I apply both on direct appeal and in collateral proceedings. Commonwealth v. Swift, 299 Pa.Super. 77, 81 n. 2, 445 A.2d 156, 157 n. 2 (1982).

Like the former PCHA, the PCRA authorizes a grant of postconviction relief based on the violation of constitutional rights, ineffective assistance of counsel, or an unlawfully induced guilty plea. The PCRA, however, has additional requirements which we read into the Marsh I test. The first factor of the Marsh I test requires the existence of constitutionally infirm incriminating evidence, while the PCRA adds the requirement that, “in the circumstances of the particular case, [the existence of the evidence] so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(i). The second factor of the Marsh I test requires that the guilty plea be “primarily motivated” by the infirm evidence, while the PCRA requires that the circumstances surrounding the guilty plea “make it likely that the [constitutionally infirm incriminating evidence] caused [the] individual to plead guilty.” The third factor of the Marsh I test requires that the defendant have been incompetently advised by counsel to plead guilty rather than stand trial, while the PCRA adds the requirement that counsel’s incompetence “so undermined the truth-determining process* that no reliable adjudication of guilt or innocence could have taken place. 42 Pa.C.S.A. § 9543(a)(2)(h). We will proceed to analyze whether the PCRA court erred in finding that appellee had satisfied the dictates of the Marsh I test, as modified by 42 Pa.C.S.A. § 9543(a)(2).

III.

The first factor of the Marsh I test requires us to determine whether the testimony appellee gave at Thomas Eaton’s trial on October 11, 1978 was constitutionally infirm. Appellee entered pleas of guilty to third-degree murder and attempted murder before he testified at the Mercer County trial of Thomas Eaton. At the time of Eaton’s trial appellee was ■ serving a prison sentence for murder and attempted'murder, but had not yet pleaded guilty to perjury and false swearing. Indeed, it would have been impossible for him to have pleaded guilty because the perjury and false swearing charges were not filed until November 15, 1978, 35 days after appellee confessed at Eaton’s trial.

It is undisputed that the district attorney, Eaton’s attorney, and the trial court all knew before appellee was called to testify that appellee had recanted his prior testimony implicating Eaton. Furthermore, the parties took the unusual step of having appellee called as a witness for the court in order to allow both the prosecution and defense attorneys to cross-examine appellee. Appellee was transported from his prison cell to Mercer County and testified under subpoena. He was not represented by counsel and was not advised by the court, by the district attorney or by Eaton’s defense attorney that he had any rights against incriminating himself concerning prior perjury or false swearing. It was not until after appellee had inextricably implicated himself that the district attorney even suggested to appellee the possible consequences of his testimony. When appellee attempted twice to assert his fifth amendment rights on his own he was rebuffed. The first time appellee asserted his rights, he was ignored. The second time he was told, by the trial judge: “[Y]ou have no right to plead the Fifth Amendment. You pled guilty to the crime which you were charged with and you have no right and we will instruct you to answer the question, please.” Transcript of October 11, 1978, at 64.

A plea of guilty to a-criminal charge is generally regarded as a waiver of the privilege against self-incrimination with respect to that charge. Commonwealth v. Strickler, 481 Pa. 579, 393 A.2d 313 (1978). The rationale behind this rule is that once a person has been convicted of a particular crime, it is not possible to become any more incriminated with respect to that same crime. See Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977). By pleading guilty to one charge, however, a defendant does not waive his privilege not to incriminate himself in other crimes. United States v. Yurasovich, 580 F.2d 1212 (3rd Cir.1978). Accord United States v. Zirpolo, 704 F.2d 23 (1st Cir.), cert. denied, 464 U.S. 822, 104 S.Ct. 87, 78 L.Ed.2d 96 (1983).

Specifically relating the law of self-incrimination to the crime of perjury, one federal court has stated:

a witness may not claim the [fifth amendment] privilege out of fear that he will be prosecuted for perjury for what he is about to say, although he may claim the privilege if his new testimony might suggest that he had perjured himself in testifying on the same subject at a prior proceeding.

United States v. Partin, 552 F.2d 621, 632 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). See also United States v. Fortin, 685 F.2d 1297 (11th Cir.1982) (guilty plea to counterfeiting charges does not waive right against self-incrimination with respect to potential perjury prosecution).

In the instant case, the Commonwealth has never alleged that appellee’s testimony of October 11, 1978 constituted perjury. The Commonwealth’s theory throughout has been that appellee’s testimony on that date was a confession which implicated him in prior crimes of perjury and false swearing.

The Commonwealth cites Commonwealth v. Tracey, 137 Pa.Super. 221, 8 A.2d 622 (1939), for the proposition that appellee’s guilty pleas to murder and attempted murder waived his right not to incriminate himself in perjury and false swearing. The Commonwealth fails to point out, however, that Tracey was predicated on the assumption “that the witness’ testimony would have related to the crime which he admitted by his plea[.]” Id., 137 Pa.Superior Ct. at 225, 8 A.2d at 624. Appellee’s right against self-incrimination as to the perjury and false swearing charges, therefore, remained intact at the time he was called to testify against Thomas Eaton in Mercer County.

The Commonwealth argues that appellee should have notified the district attorney, Eaton’s attorney, or the court that he intended to exercise his right not to incriminate himself, before he testified on October 11, 1978. Nowhere does Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985), cited by the Commonwealth, hold that a witness must reserve in advance his constitutional right not to incriminate himself. Cieri is premised on the assumption that a witness knows he is a criminal suspect, and holds that if it is clear that the witness will plead the fifth amendment, he need not be called to testify. As we note elsewhere in this opinion, although the district attorney asked the judge to notify appellee of his rights, neither the district attorney, the defense attorney, nor the judge actually did notify appellee of his rights before he testified. This was despite the awareness of all three that appellee had recanted his prior testimony.

The Commonwealth also argues that appellee waived his rights against self-incrimination by testifying on direct examination. While it is possible to waive even constitutional rights,

the waiver of a constitutional right must be made knowingly and intelligently; to be a knowing and intelligent waiver, the defendant must have been aware of both the right and the risks of forfeiting the same. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Commonwealth v. Barnette, 445 Pa. 288, 285 A.2d 141 (1971), Commonwealth v. Mallon, 279 Pa.Super. 350, 421 A.2d 234 (1980). Waiver of a constitutional right cannot be presumed from a silent record, and the presumption must always be against waiver of a constitutional right.

Commonwealth v. Johnson, 319 Pa.Super. 463, 472, 466 A.2d 636, 641 (1983). Accord Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Nowhere does the record indicate that appellee was advised before testifying either of his right not to incriminate himself or of his right to representation by counsel. When appellee did attempt to assert his rights against self-incrimination, the judge ordered him to testify, stating incorrectly that appellee’s prior guilty pleas to murder and attempted murder took away his rights against self-incrimination.

The Supreme Court states, in Miranda v. Arizona, “[T]he requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was, in fact, voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise. Bram v. United States, 168 U.S. 532 [18 S.Ct. 183, 42 L.Ed. 568 (1897)][.]”

Miranda v. Arizona, 384 U.S. 436, 462, 86 S.Ct. 1602, 1621, 16 L.Ed.2d 694, 716-717 (1966).

