author: McEWEN, Judge:

text:
    550 A.2d 561
    COMMONWEALTH of Pennsylvania v. Wade MIDDLETON, Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1988.
    Filed Nov. 10, 1988.

      Thomas J. Turner, III, Philadelphia, for appellant.
    Peter Ainsworth, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before McEWEN, OLSZEWSKI and CERCONE, JJ.
   McEWEN, Judge:

We here consider an appeal from the judgment of sentence imposed by the distinguished Judge David N. Savitt following a finding by the jury that appellant was guilty of first degree murder and robbery. The jury was subsequently unable to agree upon the sentence for murder and, as a result, the trial court removed the matter from the jury, and following the denial of post-verdict motions, sentenced appellant to serve a term of life imprisonment for murder, and a consecutive term of imprisonment of from eight years to sixteen years for robbery.

In the early morning hours of December 20, 1984, an assailant knocked Nancy Bolden to the ground after she apparently resisted an attempt to take her purse. The assailant then dragged her into an alley, stripped her of most of her clothing, and brutally beat her, before leaving her partially clothed body covered by a trash bag. Approximately three hours later, appellant Middleton was arrested ■for the robbery of Ethel Henry approximately four to six blocks away from the area where the assault on Nancy Bolden had occurred. Ms. Bolden died some three months later from the injuries inflicted by her assailant, and approximately fifteen months later, appellant was arrested and charged with her murder.

Middleton first alleges that the trial court erred in denying his motion to dismiss due to prearrest delay. He argues that the Commonwealth intentionally, unreasonably or recklessly delayed his arrest and that he was harmed by the lengthy delay between the date of the crime and his arrest. Specifically, he claims he suffered a loss of memory, rendering him unable to effectively present his testimony and the testimony of others in support of his alibi defense. See Commonwealth v. Berry, 355 Pa.Super. 243, 513 A.2d 410 (1986). Furthermore, he contends that the Commonwealth was, within six months of the date of the crime, in possession of all the evidence used at trial.

The Commonwealth maintains that an investigatory delay, if reasonable, does not violate due process, even if a defendant is actually prejudiced in the preparation of his defense as a result of the delay. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). The Commonwealth argues that Middleton failed to substantiate his claim that the prearrest delay prejudiced him in his defense. The prosecution relies for this argument upon the testimony of appellant himself at the pre-trial hearing of May 18, 1987, a hearing held some two years after the death of the victim and almost ten months after the arrest of appellant. Appellant, at the pre-trial hearing, testified in detail as to his activities during the afternoon of December 19, and the early morning of December 20, when the victim was beaten and robbed. The Commonwealth also argues that the arrest of appellant some fifteen months after the death of Ms. Bolden could not have been unexpected by appellant since at the time of his arrest for the robbery of Mrs. Henry, appellant was informed by the police that he was a suspect in another crime, his clothes were taken for analysis, and patches of his hair were secured for tests. Further, within three months of Ms. Bolden’s death, appellant was interrogated by the police about the crime and even underwent lie detector tests, at which time he definitely became aware he was a suspect in the instant murder. While the actual arrest was delayed a further twelve months, appellant was, nonetheless, pursuing his defense since, he testified, his sisters undertook efforts to locate the two young ladies and the bartender in the club where he asserted he had been drinking when the instant murder took place.

The Commonwealth asserts that it conclusively established that any delay prior to Middleton’s arrest was a necessary result of a careful and thorough investigation. ■ Commonwealth v. Crawford, 468 Pa. 565, 364 A.2d 660 (1976) (defendant not denied due process despite four year prearrest delay because police encountered difficulty in putting together the case and because defendant was on notice that he was a suspect). The detective in charge of the investigation of Ms. Bolden’s death testified (1) that numerous pieces of evidence had to be sent to the FBI crime laboratories for analysis, (2) that interviews with potential witnesses had to be conducted, and (3) that the only eyewitness to the crime could not be located for several months.

Appellant urges that the trial court abused its discretion in finding reasonable investigatory delay because the Commonwealth’s explanation for the delay was contradictory. However, the conclusion of the trial court that the delay was reasonable is a determination which is within the discretion of the trial court, whose decision may not be reversed unless there is insufficient evidence in the record to support the court’s determination. Our review of the record reveals an ample evidentiary basis to support the trial court’s finding that the delay was reasonable. Therefore, this argument is rejected.

Appellant also contends that the admission of evidence of the attack on Ms. Henry constituted reversible error because the circumstances of that robbery were not so similar to the instant case as to identify them both as the product of a “common scheme.” The trial court, however, found that the evidence of the attack upon Ms. Henry was relevant and admissible on the issue of identification based upon the following similarities between the two crimes: (1) the attacks occurred within three hours of each other; (2) near alleyways which were only six blocks apart; (3) both victims were women, (4) walking alone, and (5) while Ms. Henry was elderly, Ms. Bolden appeared to be elderly; (6) both victims were called “bitch” by the attacker; (7) an eyewitness to the attack upon Ms. Bolden identified the black coat found near the scene of the attack upon Ms. Henry as the same or similar to the one worn by the perpetrator of the attack upon Ms. Bolden; (8) both the black coat and Ms. Bolden’s body, when discovered, were covered with excrement, as was appellant when he was arrested, during the attack upon Ms. Henry, three hours after the attack upon Ms. Bolden; during the attack upon Ms. Henry; and (9) when arrested as a result of the attack upon Ms. Henry, appellant had in his possession articles belonging to Ms. Bolden.

Our Supreme Court, in Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980), specifically addressed the issue we here confront, namely, admissibility of evidence of another crime in a factual setting quite resemblant of the instant appeal:

On April 2, 1976, appellant, Stanley Brown, and his accomplice, Harvey Tabron, agreed to obtain money by robbing an insurance agent working in the neighborhood. Appellant armed himself with a manriki (a two and one half foot chain used as a weapon in the martial arts) and Tabron was armed with a .22 caliber handgun. At approximately 12 noon, John Gallen, an employee of the Department of Housing and Urban Development, was inspecting houses in the 2800 block of Bonsall Street in the City of Philadelphia. Laboring under the mistaken belief that Mr. Gallen was an insurance agent, appellant and Tabron approached him and demanded money. They took from him a camera, two boxes of film, pictures, $16.00 in currency and a wristwatch. They then proceeded to West Sergeant Street.

At approximately 1 p.m. on the same day, the decedent, Carmen Falanga, an insurance agent, was collecting debits in the 2400 block of West Sergeant Street. As Mr. Falanga was entering his automobile, appellant grabbed him by the neck with the manriki and pushed him towards Tabron who had a gun drawn. The decedent began to struggle with appellant and drew a gun. The victim fired a shot at Tabron whereupon Tabron returned the fire, striking and killing the decedent.

Appellant complains that the testimony relating to the robbery of John Gallen was improperly introduced at his trial. He argues that this testimony was not only irrelevant but also highly prejudicial.

“ ‘It is a fundamental precept of the common law that the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge. It has been succinctly stated that the purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit the crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence’ ...”
Commonwealth v. Spruill, 480 Pa. 601, 606, 391 A.2d 1048, 1049-50 (1978) quoting Commonwealth v. Terry, 462 Pa. 595, 599-600, 342 A.2d 92, 94-95 (1975). See also Commonwealth v. Clark, 453 Pa. 449, 309 A.2d 589 (1973).

However, where the evidence is relevant, the mere fact that testimony of another crime may be prejudicial will not prevent its introduction into evidence. Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1975). Thus, evidence of other crimes has been admitted where that evidence tends to prove motive or intent, Commonwealth v. Terry, 462 Pa. 595, 600, 342 A.2d 92 (1975), absence of mistake or accident, Commonwealth v. Peterson, 453 Pa. 187, 197-8, 307 A.2d 264, 269 (1973), common scheme, plan or design (embracing commission of two or more crimes so related to each other that proof of one tends to prove the others), Commonwealth v. Wable, 382 Pa. 80, 82, 114 A.2d 334, 336-337 (1955), and to establish the identity of the person charged with the commission of the crime on trial, Commonwealth v. Rose, 483 Pa. 382, 399, 396 A.2d 1221, 1230 (1979). Although it is the prejudicial nature of this evidence that prevents it from being harmless error, Commonwealth v. Spruill, supra [“evidence of prior criminal activity ... is probably only equalled by a confession in its prejudicial impact upon a jury,” 480 Pa. at 606, 391 A.2d at 1050-51], when introduced in a trial, its relevancy to the proceeding in question determines its competency.

In the instant case, the relevancy of the robbery of John Gallen was readily apparent. The two crimes were committed within a period of approximately one hour and within a few blocks of each other. The appellant was armed in both instances with the same relatively unique weapon. In both instances, the manner of the attacks upon the respective victims was similar. The proceeds of the earlier robbery, i.e., the camera, was found at the scene of the crime in question. Finally, the same individuals participated in both crimes and both instances resulted from the same criminal design. Under these facts, a challenge to the relevancy of the testimony relating to the initial robbery is obviously without substance. Here, there were several “legitimate [bases] for the introduction of the evidence other than a mere attempt to establish the accused’s predisposition to commit the crime charged.” Commonwealth v. Spruill, 480 Pa. at 606, 391 A.2d at 1050.

Commonwealth v. Brown, supra 489 Pa. at 294-298, 414 A.2d at 75-76 (emphasis supplied). Application of the criteria of Brown compels the conclusion that the learned Judge David N. Savitt properly ruled that evidence of the attack upon Ms. Henry was admissible. This assertion of error is, therefore, rejected.

. Appellant further argues that the trial court committed reversible error when it permitted, over objection, expert testimony concerning the results of an electrophoresis test upon dried blood stains in the present case because the Commonwealth presented only one witness to show the scientific reliability and acceptability of the electrophoresis when applied to dried blood stains.

