author: HOFFMAN, Judge:

text:
    510 A.2d 1248
    COMMONWEALTH of Pennsylvania v. Donald FEIGHERY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 8, 1986.
    Filed June 16, 1986.

      Marilyn J. Gelb, Philadelphia, for appellant.
    Leslie A. Sudock, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before OLSZEWSKI, HOFFMAN and ROBERTS, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for second degree murder, possession of an instrument of crime, and criminal conspiracy. Appellant contends that his statement to the police should have been suppressed because it was obtained in violation of the six-hour rule announced by our Supreme Court in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). We disagree and, accordingly, affirm the judgment of the court below.

On September 12, 1982, a warrant for appellant’s arrest was issued in Philadelphia on charges of murder, robbery, possession of an instrument of crime, and criminal conspiracy. The Philadelphia police were unable to locate appellant until November 6, 1982, when authorities in Wilkes-Barre, Pennsylvania, notified them that they had taken appellant into custody based on the Philadelphia warrant. Appellant was arrested by the Wilkes-Barre police at approximately 3:45 p.m. that day. After receiving this information, two Philadelphia detectives drove to Wilkes-Barre armed with the Philadelphia arrest warrant to arrest appellant and take him back to Philadelphia. The detectives arrived in Wilkes-Barre at 9:00 p.m. Appellant was brought before a Wilkes-Barre magistrate who informed appellant of the charges against him and set bail, which appellant failed to post. The Philadelphia detectives then drove appellant to Philadelphia; they arrived at 11:22 p.m. After waiving his Miranda rights, appellant gave a statement to the Philadelphia police. He began his statement at 12:20 a.m., finished at 2:10 a.m., and was arraigned at 3:00 a.m.

Appellant contends that his statement should be suppressed because he was arraigned more than six hours after he was arrested by the Wilkes-Barre police. See Commonwealth v. Davenport, supra 471 Pa. at 286, 370 A.2d at 306. In Davenport, our Supreme Court held that any statement by the accused that is obtained after arrest and before arraignment is inadmissible if the accused was not arraigned within six hours of the arrest. Id. The Court adopted this rule to enforce the prompt arraignment requirement of Pa.R.Crim.P. 122 and 130. Rule 122 provides:

When a defendant has been arrested in a court case, with a warrant, within the judicial district where the warrant of arrest was issued, the defendant shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay.

Pa.R.Crim.P. 122 (as amended January 28, 1983) (emphasis added). Rule 130 provides:

(a) [W]hen a defendant has been arrested without a warrant in a court case, a complaint shall be filed against the defendant and the defendant shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay.

Pa.R.Crim.P. 130(a) (as amended January 28, 1983) (emphasis added).

Here, appellant was arrested outside of Philadelphia, the judicial district where the warrant was issued. Thus, pretrial procedure in this case is governed by Pa.R.Crim.P. 123, which provides in relevant part:

(a) When a defendant has been arrested in a court case, with a warrant, outside the judicial district where the warrant of arrest was issued, the defendant shall be taken without unnecessary delay to the proper issuing authority in the judicial district of arrest for the purpose of posting bail, as permitted by law.
(b) Such issuing authority shall advise the defendant of the right to post bail. ...
* # * # * ‡
(d) When a defendant fails to post bail, the arresting person shall:
(1) return the defendant to the judicial district where the warrant was issued without unnecessary delay, for preliminary arraignment by the proper issuing authority, or
(2) lodge the defendant in a suitable place of detention in the judicial district of arrest, and forthwith notify the proper issuing authority in the judicial district where the warrant was issued of the defendant’s detention, and the place of such detention. Upon receipt of this notice, the issuing authority shall, without unnecessary delay, cause the defendant to be brought to the judicial district where the warrant was issued for preliminary arraignment by the proper issuing authority.

Pa.R.Crim.P. 123(a), (b), (d)(1), (d)(2) (emphasis added).

The phrase “without unnecessary delay” in rules 122 and 130, supra, upon which the Davenport rule is grounded, also appears in Rule 123. See Pa.R.Crim.P. 123(a), (d)(1), (d)(2), supra. Therefore, the six-hour rule would apply to cases governed by Rule 123 as well. Because in such cases the defendant is arrested outside of the district that issued the arrest warrant and the rules require that arraignment take place in the warrant-issuing district, see, e.g., Pa.R.Crim.P. 130(a), supra, however, we believe that the six-hour period within which the defendant must be arraigned begins to run once the authorities from the warrant-issuing district have custody of the defendant, and not from the moment the defendant is arrested as a fugitive in another district.

