author: WIEAND, Judge:

text:
    502 A.2d 604
    COMMONWEALTH of Pennsylvania, Appellee, v. Louis P. DiNICOLA, Appellant.
    Superior Court of Pennsylvania.
    Argued May 15, 1985.
    Filed Dec. 6, 1985.
    Reargument Denied Jan. 23, 1986.

      Ramsey Clark, Erie, for appellant.
    Timothy Lucas, Assistant District Attorney, Erie, for Com., appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

This appeal was taken from a pre-trial order which denied a defense motion to dismiss criminal charges on grounds that double jeopardy principles barred the retrial ordered by the Supreme Court. We agree with the trial court that a second trial is not barred by principles of double jeopardy; and, therefore, we affirm.

Louis P. DiNicola was tried by jury and was found guilty of arson and second degree murder. Post-verdict motions were denied, and a judgment of sentence was imposed. The judgment of sentence was affirmed by this Court on direct appeal. Commonwealth v. DiNicola, 308 Pa.Super. 535, 454 A.2d 1027 (1982). Thereafter, the Supreme Court vacated the judgment of sentence and ordered a new trial because the Commonwealth had improperly placed in evidence the testimony of a police officer that an assistant district attorney had stated in the officer’s presence that he thought the defendant had committed the crime. Commonwealth v. DiNicola, 503 Pa. 90, 468 A.2d 1078 (1983). Upon remand, a second trial was preceded by a motion to dismiss. After an evidentiary hearing, the court found that in addition to using improper evidence the Commonwealth had improperly concealed the fact that a prosecution witness had undergone hypnosis prior to the first trial. The court held, however, that these errors by the prosecution were insufficient to bar a second trial on double jeopardy grounds. DiNicola appealed.

The double jeopardy protections afforded by the Constitutions of the United States and Pennsylvania are coextensive. Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980); Commonwealth v. Beaver, 317 Pa.Super. 88, 463 A.2d 1097 (1983). The federal constitution’s guarantee against twice being placed in jeopardy for the same offense was considered in the context of prosecutorial misconduct by the Supreme Court of the United States in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). There the Court, after acknowledging that language in prior decisions had caused confusion, stated the law to be that “[pjrosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Id. at 675-676, 102 S.Ct. at 2089, 72 L.Ed.2d at 424. Thus, prosecutorial error which will bar a retrial on double jeopardy grounds is limited to conduct designed to provoke the defendant into moving for a mistrial. The rule of law articulated in Oregon v. Kennedy, supra, is applicable in Pennsylvania to appeals filed after May 24, 1982. Commonwealth v. Simons, 342 Pa.Super. 281, 288, 492 A.2d 1119,1123 (1985). See also: Commonwealth v. Rafalko, 335 Pa.Super. 122, 127, 483 A.2d 986, 989 (1984). In Simons, the prosecutorial misconduct had consisted of concealing from the jury the terms of a plea agreement between the Commonwealth and an accomplice who had given testimony against the defendant. A new trial, the Court held, was even under the law prior to Oregon v. Kennedy, supra, an adequate remedy to correct such concealment; the failure to disclose the plea agreement did not require a discharge on double jeopardy grounds.

Appellant’s averments in support of his motion to bar retrial in the instant case are couched in terms of “a continuous pattern of overreaching.” In addition to the Commonwealth’s improper use at trial of an opinion by an assistant district attorney and the Commonwealth’s failure to disclose the hypnosis of a witness, appellant argues that the Commonwealth failed to disclose a death threat received by a tenant of the upstairs apartment five days before the fire, that the Commonwealth made an unwarranted attack on the credibility of a defense witness, and that the Commonwealth sought to bolster its case with impermissible evidence and argument.

None of these averments, either singly or together, were sufficient to require that appellant be discharged. Neither evidentiary errors nor the pre-trial failure to disclose relevant information were calculated to subvert protections afforded by principles of double jeopardy. Consistently with decided cases, therefore, the trial court properly refused to dismiss the charges against appellant. The conduct of the prosecution, whether improper in whole or only in part, could adequately be remedied by the new trial already awarded by the Supreme Court. A retrial was not barred on grounds of double jeopardy.

Order affirmed.

      . The order is immediately appealable. Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977); Commonwealth v. Hoburn, 335 Pa.Super. 536, 485 A.2d 24 (1984).

      . The duty to disclose hypnosis of a witness was imposed by the Supreme Court in Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984), after the trial in this case.


source: Caselaw Access Project

license: Public Domain

text:
    502 A.2d 606
    COMMONWEALTH of Pennsylvania, Appellant, v. Louis Paul DiNICOLA, Appellee.
    Superior Court of Pennsylvania.
    Argued May 15, 1985.
    Filed Dec. 20, 1985.

      Timothy J. Lucas Assistant District Attorney, Erie, for Com., appellant.
    Ramsey Clark, Erie, for appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

An appeal by the Commonwealth from an order partially suppressing testimony of a hypnotically refreshed witness requires that we review and apply recent decisions to determine the admissibility of testimony from such a witness. The trial court suppressed the testimony of Deborah Sweet, a Commonwealth witness, to the extent that such testimony could not be verified by a prehypnotic statement made by the witness. We affirm.

On August 30, 1979, a fire consumed Deborah Sweet’s apartment in a two-story building in Erie, killing her two young children and an upstairs neighbor. Sweet, together with Michael Jefferson and the appellee, Louis P. DiNicola, had spent the evening in Sweet’s apartment, drinking beer, smoking marijuana and talking. As a result of the evening’s events, DiNicola was charged with arson and three counts of murder. A jury found him guilty of arson and murder of the second degree. His conviction was affirmed by the Superior Court, Commonwealth v. DiNicola, 308 Pa.Super. 535, 454 A.2d 1027 (1983). However, the conviction was subsequently reversed by the Supreme Court because the jury had been allowed erroneously to hear evidence of an opinion by an assistant district attorney that DiNicola had set the fire. See: Commonwealth v. DiNico-la, 503 Pa. 90, 468 A.2d 1078 (1983).

Upon remand, the defendant learned for the first time that Deborah Sweet had been hypnotized prior to trial. She had originally given the Erie Police Department a tape recorded statement on September 6, 1979. A second statement had been given to the police on September 14th. On September 17th, the witness voluntarily submitted to hypnosis, and a tape recording was made of the hypnotic interview. The tape, however, was either lost or destroyed. Only a portion of a transcript made from the tape remains. Because the witness’ testimony had been hypnotically refreshed, DiNicola filed a pre-trial motion to suppress her testimony. The trial court granted appellee’s motion to suppress in part. The court’s order, dated September 24, 1984, provided that “Ms. Sweet is precluded from testifying at the trial of this case about the circumstances surrounding the fire which consumed her apartment on August 30, 1979, except to the extent that her testimony is the same as her recollections recorded on the cassette tape of September 6, 1979.” The Commonwealth has appealed from this order.

The standard of review is well established.
Our responsibility on review is “to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” ... In making this determination, this Court will 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.

Commonwealth v. Lark, 505 Pa. 126, 129, 477 A.2d 857, 859 (1984), quoting Commonwealth v. Kichline, 468 Pa. 265, 279, 361 A.2d 282, 290 (1976) (citations omitted). See also: Commonwealth v. Scatena, 332 Pa.Super. 415, 433, 481 A.2d 855, 864 (1984); Commonwealth v. Chamberlain, 332 Pa.Super. 108, 112, 480 A.2d 1209, 1211 (1984).

The record in this case discloses that a fire of incendiary origin erupted on August 30, 1979 in a downstairs apartment occupied by Deborah Sweet and her two children. Present at the time of the fire were Michael Jefferson, an acquaintance of Deborah Sweet, and Louis P. DiNicola, a companion of Jefferson who had been previously unknown to Sweet. During the course of the evening, the threesome drank beer and smoked marijuana. Sweet and Jefferson, at some point in time, retired to Sweet’s bedroom where they engaged in sexual intercourse. During this period of time DiNicola was left alone. Sweet and Jefferson fell asleep. They awakened to find the apartment engulfed in flames. Sweet, Jefferson, and DiNicola escaped, but Sweet’s two children and an upstairs neighbor perished.