This argument arises from a presentation by the prosecution of a serologist who testified that based on published scientific studies on electrophoresis of dried bloodstains and on his own experience in the field, electrophoresis of dried bloodstains is generally accepted as reliable among experts in the field of forensic serology. The expert further opined that crime scene contaminants do not degrade dried blood nor deteriorate genetic markers.

The Pennsylvania Supreme Court in Commonwealth v. Topa, 471 Pa. 223, 230, 369 A.2d 1277, 1281 (1977) established the standards by which scientifically adduced evidence may be qualified for presentation at trial in this Commonwealth when it adopted the notions so vividly expressed in Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (D.C.1923):

Just when a scientific principle or discovery crosses that line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Commonwealth v. Topa, supra 471 Pa. at 230, 369 A.2d at 1281, quoting Frye v. United States, supra at 47, 293 F. at 1014 (emphasis in original).

Our Supreme Court proceeded in Commonwealth v. Topa, supra, to pronounce the rationale for its adoption of the Frye standard:

“The requirement of general acceptance in the scientific community assures that those most qualified to assess the general validity of a scientific method will have the determinative voice. Additionally, the Frye test protects prosecution and defense alike by assuring that a minimal reserve of experts exists who can critically examine the validity of a scientific determination in a particular case. Since scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury of laymen, the ability to produce rebuttal experts, equally conversant with the mechanics and methods of a particular technique, may prove to be essential.”

Commonwealth v. Topa, supra, 471 Pa. at 232, 369 A.2d at 1282, quoting United States v. Addison, 498 F.2d 741, 744 (D.C.Cir.1974). See also: Commonwealth v. Nazarovitch, 496 Pa. 97, 100-103, 436 A.2d 170, 172-173 (1981).

This argument of appellant, though presented in most fervent fashion, is not persuasive since we conclude that the Commonwealth did meet its burden under Frye through the expert testimony of a single expert “possessing] academic and professional credentials that permit him to understand the scientific principles involved and any differing viewpoints regarding reliability____[and who is] impartial — not so personally invested in establishing the technique’s acceptance that he might not be objective about disagreements within the relevant scientific community.” People v. Morris, 199 Cal.App.3d 377, 245 Cal.Rptr. 52, 57 (1988) (citations omitted). An expert’s opinion, alone:

will not suffice to permit the introduction of such specific evidence into a court of law. Admissibility of the evidence depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs. “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”

Commonwealth v. Topa, supra 471 Pa. at 230, 369 A.2d at 1281 quoting Frye v. United States, supra at 230, 293 F. at 1014 (emphasis supplied). Thus, if, as here, the expert witness’s opinion is not merely based upon his personal views, or the views of a small segment of the scientific community, but rather, is to the effect that the scientific procedure has gained general acceptance in the scientific community as a whole due to its reliability, as evidenced by published scientific studies, then the testimony of a single expert is not deficient merely because numerous experts were not called to testify.

A study of the record and reflection upon the prevailing principles applicable to such scientific testimony compels the conclusion that the trial judge correctly ruled the expert testimony admissible. First, the extended interrogation of the Commonwealth’s expert established that electrophoretic analysis of dried blood has “gained general acceptance” in the national community of forensic serologists.

Second, appellate courts throughout the country have found electrophoretic testing of dried blood samples to be admissible under the standards enunciated in Frye v. United States, supra, namely: Illinois (People v. Partee, 157 Ill.App.3d 231, 110 Ill.Dec. 845, 865, 511 N.E.2d 1165, 1185 (1987)); Virginia (O’Dell v. Commonwealth, 234 Va. 672, 364 S.E.2d 491, 504-505 (1988)); California (People v. Morris, 199 Cal.App.3d 377, 245 Cal.Rptr. 52, 57 (1988)); Kansas (State v. Washington, 229 Kansas 47, 622 P.2d 986 (1981)); Maryland (Smith v. State, 62 Md.App. 627, 490 A.2d 1307 (1985) ); Maine (State v. Rolls, 389 A.2d 824 (1978)); New Mexico (State v. Chavez, 100 N.M. 730, 676 P.2d 257 (1983)); and Georgia (Graham v. State, 168 Ga.App. 23, 308 S.E.2d 413 (1983)). See also: Note, The Admissibility of Electrophoretic Methods of Genetic Marker Bloodstain Typing Under the Frye Standard, 11 Oklahoma City Law.Rev. 773 (1986); Sensabaugh, G.F., “Uses of Polymorphic Red Cell Enzymes in Forensic Science,” 10 Clinics in Hematology 185 (1981).

Moreover, the controversy over the use of dried blood stains rather than fresh blood samples projected by appellant as the basis for his argument would instead appear to be a concern which was addressed and resolved as the test in question advanced from the experimental to the demonstrable stage:

Electrophoresis has long been recognized as a reliable method of studying genetically determined differences between individuals and population. Thus, the methodology and genetic mark typing poses no issue of reliability or acceptance amongst the scientific community. Rather, the sole dispute centers on the use of electrophoresis by forensic scientists in examining genetic markers from dry stain analysis and the effect of environmental factors on typing results. Juricek, D., “Misapplication of Genetic Analysis in Forensic Science.” 29 J. Forensic Sci. 8 (1984)....
These concerns, however, have been recognized by forensic scientists evaluating the results of electrophoresis on dried blood stains (Denault, G.C., Takimoto, H.H., Kwan, Q.Y., and Palios, A., “Detectability of Selected Genetic Markers in Dried Blood on Aging,” 25 J. Forensic Sci. 479, 496 (1980)), and evaluation of these variables are considered by forensic scientists in detecting genetic markers. (Sensabaugh, G.F., “Response to the Misapplication of Genetic Analysis in Forensic Science”, 29 J. Forensic Sci. 12 (1984)____

People v. Partee, supra, 110 Ill.Dec. at 865, 511 N.E.2d at 1185.

And, finally, the appellant failed to introduce any evidence whatsoever tending to show unreliability or insufficient acceptance of the technique in the general scientific community. Therefore, the trial judge properly ruled that evidence of the test results was admissible.

Judgment of sentence affirmed.

      . It should be noted that the trial court also issued cautionary instructions to the jury regarding the use of this evidence.

      . See also: People v. Morris, supra, 245 Cal.Rptr. at 59:
      Our review of judicial decisions and relevant scientific literature persuades us that the scientific community is aware of and has met the concerns of aging and environmental and bacterial contamination. We cite the conclusion of a panel of scientists convened to examine the reliability of genetic marker bloodstain typing: "The existing ... procedures for the determination and typing of blood group, isoenzyme, and polymorphic serus protein genetic markers in blood and body fluid stains are completely reliable. The procedures have been subjected to extensive scientific testing in hundreds of laboratories in the United States, Canada, Europe, Asia, Australia, and Africa by hundreds of forensic serological, immunological, and biochemical scientific specialists over the course of many years. There is widespread agreement in the relevant scientific community that reliable, accurate determination of genetic marker ... types in dried blood and body fluid stains is possible using these techniques and procedures____”

        Id. at 59, quoting Report of the American Academy of Forensic Sciences, Ad Hoc Committee on Genetic Marker Typing (March 23, 1984).


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    550 A.2d 567
    COMMONWEALTH of Pennsylvania, Appellee, v. Clair B. ZIEGLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 1, 1988.
    Filed Nov. 7, 1988.
    David Crowley, Assistant Public Defender, Bellefonte, for appellant.
    Sharon L. Potter, Assistant District Attorney, Bellefonte, for Com., appellee.

      Before OLSZEWSKI, MONTGOMERY and HOFFMAN, JJ.
   MONTGOMERY, Judge:

At the conclusion of a jury trial, the appellant was convicted of one count of involuntary deviate sexual intercourse in connection with an assault committed against a twelve year old girl. Timely filed post-verdict motions were denied by the trial court and the appellant was sentenced to a term of five to fifteen- years imprisonment. This timely appeal followed. We dismiss the appellant’s appeal from the discretionary aspects of his sentence and, finding his other argument meritless, we affirm the judgment of sentence.

The appellant argues that the sentence imposed upon him by the trial court is excessive. He therefore urges us to vacate the judgment of sentence and remand the matter for resentencing. The crux of the appellant’s argument is that a lesser sentence would have adequately protected the public and would have more fully met his rehabilitative needs. The appellant’s challenge is to the discretionary aspects of his sentence. Thus, he may not appeal of right, but must petition for allowance of his appeal. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); 42 Pa.C.S.A. § 9781(b). The appellant has complied with the requirement of Pa.R.A.P. 2119(f), as interpreted in Commonwealth v. Tuladziecki, supra, in that he has included in his brief a separate statement, preceding the argument portion, as to why his case involves a substantial question that the sentence imposed is inappropriate under the Sentencing Code and thus warrants the exercise of our discretion to consider his appeal. However, we are constrained to dismiss the appellant’s appeal from the discretionary aspects of his sentence because we find his attempt to satisfy Pa.R.A.P. 2119(f) falls short of the requirements which this Court set forth in Commonwealth v. Cummings, 368 Pa. Super. 341, 534 A.2d 114 (1987).

In Cummings, a panel of this Court wrote:

[t]he proffered statement fails to mention the length of the sentence imposed on him or the crime for which he was sentenced. The terms of the sentence the appellant is asking us to review and the crime or crimes which gave rise to that sentence are sine quo nons of a petition for allowance of appeal of the discretionary aspects of a sentence. This court simply cannot gauge whether there is a ‘substantial question’ that ‘a particular sentence raises doubts that [the scheme of the Sentencing Code] as a whole has been compromised’ without knowing what the length of the sentence is or what the crimes involved are. Appellant’s failure to supply these elements in his statement of the reasons relied upon for allowance of appeal prevents us from finding a substantial question that the sentence is inappropriate, and thus, we cannot accept the appeal.

Id,., 368 Pa.Superior Ct. at 344, 534 A.2d at 115.