Such an interpretation of the relationship between the Davenport six-hour rule and Rule 123 comports with the interest in assuring prompt arraignment while recognizing the practicalities involved in compliance with the requirement that arraignment take place within the warrant-issuing district. In Davenport, the defendant was arrested in the district where he was arraigned, and the Court concluded that a delay of up to six hours between arrest and arraignment would be permissible under Rules 122 and 130. Commonwealth v. Davenport, supra 471 Pa. at 286, 370 A.2d at 306. Were we to require that a defendant be arraigned within six hours of arrest in cases in which the arrest is made outside of the district where the defendant will be arraigned, we would not be allowing any time for the arresting authorities to bring the defendant before a neutral authority for the purpose of posting bail, or to contact the issuing authorities and to arrange to have the defendant returned to the issuing district as required by Rule 123. The provisions of Rule 123, in fact, contemplate periods of more than six hours between arrest and arraignment. Subsection 123(d)(2), for example, permits the arresting authority to lodge the defendant until the issuing authority “cause[s] the defendant to be brought to the district where the warrant was issued.” Pa.R.Crim.P. 123(d)(2). Moreover, the requirement in Rule 123 that the defendant be brought before the issuing authority in the district of arrest “without unnecessary delay,” for the purpose of posting bail, insures that the defendant will have been informed of the charges and the right to post bail by a neutral authority even if not formally arraigned within six hours.

Here, authorities in both Philadelphia and Wilkes-Barre complied with the provisions of Rule 123. Appellant was brought before a Wilkes-Barre magistrate as required under Rule 123(a). Because he did not post bail, he was returned to Philadelphia and was arraigned within six hours of the time he was taken into custody by the Philadelphia police. We conclude that appellant was arraigned without unnecessary delay. Hence, there was no Davenport violation and, accordingly, we affirm the judgment of the court below.

Affirmed.

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

      . The Court in Davenport noted that prompt arraignment insures that the accused is "promptly afforded the protections embodied in Pa.R.Crim.P. 140.” Commonwealth v. Davenport, supra 471 Pa. at 283, 370 A.2d at 304. Rule 140 provides in relevant part:
      (a) At the preliminary arraignment, the issuing authority shall not question the defendant respecting the offense charged, but shall forthwith deliver a copy of the complaint to him. The issuing authority shall also inform the defendant:
      (1) of his right to secure counsel of his choice and his right to assigned counsel ...;
      (2) of his right to have a preliminary hearing; and
      (3) if the offense is bailable, of the amount of bail demanded and the types acceptable as provided in these rules.
      Pa.R.Crim.P. 140 (as amended January 28, 1983).

      . We note that the travel time between the district where the arrest occurs and the district where the arraignment is to take place may be excluded from the six-hour period under the "exigent circumstances” exception to the Davenport rule. See Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983) (travel time between counties must be accounted for if we are to require arraignment in county where jurisdiction for charged crime lies), cert. denied, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984).

      . Rule 123(e) places an upward limit of 48 hours between arrest and arraignment. Pa.R.Crim.P. 123(e).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    510 A.2d 1251
    COMMONWEALTH of Pennsylvania v. Leonard THIER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 1, 1986.
    Filed June 16, 1986.

      Leonard Thier, Scranton, in propria persona.
    Before McEWEN, OLSZEWSKI and KELLY, JJ.
   OLSZEWSKI, Judge:

This appeal is from the judgment of sentence entered by the Court of Common Pleas of Luzerne County following appellant’s conviction of five (5) violations of 35 Pa.Stat. Ann. Sec. 1272 regarding the illegal t,sale of fireworks. Post-trial motions were denied, and appellant was sentenced to serve a minimum of sixty (60) days in prison and fined $500. Appellant has defended himself both at trial and on appeal.