We cannot agree with the Commonwealth’s suggestion that appellee’s uncounseled testimony, which he gave under subpoena, and was brought from his prison cell to give, constituted a voluntary waiver of his right against self-incrimination. Appellee’s confession, compelled and without the assistance of counsel, constituted a violation of his rights against self-incrimination, both under the fifth amendment of the U.S. Constitution, and under article I, § 9 of the Pennsylvania Constitution. Strickler, supra; Commonwealth v. Fisher, 398 Pa. 237, 157 A.2d 207 (1960). We find further that the egregious circumstances of the instant case more than satisfy the additional requirement of the PCRA that, “in the circumstances of the particular case, [the existence of the evidence] so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(i). As the evidence incriminating appellee was constitutionally infirm, the first factor of the Marsh I test has been satisfied.

IV.

The second factor of the Marsh I test, as modified by the PCRA, requires us to determine whether “the circumstances make it likely” that the unchallenged existence of appellee’s confession caused him to plead guilty. 42 Pa.C.S.A. § 9543(a)(2)(iii). Both appellee and his guilty plea counsel testified that the existence of the statements appellee made at Eaton’s trial was the sole motivating factor for appellee’s guilty plea. PCRA Transcript of January 19, 1989, at 3-7, 33. There was, therefore, evidence in the record to support the PCRA court’s finding that appellee’s guilty plea was primarily motivated by the involuntary confession. The PCRA court’s finding that appellee’s guilty plea fulfilled the “primarily motivated” requirement of Marsh I also satisfies the PCRA’s requirement that “the circumstances make it likely that the [confession] caused [appellee] to plead guilty.” The second factor of the Marsh I test is therefore satisfied.

V.

Finally, Marsh I, as modified by the PCRA, requires us to determine whether appellee was incompetently advised by counsel to plead guilty rather than stand trial, and that counsel’s ineffectiveness, “in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). In analyzing a claim of ineffective assistance of counsel, our courts apply a three-factor test:

We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, [we will reach a conclusion of ineffective assistance if the defendant] demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings.

Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). As we have already determined that appellee’s self-incrimination claim is meritorious, see supra, we may proceed directly to the second stage of the ineffectiveness analysis and ask whether appellee’s prior counsel had any reasonable basis for counseling appellee to plead guilty to perjury rather than proceeding to trial and challenging the admissibility of appellee’s confession. Appellee’s former counsel was asked if he had ever thought of filing a motion to suppress the transcript from the Mercer County trial of Thomas Eaton:

A No, I did not. I can recall that I gave some thought to the question of whether he had any privileges against self-incrimination and I concluded that that was of no avail to me and it never occurred to me that there might be any Miranda Warnings necessary____ I later learned just very recently that, perhaps, he did not have a lawyer with him in Mercer [County] at the time he made the statement
Q If I may interrupt, so ten years ago when Mr. Nelson plead guilty, were you aware that he didn’t or were you aware whether he had an attorney there or not?
A I am confident I had assumed that he did and it’s only recently that I learned, perhaps, he did not____

PCRA transcript of January 19, 1989, at 5. It is clear from the record that at the time he counseled appellee to plead guilty, counsel had not even considered whether appellee’s testimony of October 11, 1978 was admissible. Evidence in the record therefore supports the PCRA court’s finding that appellee’s former counsel had no reasonable basis for his recommendation that appellee plead guilty, rather than move to suppress appellee’s uncounseled confession of October 11, 1978.

The final factor which must be present in order to find appellee’s former representation ineffective is prejudice. Appellee must demonstrate that the choice of going to trial and challenging the admissibility of his October 11, 1978 testimony offered a substantially greater potential for success than pleading guilty. Commonwealth v. Taylor, 348 Pa.Super. 256, 502 A.2d 195 (1985).

In this case, the only indication in the record concerning the evidence against appellee appears in the probable cause affidavits attached to the four criminal complaints filed on November 15, 1978. All four affidavits allege that the affiant saw and heard appellee give one version of the story concerning the shootings of August 25, 1977 before October 11, 1978, and a different version of the story when he testified on October 11, 1978. If appellee had gone to trial and successfully challenged the admissibility of his confession, we are not aware of any evidence the Commonwealth would have presented against him, except for his original statements of April 18, 1978, April 19, 1978, May 10, 1978 and May 24, 1978. Since the only evidence admissible against appellee would have been of four consistent statements, with no proof that the statements were untrue, appellee was clearly prejudiced by prior counsel’s failure to challenge the admissibility of his confession. We find further that counsel’s ineffectiveness satisfies the additional requirement of the PCRA, 42 Pa.C.S.A. § 9543(a)(2)(h), that the ineffectiveness, “in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.”

As all of the Marsh I factors, as modified by the PCRA, have been satisfied, we affirm the PCRA court’s grant of relief. Order affirmed.

KELLY, J., dissents.

KELLY, Judge,

dissenting.

I agree that appellee’s constitutional rights were violated when the trial court failed to honor his assertion of his Fifth Amendment right against compulsory self incrimination. I emphasize though, that I would not find open court to be a custodial setting warranting Miranda warnings to a prisoner witness facing a so-called “perjury trap.” Commonwealth v. Williams, 388 Pa.Super. 153, 565 A.2d 160 (1989); Commonwealth v. Melson, 383 Pa.Super. 139, 163-75, 556 A.2d 836, 848-53 (1989) (Kelly, J., dissenting). However, when, as here, the prisoner witness in open court asserts his Fifth Amendment rights not to confess past perjury, that right must be honored. Here, that right was not honored.

My disagreement with the majority has to do with its construction of 42 Pa.C.S.A. § 9543(a)(2)(i) and 42 Pa.C.S.A. § 9543(a)(2)(h). Succinctly, the fact that appellee’s in-court confession was excludable, and that the Commonwealth may or may not have been able to prove appellee’s perjury without that confession, in no way undermines the reliability of the adjudication of guilt which resulted from appellee’s subsequent guilty plea. See Commonwealth v. Ryan, 523 Pa. 547, 568 A.2d 179 (1990).

Here, as in Ryan, the defendant acknowledged guilt and made no timely attempt to withdraw or challenge the plea, but later challenged his plea in a PCRA proceeding. The PCRA challenge was not on the basis of facts suggesting possible innocence or false confession, but on facts suggesting that prior counsel had overlooked the potential exclusion of the most damaging evidence known to be available against appellee, and that had appellee known that, he might not have pled guilty. Such claims are not cognizable under the new PCRA.

Our legislature has restricted the grounds for relief via PCRA proceedings to constitutional violations “which, in the circumstances of the particular case, so undermine the truth determining process that no reliable adjudication of guilt could have taken place.” 42 Pa.C.S.A. §§ 9543(a)(2)(i) and (ii). I see nothing in this record which could reasonably shake one’s confidence in the reliability of the verdict. Appellee’s counsel’s ineffectiveness denied appellee information which might have altered appellee’s assessment of whether the Commonwealth could prove, what the excludable but nonetheless reliable evidence would have conclusively established, i.e. appellant’s guilt.

Similarly, I find no “unlawful inducement” (42 Pa.C.S.A. § 9543(a)(2)(iii), which may be said to have motivated the plea. Ignorance of grounds to suppress reliable evidence is not an “unlawful inducement” to plead guilty.

Essentially, appellant lost the chance to risk a throw of the dice. I do not read the new PCRA act to provide for the recovery of such losses.

Hence, I respectfully dissent.