Instantly, we have reviewed the appellant’s statement of reasons for allowance of appeal. Therein we find that the appellant supplies us with the term of his sentence: total confinement in a state correctional institution for a period of not less than five years nor more than fifteen years. However, fatal to his appeal, the appellant fails to identify the “crime ... which gave rise to that sentence____” Id. Thus, bound by the previous holding of this Court in Commonwealth v. Cummings, supra, we dismiss the appellant’s appeal from the discretionary aspects of his sentence.

The second argument presented by the appellant is that the trial court erred in allowing his conviction to stand despite the lack of evidence that penetration, a necessary element of the offense, occurred. We note preliminarily that the appellant’s motion in arrest of judgment was presented to the trial court based upon this same assertion. Because a motion in arrest of judgment is the proper mode of attack to the sufficiency of the evidence adduced at trial, we construe the instant argument to present a challenge to the sufficiency of the evidence presented against the appellant. See, Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987).

When confronted with a challenge to the sufficiency of the evidence, we thoroughly examine all of the evidence actually received, viewing it in the light most favorable to the Commonwealth as the verdict winner below. Our objective is to determine whether the evidence and all reasonable inferences drawn therefrom are sufficient in law to establish each material element of the crime and to prove beyond a reasonable doubt that the appellant committed the crime. See, Commonwealth v. Rodgers, 364 Pa.Super. 477, 528 A.2d 610 (1987). See also, Commonwealth v. Smith, 520 Pa. 600, 467 A.2d 1120 (1983).

Specifically, the appellant argues that his conviction cannot stand absent proof of penetration. A person commits the crime of involuntary deviate sexual intercourse when he:

engages in deviate sexual intercourse with another person: (1) by forcible compulsion; (2) by a threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; (3) who is unconscious; (4) who is so mentally deranged or deficient that such person is incapable of consent; or (5) who is less than 16 years of age.

18 Pa.C.S.A. § 3123. Deviate sexual intercourse is defined as “sexual intercourse per os or per anus between human beings who are not husband and wife, except as provided in section 3128 (relating to spousal sexual assault), and any form of sexual intercourse with an animal.” 18 Pa.C.S.A. § 3101.

In Commonwealth v. Ortiz, 311 Pa.Super. 190, 457 A.2d 559 (1983), this Court addressed the issue of “penetration.” There, we reasoned that:

[i]t is quite clear ... that the definition of ‘sexual intercourse’ found at [18 P.S. § 3101] does not specify ‘penetration of the vagina,’ but instead specifies ‘some penetration however slight.’ ... Commonwealth v. Bowes, 166 Pa.Super. 625, 74 A.2d 795 (1950) ... is the only Pennsylvania appellate case specifically delineating what penetration means in this context. That case stated that entrance in the labia is sufficient: ‘To constitute the crimes of rape there must be penetration, however slight, (res in re, but entrance in the labia sufficient: 44 Am.Jur., Rape, § 3).’ Id. at 628, 74 A.2d at 796 (emphasis in original). We therefore will not hold that a finding of penetration of the vagina is necessary for the jury to find ‘penetration however slight____’ ... [PJenetration of the vagina, in essence the farther reaches of the female genitalia, is not necessary to find penetration under Section 3101.

Commonwealth v. Ortiz, 311 Pa.Super. at 193, 457 A.2d at 560-561.

In Commonwealth v. Bowes, supra, the appellant argued that his conviction for sodomy, stemming from subjecting his child victim to cunnilingus, could not be sustained since there was no evidence of penetration. The Bowes Court noted that every possible ingredient of the offense was clearly established, except that there was no direct evidence of penetration. Commonwealth v. Bowes, 166 Pa.Superior Ct. at 626, 74 A.2d at 795. Relying on an earlier decision, Commonwealth v. Donahue, 136 Pa.Super. 306, 7 A.2d 13 (1939), the Court rejected the argument advanced by the appellant and held “[t]he defendant had committed a well-known type of perversion and the jury was quite justified in finding that the position he was in was circumstantial proof of penetration.” Commonwealth v. Bowes, 166 Pa.Superior Ct. at 627, 74 A.2d at 796.

In the case at bar, the appellant argues that cases such as Commonwealth v. Donahue, supra, and Commonwealth v. Bowes, supra, holding that penetration can be proven circumstantially, are distinguishable from this case because both Donahue and Bowes involved eyewitness testimony of a nonparticipant whose view of the act in question was necessarily obstructed by the positions of the participants. The appellant maintains that the instant case does not present that problem as the witness declarant is the “supposed victim” who is in the best position to notice labial insertion if it in fact occurred. It is settled law in this Commonwealth that even the uncorroborated testimony of a prosecution witness may be sufficient to convict. Commonwealth v. Westcott, supra, citing, Commonwealth v. Stoner, 284 Pa.Super. 364, 425 A.2d 1145 (1981); Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985). Additionally, like any element of an offense, penetration can be proven with circumstantial evidence.

In the instant matter, the appellant’s victim testified on direct examination as follows:

Q: Now you said he kissed you. Where did he kiss you?
A: On my vagina.
Q: Was your clothing — your underwear was pulled down?
A: Yes.
Q: How did he kiss you?
A: Like a puppy dog.
Q: He iyas licking you?
A: Yes.
Q: About your vagina?
A: Yes.
Q: And did this bother you?
A: Yes.
Q: What did you do after he did this?
A: I asked if I could go to the bathroom again and I did then I came back and he wasn’t there.

Trial transcript, at 47.

The offensive conduct leading to the appellant’s conviction in this case also served as the basis for the conviction in Commonwealth v. Westcott, supra. The appellant in Westcott also challenged, inter alia, the sufficiency of the evidence presented against him. The victim in Westcott offered testimony similar to that presented in the instant case:

Q. Did he get the zipper down?
A. Yes.
Q. What happened then, Tammy?
A. He had pulled down my underwear and my jeans at the same time. And he had — he put his head down and started—
Q. Started what?
A. He had oral sex.
Q. I’m sorry?
A. He started sucking on my vagina.
* :?! * % * *
Q. What did you do when he started licking you there? A. I started crying. I didn’t know why he would do something like that and I was scared....
In rejecting the appellant’s claim, this Court reasoned: [The victim’s] description of appellant’s conduct was sufficiently lucid to enable a person of ordinary intelligence to comprehend the heinous nature of the acts performed on her, see{,} Commonwealth v. Stoner, [supra,] and to establish the element of penetration. [Citation omitted] Furthermore, the position of appellant relative to the victim during the commission of the offense admits of circumstantial proof of penetration. [Citation omitted]

Id. 362 Pa.Super. at 200, 523 A.2d at 1152.

Viewing the record before us, in the appropriate light, in its entirety, we conclude that the Commonwealth produced ample evidence which established the requisite elements of the crime of involuntary deviate sexual intercourse beyond a reasonable doubt. Accordingly, we affirm the judgment of sentence.

The appellant’s appeal from the discretionary aspects of his sentence is dismissed, and the judgment of sentence is affirmed.

HOFFMAN, J., concurs in the result.


author: OLSZEWSKI, Judge:

text:
    550 A.2d 570
    COMMONWEALTH of Pennsylvania v. Angelo Manuel DeBOOTH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 29, 1988.
    Filed Nov. 15, 1988.

      Charles D. Younger, Assistant Public Defender, Boyer-town, for appellant.

      Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com., appellee.
    Before OLSZEWSKI, KELLY and HESTER, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence after appellant was found guilty of murder in the third degree, aggravated and simple assault, indecent assault, corruption of minors, and rape. Appellant alleges that the trial court committed numerous errors and that there was insufficient evidence to prove him guilty beyond a reasonable doubt. We find no merit in appellant’s contentions and affirm the judgment of sentence.

On August 2, 1986, the body of sixteen-year-old Betty Jean “Cookie” Hollis was discovered in Schlegel Park located in Reading, Berks County, Pennsylvania. An autopsy revealed that Ms. Hollis had been sexually assaulted prior to being strangled to death. An investigation led to the eventual arrest of appellant, who was subsequently charged with criminal homicide, manslaughter, aggravated and simple assault, corruption of minors, rape and other related offenses.

On April 1, 1987, appellant was tried before a jury and found guilty of murder in the third degree, aggravated and simple assault, corruption of minors and rape. Post-verdict motions were denied and appellant was sentenced to combined terms of imprisonment totalling twenty-two and one-half to forty-five years. Timely motions to reconsider the sentences were filed and denied. Appellant then filed the instant appeal.

Appellant initially contends that inculpatory statements he made to the police should have been suppressed. Two arguments are advanced: first, the statements obtained were the result of unnecessary pre-arraignment delay; and second, the statements were not knowingly or voluntarily given. We disagree.

In an appeal from an order granting or denying a motion to suppress, the role of the appellate court is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, the Court may consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as fairly read in the context of the record as a whole remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse only if there is an error in the legal conclusions drawn from those factual findings. Commonwealth v. Vinson, 361 Pa.Super. 526, 529, 522 A.2d 1155,1157 (1987); Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1043 (1986).

The pertinent facts surrounding appellant’s initial claims were adequately stated by the trial court as follows:

At approximately 5:45 a.m. on August 15, 1986, defendant was arrested on a robbery charge unrelated to this investigation. Later that morning, defendant informed the Reading Police that he had some information concerning the death of Betty Jean Hollis. The police read the Miranda rights to the defendant and after he waived the rights he gave an oral statement to police which was later reduced to writing. Defendant initialled each answer on the written statement and signed it as being true and correct. This statement was given to police at approximately 10:45 a.m. that morning.
At 11:44 a.m., the police took defendant to the District Justice’s for purposes of pre-arraigning him on the unrelated robbery charge. Defendant was then returned to City Hall.
After lunch, the police obtained another statement from defendant. The police again informed the defendant of his Miranda rights. After he waived his rights, the defendant gave an oral statement to police at 2:45 p.m.
The information gleaned from this interview led police to arrest defendant for the murder and rape of Ms. Hollis. The instant arrest occurred at 5:45 p.m. on August 15, 1986. Defendant was promptly pre-arraigned before District Justice Gloria Stitzel sometime between 5:48 p.m. and 6:40 p.m. that date.
After his arrest, defendant initiated a third conversation with police concerning the incident. This statement was also reduced to written form and was signed and initialled by the defendant. Defendant was given, and also waived, his Miranda rights before making this statement. Each of the aforementioned statements were later used at trial to establish defendant’s guilt.