On September 6, 1979, while a patient at St. Vincent’s Health Center, Sweet gave a statement to police officers, which was tape recorded. In that statement she said that after she had put her children to bed and after the threesome had consumed beer and smoked marijuana, she received a long distance telephone call, which she took in the living room. At that time, she said, she had heard a commotion in the kitchen where the two men then were located. When she got off the phone, about 10:35 p.m., DiNicola used her bathroom to shower and clean up, and Sweet and Jefferson went to her bedroom and engaged in sexual intercourse. While in the bedroom, with the door open, Sweet observed DiNicola leave the bathroom. Sweet said that thereafter she had heard fumbling around which was going on in other portions of the apartment. She said that she had voiced her concern about this to Jefferson, who attributed it to DiNicola’s drunkenness and said there was nothing to worry about. They dozed off thereafter, only to awaken to find the bedroom filled with smoke. Sweet and Jefferson ran from the bedroom, saw that the apartment was in flames, and heeded a warning from DiNicola to get out of the apartment. Police officers who interviewed Sweet on September 6th also prepared a three page typewritten police report which summarized Sweet’s testimony. The information in this report was substantially, but not precisely, the same as that contained in the tape recording. In the taped interview, Sweet said that she had returned home around 8:30 p.m. on the night of the fire; the police report suggests that she said 6:30 p.m. Sweet said during her interview, as tape recorded, that the marijuana had been very strong, that it might have had something else in it; the report refers to her guess that the marijuana had been laced with angel dust. Sweet was again questioned by police on September 14th. All that remains of that interview is a five page typewritten report prepared by the police and detailing her recollections. It differs only slightly from the earlier tape recording and police report. One notable difference, however, is that on September 14, Sweet was reported to have told police that while she and Jefferson had been in her bedroom she heard DiNicola leave the apartment.

On September 17, Sweet voluntarily underwent hypnosis. The hypnotic interview was conducted by William Vorsheck, a hypnotist who regularly assisted the Erie Police Department. Although the hypnotic interview was tape recorded, only a portion of a transcript made from the tape recording remains. Under the hypnotic technique of calendar age regression, the witness made several statements pertaining to the events of September 6 which she had been unable to “recall” prior to hypnosis. She elaborated upon the noises heard while she was in her bedroom, tracing the source of the sounds and noting that appellee had been heard leaving the apartment and returning a short time later. She also was reported to have said that DiNicola had given her a “shotgun” with a marijuana cigarette and then tried to make a pass. The pass, she said, had been rejected.

At the first trial, Sweet testified as a Commonwealth witness. Included in her testimony were facts which had been “recalled” during hypnosis. Neither the fact of hypnosis nor the variance in her recall thereafter had been disclosed to the defense prior to or during trial.

The Commonwealth argues on appeal that the trial court erred in (1) excluding the witness’ posthypnotic testimony; and (2) in excluding testimony of facts recalled prior to hypnosis. We disagree.

The law regarding the use of hypnotically retrieved and refreshed testimony in this Commonwealth was recently reviewed by this Court in Commonwealth v. Romanelli, 336 Pa.Super. 261, 485 A.2d 795 (1984). The applicable law may be summarized as follows.

In Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), where the witness had no recollection of the facts prior to hypnosis, the Supreme Court said that it would “not permit the introduction of hypnotically-refreshed testimony until ... presented with more conclusive proof than has been offered to date of the reliability of hypnotically-retrieved memory.” Id., 496 Pa. at 111, 436 A.2d at 178.

The Superior Court next held, in Commonwealth v. Taylor, 294 Pa.Super. 171, 439 A.2d 805 (1982), that a witness’ identification testimony would be received where the witness had identified the perpetrators prior to the hypnotic session. This Court held that “with respect to the victim’s ability to identify her two assailants, the hypnotic session did not, in fact, refresh her memory, and the dangers of unreliable suggestion, fantasy and confabulation are not at issue.” Id., 294 Pa.Superior Ct. at 177, 439 A.2d at 808.

In Commonwealth v. McCabe, 303 Pa.Super. 245, 449 A.2d 670 (1982), the Superior Court held that hypnotically-induced identification of the appellant had been properly suppressed where the Commonwealth had failed to prove “that the particular hypnotic session was free from prior, contemporaneous, or post-hypnotic suggestion.” Id., 303 Pa.Superior Ct. at 258, 449 A.2d at 677.

The issue of hypnotically induced testimony next came before the Supreme Court in Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984). The Court held that testimony induced by hypnosis was inadmissible. With respect to testimony verified by statements made prior to hypnosis, the Court suggested a standard for determining its admissibility as follows:

whenever a person previously hypnotized is offered as a witness, the offering party must so advise the court, and show that the testimony to be presented was established and existed previous to any hypnotic process; that the person conducting the hypnotic session must be trained in the process and is neutral of any connection with the issue or the parties; and, the trial judge shall instruct the jury that the testimony of a witness previously hypnotized should be carefully scrutinized and received with caution.

Id., 505 Pa. at 89-90, 476 A.2d at 1308 (footnote omitted) (emphasis added).

In Commonwealth v. Romanelli, supra, this Court held that “[i]t is enough to render the victim’s testimony admissible that her recollection of the facts had been established and existed prior to any hypnotic process. The hypnotic process will not per se invalidate the competency of impressions originally received by the senses.” Id. 336 Pa.Super. at 270, 485 A.2d at 799. In Romanelli, this Court upheld the receipt of testimony from a victim of a rape, who had testified to the details of the rape and identified her assailant. Even though she had not identified her attacker prior to hypnosis, she had given an accurate description of him. When she subsequently observed her attacker, she identified him immediately and positively. This Court said:

[t]he victim of a crime who has a vivid and precise recollection of her attacker, who has observed him for a protracted period in broad daylight and possesses a clear, independent, mental image of her assailant’s appearance will not be rendered incompetent to testify when she finds again the man who attacked her merely because, in the interim, she subjected herself to nonsuggestive hypnosis.

Id.

Consistently running through the Pennsylvania decisions is the concept that where a witness has made an identification, given a statement, or testified prior to a hypnotic interview, the fact that the witness later undergoes hypnosis does not render incompetent that testimony which is consistent with the witness’ prehypnotic recollection.

Other jurisdictions have reached the same conclusion. See: People v. Guerra, 37 Cal.3d 385, 690 P.2d 635, 208 Cal.Rptr. 162 (1984) (reaffirming the introduction at trial of preliminary hearing testimony); People v. Quintanar, — Colo.App. —, 659 P.2d 710 (1982) (prehypnosis recollections recorded by tape recording, videotape, or written statement admissible); Bundy v. State, 471 So.2d 9 (Fla.1985) (testimony as to those facts demonstrably recalled prior to hypnosis admissible); Pearson v. State, Ind., 441 N.E.2d 468 (1982) (may testify to matters recalled and related prior to hypnosis); State v. Seager, 341 N.W.2d 420 (Iowa 1983) (trial testimony substantially the same as prehypnotic statements admissible); State v. Haislip, 237 Kan. 461, 701 P.2d 909 (1985) (testimony as to facts related before hypnosis admissible); State v. Goutro, 444 So.2d 615 (La.1984) (same); Simkus v. State, 296 Md. 718, 464 A.2d 1055 (1983) (testimony in accord with statements clearly made prior to hypnosis admissible); Commonwealth v. Kater, 388 Mass. 519, 447 N.E.2d 1190 (1983) (testimony as to prehypnotic memory admissible under certain guidelines); People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982) (prehypnotic testimony preserved by hypnosis admissible); Rodriguez v. State, 345 N.W.2d 781 (Minn.App.1984) (prehypnotic recall testimony admissible upon certain proof); House v. State, 445 So.2d 815 (Miss.1984) (prehypnosis testimony admissible where certain minimum safeguards have been met); State v. Patterson, 213 Neb. 686, 331 N.W.2d 500 (1983) (upon proof that evidence was known and related prior to hypnosis, prehypnosis testimony admissible); State v. Hutchinson, 99 N.M. 616, 661 P.2d 1315 (1983) (prehyp-notic testimony admissible at trial court’s discretion); People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255, 453 N.E.2d 484 (1983) (testimony as to events recalled prior to hypnosis admissible); State v. Payne, 312 N.C. 647, 325 S.E.2d 205 (1985) (same); Harmon v. State, 700 P.2d 212 (Okla.Crim. 1985) (testimony as to facts demonstrably shown to have been recalled prior to hypnosis admissible); State v. Martin, 101 Wash.2d 713, 684 P.2d 651 (1984) (testimony as to prehypnotic memory admissible). Accord: People v. Gibson, 117 Ill.App.3d 270, 72 Ill.Dec. 672, 452 N.E.2d 1368 (1983); State v. Williams, 662 S.W.2d 277 (Mo.App.1983); State v. Brown, 337 N.W.2d 138 (N.D.1983).