      . The Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541, et seq. has been modified in part, repealed in part, and renamed the Post Conviction Relief Act by Act of April 13, 1988, No. 47, §§ 3-4 (codified as amended at 42 Pa.C.S.A. § 9541-46 (Purdon supp. 1989). Since appellee’s petition was filed after the effective date of April 13, 1988, it is controlled by the provisions of the PCRA.

      . Appellee’s amended PCRA petition lists five of the eight possible circumstances eligible for post-conviction relief under the PCRA, 42 Pa.C.S.A. § 9543(a)(2).

      . The PCRA court states in its opinion that the testimony appellee gave at the trial of Thomas Eaton in Mercer County on October 11, 1978 was perjured and that this testimony "consummated his perjury[.]” It is not clear from the record which of appellee’s testimony concerning Thomas Eaton was true and which was false. We note, however, that nowhere in the record is it indicated that appellee was ever prosecuted on the basis that the testimony in'question, given on October 11, 1978, was false, nor was appellee prosecuted under 18 Pa.C.S.A. § 4902(e), which requires the Commonwealth to prove only that a defendant made inconsistent statements under oath. Appellee’s prosecution was based on the theory that his testimony of October 11, 1978 was truthful, and that four prior statements made by appellee on April 18, 1978, April 19, 1978, May 10, 1978, and May 24, 1978 were false. In the analysis which follows, therefore, we consider appellee’s testimony of October 11, 1978 as a confession which incriminated him in prior crimes of perjury and false swearing.

      . Appellee entered guilty pleas on January 22, 1979 to three counts of perjury, 18 Pa.C.S.A. § 4902(a), and one count of false swearing, 18 Pa.C.S.A. § 4903(a)(2).

      . The Commonwealth does not argue that any of the other elements required for relief under 42 Pa.C.S.A. § 9543(a) are not present in the instant case. By not arguing, the Commonwealth has conceded that the requirements of §§ 9543(a)(1), 9543(a)(3) and 9543(a)(4) were pleaded and proved by appellee. A review of the record and the applicable law convinces us that all of these elements were present. Aside from a conclusory sentence devoid of legal argument, the Commonwealth does not argue that the PCRA court erred in finding that appellee's sixth amendment rights to representation by effective counsel were violated. Neither does the Commonwealth argue: (1) that appellee's guilty plea was not primarily motivated by the existence of appellee’s confession of October 11, 1978; (2) that appellee’s guilty plea counsel had any reasonable basis for counseling appellee to plead guilty rather than proceeding to trial and challenging the admissibility of appellee’s confession; or (3) that appellee did not suffer prejudice from prior counsel’s failure to challenge the admissibility of appellee’s confession. While we discuss our reasoning in full, we note that the Commonwealth has waived all issues except whether appellee’s rights against self-incrimination were violated when he confessed while testifying at Thomas Eaton’s trial. Commonwealth v. Jackson, 494 Pa. 457, 459 n. 1, 431 A.2d 944, 945 n. 1 (1981); Commonwealth v. Anderson, 381 Pa.Super. 1, 13 n. 3, 552 A.2d 1064, 1070 n. 3 (1988).

      . Former 42 Pa.C.S.A. §§ 9541-51, modified in part, repealed in part, and renamed the Post Conviction Relief Act by Act of April 13, 1988, No. 47, §§ 3-4.

      . The former PCHA provided:
      § 9543. Eligibility for relief To be eligible for relief under this subchapter, a person must ... prove the following
      ******
      (3) That his conviction or sentence resulted from one or more of the following reasons:
      * * * * * *
      (iii) The introduction of a coerced confession into evidence.
      (iv) The introduction into evidence of a statement obtained in the absence of counsel at a time when representation is constitutionally required.
      (v) The infringement of his privilege against self-incrimination under either federal or state law.
      (vi) The denial of his constitutional right to representation by competent counsel.
      (vii) A plea of guilty unlawfully induced.
      42 Pa.C.S.A. § 9543 (Purdon 1982).
      The PCRA provides:
      § 9543. Eligibility for relief
      (a) General rule. — To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence
      (2) That the conviction or sentence resulted from one or more of the following:
      ******
      (i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
      (ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
      (iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty.
      42 Pa.C.S.A. § 9543 (Purdon supp. 1989).

      . The PCHA did not require that the existence of constitutionally infirm incriminating evidence be the sole motivation behind the guilty plea. Commonwealth v. Swift, 299 Pa.Super. 77, 85 n. 5, 445 A.2d 156, 160 n. 5 (1982).

      . Had the situation been reversed and appellee’s statements of October 11, 1978 been the subject of a perjury prosecution, appellee would not have been protected against self-incrimination. United States v. Partin, 552 F.2d 621, supra. See also United States v. Yurasovich, 580 F.2d 1212, 1219 (3rd Cir.1978) (noting "the maxim that the Fifth Amendment does not protect perjury”).

      . While the Commonwealth cites Tracey in reference to appellee’s rights against self-incrimination under the fifth amendment to the United States Constitution, Tracey was decided under article I, § 9 of the Pennsylvania Constitution.

      . As this is the only issue which the Commonwealth argues on appeal, we affirm the Order of the PCRA court on the basis of our discussion up to this point. See supra note 5. We continue our analysis to illustrate that, even had the Commonwealth properly raised and argued the issues mentioned in note 5, supra, our result would be unchanged.

      . Ryan also involved a serial ineffectiveness claim, as well as evidence of a purgation of guilt motive to confess. Nonetheless, the critical similarity here, is the dispositive factor under the PCRA.


source: Caselaw Access Project

author: MONTEMURO, Judge: POPOVICH, Judge,

license: Public Domain

text:
    574 A.2d 1116
    COMMONWEALTH of Pennsylvania v. Darren ENNIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1989.
    Filed May 16, 1990.

      Stanford Shmukler, Philadelphia, for appellant.
    Suzan Willcox, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

Appellant, Darren Ennis, appeals from a judgment of sentence imposed following a jury verdict finding him guilty of robbery, aggravated assault, possession of an instrument of crime, and conspiracy. After denying appellant’s post-trial motions, the trial court sentenced appellant to a term of imprisonment of ten to twenty years on the robbery charge and imposed a consecutive six month to four year prison term for conspiracy and a concurrent sentence of five to ten years on the assault charge. No sentence was imposed for the possession of an instrument of crime conviction. Following the denial of his petition for reconsideration of sentence, appellant brought this timely appeal. Appellant is represented by new counsel on this appeal.

On appeal, appellant claims that (1) trial counsel was ineffective for failing to object to the sufficiency of the evidence to sustain a conviction for robbery; (2) trial counsel was ineffective for failing to present a point for charge or to object to the charge on the elements necessary to prove robbery; (3) trial counsel was ineffective in failing to move to suppress an in-court identification; (4) trial counsel was ineffective in failing to object to an improper cross-examination of a character witness; (5) the separate sentence for the aggravated assault charge was illegal because the robbery and aggravated assault merged for purposes of sentencing; (6) the sentencing court abused its discretion in considering appellant’s low I.Q. as a factor in sentencing appellant. Because we find that the aggravated assault merged with robbery for sentencing purposes, we vacate the five to ten year sentence for the aggravated assault charge. We also find that the sentencing judge abused his discretion in relying upon appellant’s low I.Q. in sentencing appellant and we vacate the judgment of sentence and remand the case for resentencing.