Trial court opinion at pp. 4-5.

Appellant argues that these statements to the police should have been suppressed because they were violative of the rule announced in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), and Commonwealth v. Futch, 447 Pa. 389, 290 A.2d. 417 (1972). According to this rule, where a defendant is not pre-arraigned within six hours of his arrest, statements obtained after arrest but before arraignment must be excluded from evidence. Under the facts of the case at bar, we find that appellant’s argument lacks merit.

Initially, we take note that the rule as announced in Davenport, has recently been modified by our Supreme Court in the case of Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987). In Duncan, the Court declared:

The [Davenport] rule has been applied on a mechanical basis to violations which bear no relationship to the statement obtained and has shielded the guilty for no reason relevant to the individual circumstances of their case. [Citations omitted.] ... If the statement is obtained within the six hour period, absent coercion or other illegality, it is not obtained in violation of the rights of an accused and should be admissible. In keeping with the underlying objectives of the rule, only statements obtained after the six hour period has run should be suppressed on the basis of Davenport.

Id., 514 Pa. at 405-406, 525 A.2d at 1182-1183.

In the case at bar, appellant’s first statement is clearly admissible. As the record indicates, it was taken some time after appellant’s initial arrest on the robbery charge and prior to his lawful arraignment on that charge which took place within the six hour limitation. Accordingly, under either Davenport or Duncan, appellant’s initial statement was properly admissible at trial.

Regarding appellant’s second statement, the record indicates that it occurred after appellant had been arraigned on the robbery charge. As this Court has previously stated:

While the Futch formula was not designed to terminate police interrogation, it was intended to interrupt it after a reasonable period of time to allow the suspect to be advised of his custodial rights by an impartial judicial officer, as opposed to police officials, and in appropriate cases to establish the conditions of his release pending trial.

Commonwealth v. Jenkins, 500 Pa. 144, 148, 454 A.2d 1004, 1006 (1982). In the present case, appellant was lawfully arraigned before a magistrate within six hours of his arrest. At that time, he had the opportunity to be advised of his custodial rights by an impartial judicial officer. Accordingly, appellant’s second statement was properly admissible at trial.

Finally, with regard to appellant’s third statement, the record indicates that appellant initiated the conversation complained of after he was lawfully arraigned on the charges in the case at bar. Therefore, for the above reasons, we find that this statement was also properly admissible.

Next, we turn to appellant’s second argument relating to the suppression of his statements to the police. Appellant argues that these statements were not voluntarily given because, at the time of the questioning, he was under the influence of L.S.D. and was threatened by the Commonwealth with execution. Keeping in mind our standard of review in addressing suppression issues, we find no merit in these contentions. Perusal of the record of the suppression hearing reveals that three different police officers testified that appellant appeared normal, alert, coherent and rational when he spoke. His signature was dear and concise. While appellant testified that L.S.D, made him asocial, two of the three statements complained of were made at his request. Moreover, upon being questioned by police, appellant never mentioned L.S.D., stating only that he had consumed a small portion of marijuana. Finally, we agree with the trial court that the Commonwealth never “threatened” appellant with execution. Accordingly, we agree that appellant’s statements were knowingly and voluntarily made and that they were properly admissible against him.

Appellant’s next contention is that the trial court erred in granting the Commonwealth’s Petition to extend under Pa. R.Crim.P., Rule 1100, 42 Pa.C.S.A. Two arguments are advanced: first, the petition was never “signed;” and second, the court erred in finding judicial unavailability and due diligence on the part of the Commonwealth. We disagree.

Appellant argues that the Commonwealth’s petition to extend time for trial under Rule 1100 was never “signed.” In support of this argument, he cites Rule 9020 of the Pennsylvania Rules of Criminal Procedure, the pertinent part of which states as follows:

(b) A written motion shall comply with the following requirements:
(1) The motion shall be signed by the person or attorney making the motion. The signature shall constitute a certification that the attorney has read the motion, that to the best of the attorney’s knowledge, information, and belief there is good ground to support the motion, and that it is not interposed for delay.

Pa.R.Crim.P., Rule 9020, 42 Pa.C.S.A.

A review of the record indicates that the Commonwealth’s petition was timely filed on February 11, 1987. Further review indicates that the petition itself was not signed but that the affidavit accompanying the petition was signed and notarized. The trial court, in addressing this matter, concluded that for purposes of Rule 9020, this signature was sufficient. We agree.

Appellant’s second argument relating to the alleged Rule 1100 violation is that the trial court erred in finding judicial unavailability and due diligence on the part of the Commonwealth. As our Supreme Court has stated:

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

Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349-1350 (1976).

In assessing whether due diligence has been met, the Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c). Commonwealth v. Hollingsworth, 346 Pa.Super. 199, 206, 499 A.2d 381, 384 (1985). Further, on review of a trial court’s ruling that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth and so much evidence, as fairly read in the context of the record as a whole, remains uncontradicted. Id.

Upon review of the record, we are constrained to agree with the trial court that the Commonwealth has met its burden of proving due diligence. Nothing in the record indicates that the Commonwealth was attempting to delay bringing appellant to trial. The Commonwealth timely filed its petition to extend time for trial on February 11, 1987. The case at bar was specifically assigned to the trial judge and it was listed for trial during the February, 1987 trial sessions. Due to an assignment of a lengthy murder trial in another county, however, the trial judge was unable to hear the instant case during that session. During the trial judge’s absence, another judge was specially presiding over his case load but due to his age and work schedule, was unable to try a case of this length and magnitude. As a result, the case at bar could not be heard until the next trial term which began on March 16, 1987. Due to the absence of the trial judge for medical reasons, the trial did not actually begin until March 18, 1987, the earliest date consistent with the court’s business after February 11, 1987.

Thus, the delays encountered in bringing appellant to trial were due, not to a lack of diligence on the part of the Commonwealth, but due to judicial unavailability occasioned in part by the length and complexity of appellant’s case. The record clearly reveals the causes of this unavailability and the reasons why it could not be avoided. Moreover, the record demonstrates that trial was scheduled for the earliest date consistent with the court’s business. Accordingly, we find that the Commonwealth fully complied with the requirements of Mayfield and Rule 1100. Therefore, the trial court did not err in granting the Commonwealth’s application for an extension of time within which to commence trial. See Commonwealth v. Thomas, 361 Pa.Super. 1, 521 A.2d 442, appeal denied, 516 Pa. 617, 531 A.2d 1119 (1987).

Appellant next contends that the trial court erred in its rulings regarding testimony of several witnesses at trial. Four arguments are advanced: first, the court erred in allowing alleged hearsay testimony of the victim to be admitted through three Commonwealth witnesses; second, the court erred in allowing identification testimony beyond an offer of proof and in not granting a mistrial after said testimony was introduced; third, the court erred in allowing testimony of a witness despite his failure to recall the actual date in question regarding his alleged observations; and fourth, the court erred in excluding testimony of a newspaper reporter regarding statements made by a coroner as to the time of the victim’s death.

It is well settled that the admission or exclusion of evidence is within the sound discretion of the trial court and, absent a clear abuse of that discretion, the decision of the court will not be disturbed on appeal. Commonwealth v. Saksek, 361 Pa.Super. 173, 522 A.2d 70 (1987).

Appellant first argues that certain hearsay statements of the victim were admitted through three Commonwealth witnesses. Specifically, those witnesses testified that the victim had told them just prior to her death that she was a virgin and had never engaged in oral sex nor had an affinity for it. The trial court determined that these declarations were not hearsay as they were not offered to prove that the victim was a virgin or to generate sympathy, but to show that the victim had a state of mind just prior to her death to avoid sexual activity. We agree. Perusal of the record reveals that appellant claimed to have had an ongoing sexual relationship with the victim and had also claimed to have engaged in a sexual act with her on the night she was murdered. Thus, the victim’s state of mind during the time she was with appellant was an important factor in evaluating appellant’s culpability and was circumstantial evidence of the victim’s expected reaction to appellant’s sexual advances. Accordingly, we find no abuse of discretion by the court in allowing this testimony and appellant’s claim of error must be rejected.

16] Appellant then argues that the trial court erred in allowing identification testimony of Shelly Fryberger beyond an offer of proof, and by failing to grant a mistrial after said testimony was introduced. Our review of the record indicates that the Commonwealth’s offer of proof was that Ms. Fryberger would testify that she saw the victim with a “black male whom she [would] identify as the defendant.” When testifying, however, Ms. Fryberger identified the appellant by name. Appellant objected, arguing that the identification went beyond the offer of proof, and then moved for a mistrial on the basis that Ms. Fryberger’s name was never submitted to him as a possible witness. We disagree. Ms. Fryberger’s name was included in the Commonwealth’s witness list which was provided to appellant, as were police reports which contained her statement that she could not identify the appellant by name. Appellant had a full opportunity to interview her before trial, and to cross-examine her at trial as to these inconsistent statements. Accordingly, we find no error on the part of the trial court.

Next, appellant argues that the trial court erred in allowing the testimony of Timothy Maniaci despite the fact that he could not remember the actual date in question regarding his observations. The witness testified that he found a purse belonging to the victim in a portable lavatory located in the park where the victim was found but he could not remember the exact date. The trial court determined that this testimony was competent due to independent corroborating testimony from the boy’s father that the purse was found on the day of the murder. Therefore, the court felt that it was proper to allow the jury to decide whether the purse was actually found on that date. We agree.