Intervening hypnosis does not render a witness incompetent to testify to those facts demonstrably recalled prior to hypnosis. Where prior recall can be demonstrated, the fear of confabulation and fantasizing as a result of hypnosis is not present. Under such circumstances, the accuracy of the witness’ testimony remains untainted by subsequent hypnosis.

DiNicola suggests that the court’s order is unworkable and that hypnosis has rendered the witness impervious to cross-examination. It may be that enforcement of the court’s suppression order will require careful monitoring during trial to avoid a narrative based upon an expanded recollection. However, this fact alone does not require the exclusion of the entirety of the witness’ testimony. The subsequent hypnosis of the witness does not justify the total and irrevocable silencing of one who has been shown to have direct knowledge of relevant facts, uninduced by hypnosis. The suppression court found that the Smoyer safeguards had been met, and we find no basis on which to disagree. Indeed, most courts which have considered the issue would allow testimony regarding facts recalled by the witness prior to hypnosis.

It remains for us to determine, however, the reliability of the various means by which a witness’ prehypnosis recollection can be established. In this case, the suppression court held that the witness would be permitted to testify to those facts which demonstrably she had been able to recall prior to hypnosis. The court required that the Commonwealth prove her prehypnotic recollection by verbatim statements made by the witness and refused to accept as adequate proof of prehypnotic recollection such reports as had been prepared by police and neither signed nor previously reviewed by the witness. We find no error in this ruling.

With respect to police summaries of the witness’ interviews of September 6 and September 14, the suppression court found that “[t]he Commonwealth has failed to sufficiently establish that the police reports are accurate renditions of Ms. Sweet’s pre-hypnotic recollections.” (Trial court opinion of September 24, 1984 at p. 5). Citing two instances in which the reports differed from the tape recording of the September 6 interview, the court concluded “because of the second hand nature of the information contained in the police reports, not only would we have to contend with Ms. Sweet’s recollections, but we would also have to contend with the vagaries of the police officers’ memories.” Id. at 6.

The Supreme Court, in Commonwealth v. Smoyer, supra, required proof that the witness’ testimony existed prior to hypnosis before it could be received. The reason for this requirement, as we have observed, was to protect against pitfalls inherent in hypnosis, i.e., confabulation, fantasy, and suggestiveness. Among the methods available for recording prehypnotic statements of witnesses are tape or video tape recordings and signed statements. These means for perpetuating the witness’ recollection are reasonably reliable and permit a court to determine definitively the scope of a witness’ prehypnotic recollection. They provide means for verifying a witness’ prehypnosis recollection which are independent of and safeguarded against vagaries inherent in recollections which exist solely in the memories of persons interested in the investigation.

Of course, there may be other means by which a witness’ prehypnotic recollection can adequately be verified. Nevertheless, the standard of verification must be high and in keeping with recognized dangers presented by a hypnotically refreshed recollection. We hold, therefore, that before a hypnotically refreshed witness can testify to his or her prehypnotic recollection, the witness’ prehypnotic recollection must be verified by evidence which is clear and convincing. See: Rodriguez v. State, 345 N.W.2d 781, 786 (Minn.App.1984); People v. Hughes, 59 N.Y.2d 523, 547, 466 N.Y.S.2d 255, 267, 453 N.E.2d 484, 497 (1983); Strong v. State, Ind. 435 N.E.2d 969, 970-971 (1982).

In Commonwealth v. Mehmeti, 347 Pa.Super. 278, 500 A.2d 832 (1985), this Court permitted witnesses to testify to prehypnotic recollections of facts which had been demonstrated by written notes of an investigating police officer. In that case, however, the accuracy of the police officer’s notes was not disputed. Moreover, the Superior Court did not there purport to establish general standards by which to determine the reliability of evidence intended to establish the scope of a witness’ prehypnotic recollection.

In the instant case, the suppression court found that the Commonwealth had failed to establish that police reports containing police recollections of interviews with the witness on September 6 and 14 were accurate statements of Sweet’s prehypnotic recollections. Our review of the record discloses no basis for interfering with the court’s findings. The police reports contained investigators’ recollections of statements made by the witness and may or may not have been recorded contemporaneously with the interview. In any event, before these reports could be used to verify the witness’ prehypnotic recollection, it was essential that the accuracy and reliability of the reporter’s recollection be established. In the instant case, this was done only to the extent that police reports were consistent with the tape recording of the September 6 interview. The suppression court could properly rely on the tape recording in limiting the scope of the witness’ testimony at trial.

During hypnosis, the witness described in greater detail the condition of the clothing worn by DiNieola, the substance of the long distance telephone conversation, the music emanating from a stereo set, and the conversation had with Jefferson while DiNieola was taking a shower. She also elaborated on DiNicola’s movement, the noises she heard in the apartment, DiNicola’s footsteps, and the children’s negative reactions to DiNieola. Testimony regarding these additional facts was properly excluded. The risk of confabulation and suggestiveness as a consequence of the hypnotic session confirm the suppression court’s determination to exclude such testimony.

Order affirmed.

      . He also filed a motion to dismiss based upon double jeopardy; the court’s denial of that motion has been affirmed by this Court. See: Commonwealth v. DiNicola, 348 Pa.Super. 401, 502 A.2d 604 (1985).

      . In this appeal the Commonwealth has certified that the order in question substantially handicaps the prosecution. Therefore, its appeal is properly before us. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Sheppard, 341 Pa.Super. 403, 491 A.2d 879 (1985).
      The defendant has also filed a cross-appeal from the order. As to the defendant, however, the order is clearly interlocutory.

      . This statement was not disclosed to the defense until April 17, 1984, after the case had been reversed and remanded for a new trial by the Supreme Court.

      . A “shotgun” was described as putting the lighted end of a cigarette in one’s mouth and blowing air through it into another person’s mouth at the other end of the cigarette.


author: CERCONE, Judge:

text:
    502 A.2d 613
    COMMONWEALTH of Pennsylvania v. Michael A. FISCHER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 3, 1985.
    Filed Dec. 13, 1985.

      Michael R. Muth, Public Defender, Bradford, for appellant.
    John B. Dunn, Assistant District Attorney, Stroudsburg, for Com., appellee.
    Before JOHNSON, HOFFMAN and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgment of sentence entered after a jury trial in which appellant was found guilty of Burglary, Theft, Receiving Stolen Property, Criminal Mischief and Criminal Conspiracy. Post-verdict motions were denied and a sentence of four to eight years was imposed. This appeal followed.

The question at issue is whether the police in this case had the authority under 42 Pa.C.S.A. § 8953(a)(2), the Municipal Police Jurisdiction Act, to pursue a van driven by appellant into a neighboring jurisdiction for the purpose of investigation which then led to the arrest of the van’s occupants and the seizure of contraband found in the van. If we find that the facts known to the police in the course of their pursuit amounted to probable cause that a crime had been committed in their primary jurisdiction, only then may we conclude that the police acted within their authority when they left their primary jurisdiction.

When reviewing the ruling of a suppression court, we must first determine whether the factual findings can be supported by the record. If so, we are bound by those facts. We may not substitute our own findings for those of the suppression court. However, conversely, we are not bound by findings which have no support in the record. Thus, we are to consider only the evidence of the prosecution witnesses and so much of the defense evidence as fairly read remains, as a whole, uncontradicted in the record. Commonwealth v. Hamlin, 503 Pa. 210, 215-16, 469 A.2d 137, 139 (1983). See also, Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975).

So viewed, the facts elicited at the suppression hearing established that on the night of January 24, 1984, Officers Anthony Fluegel and Daryl Feller were patrolling Bush Mountain Acres development in Coolbaugh Township, Monroe County. The police had increased patrols in the area because six burglaries had been reported in the previous three weeks. As a result of the robberies, the police had made it a point to know which residents were at home and which were not among the thirty-three homes in the development.

At about 12:45. a.m., on January 25, while on routine patrol, Sergeant Fluegel and Officer Feller observed fresh tire marks in the snow of the driveway of the Passero residence. Since they knew these residents were not at home, they were about to investigate, when they observed a light through the woods on an adjoining roadway. They proceeded to check the source of the light, without discovering that the Passero residence had in fact been burglarized. They eventually passed a white van headed towards the Passero home. As they passed the van on the narrow, snowy road, the police noticed several articles, including two pairs of skis, in the rear of the van and at least two occupants. The van accelerated despite the icy and foggy conditions. The police turned around and without siren or lights gave pursuit, and after chasing the van several miles, brought it to a stop in neighboring Barrett Township. Sergeant Fluegel testified at the suppression hearing that when the vehicle was stopped, the occupants were not free to leave, and that he observed the driver switch positions with one of the passengers. Miranda warnings were given to all occupants. After occupants told of several conflicting stories, one of which inculpated all six occupants of the van in the Passero burglary, the occupants were placed under arrest and the van was searched.