The underlying facts of the case are as follows. During the early morning hours of July 31, 1987, William DeShields was walking with his friend, James Horace, in the vicinity of 55th and Chestnut Streets, Philadelphia, when two men approached them from behind. Suspecting trouble, Mr. Horace alerted DeShields and then ran for safety. When DeShields turned around to face his followers, he was shot in the stomach by one of them and fell to the ground. Two police officers in an unmarked car happened to be in the area and sighted the three men on the corner. When the police heard the gunshot ring out, they gave chase to the two assailants. The officers apprehended one of the two men, Christopher Hightower. Seven months later, in February of 1988, Hightower, angered at his accomplice for not providing him with bail assistance, divulged appellant’s name to the police. Appellant was tried and convicted by a jury on September 6-7, 1988.

I. SUFFICIENCY OF EVIDENCE TO SUPPORT ROBBERY CONVICTION

Appellant argues that trial counsel was ineffective for failing to object to the sufficiency of the evidence to sustain a conviction for robbery.

In determining whether counsel rendered ineffective assistance, we first ascertain whether the issue underlying the claim is of arguable merit. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). If appellant’s claim does have arguable merit, we then determine whether counsel’s chosen course of action had any reasonable basis designed to serve the interests of his or her client. Id. If our review of the record reveals that counsel was ineffective, appellant will be granted relief if he demonstrates that counsel’s ineffectiveness worked to his prejudice. Id.; Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 976 (1987). To prove actual prejudice from the ineffectiveness, appellant must show that counsel’s error had an adverse effect on the outcome of the trial. Davis, supra, 518 Pa. at 83, 541 A.2d at 318.

We first determine whether the underlying issue — the sufficiency of evidence to sustain the verdict — is of arguable merit. Appellant claims that the evidence was insufficient to sustain the robbery verdict because there was no proof that anything was taken from the victim and there was no evidence that the victim was threatened.

The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Aulisio, 514 Pa. 84, 522 A.2d 1075, 1079 (1987), citing Commonwealth v. Syre, 507 Pa. 299, 308, 489 A.2d 1340, 1342 (1985). The jury is free to believe all, part, or none of the evidence. Commonwealth v. Fahy, 512 Pa. 298, 308, 516 A.2d 689, 694 (1986) (citations omitted). “It is a basic tenet of our system of jurisprudence that issues of credibility are properly left to the trier of fact for resolution.” Id., quoting Commonwealth v. Whack, 482 Pa. 137, 140, 393 A.2d 417, 419 (1978).

To sustain a conviction of robbery, the Commonwealth must establish beyond a reasonable doubt that appellant, in the course of committing a theft, inflicted serious bodily injury upon Mr. DeShields, or threatened him with or intentionally put him in fear of immediate serious bodily injury. 18 Pa.C.S.A. § 3701(a). The element “in the course of committing a theft” is proven if the Commonwealth proves that the offense occurred during an attempt to commit theft or in flight after the attempt or commission. 18 Pa.C.S.A. § 3701(a)(2). An attempted theft is committed when a person, with intent to commit a theft, does any act which constitutes a substantial step toward commission of the theft. 18 Pa.C.S.A. § 910(a). A person commits a theft if he or she “unlawfully takes ... movable property of another with intent to deprive him thereof.” 18 Pa.C.S.A. § 3921(a). In light of these statutory definitions, the Commonwealth must prove beyond a reasonable doubt that appellant, with the intent to take property from DeShields and deprive DeShields of the property, took a substantial step toward those ends, and during the course of the act, inflicted serious bodily injury upon DeShields. We find that the Commonwealth has met its burden.

DeShields testified that on July 31, 1987, as he was walking down the street with his friend, the friend alerted him to the fact that they were being followed. N.T. September 6, 1988 Volume II at 29-30. DeShields turned to face his followers and saw appellant who mumbled something which DeShields could not understand. As soon as DeShields noticed that appellant was pointing a gun at DeShields’ chest, DeShields immediately tried to knock the gun down, and as he did so, appellant shot him in the stomach. DeShields required hospitalization and surgery for treatment of the bullet wounds. Id. at 33-34, 36. Appellant also testified that $280 was missing from his pocket after the incident. The police did not find the money when they arrived on the scene a few minutes after the attack.

Christopher Hightower, appellant’s accomplice, testified that before the incident, appellant and Hightower drove in appellant’s car from the Germantown section of Philadelphia to 55th and Chestnut Streets, looking for someone to “stick up” for some money. N.T. September 6, 1988 Volume II at 94-95. They parked on Chestnut Street and got out of the car. Id. at 96. According to Hightower, appellant approached DeShields and DeShields’ companion from behind, pulled a gun out, and said “Where the money at? Where the money at?” Id. at 96. Hightower then saw appellant shoot DeShields. Id. at 97.

The testimony of DeShields and Hightower is sufficient to prove the elements of robbery beyond a reasonable doubt. The evidence shows that during the course of an attempted theft, appellant inflicted serious bodily injury upon DeShields. The attempted theft was proven by High-tower’s testimony, which showed that appellant, with the intent of stealing money from DeShields, came up from behind DeShields with a gun, asked for money, and then shot DeShields as DeShields turned around and tried to knock the gun to the ground. We find that this constitutes a substantial step toward the commission of a theft.

Appellant points out that the testimony of Hightower contradicts that of DeShields, who testified that he did not hear his assailant ask for money, but that he did hear appellant mumble something. The fact that DeShields did not hear appellant ask for money does not make the attempt fail. The fact that appellant approached DeShields with a gun, with the intent of taking money from him, even in the absence of a request for money, establishes that appellant did an act which constituted a substantial step toward the commission of the theft within the meaning of the statute defining criminal attempt, 18 Pa.C.S.A. § 901(a). See Commonwealth v. Everett, 299 Pa.Super. 182, 186, 445 A.2d 514 (1982) (although defendants.neither demanded nor took any money during the course of a hold-up, attempt to commit theft could be inferred from evidence that defendants entered store, held gun to head of storekeeper, and fatally shot the store owner).

The jury could also have reasonably inferred that appellant took the $280 which was missing from DeShields’ pocket after the incident, and thus actually committed theft. See Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981) (where rape victim left her handbag in defendant’s possession and handbag was later found with cash, checks and credit cards missing, evidence was sufficient to support robbery conviction).

Since appellant has failed to show that the underlying issue of his ineffectiveness claim, i.e., insufficiency of evidence to support his conviction of robbery, has arguable merit, trial counsel cannot be deemed ineffective for failing to assert it. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985).

II. ADEQUACY OF JURY CHARGE ON THE ELEMENTS OF ROBBERY

Appellant challenges the performance of trial counsel for failing to object to the court’s allegedly incomplete and confusing jury instructions on the offense of robbery. As stated above, we first determine whether the underlying issue — that the jury charge was erroneous — possesses arguable merit. We conclude that it does not.

“A court’s charge to the jury will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury properly in its deliberations.” Commonwealth v. Person, 345 Pa.Super. 341, 345, 498 A.2d 432, 434 (1985) (citations omitted). See also Commonwealth v. Bey, 249 Pa.Super. 185, 196, 375 A.2d 1304, 1310 (1977). In reviewing the court’s charge for error, we must read the charge as a whole; “error will not be predicated upon an isolated excerpt.” Commonwealth v. Wallace, 347 Pa.Super. 248, 256, 500 A.2d 816, 820 (1985) (citations omitted). See also Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983) (appellate examination of jury charge must be based on examination of it as whole to determine whether it was fair or prejudicial) (citation omitted). “It is the general effect of the charge that controls.” Commonwealth v. Wallace, supra (citation omitted).