Finally, appellant argues that the trial court erred in refusing to allow testimony of a newspaper reporter regarding statements made by the county coroner, then a lay person, as to the approximate time of the victim’s death. The trial court determined that this testimony was hearsay and excluded it on that basis. We find no abuse of discretion in this ruling and, therefore, reject appellant’s claim of error.

Appellant next contends that the court erred in allowing Deborah Motika, an expert witness, to testify concerning a matter beyond her expertise. Ms. Motika, a clinical laboratory technician and supervisor, testified, over the objection of appellant, regarding the presence of alcohol in samples taken from the victim’s stomach contents. Appellant maintains that while the victim was qualified to testify as to the results of her tests, it was beyond her scope of expertise to testify regarding any inferences or conclusions drawn therefrom. Specifically, appellant objected to the conclusion that the trace of alcohol found in the victim’s stomach had not been digested, implying that it had been ingested shortly before death. The trial court determined that Ms. Motika’s expertise and experience afforded her the opportunity to do more than testify about the procedures used in the various tests and the results obtained from those tests. In the court’s own words:

Ms. Motika was trained to find the presence of alcohol and drugs in the body fluids and tissues. She understood the metabolic processes which produce and maintain a particular blood alcohol level. She understood the rate at which the body absorbs alcohol. She understood that she must consider all such factors before she could reach her conclusions.

Trial court opinion at 15.

On appeal, the determination of whether a witness is qualified to testify as an expert will be disturbed only where the trial court has abused its discretion. Commonwealth v. Gross, 307 Pa.Super. 353, 356, 453 A.2d 620, 622 (1982). In the present case, ample evidence was introduced as to the qualifications of the witness to support the determination of the trial court. Accordingly, we find no error.

Next, appellant claims that the trial court erred in allowing testimony of Sgt. Donald R. Matz, a fingerprint expert, regarding fingerprint comparisons he made on several bottles located at the crime scene. The victim’s fingerprint was found on one of the bottles. Appellant argues that, as he was not provided with a copy of Sgt. Matz’s report prior to trial, the court erred in allowing this testimony.

Questions involving pretrial discovery in criminal cases lie generally within the discretion of the trial judge and his actions will not be reversed unless such discretion was abused. Commonwealth v. Upchurch, 355 Pa.Super. 425, 436, 513 A.2d 995, 1000 (1986). In the case at bar, the trial judge found as a fact that appellant was provided with a copy of the report in question. Further, Sgt. Matz was listed as a Commonwealth witness and was subpoenaed to testify, thereby affording appellant ample opportunity to interview him and determine the nature of his testimony. Appellant’s claim, therefore, must be denied.

Our next issue is whether the trial court erred by requesting appellant to stand for a comparison to an unknown individual during testimony of a defense witness. John Jaskolka, testified that he heard cries for help in Schlegel Park between the hours of 2 and 3 a.m. on August 2, 1986. Shortly thereafter, he noticed a tall, thin Black or Hispanic male leaving the general vicinity of the voice. Jaskolka could not identify the man’s face, but only his general build and contour. After redirect examination, the court asked appellant to rise so that the witness could compare his build and contour with that of the person he had observed in the park. No objection was raised by appellant. Upon completion of testimony of the next witness, appellant moved for a mistrial on the grounds that the court abused its discretion in requiring him to stand. We find this issue to be waived.

It is well settled that to preserve an issue for appellate review, two requirements must be met: first, the litigant must make a timely specific objection; and second, he must argue the alleged error on a post-trial motion. Commonwealth v. Celijewski, 324 Pa.Super. 185, 471 A.2d 525 (1984); Commonwealth v. Hughes, 268 Pa.Super. 536, 408 A.2d 1132 (1979); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Timeliness requires a specific objection at the proper stage in the questioning of the witness and at the proper stage in the trial proceedings. In the present case, counsel for appellant neither objected to the alleged error by the trial judge when made, nor did he move for a mistrial at that point; rather, counsel waited until the completion of testimony of another witness to bring this matter to the attention of the trial judge. Therefore, since appellant failed to make a timely objection, consideration of this issue is foreclosed.

Appellant’s final contention is that the evidence was insufficient to sustain the verdict. Two arguments are advanced: first, the evidence was insufficient to show that appellant had vaginal sexual intercourse with the victim; and second, the evidence was insufficient to show that appellant caused the death of the victim. We disagree.

In reviewing a claim based on sufficiency of the evidence, we must review the evidence in a light most favorable to the Commonwealth, with all reasonable inferences therefrom to determine if the evidence was sufficient to sustain a verdict. Commonwealth v. Saksek, 361 Pa.Super. 173, 177, 522 A.2d 70, 72 (1987).

Upon review of the record under the above standards, we are constrained to agree with the trial court that there was sufficient evidence presented to sustain a finding of guilt to the charges of rape and murder in the third degree. With regard to the charge of rape, appellant admitted to having sex with the victim in Schlegel Park after he left a McDonald’s restaurant with her at a time when the Commonwealth’s evidence establishes she was murdered. Dr. Neil Hoffman, the autopsy physician, testified with a reasonable degree of medical certainty that the vaginal injuries of the victim were inflicted by “the forcible penetration of a blunt object consistent with a penis.” (N.T. trial, at 586-587). Moreover, there was testimony as to the victim’s state of mind to refrain from sexual activity. Finally, appellant gave numerous conflicting statements regarding his whereabouts with the victim on the night she was murdered. We find that this evidence could lead a factfinder to reasonably conclude that the admitted intercourse in this case was without the victim’s consent.

Turning to the charge of murder, appellant was observed with the victim throughout the early evening hours of August 1, 1986. According to his own statements, appellant admitted to taking the victim to Schlegel Park for purposes of having consensual sex at a time when the factfinder could determine that the victim was killed. The nature and extent of the victim’s vaginal injuries were consistent with a violent act, and tend to disprove appellant’s claim of consent. Moreover, evidence was introduced linking appellant to two illegal withdrawals from the victim’s bank account at a MAC terminal shortly after the alleged time of death, in close proximity to the same McDonald’s restaurant where he had earlier taken the victim. Finally, additional circumstantial evidence was also produced linking appellant to the crime. We are, therefore, constrained to agree with the trial court that sufficient evidence was presented which could lead a factfinder to reasonably conclude that appellant was responsible for the death of the victim.

Having found no basis to support the claims of error asserted by appellant, we have no other alternative but to uphold the decision of the trial court.

JUDGMENT OF SENTENCE AFFIRMED.

      . Appellant argues the following issues:
      A. Did the lower court err by not suppressing certain statements by the appellant in violation of prearraignment delay?
      B. Did the lower court err by not suppressing certain statements by the appellant and finding said statements knowingly and voluntarily given?
      C. Did the lower court err in granting the Commonwealth’s petition to extend under Pa. Rules of Criminal Procedure 1100 even though said petition was not signed?
      D. Did the lower court err in granting the Commonwealth's petition to extend time under Pa. Rules of Criminal Procedure 1100, and finding judicial unavailability and due diligence by the Commonwealth to bring the Appellant to trial?
      E. Did the lower court err in allowing testimony regarding the victim’s statements about sexual matters by three Commonwealth witnesses?
      F. Did the lower court err in allowing identification testimony by S. Fryberger outside an offer of proof?
      G. Did the lower court err in not granting a mistrial when identification testimony by S. Fryberger occurred and said identification was not made known to appellant prior to trial?
      H. Did the lower court err in admitting testimony by T. Maniaci when said witness did not recall the date in question regarding his testimony?
      I. Did the lower court err in not allowing testimony by Susan Shelly to show that coroner Feeney issued a statement to the newspaper that was based on a doctor’s opinion and conflicted with that opinion as to the time of death?
      J. Did the lower court err in allowing testimony by D. Motika as to expert opinion of the trace of alcohol in the victim’s stomach?
      K. Did the lower court err in allowing testimony by Sgt. Matz of a fingerprint comparison which results were not given to appellant prior to trial?
      L. Did the lower court err by requesting appellant to stand for a comparison to an unknown individual during testimony of a defense?

        M. Was the evidence insufficient to show beyond a reasonable doubt that appellant forcibly had vaginal sexual intercourse with the victim?
      N. Was the evidence insufficient to show beyond a reasonable doubt that appellant caused the death of the victim?

      . Due to the actions of appellant on two separate occasions, he was cited for two counts of contempt and sentenced to an additional term of imprisonment totalling one year. Appellant has not challenged the legality or propriety of either of these sentences, therefore, these issues will not be addressed on appeal.

      . The murder trial in question began on February 2, 1987 and lasted until February 20, 1987. During the course of this trial, a medical emergency arose on February 5, 1987, which resulted in a recess for that day. During this recess, the trial judge did preside over another case involving driving under the influence of alcohol. This case lasted only one day. The trial judge decided not to proceed with the instant case, due to its anticipated length.

      . In an effort to avoid waiver of this issue, appellant cites the case of Commonwealth v. Hammer, 508 Pa. 88, 494 A.2d 1054 (1985). In Hammer, our Supreme Court stated that where a trial judge clearly descends from the height of impartiality during the course of a trial, a failure to timely object to the actions of the judge will not result in a waiver. In the present case, nothing of the type occurred, therefore, Hammer is inapplicable.


author: KELLY, Judge: CAVANAUGH, Judge,

text:
    550 A.2d 579
    COMMONWEALTH of Pennsylvania v. Ronald WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1988.
    Filed Nov. 7, 1988.

      Michelle M. Hawk, Erie, for appellant.
    Douglas J. Wright, Assistant District Attorney, Girard, for Com., appellee.
    Before CAVANAUGH, ROWLEY and KELLY, JJ.
   KELLY, Judge:

In this case, we called upon to determine whether robbery or theft occurs when an unconscious, intoxicated victim is rolled over onto his side and his wallet is stolen out of his pants pocket. We conclude that this criminal act constitutes theft rather than robbery. Accordingly, we vacate appellant’s robbery conviction and remand for resentencing.