Appellant contends that the police were outside their jurisdiction and without probable cause when they pursued him and the other defendants. Since 42 Pa.C.S.A. § 8953(a)(2) requires probable cause for the police to pursue outside their jurisdiction, the arrest, appellant contends, was illegal and all evidence obtained and statements made should have been suppressed.

The authority of a police officer to act beyond his territorial limits is determined by the provisions of Section 8953, which became effective August 14, 1982. Section 8953(a)(2) reads:

[a]ny duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases: ... (2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.

Thus for the police to pursue any person outside their jurisdiction they must first have probable cause to believe a crime had been committed within their own jurisdiction. Judge Hoffman, speaking for the court in Commonwealth v. Montgomery, 341 Pa.Super. 573, 580, 492 A.2d 14, 18 (1985) had occasion to comment upon the statute presently before us and the one which it replaced. He observed:

We believe that the legislative intent was to authorize police pursuit of suspects into another jurisdiction for the purpose of arresting them. Therefore, the police must have probable cause sufficient to effect a legal arrest before they pursue. There is no statutory authority providing for extra-territorial detention for investigative purposes____ Moreover, we note that § 8953(a)(2), which replaced § 8901 in August of 1982, expressly authorizes extra-territorial ‘hot pursuit [by police] of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction ...’ 42 Pa.C.S.A. § 8953(a)(2) (1982) (emphasis added). The revised provision, we think, makes it clear that, before the police can pursue a suspect into another jurisdiction, they must either know or have probable cause to believe that the suspect committed an offense within their jurisdiction, (footnote omitted) (emphasis in original).

Id., 341 Pa.Superior Ct. at 580, 492 A.2d at 18.

The issue then revolves around the presence of probable cause under the facts of the instant appeal.

Following the suppression hearing the court made the following findings of fact:

The police knew 1) six burglaries had recently occurred; 2) the Passero home was unoccupied; 3) there were no tire marks at 9:50 p.m. on January 24, 1984; 4) that there were tire marks by 12:45 a.m.; in addition, 5) the police saw a van with articles of personal property; 6) they had reason to connect the van to the tire marks because they saw the tire marks and the van at nearly the same time; 7) they saw the van increase speed when it passed the police car; 8) they knew the van contained property often stolen in burglaries; 9) they knew it was unusual for a van containing such articles to be operating at that hour in a residential development. Lower court opinion at 5.

From these facts, the suppression court found that there was probable cause. We disagree.

A reviewing court is not free to reverse a suppression court unless its findings lack support in the record or its legal conclusions drawn are in error. Commonwealth v. Hall, 475 Pa. 482, 485-86, 380 A.2d 1238, 1240 (1977). While the suppression court’s factual findings are supported by the record, we are constrained to conclude that those facts do not give rise to probable cause to arrest.

The crucial test in determining the presence of probable cause is whether ‘the facts and circumstances known to the police or about which they have reasonably trustworthy information at the time of the arrest ... would warrant a person of reasonable caution in believing the suspect has committed or is committing a crime.’ Commonwealth v. Bartlett, 486 Pa. 396, 400, 406 A.2d 340, 341 (1979); Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978); Commonwealth v. Pytak, 278 Pa.Superior Ct. 476, 420 A.2d 640 (1980).

Commonwealth v. Rutigliano, 310 Pa.Super. 364, 369, 456 A.2d 654, 657 (1983). See also Commonwealth v. De Flem-inque, 450 Pa. 163, 165, 299 A.2d 246, 247 (1973).

In Commonwealth v. Bunch, 329 Pa.Super. 101, 477 A.2d 1372 (1984), this court concluded that probable cause existed for a state trooper to arrest four occupants of a car based upon the facts he possessed. In that case the trooper had a report that three black males had committed an armed robbery with a gun. He had a detailed description of the car and its registration number. When he saw the car in the general area where the robbery had occurred, it was nearly three and one-half hours after the criminal act was reported. As the trooper followed the car, he observed the occupants in the back seat lean forward and move their shoulders as though they were removing or putting something between their legs. The fact that there were, by this time, four black males in the car was not significant to the existence of probable cause. We held that it was reasonable for the trooper to conclude he had probable cause to arrest all four men. Id., 329 Pa.Superior Ct. at 112, 477 A.2d at 1378. Moreover, in that same opinion, we examined two other cases for the existence of probable cause. We found in Commonwealth v. Rutigliano, supra, that the arresting officer had probable cause based upon his knowledge that a burglary had occurred. He also possessed a detailed description of the vehicle with its license plate number and knew it contained two male occupants. The second case we examined was Commonwealth v. Jones, 233 Pa.Super. 461, 335 A.2d 789 (1975). We found there the arresting officer had probable cause based upon his knowledge of a crime. He had a description of the car which included color and the first three digits of the license plate, and he knew that two black males had been involved in the crime. The car was stopped six blocks from the crime scene and an hour after the radio report on it.

These cases and others we reviewed all involved the police knowing that a crime of some sort had occurred or was occurring. This is a requisite of probable cause for the police to arrest. There must be some fact or information, reasonably trustworthy, which would warrant a reasonable person to believe that a crime has or is occurring. This is a fundamental element for probable cause which we find lacking in the instant appeal. Commonwealth v. Rutigliano, supra.

In the instant appeal, Officers Fluegel and Feller did not know that any crime had occurred on the evening in question. They had nothing to connect the van’s occupants to any of the six previous burglaries. The officers had no fact to connect the van’s tires to the tire tracks at the Fassero residence driveway. They could have been made by any vehicle. No impression of these tracks was taken because they were in snow. On cross-examination at the suppression hearing both officers could admit to little more than suspicion. Officer Feller testifed on cross-examination:

Q. What was the reason that the van was stopped?
A. Because of the observations that had been noted, the large number — -the several number of occupants in the van, the items in the back, the remoteness of the area, where the van had been spotted, the fact that there had been six burglaries in that immediate area within the past three weeks____
Q. It was stopped because of the suspicions you and the Sergeant had concerning a possible burglary?
A. Again, after the tire tracks in the driveway.

On cross-examination Sergeant Fluegel testified:

Q. Sergeant, you did not stop the vehicle because of a motor vehicle violation, is that correct?
A. No, we did not. We stopped the vehicle because of the suspicous activity. There was a motor vehicle violation.
Q. But that was not why you stopped them.
A. That’s not why we stopped them____

“Suspicion is not a substitute for probable cause as grounds for an arrest or search and seizure.” Commonwealth v. Kelly, 487 Pa. 174, 178, 409 A.2d 21, 23 (1979).

We fail to see any facts here which would alert a reasonable person that a crime has been committed by appellants. Suspicious conduct and thorough police work do not combine to allow probable cause. The learned court below erred in concluding otherwise. Accordingly, the police were without authority to pursue and arrest outside their jurisdiction based upon the language contained in Section 8953(a)(2). Thus the evidence seized incident to that arrest should have been suppressed.

Cases of this nature are often hard to rule upon, however, that is what we must do. Just recently this court decided a difficult issue in Commonwealth v. Mlinarich, 345 Pa.Super. 269, 283, 498 A.2d 395, 402 (1985) where we wrote we are not free to ignore [legislative] judgment or redefine the law to meet new and different concepts of justice according to our own philosophical beliefs.” With that vision in mind ...

Judgment of sentence reversed and a new trial granted. Jurisdiction relinquished.

      . 18 Pa.C.S.A. §§ 3502, 3921, 3925, 3304, and 903, respectively.

      . Act of June 15, 1982, P.L. 512, No. 141, § 4, effective in 60 days.

      . Indeed the Commonwealth does not argue that 42 Pa.C.S.A. § 8953(a)(2) allows less than probable cause for the police to pursue suspects outside their primary jurisdiction.


author: TAMILIA, Judge:

text:
    502 A.2d 617
    COMMONWEALTH of Pennsylvania, Appellant, v. James A. MALENO.
    Superior Court of Pennsylvania.
    Submitted Oct. 31, 1985.
    Filed Dec. 13, 1985.