Commonwealth v. Magwood, 371 Pa.Super. 620, 622-23, 538 A.2d 908, 909 (1988), appeal denied 519 Pa. 653, 546 A.2d 57 (1988).

The statutory definitions of the elements of the offense of robbery are set forth above. Appellant challenges the court’s instructions as erroneous for failing to adequately define attempt to commit theft. Appellant argues that the court should have defined “attempt to commit theft” because the only aspect of robbery that could arguably be present in this case is attempt to commit a theft. We disagree.

As we noted above, the jury could have reasonably inferred that an actual theft occurred from the fact that DeShields had $280 in his pocket before the attack and he was missing the money after the attack. The jury instructions adequately defined theft:

BY THE COURT: You have to find that there was a theft and that the injury was caused, serious bodily injury was caused during the taking of someone else’s property with the intention of depriving that person of that property ...

N.T. September 7, 1988 Volume II at 148-150. Trial counsel was not ineffective for failing to object to the court’s charge, since the charge adequately defined theft.

Even if the only basis for the robbery conviction was that appellant inflicted serious bodily injury during the course of an attempted theft, appellant’s ineffectiveness claim would fail. We note that the trial court’s instructions on attempted theft were deficient to the extent that they did not clearly state that the jury must find that appellant took a substantial step toward completing the theft.

Appellant’s ineffectiveness claim fails, however, because trial counsel’s failure to submit a proper jury charge was not prejudicial. This Court has held that where the evidence of the case supports the omitted jury instruction, the failure to define the element to the jury is not prejudicial. Commonwealth v. Humpheys, 367 Pa.Super. 154, 532 A.2d 836, 840 (1987), appeal denied 518 Pa. 624, 541 A.2d 1136 (1988), citing Commonwealth v. Ehrsam, 355 Pa.Super. 40, 59-60, 512 A.2d 1199, 1208-09 (1986); Commonwealth v. Goins, 348 Pa.Super. 22, 501 A.2d 279 (1985); Commonwealth v. Mlinarich, 345 Pa.Super. 269, 287, 498 A.2d 395, 403-404 (1985) (en banc), aff'd 518 Pa. 247, 542 A.2d 1335 (1988). As we noted above, the evidence in this case establishes, at the very least, the elements of an attempted theft. We find that trial counsel’s failure to object to the court’s charge on attempted theft was not prejudicial.

III. FAILURE TO OBJECT TO THE CROSS-EXAMINATION OF CHARACTER WITNESS

Appellant claims that trial counsel was ineffective for failing to object to the Commonwealth’s cross-examination of appellant’s mother, whom appellant had offered as a character witness. We find that appellant’s ineffectiveness claim fails, as trial counsel’s failure to object to the cross-examination could not have affected the outcome at trial.

Ordinarily, the scope of cross-examination of an adverse witness is limited to matters brought out on direct examination. Commonwealth v. Cessna, 371 Pa.Super. 89, 537 A.2d 834 (1988), citing Commonwealth v. Lore, 338 Pa.Super. 42, 487 A.2d 841 (1984); Commonwealth v. Katsafanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983).

On direct examination, appellant's mother, Ms. Ennis, testified that appellant is eighteen and a half years old, that appellant currently lives with her and was living with her at the time of the incident, that she does not know appellant’s accomplice, and that appellant has a reputation among members of the community for being a truthful, peaceful and law-abiding citizen.

On cross-examination, the Commonwealth questioned appellant’s mother on appellant’s ownership of cars, appellant’s ability to buy a car, and whether she ever saw him use other people’s cars. Thus, the inquiry on cross-examination exceeded the scope of matters brought out during the direct examination. The aim of the questioning was to establish a link between appellant and a blue Cutlass he allegedly drove on the night of the attack on DeShields and to connect appellant with a white Cadillac seen parked in the driveway to Ms. Ennis’ house on the afternoon that the police went to her home to arrest appellant.

Although trial counsel could have successfully lodged an objection to the Commonwealth’s questioning of appellant’s mother as to matters which exceeded the scope of cross-examination, appellant has not identified any prejudice suffered by him as a result of counsel’s failure to object. We fail to see how the information elicited from Ms. Ennis during cross-examination could have had an adverse effect on the outcome at trial. Her testimony on cross-examination could not have contributed to the finding of appellant’s guilt, because her testimony did not show that appellant had access to a blue Cutlass, and appellant did not deny ownership of the white Cadillac. The Commonwealth’s case rested on the testimony of the victim, Mr. DeShields, and Christopher Hightower, appellant’s accomplice.

We find that trial counsel’s failure to object to the cross-examination of appellant’s mother did not prejudice appellant.

IY. SUPPRESSION OF IDENTIFICATION TESTIMONY

Appellant challenges trial counsel as ineffective for failing to move to suppress DeShields’ identification of appellant on the grounds that the identification was highly suggestive.

During the trial, DeShields identified appellant as his assailant. DeShields described the scene of the offense as being well-lit by street lights. DeShields testified that because appellant’s face was so close to his when appellant shot DeShields, DeShields couldn’t forget his face, and he had no doubt in his mind as to who shot him.

Shortly after the incident, DeShields gave only a vague description of his assailant to the police. Seven months after the attack, DeShields was unable to pick out appellant’s photo from a photographic array. At a pretrial hearing about a week before the trial, appellant came into the courtroom and sat down next to DeShields. About fifty or sixty people were in the room. DeShields immediately recognized appellant as the person who shot him. On cross-examination, DeShields stated that it was not until after appellant’s name was called out by the court and appellant stepped forward that he spoke to the district attorney about identifying appellant.

Appellant maintains that the out-of-court identification was so suggestive as to require suppression, and that the in-court identification must also be suppressed because it was irreparably tainted by the out-of-court identification. We disagree.

In reviewing claims of suggestive identification procedures, “we must determine whether the identification procedure was so suggestive and conducive to irreparable mistaken identity so as to deny the accused due process.” Commonwealth v. Thomas, 363 Pa.Super. 348, 352, 526 A.2d 380, 381 (1987), appeal denied 517 Pa. 616, 538 A.2d 498 (1987), citing Commonwealth v. Voss, 333 Pa.Super. 331, 482 A.2d 593 (1984); Commonwealth v. Williams, 323 Pa.Super. 512, 470 A.2d 1376 (1984). DeShields immediately recognized appellant at their first face-to-face meeting following the attack. Approximately fifty other people were in the room at the time of the identification. Purely by chance appellant chose to sit in a seat right next to DeShields’ seat. The Commonwealth was in no way responsible for the circumstances under which DeShields identified appellant. Hence, nothing on the part of the Commonwealth indicates an impermissibly suggestive procedure. The fact that DeShields did not tell the district attorney that appellant was the man who shot him until after appellant’s name was called out by the court and appellant stepped forward goes to the credibility of DeShields, not to the suggestiveness of the procedure.

In Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979), our Supreme Court held that where a witness identified the appellant while the witness was sitting in the courtroom waiting to testify at the preliminary hearing, and nothing occurred or was done to point out the appellant to the witness or to distinguish the appellant from any other males in the courtroom, the identification circumstances were not suggestive. The circumstances of DeShields’ identification of appellant were virtually identical to those in the Ransome case. We hold that the out-of-court identification procedure was not so suggestive as to deny appellant due process; thus, the in-court identification was not tainted by the initial identification. See Thomas, supra at 352, 526 A.2d at 381. The underlying issue of appellant’s ineffectiveness claim, i.e., suppression of the out-of-court and in-court identifications for undue suggestiveness, lacks merit. Trial counsel cannot be deemed ineffective for failing to move to suppress the identifications.

V. MERGER OF ROBBERY AND AGGRAVATED ASSAULT FOR SENTENCING PURPOSES

Appellant maintains that the trial court imposed an illegal sentence by failing to merge the robbery and aggravated assault convictions for purposes of sentencing. The trial court imposed a sentence of ten to twenty years for the robbery charge and a concurrent term of five to ten years on the assault charge.

In the recent case of Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989), our Supreme Court set forth a new test for merger of sentences, holding that the test for merger is strictly whether the separate offenses are lesser included and greater included offenses, i.e., the crimes do not merge for sentencing purposes unless the same facts support convictions of lesser included offenses. In Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989), decided the same day as Leon Williams, the Court elaborated on the merger doctrine:

[I]f a person commits one act of criminal violence, and that act is the only basis upon which he may be convicted of another crime, the act will merge into the other crime. If, however, the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of the additional crime, then the actor will be guilty of multiple crimes which do not merge for sentencing purposes.

521 Pa. at 364, 555 A.2d at 1233.

In light of these principles, we find that the offenses of aggravated assault and robbery do merge in this case. Aggravated assault is defined as:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]

18 Pa.C.S.A. § 2702. The aggravated assault was established by appellant’s act of shooting DeShields in the stomach. This same act established an element of the robbery offense, i.e., the infliction of serious bodily injury upon another. See 18 Pa.C.S.A. § 3701(a)(1)(i).

The Commonwealth argues that the pointing of the gun at appellant was such a distinct and separate act from the shooting that the robbery was completed when appellant pointed the gun at DeShields, see 18 Pa.C.S.A. § 3701(a)(1)(ii) (a person may be guilty of robbery if, “in the course of committing a theft, he ... threatens another with or intentionally puts him in fear of immediate serious bodily injury ...”), and that the subsequent shooting constituted an aggravated assault. We disagree that the pointing and shooting constituted multiple criminal acts.

In Commonwealth v. Bell, 386 Pa.Super. 164, 562 A.2d 849 (1989), this Court held that where the victim of the assault was struck by two blows in rapid succession, one to the head and one to the face, the blows did not constitute separate crimes because there was no break in the action. Similarly, we find that the pointing and shooting of the gun was one act for purposes of establishing the elements of robbery and aggravated assault. According to the testimony of DeShields, appellant pointed the gun at DeShields’ chest, DeShields tried to push the gun down, and appellant fired the gun. These acts occurred in rapid succession. Appellant did not wave or shake the gun in a menacing manner or otherwise threaten DeShields with the gun. It appears from the testimony that appellant pointed the gun merely as a prerequisite for shooting the gun at DeShields. Given these particular facts, we find that appellant did not commit any other criminal act beyond that which was necessary to establish the bare elements of robbery.

We find that the aggravated assault offense merges with the robbery offense, and vacate the separate five to ten year term imposed for aggravated assault.

VI. USE OF APPELLANT’S LOW INTELLIGENCE QUOTIENT AS A FACTOR IN SENTENCING

Finally, appellant challenges the sentencing court’s reliance on appellant’s limited intelligence in imposing a lengthy term of imprisonment. We find that the trial court erred in considering appellant’s low level intelligence as an aggravating factor for sentencing purposes.

This is a challenge to the discretionary aspect of appellant’s sentence, and as such, must be considered a petition for permission to appeal, as the right to appeal from the discretionary aspect of sentencing is not absolute. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 511, 522 A.2d 17, 18 (1987); Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385, 1386-87 (1989) (en banc).

Before we can address the merits of the issue raised on appeal, appellant must demonstrate in his statement of reasons for allowance of appeal that there exists a substantial question as to whether the sentence imposed is appropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b). Commonwealth v. Anderson, 381 Pa.Super. 1, 16, 552 A.2d 1064, 1072 (1988).

Appellant’s statement of reasons for allowance of appeal alleges, in part, that the “propriety of the sentence as a whole” is in question because the trial judge used “defendant’s pronounced and acknowledged mental retardation as an important factor in setting a lengthy period of imprisonment.” Supplemental Brief for Appellant at 6. Further, appellant’s statement of reasons states that the issue of whether a person’s low I.Q. is an appropriate basis upon which to impose a lengthy sentence is an issue of first impression in Pennsylvania.

We find that appellant has raised a substantial question to warrant review of his sentence, because the statement of reasons claims that the trial court relied on an impermissible factor in sentencing appellant. We grant appellant’s petition for permission to appeal from the discretionary aspects of his sentence.

In deciding whether a trial judge considered only permissible factors in sentencing a defendant, an appellate court must, of necessity, review all of the judge’s comments. Moreover, in making this determination it is not necessary that an appellate court be convinced that the trial judge in fact relied upon an erroneous consideration; it is sufficient to render a sentence invalid if it reasonably appears from the record that the trial court relied in whole or in part upon such a factor.

Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977).

Upon review of the sentencing judge’s comments made at the sentencing hearings, we find that it reasonably appears from the record that the judge relied in part upon appellant’s low intelligence in fashioning the sentence. At the hearing, trial counsel urged the court to view appellant’s intelligence quotient as a mitigating factor in sentencing. The following colloquy took place during the sentencing hearing:

MR. QUINN: ... and I would also ask your honor to keep in mind the report about his intelligence. He’s reported to have an I.Q. of 74 which the report characterizes as border line mentally retarded.

THE COURT: Yes, but that doesn’t prevent a man from being an honest person, the fact that he had a low mentality. As a matter of fact, it seems, helps [sic] that kind of simplicity, mental simplicity does help keep one honest and trite. This man has not that. He may have that plus, the plus factors are the factors that concern us because they pose a danger, not only to himself but to society ...

* * * * * *

MR. QUINN: Well, in any case, with his, considering his youth and the circumstances of this case, considering the fact that he was under the influence of another person, and considering the fact that he was of marginal intelligence are—

THE COURT: The marginal intelligence gives me a great deal of concern. I mean, he has the ability to do what he did, his intelligence is low, which means that his judgment might be poor which means that he would pose a danger under similar circumstances that would not only fuel the wrong but compound it because he doesn’t have the ability, the natural intelligence to control himself. You tell me what do I do? He’s more explosive than if he had the intelligence. He needs some real extensive type of training to—

MR. QUINN: I agree.

THE COURT: To get those traits out of him and improve his intelligence quotient. How do we do that? We can’t keep him out, he needs a lot of time to do that, so the strictures are that he has to be put into a structured environment, and there maybe rectify his conduct. That’s why we call it correctional institution. They correct the conduct, but he has a long road to hoe with the inability to comprehend his wrong ...

N.T. December 28, 1988 at 9, 14-15.