The facts and procedural history may be summarized as follows. On September 2, 1985, the appellant, Ronald Williams, and the victim were drinking wine with Frank Morrow and an unidentified male on the corner of Ninth and Parade Streets in Erie, Pennsylvania. The victim passed out on his back. Eyewitnesses observed appellant roll the victim onto his side and remove his wallet from his pants pocket. The police were called. When the police arrived, one of the eyewitnesses motioned them to the direction of the appellant, Frank Morrow and the other man who were walking very fast to an apartment building which they attempted to enter. The police, however, surrounded the three men and arrested them.

The appellant and Frank Morrow were charged with criminal conspiracy and robbery. On January 22, 1986, the Commonwealth filed a petition for an extension of time for commencement of trial pursuant to Pa.R.Crim.P. 1100 to which appellant objected. Following a hearing, the time for trial was extended to March 21, 1986. Appellant was tried by a jury on March 17, 1986. Co-defendant, Frank Morrow, was not tried at that time; his whereabouts were unknown and a bench warrant had been issued for his arrest. At the trial, three eyewitnesses testified that they saw the appellant roll the victim over and remove his wallet. The appellant was found guilty of criminal conspiracy and robbery.

Post-verdict motions were filed and denied. On July 18, 1986, appellant was sentenced to an aggregate term of three to seven years imprisonment. Although no timely notice of appeal was filed, appellant later filed a motion for leave to appeal nunc pro tunc which was properly granted by the trial court on September 9, 1986. This appeal followed.

Appellant raises two issues on appeal. First, appellant contends the trial court erred in granting the Commonwealth’s motion to extend time for commencement of trial under Pa.R.Crim.P. 1100. Second, appellant contends the evidence was insufficient to convict him of robbery in that the evidence established that the victim was unconscious and unaware that the appellant rolled the victim over to take his wallet. We find merit in appellant’s second contention, but not in his first.

The trial court granted an extension of time in which to bring appellant to trial because the victim was unavailable to testify due to his institutionalization in an alcohol treatment and rehabilitation program in New York and because appellant’s co-defendant failed to appear for pre-trial proceedings and was likewise unavailable for trial. Under these circumstances, we find no abuse of discretion in the trial court decision to grant the extension. Thus, we reject appellant’s first contention.

Appellant’s second contention is that the evidence was insufficient to sustain appellant’s conviction for robbery. Specifically, appellant argues that robbery cannot be committed upon an unconscious, voluntarily intoxicated victim because such a victim is unaware of the taking and no force is necessary to compel him to part with conscious control of his property to the thief. The Commonwealth responds that to support a conviction under 18 Pa.C.S.A. § 3701(a)(l)(v), it is only necessary to show that some force was applied to the victim in the course of the theft. The Commonwealth argues that the ‘rolling over’ of the victim meets the ‘force however slight’ requirement for conviction of robbery under § 3701(a)(l)(v). We, however, agree with appellant and find that a simple theft rather than a robbery, as defined by the applicable statute and caselaw, occurred.

In Commonwealth v. Brown, 506 Pa. 169, 484 A.2d 738 (1984), a defendant who came up behind the victim and took her pocketbook by pulling it off her arm was convicted of robbery. Our Supreme Court affirmed his conviction and explained:

The force used in taking the purse from the victim’s arm was a harmful touching of the person, accompanied with sufficient force to compel the victim to part with the conscious control of her property, and supports a robbery conviction under § 3701. This conduct substantially differs from the case of the thief who merely takes the property of another with intent permanently to deprive him thereof, using no force or threat of force on the victim — like the pickpocket (Chapter 39 of the Crimes Code). Such conduct is nonviolent, poses no threat to the victim who is unaware of the taking, and is accordingly graded less severely than robbery. A victim who is aware of the taking of property from his person is apt to reflex action to protect himself and his property and thus may be injured by the felon.
For this reason, robbery has always been considered a greater harm against society because violence is caused or threatened. The ordinary citizen has the right to go about his way free from the fear of attack to his person from those who would deprive him of control over his goods. That right is violated even by the slight tug on the arm by the purse thief who must use force to wrench the purse from the arm of the victim without regard to her safety. Accordingly, we find that the evidence was sufficient to establish robbery under § 3701(a)(l)(v).

506 Pa. at 176-177, 484 A.2d at 742. (Emphasis added).

Similarly, in Commonwealth v. McNair, 376 Pa.Super. 604, 546 A.2d 688 (1988), the defendant was convicted of robbery when he stalked the victim into and through a darkened parking garage, ran directly toward her and physically removed her tote bag and purse from her. This Court affirmed defendant’s conviction of robbery stating “that the Commonwealth established beyond a reasonable doubt that appellant applied constructive force against the victim sufficient to support a conviction for robbery.” 376 Pa.Superior Ct. at 608, 546 A.2d at 690. Appellant’s conduct induced the victim into yielding her property to him. Thus, the force may be actual or constructive; “[a]ctual force is applied to the body; constructive force is the use of threatening words or gestures, and operates on the mind.” Commonwealth v. Brown, 506 Pa. at 176, 489 A.2d at 741. (Citations omitted).

In Commonwealth v. Smith, 333 Pa.Super. 155, 481 A.2d 1352 (1984), defendant stole a pack of cigarettes from a blind man’s pants pocket. The blind man, unaware of the taking, did not offer any resistance. This Court found the evidence insufficient to sustain a conviction of robbery. In reversing the defendant’s conviction, this Court stated:

[t]he elements of robbery as defined by § 3701(a)(l)(v) are (1) that the defendant physically take or remove property, (2) from the person of another, (3) by use of force however slight. Here, as appellant concedes, the first two elements were proved. However, with respect to the third element, the only ‘use of force ’ that was proved was that appellant used just so much force as was necessary to ‘physically take or remove’ (first element) the pack of cigarettes ‘from the person of’ Mr. Walker (second element). The conclusion follows that the third element was not proved, and that the evidence was therefore insufficient.

333 Pa.Superior Ct. at 158, 481 A.2d at 1353. (Emphasis added). This Court found support for its holding in the principles of statutory construction:

[T]he Crimes Code states that its provisions ‘shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purpose of [the Crimes Code] and the special purposes of the particular provision involved.’ 18 Pa.C.S. § 105. One general purpose of the Crimes Code is to differentiate on reasonable grounds between serious and minor offenses. 18 Pa.C.S. § 103(5). Construing the phrase ‘force however slight’ to exclude a taking by stealth alone is consistent with this purpose because a taking by stealth alone is not as likely to result in injury to the victim as a taking by ‘force’; for ‘however slight’ the force may be, the victim may be prompted by it to resist, and injury may ensue. In recognition of this possibility, § 3701(a)(l)(v) has as its special purpose that greater punishment should be inflicted on those who use force however slight’ than on those who by resort to stealth void the use of force.

333 Pa.Superior Ct. at 161, 481 A.2d at 1355. (Emphasis added).

Likewise, in Commonwealth v. Windell, 365 Pa.Super. 392, 529 A.2d 1115 (1987), this Court reversed the judgment of sentence of robbery where the defendant allegedly had removed a coin purse and wallet from a pocketbook carried by a passenger on a bus. In concluding that the element of force was missing, this Court explained:

[although the evidence was sufficient to permit an inference that appellant was on the bus and took the victim’s purse and wallet, there was no evidence to connect him or the theft with the pushing which the victim experienced.

865 Pa.Superior Ct. at 397, 529 A.2d at 1117.

Appellate courts in this Commonwealth have not had the opportunity to consider the narrow issue of whether robbery can be committed upon an unconscious victim. However, the cases quoted above indicate that the phrase ‘force however slight’ envisions that the victim must be aware of the force and, because of the force, feel compelled to part with his or her property.

In Commonwealth v. Smith, supra, and Commonwealth v. Windell, supra, convictions of robbery were reversed because the victim was aware of neither the taking nor the “force” utilized to accomplish the taking. Admittedly, the fact scenario in the instant case is distinguishable from that in Smith and Windell. In this case, unlike Smith and Windell, appellant rolled the victim onto his side in order to remove the wallet. If the victim in this case had been aware of this force, a robbery conviction might have stood based upon the possible distinction between the force used to roll the victim over, and the force used to remove the wallet. However, the victim was not aware of any force in this case; consequently, we find that appellant cannot be found guilty of robbery.

Appellant may not at this late date be convicted of theft because appellant was tried on the charges of robbery and criminal conspiracy and not theft. See 18 Pa.C.S.A. § 109; see also Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974); Commonwealth v. Stewart, 325 Pa.Super. 465, 473 A.2d 161 (1984). Consequently, we must vacate judgment of sentence on the robbery conviction. Because the sentence imposed pn the robbery conviction may have affected the sentence imposed upon the criminal conspiracy conviction, we vacate the entire judgment of sentence and remand for resentencing. Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986) (double jeopardy proscriptions do not prohibit resentencing in accordance with the trial court’s original sentencing scheme where an appellate court had upset the scheme by vacating the sentence imposed on various related counts); Commonwealth v. Williams, 368 Pa.Super. 315, 534 A.2d 101, 105 (1987) (same).

Accordingly, the robbery conviction is reversed, judgment of sentence is vacated, and the case is remanded for resentencing on appellant’s conviction of criminal conspiracy. Jurisdiction is relinquished.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

After reviewing the record and applicable authority in this case, it is my conclusion that the appellant was properly convicted of the crime of robbery. For this reason, I dissent from that portion of the majority opinion which vacates appellant’s robbery conviction and remands for resentencing.