      Eric B. Henson, Deputy District Attorney, Philadelphia, for Com., appellant.
    John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.
    Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
   TAMILIA, Judge:

The crux of this case is the assignment of a correct prior record score to a conviction under a (prior) statute which did not contain variations in grading for the offense in question. Inextricably involved in this issue is the extent to which the court is bound by criminal record information contained in a presentence report.

Appellant entered an open plea of guilty to simple/aggravated assault for his apparently unprovoked attack with a baseball bat upon his paramour’s father. The assault produced a skull fracture, and ultimately, permanent brain damage. The sentence imposed was 25 months to 7 years imprisonment, which the Commonwealth, pursuant to 42 Pa.C.S.A. § 9781(b) claims is reflective of an impermissible deviation from the sentencing guidelines.

The issue arises because in computing the penalty the court assigned a prior record score of one to appellee’s 1974 robbery conviction; the presentence report had calculated the score at a value of three. The governing 1972 robbery statute contained only one grading of that offense — first degree felony, which under the guidelines carries a score of three. The court found that the Commonwealth is required to prove the grading of a prior offense from the trial record, and although given the opportunity failed to do so. The court further explained that prior law was not within the contemplation of the guidelines, and that it would be unfair “to count an offense a robbery of the first degree simply because it occurred under the prior Act.” (Slip Op. at 3)

To begin in anticlimatic sequence, the pronouncement of the court as to the Commonwealth’s burden of proof runs counter to our holding in Commonwealth v. Charles, 339 Pa.Super. 284, 488 A.2d 1126 (1985), that:

... the defense has the burden of alleging invalid prior convictions, and that if the allegations appear to have merit, the court ordinarily should inquire into the circumstances surrounding the convictions. If the allegations warrant it, the court should require the production of evidence by the Commonwealth showing the validity of the convictions. If the defendant fails to prove to the satisfaction of the court that the inference of constitutional adjudications is wrong, the court may infer that a presentence report showing convictions is accurate, and proceed on that basis.

We extrapolate from this rule the conclusion that information concerning prior convictions in the presentence report is presumed to be valid, which presumption can only be rebutted by the defense, and need not be supported by evidence from the Commonwealth unless and until a challenge is voiced.

Such a deduction is implicit in the provisions of 42 Pa.C.S.A. § 9737:

§ 9737. Report of outstanding charges and sentences
The court shall order that an appropriate agency shall determine all criminal charges brought in any court against the defendant and report to the court on the status or the disposition of such charges. The court shall also be informed if the defendant is then serving any term of imprisonment, or is on probation or parole with reference to any such charges, or is entitled to credit for any time in accordance with section 9760 (relating to credit for time served).

As the language indicates, it is incumbent upon the court, regardless of whether or not any other presentence material has been ordered, to obtain a criminal history of the defendant from “an appropriate agency,” normally the county department of probation and parole. R.S. Wasser-bly, Pennsylvania Criminal Practice, § 31.13. The presumption of accuracy raised by the mandatory nature of the statute removes it from among the prerogatives of the court. Again, validity of the prior record is a matter for the defense to contest, not one within the court’s discretion to construe. Such arbitrariness would be contrary to the policy behind adoption of the sentencing guidelines, i.e. to promote, within certain specified limits, that degree of uniformity which is consistent with justice.

The application of this principle, and its coalescing with the broad discretion of the trial court in sentencing, Comonwealth v. McCall, 320 Pa.Super. 473, 467 A.2d 631 (1983), can be seen from the structure of the computation process. The (offense gravity score) numbers assigned to particular crimes are predetermined by the guidelines; the prior record score affixed to past convictions is calculated from the files of the “appropriate [record keeping] agency.” These numbers in conjunction provide the court with three ranges of penalty for each offense within which to exercise discretion based on totality of circumstances. In appropriate cases the numbers can be ignored altogether when a sentence outside the guidelines and supported by an explanation on the record is imposed. In neither instance are the numbers themselves modifiable at the option of the court.

The legislatively required criminal history, therefore, is a matter of certitude for the assistance of the court until charged and proven to be otherwise.

With respect to the value assigned to offenses committed under prior statutes, we hold that where the former statute did not grade the offense, the equivalent offense under the new code is determinative of prior record score. We base our conclusion on two analogies. The first appears in Commonwealth v. Nixon, 328 Pa.Super. 250, 476 A.2d 1313 (1984). In that case we held that where the classification of an offense graded by statute was not particularized in the information, the defendant’s plea of guilty applied only to the less serious crime. It seems to us that this case is illustrative of the inverse of the situation here — that only where the particular statute allows options in terms of grading, can the consequences of committing the offense vary. The second analogue is more direct. In Commonwealth v. Kramer, 474 Pa. 341, 378 A.2d 824 (1977), our Supreme Court held that prosecution of a (voluntary) manslaughter committed in 1967 but not reported until 1974 was not barred by the Crimes Code statute of limitations (§ 108), because there had been no prior statute of limitations for that offense. Again, the provisions of the statute itself are dispositive.

Under the rule to be extracted from these cases, appellee, having been tried and convicted under a former law which limits robbery to a felony-one grade, carries the designation of the crime with him as a prior record score. There are no grounds on which to justify the court’s translation of the offense into another category, especially in view of appellee’s failure to challenge the validity either of the conviction or its connotation.

Finally, appellant claims that the court unreasonably deviated from the sentencing guidelines. Although we again acknowledge the latitude available to the court in sentencing, we are forced to agree. This case seems to us egregious, as is often the case when violence results in an unalterable diminution of a victim’s capacity to enjoy a satisfactory existence. During the sentencing hearing, the court, obviously aware of the changes wrought in the victim by appellee’s actions, stated, “... we are getting side tracked on the issue of the prior record score, and we are not pinpointing what is important in this case, and that is the feelings of all these people.” (S.T. at 53)

We strongly disagree, believing that the court has misread not only the nature of the proceeding, but the results that must under law, accrue. Feelings of sympathy for the family and supporters of the defendant are not, in fact, the issue; what matters is actions taken in derogation of the law, and more importantly, with a degree of violence which threatened the life of another, and in fact permanently diminished his quality of life forevermore. We, therefore, vacate judgment of sentence and remand for sentence to be imposed consistent with this Opinion.

Judgment of sentence vacated. Case remanded for resen-tencing.

      . 42 Pa.C.S.A. § 9781
      (b) Allowance of appeal. — The defendant or the Commonwealth may file a petition for allowance of apeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

      . We note that the trial court expressed its determination to impose the same sentence regardless of the prior record score, availing itself of the latitude with which the guidelines sentencing process is invested.

      . Appellant points out that similar language appears in a suggested amendment to 204 Pa.Code § 303.7(d) as published in Pa.Bull.Vol. 15, No. 27, 7/6/85 at 2449.

      . Although the sentencing transcript contains a litany of symptoms occasioned by the brain damage resulting from the victim's fractured skull, the Opinion states only that, in addition to "some memory loss as well as the diminishment of certain motor functions[,] [h]e could not be specific as to the extent of his disabilities." (Slip Op. at 1.)


author: SPAETH, President Judge:

text:
    502 A.2d 620
    COMMONWEALTH of Pennsylvania, Appellant, v. Melvina JOHNAKIN.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1985.
    Filed Dec. 20, 1985.

      Gerald A. Stein, Philadelphia, for appellee.
    Before SPAETH, President Judge, and HOFFMAN and HESTER, JJ.
   SPAETH, President Judge:

This is an appeal by the Commonwealth from a judgment of sentence. Appellee was convicted of robbery, simple and aggravated assault, theft by unlawful taking, and recklessly endangering another person. She was acquitted of other charges, including possession of an instrument of crime. After her post-trial motions were denied, she was sentenced to eleven to twenty-three months’ imprisonment, to be followed by eight years’ probation. Other charges of which appellee was convicted were found to merge in the conviction for robbery. On this appeal the Commonwealth argues that the trial court applied the sentencing guidelines erroneously, and that the sentence imposed was outside the guidelines and was unreasonable. We agree that the trial court misapplied the guidelines, and we therefore vacate the sentence and remand so that the trial court may resentence knowing the correct minimum sentence range. We do not reach the issue of whether the sentence imposed was unreasonable.

The Commonwealth may appeal from the discretionary aspects of a judgment of sentence under 42 Pa.C.S. § 9781(b), and it may initiate the appeal simply by filing notice as required under Pa.R.A.P. 902. However, before proceeding to the merits of such an appeal, we must decide whether there is a substantial question that the sentence imposed was inappropriate under the sentencing guidelines. Commonwealth v. Fluellen, 345 Pa.Super. 167, 497 A.2d 1357 (1985); Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985). For reasons that will become apparent, we find that such a question exists.