At the hearing on appellant’s motion for reconsideration of sentence, counsel again urged the court to consider appellant’s youth and low intelligence as mitigating factors:

MR. QUINN: ... I would respectfully submit that in the course of the sentencing proceedings, matters that were in fact matters which mitigated my client’s actions were cited by the court as reason to give him a severe sentence; specifically his youth, his border line mental retardation were characterized by this court as something that caused the court concern and would warrant a stiffer sentence rather than factors to be considered in mitigation as a youth and border line mental retardation should be____

THE COURT: How old is he?

MR. QUINN: He’s twenty now. Nineteen now.

THE COURT: Nineteen.

MR. QUINN: Right.

THE COURT: So he hasn’t been an adult long enough to establish a criminal record. He only has a criminal record as a juvenile so he’s coming from his juvenile to adulthood with the retardation that you’re talking about. He hasn’t reached there yet but he’s [sic] a potential for causing great serious injuries. He has that potential. Because of his retardation and because of his youth, he doesn’t fully have a comprehension that using a gun in a guy’s stomach is murderous.

MR. QUINN: And I submit that the court’s statement today, and the court’s statement at an earlier date constitutes an inadequate reason and in fact an erroneous reason upon which to base a statutory maximum sentence in view of the failure to have any prior record score. THE COURT: I find from that reasoning that he is a potentially dangerous person. I’ve given you the basis for my thinking, so I think I’m entitled to make that determination.

N.T. February 1, 1989 at 3, 5-6.

From these remarks we can reasonably conclude that the court viewed appellant’s low level intelligence as a factor which warranted imposing a more severe sentence.

In imposing a sentence, a sentencing court must consider the individual characteristics and circumstances of a defendant, Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), and, in particular, the rehabilitative needs of the defendant. 42 Pa.C.S.A. § 9721(b). Appellant does not argue that the sentencing court erred in considering his low level I.Q., but rather argues that the court erred in treating his low intelligence as an aggravating factor in setting the sentence.

A review of Pennsylvania caselaw on this topic reveals that limited intelligence of a defendant has been considered as a potentially mitigating factor, not an aggravating factor, in imposing a sentence. See Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246, 261-62 (1988) (evidence of appellant’s low I.Q. of 76 was placed before the jury as a possible mitigating factor); Commonwealth v. Sheridan, 348 Pa.Super. 574, 502 A.2d 694 (1985) (upholding sentence which fell below the sentence recommended in the Sentencing Guidelines where the sentencing court had relied, in part, upon the fact that the defendant “had restricted intelligence with an extremely weak ego structure”); Commonwealth v. Anderson, supra.

Although our research reveals no cases dealing with whether it is permissible to consider a defendant’s low I.Q. as an aggravating factor in determining an appropriate sentence, we note that the Pennsylvania statute which sets forth the sentencing procedure for first degree murder delineates aggravating factors and mitigating factors to be considered in sentencing. See 42 Pa.C.S.A. § 9711(d) and (e). A review of these factors shows that aggravating circumstances may generally be categorized as factors which result from some conduct or condition imposed by the defendant which make the crime more shocking or egregious. Thus, where the defendant behaves in such a way as to make the offense more reprehensible, such as where the defendant kills with the expectation of monetary reward, or the defendant kills by way of torture or while committing a felony or hijacking an aircraft, the jury may view the conduct as warranting the more serious penalty of death. In contrast, the mitigating factors set forth in the sentencing provision account for individual characteristics of the defendant which may affect the defendant’s emotional or mental well-being at the time of the offense and which thus may impair the defendant’s ability to appreciate the seriousness of his or her behavior. We note that the mitigating factors are generally circumstances over which the defendant has little or no control, as opposed to the aggravating circumstances which are created due to some “bad act” on the part of the defendant.

We hold that it is impermissible to use a defendant’s low I.Q. as an aggravating factor in sentencing. We find that a defendant’s intelligence level, an immutable characteristic over which an individual has no control, may not be considered as an aggravating factor in sentencing. We fail to see a connection between a person’s intelligence, or I.Q., and his or her propensity to commit crimes or need for rehabilitation. Moreover, we disagree with the views of the trial court that appellant’s low degree of intelligence makes appellant more likely to perform an illegal act, or that a longer period of incarceration would somehow improve appellant’s intelligence. The trial court abused its discretion in relying upon appellant’s low I.Q. to impose a more severe penalty.

We vacate the judgment of sentence and remand the case for resentencing in accordance with this Opinion. Jurisdiction is relinquished.

POPOVICH, J. files a dissenting statement.

POPOVICH, Judge,

dissenting:

I dissent from that portion of the Opinion wherein the Majority rules that the sentencing court abused its discretion in relying upon appellant’s low intelligence quotient in imposing sentence.

In my view, the lower court did not abuse its discretion; rather it is the Majority which has installed blinders on the court’s view of reality.

Of necessity the sentencing court must consider, among other factors, the intellectual capacity of the offender. The Majority cannot, it writes, find any cases pertinent to the issue as though this were an issue of first impression. There are no cases because it has always been the law, beyond cavil, that the sentencing court take into account an offender’s mental background and his propensity to commit crime, his responsibility to society and his ability to control his actions, how best to improve his intelligence quotient and what his rehabilitative needs are.

All of these factors were considered by the sentencing court in a colloquy that covered almost 40 pages of transcript.

Although, admittedly, the sentence could be considered harsh, that does not mean that the sentence was ill-considered. And we must not, either, lose sight of the fact that this young man shot, at close range, another human being with the intent to kill. It was a senseless, primitive act, an act not surprisingly perpetrated by one of low intelligence.

As the sentencing court stated,

THE COURT: The marginal intelligence gives me a great deal of concern. I mean, he has the ability to do what he did, his intelligence is low, which means that his judgment might be poor which means that he would pose a danger under similar circumstances that would not only fuel the wrong but compound it because he doesn’t have the ability, the natural intelligence to control himself. You tell me what do I do? He’s more explosive than if he had the intelligence. He needs some real extensive type of training to—

* $ $ * * *

THE COURT: To get those traits out of him and to improve his intelligence quotient. How do we do that? We can't keep him out, he needs a lot of time to do that, so the strictures are that he has to be put into a structured environment, and there maybe we can rectify his conduct. That’s why we call it correctional institution. They correct the conduct, but he has a long road to hoe with the inability to comprehend his wrong, and his wrong was grave because it almost took somebody’s life, loss of property and life.

Sentencing Transcript, p. 14.

Perhaps the Majority, had it comprised the sentencing court, would have imposed a less severe sanction, but for it to say that the sentencing court abused its discretion is to turn upside down and inside out the sentencing scheme of this Commonwealth.

      . Appellant raises issues (1) and (2) directly as well as in the context of claims of ineffectiveness of counsel. Because the issues were waived due to trial counsel’s failure to adequately address them in post-trial motions and argument, we consider them in the context of claims of ineffectiveness. See Commonwealth v. Henry, 341 Pa.Super. 146, 491 A.2d 193 (1985).

      . We do not hold, as the Dissenting Statement suggests, that upon remand the sentencing court must impose a sentence shorter than the original sentence. We hold that in resentencing appellant, the court may consider only permissible factors and must impose a sentence consistent with those factors. The court may not use appellant’s low I.Q. as an aggravating factor in fashioning the sentence.


author: BROSKY, Judge. CIRILLO, President Judge,

text:
    574 A.2d 1127
    COMMONWEALTH of Pennsylvania v. Carl HUNTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1990.
    Filed May 16, 1990.
    John R. Sobota, Asst. Public Defender, Wilkes-Barre, for appellant.
    Richard M. Hughes, III, Asst. Dist. Atty., Wilkes-Barre, for the Com., appellee.