My review of the legal authority in this case, particularly the elements of robbery set out in 18 Pa.C.S.A. § 3701(a)(l)(v), convinces me that the criminal act committed by this appellant was robbery. The act of rolling this unconscious victim onto his side and removing the victim’s wallet from his pants pocket constitutes a physical taking of property from the person of another by use of “force however slight,” and therefore this appellant was properly charged with robbery rather than theft. My reading of the cases is in accord with this interpretation, particularly the statements of the Supreme Court in Commonwealth v. Brown, “It is clear to us that any amount of force applied to a person while committing a theft brings that act within the scope of robbery under § 3701(l)(a)(v) [sic]---- The degree of actual force is immaterial, so long as it is sufficient to separate the victim from his property in, on or about his body.” 506 Pa. 169, 176, 484 A.2d 738, 741 (1984).

The robbery statute does not require among its elements that the victim be aware of the taking or that he part with conscious control of his property. Since the majority opinion concludes otherwise, I dissent from that portion of the opinion.

      . A person is guilty of robbery if, in the course of committing a theft, he physically takes or removes property from the person of another by force however slight. 18 Pa.C.S.A. § 3701(a)(l)(v).

      . We note that this holding is consistent with the holdings in courts of our sister states that robbery cannot be committed upon an unconscious victim. See Hicks v. State, 232 Ga. 393, 207 S.E.2d 30 (1974) (armed robbery conviction reversed when taking occurred when billfold was removed from victim’s pocketbook while victim was asleep); People v. O'Connor, 310 Ill. 403, 141 N.E. 748 (1923) (taking property from an unresisting drunken man who does not know he is being robbed is not robbery); People v. Jones, 290 Ill. 603, 125 N.E. 256 (1919) (same); Ramirez v. Territory, 9 Ariz. 177, 80 Pac. 391 (1905) (same); Hall v. People, 171 Ill. 540, 49 N.E. 495 (1898) (same); Brennon v. State, 25 Ind. 403 (1865) (same); see also 67 Am.Jur.2d Robbery § 32 (1969) (taking property from an unresisting person who does not know that his property is being taken is not robbery).


author: JOHNSON, Judge: DEL SOLE, Judge,

text:
    550 A.2d 787
    COMMONWEALTH of Pennsylvania v. Robert J. BURROWS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1988.
    Filed Nov. 7, 1988.

      Francis John Constantine, Erie, for appellant.
    John J. Trucilla, Assistant District Attorney, Erie, for Com.
    Before McEWEN, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

We are challenged to consider the proper remedy when a criminal trial transcript is not available, through no fault of the defendant, and appellate defense counsel has refused to avail himself of the provisions of Rule of Appellate Procedure 1923, providing for an agreed upon statement of the record.

Appellate counsel argues that the case should be remanded for retrial on the basis that the trial transcript is unavailable and meaningful appellate review is impossible. The Commonwealth responds that the case should be remanded for preparation of a trial transcript or for reconstruction of the trial proceedings to provide an equivalent picture. Following our careful review of the record, we are constrained to disagree with both formulations. We, therefore, affirm.

After a one-day trial without jury, Robert J. Burrows was convicted on one count each of retail theft and criminal conspiracy. Motions for a new trial and in arrest of judgment were filed and denied. Burrows was sentenced to 8-y2 to 7 years’ imprisonment, the conviction for retail theft having been a third or subsequent offense. See 18 Pa.C.S. § 3929(b)(l)(iv) (third degree felony). A motion to modify sentence was denied on December 31, 1985.

Up to this point, Burrows was represented by the Public Defender, in the person of Michelle Hawk.

On January 17, 1986, Francis J. Constantine entered his appearance for Burrows and filed a notice of appeal in the court of common pleas from the judgment of sentence. The same day, new appellate counsel filed an order, dated January 16, 1986, permitting Burrows to proceed in forma pauperis on this appeal.

The notice of appeal was docketed in the Superior Court on January 21, 1986, along with the in forma pauperis order.

From the record, no further activity appears to have taken place until May 11, 1987. On that date, the Honorable Richard L. Nygaard wrote to appellate defense counsel, Constantine, informing him that the transcript of the trial of October 10, 1985 had not been filed. Judge Nygaard further informed counsel that the court stenographer, Donna Dratwa, was no longer employed by the county and was living in Florida. Judge Nygaard further stated that attempts to have Dratwa transcribe and file the trial proceedings had proven fruitless.

The trial court’s letter of May 11, 1987 went on to direct appellate counsel to comply with the procedure set forth in Pa.R.A.P.1923, and prepare a statement in lieu of the transcript of the trial. While indicating that the court would continue efforts to have Dratwa file the transcript, Judge Nygaard made it clear that counsel’s compliance with Rule 1923 would facilitate the appeal in this case.

Pennsylvania Rule of Appellate Procedure 1923 provides as follows:

Rule 1923. Statement in Absence of Transcript
If no report of 'the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record of appeal.

Appellate counsel Constantine did not respond to or acknowledge Judge Nygaard’s letter of May 11, 1987 until September 23,1987. On that date, Constantine wrote to the trial judge acknowledging the May 11th letter directive and stating “it is not possible for me to prepare such a [Rule 1923] statement as I was not trial counsel in this matter.” Counsel went on to request that the court take “whatever legal action is possible” against Dratwa in Florida to have the transcripts prepared.

On September 30, 1987, Judge Nygaard again wrote to Constantine, indicating the court’s continuing accessibility to both Constantine and the prosecutor in developing the statement contemplated by Rule 1923. Judge Nygaard requested that Constantine take immediate action, in order not to jeopardize Burrow’s appeal.

On October 15, 1987, with no further action apparent of record by Constantine, the trial court record was received in this court. Finally, on November 24, 1987, a Brief of Appellant was filed by Constantine, containing as its principal contention that the case should be remanded for retrial since the trial transcript was unavailable and “meaningful appellate review is impossible.”

We find no difficulty in accepting as a principle of law, that where meaningful review is impossible and appellant is free from fault, a new trial may be granted. Commonwealth v. Shields, 477 Pa. 105, 383 A.2d 844 (1978).

Meaningful review does not require, per se, a complete trial transcript. Where an indigent is implicated in a criminal trial, the court must provide either a trial transcript or an equivalent thereof in order that the defendant may properly prosecute an appeal. Oliver v. Zimmerman, 720 F.2d 766 (3d Cir.1983), cert. denied, 465 U.S. 1033, 104 S.Ct. 1302, 79 L.Ed.2d 701 (1984). And of equal importance, a criminal defendant must first show a colorable need for a complete transcript before the state must meet its burden of showing that something less will suffice. Karabin v. Petsock, 758 F.2d 966 (3d Cir.), cert. denied, 474 U.S. 857, 106 S.Ct. 163, 88 L.Ed.2d 135 (1985).

On this appeal, we are faced with a simple shoplifting case, where Burrows and one Yvette Williams were charged with having entered a Joseph Horne Co. department store in Erie at about 5:30 p.m. on April 3, 1985 and having attempted to stuff six dresses worth a total of $604 into a shopping bag without removing the hangers. Identification is not an issue.

The issue on this appeal is whether appellate counsel may ignore a directive of the trial court to prepare a statement of the evidence from the best available means, simply by stating, and re-stating, that appellate counsel was not trial counsel. We think not.

There is nothing to suggest that Michelle Hawks, defense trial counsel, was not available to Constantine throughout his stewardship on this appeal. It appears clear from the record, including the Petition for Writ of Habeas Corpus, the Trial Memorandum, and the Motion for New Trial and/or Arrest of Judgment, — all filed by trial defense counsel — that the issues to be presented on appeal do not go so much to any factual dispute, but rather relate to whether a conviction can be had for retail theft (attempt) where the retailer’s merchandise had been rolled up but not yet deposited into an open shopping bag held by Yvette Williams.

Rule 1923 does not require appellate trial counsel to have first hand, direct knowledge of what transpired at trial. We reject any suggestion that a statement cannot be prepared where there is no showing of any effort whatsoever to review the existing record, consult with trial defense counsel, and consult with the defendant.

In this case the record contains a preliminary hearing transcript, setting forth the testimony of the only two possible prosecution witnesses at trial, David Dennis, the Horne’s security manager, and Barbara Burbles, a Homes’s security detective. Of course, appellate counsel is not bound by the preliminary hearing transcript. But it does afford a base from which counsel could have begun to reconstruct the trial proceedings, in consultation with his client, Burrows, and trial defense counsel, Hawk.

Rule 1923 does not contemplate that appellate counsel must single-handedly reconstruct the record. On the contrary, Constantine had the opportunity under the rule to fashion a statement which best reflected his client’s position. If he had done so, the Commonwealth would then have been afforded the right to serve objections or amendments to the statement upon Constantine within ten days. Thereafter, as the court made abundantly clear, Judge Nygaard would have reviewed the statement, as objected to or amended, for settlement and approval.

We decline to assume that competent counsel, both as advocates and as officers of the court, are unable to work together to arrive at an equivalent picture sufficient to permit meaningful review in this simple shoplifting case. On other facts, it might well appear that reconstruction of an equivalent picture is “difficult” or “impossible”. Where, however, nothing has been attempted, we reject appellate counsel’s suggestion that without a transcript of the trial proceeding, meaningful review is impossible.

Counsel for Burrows, in the Summary of Argument portion of the Brief of Appellant, asserts that “subsequently appointed counsel has some obligation to review the record and examine the case for possible ineffective assistance of counsel____” We reject this, as posited. The obligation of counsel, beginning as early as January 17, 1986, was to consult with his client and preceding counsel to evaluate whether, based on everything successor counsel could learn about the case, further investigation and pursuit of a transcript was indicated. This was not done.

We began by stating that we were constrained to disagree with both Burrows and the Commonwealth. Here, we are persuaded from our review of the entire record that Burrows, through his counsel Constantine, refused to proceed as directed by the trial court, to fashion a statement in the absence of a transcript. We are also persuaded that both the trial court and the Commonwealth remained accessible at all material times to discharge their respective obligations under Rule 1923.