On review of a judgment of sentence to which the sentencing guidelines apply, we will vacate the sentence and remand with instructions if we find (1) that the trial court applied the guidelines erroneously; (2) that the sentence, even though within the guidelines, is “clearly unreasonable,” or (3) that the sentence, if outside the guidelines, is unreasonable. 42 Pa.C.S. § 9781(c); Commonwealth v. Drumgoole, supra, 341 Pa.Superior Ct. at 468, 491 A.2d at 1352. Accordingly, we must begin by deciding whether the trial court applied the guidelines properly in this case. The Commonwealth argues that it did not; specifically, it argues that the trial court applied the wrong offense gravity score, and erroneously failed to apply the deadly weapon enhancement provision of the guidelines. 204 Pa.Code § 303.4. We agree on both points.

Appellee was convicted of robbery, and the trial court found that in the course of the robbery she inflicted serious bodily injury upon the victim. N.T. 7/13/84 at 35-36; See also slip op. of tr. ct. at 2. Under the sentencing guidelines, robbery (inflicts serious bodily injury) has an offense gravity score of 9. 204 Pa.Code § 303.8. However, the infliction of serious bodily injury was the basis of appellee’s conviction of aggravated assault, a second degree felony. The guidelines provide that robbery (commits or threatens immediately to commit any FI or F2) has an offense gravity score of 7. Id. The trial court reasoned that the actions for which appellee was convicted fit either of these definitions, and that it therefore had the option to sentence under an offense gravity score of either 9 or 7. N.T. 7/13/84 at 34-35. The court chose to apply the offense gravity score of 7.

We do not agree that the trial court had discretion with respect to the correct offense gravity score. Appellee was found guilty of a robbery during which she caused serious bodily injury to her victim. The trial court found that the conviction for aggravated assault merged in the conviction for robbery. N.T. 7/13/84 at 36. The court could not then separate the two offenses for the purpose of determining the correct offense gravity score. Allowing the court such discretion would allow it to defeat the purpose of the guidelines, which were developed to “focus appellate review ... on the reasonableness of deviations from the presumptively appropriate range of sentence.” Commonwealth v. Fluellen, supra 345 Pa.Super. at 167, 497 A.2d at 1357; Commonwealth v. Hutchinson, 343 Pa.Super. 596, 495 A.2d 956 (1985). The correct offense gravity score in this case was therefore 9. Together with appellee's prior record score of 0, this resulted in a minimum guidelines sentence range of thirty-six to sixty months’ imprisonment.

The Commonwealth is also correct that the trial court was required to apply the deadly weapon enhancement provision of the guidelines in this case. Under this provision, twelve to twenty-four months’ confinement should have been added to the sentence. 204 Pa.Code § 303.4. The provision applies whenever the court determines that the defendant possessed a deadly weapon, which for the purposes of the provision is any “device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.” 18 Pa.C.S. § 2301. In the case before us, the trial court found that appellee had stabbed her victim, that in doing this she caused serious bodily injury, and that she might easily have killed her victim. N.T. 7/13/84 at 13. The conclusion is inescapable that appellee possessed an instrumentality that she used in a manner calculated or likely to produce death or serious bodily injury. Accordingly, the trial court was required to apply the deadly weapon enhancement provision of the guidelines. Commonwealth v. Drumgoole, supra 341 Pa.Super. at 468, 491 A.2d at 1352. Adding this to the minimum sentence range for a conviction with an offense gravity score of 9 and a prior record score of 0, which we have found to be correct in this case, results in a minimum guidelines sentence range of forty-eight to eighty-four months.

The fact that appellee was acquitted on the charge of possession of an instrument of crime does not alter this determination. The definitions of “instrument of crime” and “weapon” under the statute defining that offense are different from the definition of a deadly weapon for purposes of the sentencing guidelines. Under the statute defining the offense of possessing an instrument of crime, such an instrument is something “specially made or specially adapted for criminal use,” or something “commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.” 18 Pa.C.S. § 907. A weapon is “[ajnything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses it may have.” Id. In this case, the trial court made no finding as to what appellee used to stab her victim. This might well have prevented the court from determining whether the above definitions apply, even though it does not affect the conclusion that appellee possessed a deadly weapon as defined for the weapon enhancement provision of the guidelines.

The trial court’s finding that the minimum sentence which should be applied to appellee under the sentencing guidelines was eight months’ imprisonment was incorrect. However, the court anticipated the possibility that its application of the guidelines would be held erroneous on review, and it tried to provide for this by stating on the record its reasons for deviating from the guidelines, should we find it had done so. N.T. 7/13/84 at 40; N.T. 7/25/84 at 3 and 12; slip op. of tr. ct. at 3. We are not persuaded that this anticipatory statement by the court precludes the necessity of remand. While we may affirm a sentence that is outside the guidelines provided it is reasonable, 42 Pa.C.S. § 9781(c)(3), it is imperative that the sentencing court determine the correct starting point in the guidelines before sentencing outside them. Commonwealth v. Drumgoole, supra 341 Pa.Super. at 474-75, 491 A.2d at 1355. See also Commonwealth v. Royer, 328 Pa.Super. 60, 70, 476 A.2d 453, 456 (1983). In this case the trial court determined the minimum sentence range under the guidelines based on the incorrect conclusions that it might apply an offense gravity score of 7, and that it need not apply the deadly weapon enhancement provision. Then it postulated different possible minimum sentence ranges resulting from (1) a different offense gravity score, (2) applicability of the deadly weapon enhancement provision, and (3) both of these. It stated that the reasons it placed on the record were sufficient to support a deviation from the minimum sentence range resulting from any of these possibilities. We do not regard this as a sufficiently specific determination of the proper starting point for sentencing. Accordingly, we do not decide whether the reasons given by the trial court in fact support the deviation from the appropriate sentence under the guidelines. Rather, we vacate the order of sentence and remand so that the court may resentence appellant, knowing the correct minimum sentence range under the guidelines. If the court then finds it appropriate to deviate from this range, it may do so by placing its reasons on the record, subject to review by this court on further appeal.

The judgment of sentence is vacated and the case is remanded so that the trial court may resentence in accordance with this decision. Jurisdiction relinquished.

      . The trial court noted that the witness did not see the instrument with which appellee stabbed her victim, although she saw glass protruding from the victim’s shoulder after the stabbing. Slip op. of tr. ct. at 2.

      . The sentence here was outside the guidelines, for it was below even the mitigated minimum range that the guidelines set for the offense.

      . In its opinion the trial court noted only the possibility that it was applying an erroneous offense gravity score. Slip op. of tr. ct. at 3. At sentencing and in denying the motion for reconsideration of sentence, however, it made clear that it also recognized the possibility that its failure to apply the deadly weapon enhancement provision of the guidelines was erroneous. We therefore conclude that it considered both possibilities.


author: BROSKY, Judge:

text:
    502 A.2d 624
    COMMONWEALTH of Pennsylvania v. Bray MURRAY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 4, 1985.
    Filed Dec. 20, 1985.

      Carole Kafrissen, Philadelphia, for appellant.
    Ram I. Djerassi, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   BROSKY, Judge:

This appeal is from judgment of sentence imposed subsequent to conviction for one count of aggravated assault and two counts of simple assault. Appellant raises four issues on appeal, one of which we find meritorious. This case presents the question of whether a criminal defendant’s right to a public trial under the Pennsylvania and Federal Constitutions attaches during a preliminary hearing. The issue of whether a defendant’s right to a public trial applies to a preliminary hearing is a case of first impression in this Commonwealth. We agree that this constitutional right applies to the preliminary hearing and that the closure of appellant’s preliminary hearing was unconstitutional. However, we also find that the error was cured during appellant’s trial and, accordingly, we affirm.

Facts

Appellant was tried with four co-defendants, one of whom pleaded guilty during trial. All were fellow inmates at Holmesburg State Correctional Institution, and all were convicted on various charges of assaulting prison guards during an altercation which occurred at Holmesburg on July 30, 1983. Their preliminary hearing was held on August 29, 1983, within Holmesburg State Correctional Institution, instead of at City Hall in a courtroom open to the public. This was apparently because of “security problems related to the transportation of the defendants to City Hall,” according to the Commonwealth’s brief, paraphrasing the rather cryptic explanation given by the court at the preliminary hearing after defense counsel objected to closure:

THE COURT: There are certain reasons for security that this case is being held here. I think we all know that. That they don’t have to transport them and they don’t have to stop their normal activities at Holmesburg. There’s many other rational reasons why we are here today.