      Before CIRILLO, President Judge, and WIEAND and BROSKY, JJ.
   BROSKY, Judge.

Carl Hunter appeals from the judgment of sentence of the trial court following his jury convictions of burglary, theft and criminal trespass.

Appellant claims on appeal that the trial court erred in denying appellant’s request for an “accomplice-corrupt source” jury charge. He avers that the trial testimony of Commonwealth witness William Barrington, who was not charged with but was present during the commission of the above mentioned crimes, permitted an inference that Barrington was an accomplice. We agree and are constrained to reverse and remand for a new trial.

In Commonwealth v. Watts, 348 Pa.Super. 224, 228, 501 A.2d 1152, 1154 (1985), our court, quoting Commonwealth v. Sisak, 436 Pa. 262, 265, 259 A.2d 428, 430 (1969), stated that,

It is the rule in Pennsylvania that the testimony of an .accomplice of a defendant, given at the latter’s trial, comes from a corrupt source and is to be carefully scrutinized and accepted with caution; it is clear error for the trial court to refuse to give a charge to this effect after being specifically requested to do so.

The rationale behind the instruction is that an accomplice witness will inculpate others out of a reasonable expectation of leniency. Commonwealth v. Thomas, 479 Pa. 34, 387 A.2d 820 (1978); Commonwealth v. Watts, supra. “A person is an accomplice of another person in the commission of an offense if: (1) with the intent of promoting or facilitating the commission of the offense, he ... (ii) aids or agrees or attempts to aid such other person in planning or committing it----” 18 Pa.C.S. § 306(c). The test for determining if one is an accomplice of the accused on trial is whether or not the accomplice could be indicted and punished for the crime with which the accused is charged. Id. The accomplice charge is necessitated not only when the evidence requires an inference that the witness was an accomplice, but also when it permits that inference. Id.

When the facts with respect to the participation of a witness in the crime for which the defendant is on trial are clear and undisputed, it is for the court to determine whether or not he was an accomplice, but where the facts are in dispute, or different inferences might reasonably be drawn therefrom, the question whether or not a witness was an accomplice is for the jury.

Id.

The facts as adduced during the testimony of William Barrington at trial reveal that appellant was living in a home with William Barrington and John Hummel. On February 8, 1988, appellant drove Barrington and Hummel to a house at Plymouth Borough, Pennsylvania. Barring-ton testified at appellant’s trial that appellant told him that the house belonged to a friend of his. Neither appellant nor Hummel testified at appellant’s trial. There was no answer at the back door to the house and Barrington returned to the car; Hummel joined him twenty minutes later. After ten more minutes appellant returned to the car carrying a VCR and a child’s backpack containing rare coins (Barrington learned of the contents of the backpack after he opened it up and looked inside). Barrington testified that appellant told him that the items belonged to appellant. After driving a short distance appellant told Barrington and Hummel that he had burglarized the house and that all of them were involved in the burglary. The three men then drove back to the house. Barrington did not try to stop appellant.

Appellant reentered the house while Barrington and Hummel waited in the car. Barrington testified that he did not leave the scene because it was cold out and he would have had to walk home. Appellant returned with a black box and other items. The three men then drove to a coin dealer in Dallas, Pennsylvania. Barrington accompanied appellant into the coin shop but did not follow him to the counter or participate in the transaction in which appellant received cash for the stolen coins. Barrington did not receive any of the cash, but he “would have liked some of the money” and “expected to get some” because he was present during the entire, incident. N.T., 12/19/88, at 67, 70. •

Barrington was never charged with the instant crimes but is on parole for a burglary that he committed in South Carolina. The parole was transferred to Pennsylvania and expires in 1990. The instant crimes and trial occurred in 1988. The police who investigated the instant burglary were told by Barrington that he was on parole. Barrington also has another burglary conviction and was twice adjudicated delinquent for shoplifting. He testified that he was not promised anything in return for his testimony at appellant’s trial.

We find that the trial court erred in denying appellant’s request for an accomplice jury charge. Barrington’s testimony was crucial in convicting appellant (an employee of the coin shop also identified appellant as the person who sold the stolen coins); appellant presented no testimony. Because Barrington (a) voluntarily accompanied appellant during the second burglary (although Barrington testified that it was cold out and he would have had to walk home if he did not accompany appellant, Barrington could have asked to be driven home or dropped off at a location accessible to public transportation); (b) voiced no objections to the crimes prior to, during or subsequent to their commission; (c) accompanied appellant into the coin shop and desired and expected proceeds from the crimes; and (d) although promised nothing in return for his testimony, Barrington could have been motivated by a desire to avoid being charged with the instant crimes and possibly thereafter being found in violation of his parole, we find that the facts adduced by Barrington’s testimony alone were susceptible of different inferences and, hence, the jury should have been the determiner of whether Barrington was an accomplice. Commonwealth v. Watts, supra. This could have only been accomplished through the grant of an accomplice charge, and the trial court’s failure to give one necessitates the grant of a new trial for appellant. Id. The facts adduced at trial permitted an inference that Barring-ton intended to promote or facilitate the commission of the crimes and aided or agreed to or attempted to aid appellant in committing the crimes, and was thereby an accomplice. 18 Pa.C.S. § 306(c); Commonwealth v. Watts, supra.

Judgment of sentence reversed; remanded for a new trial.

CIRILLO, President Judge, files a dissenting statement.

CIRILLO, President Judge,

dissenting.

I respectfully dissent. In my opinion the facts of this case do not permit an inference that the Commonwealth’s witness, William Barrington, was an accomplice. ' Therefore, I would find that the trial court did not err in denying appellant’s requests for an “accomplice-corrupt source” charge.

The majority cites to Commonwealth v. Watts, 348 Pa.Super. 224, 501 A.2d 1152 (1985), to support its decision that the trial court erred in failing to give the accomplice charge. However, the facts of Watts are distinguishable from those in the instant case. In Watts, the defendant was charged with burglary, theft, and receiving stolen property. Commonwealth witness Michaels, who was also charged with receiving stolen property, testified against Watts. Michaels testified that he observed certain items at Watts’ home the day after the burglary, that Watts admitted to him that he had stolen the items, and that he, Michaels, received some of the items from Watts.

In Pennsylvania it is well established that the test for determining whether one is an accomplice of the accused on trial is whether he or she could be indicted and punished for the crime with which the accused is charged. Watts, 348 Pa.Super. at 227, 501 A.2d at 1153. Under the Crimes Code, “[a] person is an accomplice of another person in the commission of the offense if: 1) with the intent of promoting or facilitating the commission of the offense he ... (ii) aids or agrees or attempts to aid such other person in planning or committing it ...” 18 Pa.C.S. § 306(c). In order to establish that one is an accomplice to a crime, it is necessary to show that one had knowledge of, and participated in, the specific crime charged. Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975); see also Commonwealth v. Thomas, 479 Pa. 34, 38, 387 A.2d 820, 822 (1978); (“an accomplice is an active partner in the planning or commission of the crime.”).

In Watts, it was clear both under the statute and the common law test that Michaels was an accomplice in the commission of the crime. Here, however, evidence of Barrington’s active participation in the planning or the commission of the burglary is blatantly absent. Thomas, supra. Thus, I would affirm the judgment of sentence.