We also firmly believe that meaningful review would have been possible on the sufficiency issues had Burrows, through his counsel, complied with the trial court’s directive. Counsel took no steps to provide an equivalent picture, of the proceedings at any time since his appointment, in the face of a clear directive from the trial court to proceed. Counsel had timely notice of his obligation to move forward under Rule 1923. No reasonable excuse has been advanced for counsel’s inactivity.

As early as Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 ALR.2d 1055 (1956) the United States Supreme Court recognized that a State “may find other means [than providing stenographic transcripts for] affording adequate and effective appellate review to indigent defendants.” Id. at 20, 76 S.Ct. at 591, 100 L.Ed. at 899. This was considered more fully in Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), where the Supreme Court said:

Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent picture of the events at trial from which the appellant’s contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge’s minutes taken during trial ... all might be adequate substitutes, equally as good as a transcript.

Id. at 495, 83 S.Ct. at 779, 9 L.Ed.2d at 905. Accord, Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971).

In Commonwealth v. Shields, 477 Pa. 105, 383 A.2d 844 (1978) our supreme court announced that when the record becomes unavailable, through no fault of the defendant, the prosecution has the responsibility to reconstruct a meaningful record in its place. Pa.R.A.P.1923 affords a means by which the prosecution can discharge that responsibility, where the defendant cooperates. In the case now before us appellate defense counsel utterly refused to initiate action which could have led to an equivalent picture of the proceedings at trial. We are not inclined to find the defendant without fault, where his counsel has refused to assist in the construction of an equivalent picture in the face of a trial court request to do so. Cf. Commonwealth v. Hughes, 480 Pa. 311, 389 A.2d 1081 (1978) (failure to object to trial court’s procedure for reconstructing the transcript results in waiver of alleged failure to follow Rule 1923).

We are unable to reach Burrow’s arguments relating to the sufficiency of the evidence to convict solely because, through his counsel, he has refused to utilize Rule 1923 to fashion an equivalent picture. The record before us indicates that, had appellate defense counsel utilized the procedure set forth in Rule 1923, an equivalent picture could have been formulated and meaningful appellate review of the sufficiency issues could have been accomplished. Cf. Commonwealth v. Lyons, 346 Pa.Super. 585, 500 A.2d 102 (1985).

Since appellate review has been thwarted as a direct result of appellate defense counsel’s refusal to participate in a Rule 1923 reconstruction, we find the sufficiency issues to be waived and affirm the judgment of sentence, without prejudice to Burrow’s rights under the Post Conviction Hearing Act.

Judgment of sentence affirmed.

DEL SOLE, J., files a dissenting statement.

DEL SOLE, Judge,

dissenting:

I dissent and would remand the matter to the trial court for the purpose of providing an equivalent record for appellate review. I would further point out that the Commonwealth has not in its brief raised any issue of waiver in this case.


author: MONTEMURO, Judge:

text:
    550 A.2d 791
    Jody L. SINGER and Bruce Singer, h/w, Appellants, v. DONG SUP CHA, M.D., Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1988.
    Filed Nov. 18, 1988.

      Steven C. Forman, Philadelphia, for appellants.
    Ernest Iannelli, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

This is an appeal from the Order of the Court of Common Pleas of Philadelphia County dismissing the appellants’ complaint under the doctrine of lis pendens, or pendency of a prior action. We reverse.

On August 19, 1987, appellants, Jody L. Singer and Bruce Singer, husband and wife, commenced an action against the appellee, Dr. Dong Sup Cha, in the Philadelphia Court of Common Pleas. Jody Singer was under the professional care of the appellee for the cosmetic and surgical treatment of facial conditions. Appellants contended that the appellee had performed surgical procedures in a negligent manner. Jody Singer sought, inter alia, damages for medical expenses, lost earnings, pain and suffering, embarrassment and humiliation. Bruce Singer sought to recover for loss of consortium. The appellee filed preliminary objections and raised, as one of the objections, the following:

Plaintiffs by an action identically captioned as the within cause, have brought suit in the State of New Jersey which is the same case, parties, causes of action, rights and relief as the within action, denominated Superior Court of New Jersey, Law Division, Gloucester County; Docket No. Lr-93601-87 MM.
As plaintiffs have previously brought an identical prior action which is pending, the objection of lis pendens lies in defendant’s favor.

R.R. at 13a. The appellants admitted that an identical action had been filed in New Jersey, but alleged that it had been instituted simultaneously with the Pennsylvania action. R.R. at 28a. The trial court dismissed the appellants’ complaint because of the pending action in New Jersey, citing Goodrich-Amram 2d § 1017(b).

Although the precedents in the area of prior pending actions as a bar to current litigation are not recent, they are nevertheless binding upon this Court. In Smith v. Lathrop, 44 Pa. 326, 84 A.m. Dec. 448 (1863), our supreme court was called upon to determine the effect of a prior action which was pending in the state of New York at the institution of the Pennsylvania action. The New York action involved the same plaintiff and defendant, as well as the same cause of action, as the Pennsylvania action. The Court found it to be “the settled law of the country, that the plea of lis pendens in another state is no defence to this [the later Pennsylvania] action.” Id. at 331, 84 A.m. Dec. at —. The Supreme Court addressed this area of the law again in 1938 when it rendered its decision in Thompson v. Fitzgerald, 329 Pa. 497, 198 A. 58 (1938). Thompson involved a trust which had been administered for many years in the Court of Common Pleas of Fayette County. When the beneficiaries of the trust estate commenced a suit in the federal court requesting a removal of the trustees and an accounting, the Court of Common Pleas of Fayette County enjoined the beneficiaries from proceeding with the federal suit. The supreme court affirmed and, in so doing, recognized the following legal principles which are particularly relevant to the case at bar:

It is firmly settled that a prior suit in a state or federal court which does not deal, either actually or potentially, with specific property or objects, and in which nothing more than a personal judgment is sought, not only does not prevent suit from being brought for the samé cause in the court of the other jurisdiction, but does not even furnish ground for a plea in abatement to the second action____ In such a case the first court in which suit was instituted is not ousted of its jurisdiction, nor delayed or obstructed in its exercise thereof, nor is there any resulting conflict of authority. If a judgment is rendered in the second action before the first is tried, it will support a plea of res adjudicata in the first suit if the issue and the parties are the same.
In actions in rem the law is otherwise ... In such cases ... the rule is that the court which first acquires jurisdiction of specific property by the possession thereof, or by the commencement of a suit from which it appears that it is necessary to a determination of the controversy, or to the enforcement of the prospective judgment or decree, for the court to have control and dominion over the property, thereby withdraws it from the jurisdiction of every other court so far as is necessary to accomplish the purposes of the suit, and the court is entitled to retain such control as is requisite to effectuate its final judgment or decree free from the interference of every other tribunal____

Id., 329 Pa. at 505-506, 198 A. at 63 (citations omitted). The Thompson Court, having determined that the action in the court of common pleas was in the nature of quasi in rem, upheld the trial court’s order because “... the court first assuming jurisdiction in proceedings quasi in rem [has] the exclusive right to determine questions of administration and management, as distinguished from the adjudication of individual rights and interests in res.” Id., 329 Pa. at 512, 198 A. at 65.

Instantly, the judgment sought is strictly in personam. Thus, we are convinced that the trial court erred, as a matter of law, in dismissing the appellants’ complaint under the doctrine of lis pendens. To reiterate, the applicable rule of law, as enunciated by our supreme court, is that “[u]nless an [in personam] action pending in another state or another country reaches judgment, so as to come within the protection of the Full Faith and Credit Clause of the Federal Constitution, such action will not prevent the institution of an action in this state on the same cause and between the same parties.” P.L.E. Abatement and Revival § 5. See also, 1 Am Jur 2d Abatement, Survival, and Revival § 18; Wilson v. Island Creek Coal Company, 40 Pa.D. & C.2d 591 (1966); Melvin v. Better Brands of Illinois, Inc., 34 Pa.D. & C. 27 (1964).

12] We thus reverse the dismissal of the appellants’ complaint, and remand for further proceedings. We note that while the pendency of a foreign action does not serve as a bar to an action brought in a Pennsylvania court, the court has the inherent, equitable power to stay the proceedings in the second suit during the pendency of the prior suit. See Klein v. City of Philadelphia, 77 Pa.Cmwlth. 251, 465 A.2d 730 (1983); Radio Corp. of America v. Rotman, 411 Pa. 630, 192 A.2d 655 (1963). “The trial court need not ... sanction the duplication of effort and waste of judicial resources that would result from allowing both cases to proceed simultaneously, in a race to judgment.” Klein, supra 77 Pa.Cmwlth. at 259, 465 A.2d at 731. Thus, the trial court may have to determine whether a stay is appropriate under the circumstances of the present case. Such a determination will only be necessary, of course, in the event that the appellee seeks a stay and in the event that the trial court does not dismiss the appellants’ complaint on an alternative ground.

Reversed and remanded for further proceedings consistent with this memorandum opinion. Jurisdiction is relinquished.

      . In the present case, it is apparent that the trial court concluded that the New Jersey action was in fact commenced prior to the Pennsylvania action. See Op. of Trial Ct., April 28, 1988. The appellee has not questioned this factual finding by the trial court on appeal. We note that our record does not contain a copy of the pleadings from the New Jersey action. This does not affect our consideration of this case because the parties have agreed that the two actions are identical. Cf. Procacina v. Susen, 301 Pa.Super. 392, 447 A.2d 1023 (1982).

      . We express no opinion on the merits of appellee’s remaining preliminary objections. We simply recognize that appellee has challenged the jurisdiction and venue of the Court of Common Pleas of Philadelphia County. A dismissal of appellants’ complaint on any grounds will of necessity render moot a request for a stay of proceedings because of the pendency of the New Jersey action.