No explanation for the pre-trial closure was given in the trial court’s opinion, despite the defendant’s objection to the closure in his post verdict motions.

For whatever reason, appellant’s preliminary hearing was held within the prison. Although members of the public with notice of the event might have been able to obtain admittance, had they known where and when to seek such permission, we think that this was essentially a closed hearing; it was not freely open to the public. Appellant contends that the closure of the preliminary hearing over defense objection violated due process and his right to a public trial under the Sixth and Fourteenth Amendments to the Constitution of the United States, and violated Article One, Sections 9 and 11, of the Pennsylvania Constitution.

Pennsylvania Constitution

A. Article One, Section 11.

Appellant contends that his right under Article One, Section 11 of this Commonwealth’s Constitution was violated by the holding of his preliminary hearing in the prison rather than in a courtroom open to the public. Section 11 provides that “[a]ll courts shall be open.” Logically, the next question is whether a preliminary hearing is a “court” proceeding. Just two years ago, this Court answered that question in the affirmative. Re: Petition of Daily Item, 310 Pa.Super. 222, 456 A.2d 580 (1983) (Brosky, J.).

In Daily Item, this Court considered whether the press and public had a right to insist upon access to pretrial judicial proceedings, independent of the defendant’s right to a public trial. In that case, the District Justice denied public access to the preliminary hearing held to determine whether the defendant should be tried on criminal homicide charges. The trial court upheld the District Judge’s exclusion of the public from the hearing and denial of access to the transcript. We reversed, granting the petitioner access to the transcript. The defendant in that case had requested that the press and public be excluded from the hearing, thus waiving his right to a public trial at that stage. We, therefore, did not address the defendant’s constitutional right, only that of the press and the public of access to a preliminary hearing.

For our purposes here, the critical point is that we held in that case, as we do today, that the Pennsylvania Constitutional provision in Article One, Section 11, that “[a]ll courts shall be open,” applies to a preliminary hearing.

Daily Item involved the assertion of that constitutional right by the public. The issue before us differs only in that here it is the criminal defendant — not the public — who is claiming the benefit of this constitutional provision. Since Section 11 grants a right that accrues to the public, it is inconceivable that it could not also be relied upon by a party to a case. There is no language in Section 11 which would justify such a restriction of standing to assert its violation— and we do not intend to fabricate it. It follows that Section 11 of Article One of the Pennsylvania Constitution was violated by the manner in which the preliminary hearing in this case was conducted.

B. Article One, Section 9.

This provision of the Pennsylvania Constitution accords the criminal defendant the right to a “public trial.” We have concluded above that a preliminary hearing is a “court” proceeding. This would seem to imply that a preliminary hearing is part of a “trial.” However, in order to resolve the issue of whether or not this type of “court proceeding” is a “trial”, we will examine the nature and importance of the preliminary hearing in Pennsylvania and consider whether it is an integral part of the trial, such that the Section 9 right attaches.

Judge Beck’s concurring opinion in Daily Item is instructive for our present concern:

The preliminary hearing has a common law and statutory rather than a constitutional origin. Its history extends for a period of nearly 500 years in English criminal jurisprudence.
Pennsylvania first enacted a statute providing for preliminary hearings in 1915____ Interpreting this statute, the Pennsylvania Supreme Court declared that a preliminary hearing is a “positive legal right” of an accused.... The major changes in Pennsylvania law since 1915 have been to expand the right to a preliminary hearing to categories of crime not included in the original 1915 statute and to defendants already incarcerated.
The public as well as the defendant has an interest in the preliminary hearing because it is a vital and integral part of the criminal adjudicative process. The public’s interest in the proceeding derives from its fundamental interest in the proper administration of justice.

Daily Item, supra, 310 Pa.Superior Ct. at 228-29, 456 A.2d at 584 (Beck, J. concurring) (emphasis added).

Thus, under Pennsylvania law, the preliminary hearing is a mandatory part of the accused’s criminal trial proceedings. We cannot discern any reason why the constitutional protections of the Pennsylvania right to a “public trial” should adhere only to the later portion of the trial and not to the preliminary hearing which is mandatory, “vital and integral” in Pennsylvania.

Our own Supreme Court extensively discussed the historical importance of open public trials under the Pennsylvania and federal Constitutions in Commonwealth v. Contakos, 499 Pa. 340, 453 A.2d 578 (1982). The Pennsylvania and federal constitutional policy basis of the right to a public trial was summarized as follows:

to assure the public that justice is done evenhandedly and fairly; to discourage perjury and the misconduct of the participants; to prevent decisions based on secret bias or partiality; to prevent individuals from feeling that the law should be taken into the hands of private citizens; to satisfy the natural desire to see justice done; to provide for community catharsis; to promote the stability of government by allowing access to its workings, thus assuring citizens that government and the courts are worthy of their continued loyalty and support; to promote an understanding of our system of government and courts.

Contakos, supra, 499 Pa. at 344, 453 A.2d at 579-80.

We conclude, therefore, that a preliminary hearing is covered by Section 9’s guarantee of a “public trial;” and that the instant preliminary hearing was held in contravention of Section 9. It remains to be seen, however, whether this constituted reversible error.

Federal Constitution

Appellant also contends that his Sixth Amendment right to a public trial was violated. Certainly, our conclusion that the Pennsylvania Constitution’s public trial provision was violated suggests that the Federal Constitution’s public trial provision was also violated. It is quite possible, however, for these two virtually identical clauses to be given different interpretations. Consequently, it is necessary to look to the application of the Sixth Amendment in case law.

In doing so, we first note that research has disclosed no case directly on point — that is, stating whether or not a preliminary hearing is encompassed by the right to a public trial. We are not, however, without guidance in resolving this issue.

The United States Supreme Court has considered the nature and importance of the preliminary hearing in determining that the accused is constitutionally entitled to counsel at that stage. The Sixth Amendment right to counsel applies to the preliminary hearing because it is a “critical stage” of the criminal process. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).

The court has also held that the defendant is constitutionally entitled to a public trial under the Sixth Amendment during a pre-trial suppression hearing. Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). “A suppression hearing often resembles a bench trial: witnesses are sworn and, of course, counsel argue their positions. The outcome frequently depends on a resolution of factual matters.” Waller, supra, 467 U.S. 47, 104 S.Ct. at 2216. These features of the pre-trial suppression hearing equally well describe the preliminary hearing.

We cannot discern any functional difference of the preliminary hearing from the pre-trial suppression hearing which is of such magnitude that the defendant’s right to a public trial should attach to one and not the other. Nor can we see how the preliminary hearing could be a “critical stage” of the trial for the Sixth Amendment right to counsel, but not be a sufficiently important stage of the trial to merit the Sixth Amendment right to a public trial.

The openness of American trial proceedings is a fundamental protection of due process in that public scrutiny of the trial helps to preserve the fairness of the process itself:

The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.

Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 2905, 61 L.Ed.2d 608 (1979) (quoting 1 Cooley, Constitutional Limitations 647 (8th ed. 1927)).

In sum, we can see no reason why these basic protections of our system of public trials should not apply to the preliminary hearing stage of the trial as well. The preliminary hearing is clearly part of the total adjudicatory process of a criminal trial.

More importantly, the policy basis for the public trial provisions in the federal constitution apply to the preliminary hearing because it would offend our judicial process to bind a defendant over for trial on the basis of a closed proceeding just as it would offend our judicial process to convict on tainted or perjured evidence. Either violates due process.

Therefore, we hold that the Sixth Amendment right to a public trial applies to criminal preliminary hearings. We must next discuss whether the reasons advanced by the court below justify the violation of appellant’s Sixth Amendment right to a public trial.

Justification for Closure of a Trial.

So far we have only concluded that the various constitutional rights do apply to a preliminary hearing and that, therefore, those rights may have been violated by the way the instant preliminary hearing was conducted. However, closure can sometimes be justified. It remains for us to determine whether the instant closure was justifiable.

Our Supreme Court and the United States Supreme Court have considered situations in which it was held that considerations warranted a partial or temporary closure order during an otherwise open public trial. In Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902 (1976), our Supreme Court stated that:

the right to a public trial is not absolute; rather, it must be considered in relationship to other important interests.
In considering such other interests, a court must assess all of the circumstances to determine if they present a situation in which an exclusion order is necessary. If the court determines a necessity exists, it may then issue an exclusion order, but the exclusion order must be fashioned to effectuate protection of the important interest without unduly infringing upon the accused’s right to a public trial either through its scope or duration.

Knight, supra, 469 Pa. at 66, 364 A.2d at 906 (emphasis added).

In Contakos, supra, our Supreme Court held that an imminent death threat to the Commonwealth’s principal witness did not sufficiently justify even a partial closure, ordered only during the testimony of that witness and only for the exclusion of spectators who were not parties, from the press, or the defendant’s family. A new trial was ordered due to the constitutional infirmity.

The United States Supreme Court announced guidelines for the closure of a criminal trial, as follows:

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984). Accord, Waller v. Georgia, supra, 467 U.S. at 45-46, 104 S.Ct. at 2215. Only a compelling government interest justifies closure and then only by a means narrowly tailored to serve that interest. Contakos, supra, 499 Pa. at 354 n. 2, 453 A.2d at 585 n. 2, citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982).

In this case, the trial court failed to offer any reasons for closure in its opinion, and the transcript reveals only the vague “security” interest recited above. We find this unexplicated word an insufficient justification for closure.

If we presume that the “security” interest refers to the possibility that the defendants might attempt to escape, the justification is still clearly insufficient. Courts commonly must provide security for the trial of prison inmates. If the perceived danger was from members of the public, either sympathetic or hostile to the defendants, then other appropriate measures could have been taken. In any event, the remainder of the trial was held without any special security measures noted in the record.

Closure of a portion of a criminal trial is within the discretion of the trial court, but only within the narrow guidelines which serve to protect the defendants’ right to a fair trial. Knight, supra, 469 Pa. at 65, 364 A.2d at 906. Unamplified, as it is presented for appellate review here, “security” is an insufficient reason to order closure of a preliminary hearing. If it were sufficient, closure could be ordered any time the accused was a prison inmate. Thus, we find that the trial judge abused his discretion in ordering closure.

Determination of a Remedy

We have, then, concluded that preliminary hearings are covered by a trio of constitutional provisions, and that this particular closure was not justified. In short, error occurred. But before a remedy is indicated, a determination must be made as to whether the error was cured at the trial which followed the preliminary hearing.

We must presume that the closure of appellant’s preliminary hearing was prejudicial because the harm is by nature incalculable and unquantifiable. Knight, supra, 469 Pa. at 65, 364 A.2d at 906. The Third Circuit, in assessing the harm to the defendant whose pretrial hearing was closed held that “a defendant who invokes the constitutional guarantee of a public trial need not prove actual prejudice. Such a requirement would in most cases deprive him of the guarantee, for it would be difficult to envisage a case in which he would have the evidence available of specific injury.” U.S. ex rel. Bennett v. Rundle, supra, 419 F.2d 599, 608 and 608 n. 30.

An earlier Third Circuit Court of Appeals came to much the same conclusion in attempting to identify the consequences of this particular constitutional error. One of four defendants accused of Mann Act violations objected to the exclusion of the general public from lurid trial testimony concerning the sale of the defendant’s eighteen-year-old niece into prostitution. After examining the historic and fundamental purposes behind the right to a public trial, the court granted a new trial to the protesting defendant. “We are duty bound to preserve the right as it has been handed down to us and this we will do only if we make sure that it is enforced in every criminal case, even in such a sordid case as the one now before us.” United States v. Kobli, 172 F.2d 919, 924 (1949). The same trial was procedurally fair to the three co-defendants who waived their right to a public trial, but was fundamentally unfair to the defendant, Elizabeth Kobli. The only difference between fairness and fundamental unfairness was that the defendant herself had not consented to waiving her constitutional right to a public trial.

In Waller v. Georgia, supra, the Court observed that the harm of an improperly closed suppression hearing was unquantifiable; however, the injury still could be rectified. The Court closely fashioned the remedy to suit the harm and ordered a new suppression hearing, leading to a new trial only if the new suppression hearing yielded a new result.

However, in this case, we perceive a fundamental difference between the harm of a closed suppression hearing and that from a closed preliminary hearing. The suppression hearing serves to answer the single question of whether the contested evidence or confession should be admitted at trial. Once admissibility is determined, the question is not addressed again during the trial. In contrast, the preliminary hearing takes a first look at the strength of the Commonwealth’s evidence against the accused to determine whether the accused should be held for trial. The strength of the Commonwealth’s overall case is again examined at the demurrer stage when the Commonwealth rests, and before the case goes to the jury. Each time, the Commonwealth must pass a more stringent test than the test of its prima facie case at the preliminary hearing. Finally, the Commonwealth must prove its case beyond a reasonable doubt when the jury verdict is rendered. Thus, the essential question of the preliminary hearing — the examination of the strength of the Commonwealth’s case — is answered at several later stages in the trial. Other pretrial hearing issues are not reexamined during the remainder of the trial.

In Waller v. Georgia, the Supreme Court emphasized that the remedy must be closely fashioned to suit the harm. A new, public, suppression hearing was ordered, with a new trial only if the suppression hearing yielded a new result. But we think that ordering a new, public, preliminary hearing (and a new trial only if the hearing yielded a new result) would be an empty and futile remedy here. We find it extremely unlikely that once the Commonwealth had proved its case beyond a reasonable doubt, it would fail to pass the prima facie test at the new preliminary hearing. If the new preliminary hearing somehow did yield a new result, it could only be that certain charges should be dropped, which could not warrant a new trial on those charges. Logically, a new preliminary hearing is foolish once the evidentiary trial is completed without reversible error.

Since there was no reversible error in the trial held before the jury, we are loath to order a complete new trial. We see no reason to believe that the constitutional infirmity of the preliminary hearing infected the remainder of the trial.

We note that appellant was not without remedy at the trial level nor will future defendants necessarily be denied a remedy. Defense counsel properly objected at the preliminary hearing, but did not petition for certification of an interlocutory order, or petition our Court pursuant to Chapter 15 of the Rules of Appellate Procedure. Either measure would have been appropriate to vindicate an important constitutional right. Now that the entire trial is completed, we are unable to remedy the wrong.

We conclude that there is presumed harm from an improperly closed preliminary hearing, but in this case we think that the harm was cured during the the public trial.

We, therefore, find that no remedy is now necessary in this case, even though we find that appellant’s constitutional rights were violated.

Judgment of sentence affirmed.

TAMILIA, J., concurs in the result.

      . Appellant’s other three contentions concerned: (1) admissibility of testimony regarding appellant’s religion; (2) alleged hearsay; and (3) a supposedly prejudicial newspaper article. None of these has any merit.

      . The Sixth Amendment to the U.S. Constitution reads, in relevant part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”
      Section 9 of Article One of the Pennsylvania Constitution states: "In all criminal prosecutions the accused hath a right to ... a speedy public trial.”
      Section 11 reads: "All courts shall be open.”

      . Violation of the defendant's right to a public trial also necessarily violates his Fourteenth Amendment right to due process. United States v. Cianfrani, 573 F.2d 835, 847 (3rd Cir.1978), citing Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038, 1042, 4 L.Ed.2d 989 (1960).

      . Our treatment of closure justification does not differentiate between federal and Pennsylvania constitutional rights. Of course, our state constitution could allow closure on grounds more minimal than those federally imposed — but that standard would never be of any utility, as federal requirements would always preempt them. Conversely, while we could set higher requirements for closure under our state constitution than those which are federally imposed, we see no need to do so. As discussed infra., the federal guidelines are extremely stringent. Consequently, we cannot envisage a situation where Commonwealth rights would be infringed upon if the corresponding federal rights were respected.

      . The.opinion in Commonwealth v. Buehl, 316 Pa.Super. 215, 226, 462 A.2d 1316, 1322 (1983) (Spaeth, J.) is instructive. That case involved the First Amendment right of public access to a pretrial hearing. We noted that “[t]he lower court also erred in failing to articulate, on the record and before ordering closure, its consideration of alternatives to closure.” Such an articulation would have been most appropriate in the instant case.

      . A second preliminary hearing does not constitute double jeopardy. Commonwealth v. Flanders, 247 Pa.Super. 41, 371 A.2d 1316 (1977), overruled on other grounds, Commonwealth v. Scott, 279 Pa.Super. 8, 420 A.2d 717 (1980).
      At such an interlocutory appeal the appropriate remedy would be to remand for a new, public preliminary hearing. To hold at that stage that no remedy would be necessary, (since the subsequent trial would cure the error), would wrongfully nullify this substantive right.