Appellant raises ten (10) issues for our consideration. Initially he contends: (1) that appellant had standing to contest the admission of certain invoices; (2) that appellant’s Fifth Amendment rights were violated when he was denied a grand jury indictment; (3) that appellant was denied the right to a speedy trial and to be confronted with the witnesses against him; (4) that the trial judge led the appellant’s witness into hearsay and highly speculative testimony and led the witness into making other erroneous and unfair statements; (5) that the trial judge erred in prohibiting the introduction of appellant’s insurance policies; and (6) that the statute in question was unconstitutionally applied to the appellant. We do not reach these issues, as we find that they have been waived. An issue is not properly preserved for appellate review if it is not raised in written post-verdict motions as required by Pa.R.Crim.P. 1123(a). Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). Appellant was made aware of the requirement by the trial judge. See trial transcript, p. 249. Since appellant has failed to raise these issues in post-trial motions, they are not preserved for our review.

Appellant’s seventh and eighth issues are related as they both refer to an alleged improper charge to the jury. Appellant argues that the trial judge erred in failing to advise the jury of the case of Commonwealth v. Bristow, 185 Pa.Super. 448, 138 A.2d 156 (1958), which states that to be illegal in Pennsylvania, a fireworks device must detonate, that is, explode with noise; and that the omission of such a charge deprived appellant of a fair trial. Further, appellant claims that the trial judge erred by not advising the jury that the words “such fireworks as are not herein prohibited” are a part of the fireworks act, meaning that all fireworks are not illegal, and this failure precluded appellant’s right to a fair trial. We find both of appellant’s claims to be baseless. A careful reading of the trial judge’s charge shows that both of the “omitted charges” were in fact included in the trial judge’s instructions to the jury. See trial transcript, pp. 236-243. Therefore, issues seven and eight lack merit.

Appellant’s ninth point of error is that the prosecution never proved that appellant sold fireworks in Luzerne County, thus precluding jurisdiction in the matter. It is clear that a court has no jurisdiction unless the crime was committed within the county where the defendant is tried; and that the locus of a crime is a question of fact. See Commonwealth ex rel. Ritchey v. McHugh, 189 Pa.Super. 515, 151 A.2d 659 (1959). It is equally clear that the facts of the case at bar indicate that upon receiving an order by telephone, appellant would deliver illegal fireworks to a Mr. Rubin in Wilkes-Barre, Luzerne County. The jury thus determined that appellant offered for sale and/or exposed for sale illegal fireworks in Luzerne County. Therefore, by the evidence found by the jury, appellant violated the law— 35 Pa.Stat.Ann. sec. 1272 — in Luzerne County. Jurisdiction was properly established in the trial court.

Appellant’s final argument is that his rights under Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), have been violated, and thus he was deprived of a fair trial. In Argersinger v. Hamlin, the Supreme Court stated "... absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” Id. We find that appellant’s rights were not violated under this rule as appellant has made a knowing and intelligent waiver of his right to counsel.

In determining whether appellant has adequately waived his right to counsel, we must determine whether the trial judge elicited appellant’s awareness of a number of facts. See Commonwealth v. Roman, 347 Pa.Super. 528, 500 A.2d 1182 (1985); Pa.R.Crim.P. 318(c) comments. Appellant must understand that he has the right to be represented by counsel, and the right to free counsel if he is indigent. This right was explained to appellant by the trial judge, and appellant expressed his understanding. See trial transcript, pp. 3-5. Appellant was also aware of the nature of the charges against him and the permissible range of sentences and fines for the offense. See trial transcript, pp. 6-8. Further, the trial judge explained that appellant would be bound by the rules of procedure if he represented himself, and that counsel would be familiar with those rules. See trial transcript, pp. 8-10. Finally, appellant was made aware that there are defenses that counsel would know of that could be lost permanently if not raised at trial, and that there are certain rights and errors that would be lost permanently if not timely asserted. See trial transcript, pp. 10-12; sentencing transcript, p. 22. Since appellant was fully aware of the consequences of his self-representation, we find that appellant voluntarily and intelligently elected to represent himself at trial and on appeal, and that he had the right to do so. See Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978). Therefore, appellant waived his right to counsel and cannot raise the absence of counsel as a point of error on appeal.

Having found no merit in appellant’s ten points of error, we affirm the decision of the lower court. Order affirmed.


author: BROSKY, Judge:

text:
    510 A.2d 1253
    COMMONWEALTH of Pennsylvania v. Michael ELLIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1986.
    Filed June 13, 1986.

      David M. McGlaughlin, Philadelphia, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, New-town Square, for Com., appellee.

      Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, MONTEMURO and TAMILIA, JJ.
   BROSKY, Judge:

This is an appeal from the order dismissing appellant’s claims of ineffective assistance of counsel and reinstating his judgment of sentence. Appellant raises three issues for our determination: (1) whether the trial court erred in not finding appellant’s trial counsel ineffective for failing to preserve the issue of the illegality of his arrest; (2) whether the trial court erred in not finding appellant’s trial counsel ineffective for failing to preserve the issue concerning the lack of qualification of the Commonwealth’s expert witness; and (3) whether the trial court erred in not finding appellant’s trial counsel ineffective for failing to request the trial judge to recuse himself, after the same judge had presided over appellant’s suppression hearing. We have carefully reviewed the record and briefs submitted by counsel and find that trial counsel’s inaction did not constitute ineffective assistance of counsel. Accordingly, we affirm.

Appellant was found guilty of burglary, theft and criminal conspiracy after a bench trial before the Honorable Melvin G. Levy, Jr. on October 21 and 22, 1981. Subsequently, appellant was sentenced to concurrent terms of one and one-half to five years less one day on the burglary and conspiracy counts. On his direct appeal, a panel of this Court remanded the case for an evidentiary hearing on the ineffectiveness claims. On remand, the trial court determined that appellant’s ineffectiveness claims were meritless and reinstated the judgment of sentence. We agree.

The test for ineffectiveness is firmly established in this Commonwealth:

It is now black letter law, requiring no citation, that counsel will not be deemed ineffective for failing to pursue a meritless claim; that counsel’s assistance is deemed constitutionally effective where the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest; that the test for competency is not whether other alternatives are more reasonable, employing a hindsight evaluation of the record, but whether counsel’s assessment of the case and his advice were reasonable; and, finally, in order to be entitled to relief under a theory of ineffective assistance of counsel, it must appear that counsel’s action or inaction was prejudicial to the defendant.

Commonwealth v. Larkins, 340 Pa.Super. 56, 69, 489 A.2d 837, 843-844 (1985). Further, since counsel’s stewardship is presumptively effective, the burden of establishing ineffectiveness rests upon the defendant. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981).

Therefore, to succeed in his claims, in the instant case, appellant must show that the issues not preserved had arguable merit; that counsel’s failure to pursue the issues had no reasonable basis; and that counsel’s ineffectiveness so prejudiced his case that he was deprived of a fair trial. Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985). We will address appellant’s issues seriatim.

Appellant’s primary contention is that his trial counsel was ineffective for failing to preserve the issue of the alleged illegality of his arrest. Appellant claims that at the time he was arrested, the Philadelphia police lacked probable cause to make the arrest. Thus, appellant sought the suppression of an inculpatory statement and of the evidence of his sneaker prints as fruits of an illegal arrest. A review of the facts surrounding appellant’s arrest, as clearly testified to by three police officers who were on the scene, show that appellant’s first issue is devoid of any arguable merit.

The evidence establishes that during the evening of May 17, 1983, a burglary occurred at an industrial equipment company in Upper Darby, Pennsylvania which is a suburb adjacent to Philadelphia. Taken during the burglary were two, yellow, Chevrolet pickup trucks which each displayed the company name in black lettering on their sides. At approximately 11:45 p.m. that evening, a report of the burglary and a description of the two pickup trucks was broadcast over the city-wide Philadelphia police radio band. Each of the officers testified that they had heard the city-wide broadcast about the burglary.

Shortly thereafter, at approximately 12:03 a.m., May 18, the officers responded to a radio call which reported that males were in the process of stripping a truck in the 6300 block of Regent Street in Philadelphia. Arriving at the scene, the officers witnessed three males in the process of unloading a yellow, Chevrolet pickup truck. Upon seeing the police vehicles, the three men ran in different directions. Two of the men successfully eluded the officers, but appellant was chased into an alley.

Although the officers searched the alley, appellant had disappeared into the darkness so the officers went back to the street and investigated the pickup truck. The pickup truck fit the description of trucks from the earlier reported burglary and in its vicinity the police officers found various pieces of industrial equipment such as an industrial vacuum cleaner, acetylene torches, drills, generators and chain saws.

About five minutes after appellant had run into the alley, he was observed pushing a motorcycle out of the alley. Once on the street, appellant started the engine and began to drive away. The officers immediately recognized appellant as the suspect they had followed into the alley and gave chase. Appellant was apprehended a few blocks away and placed into a patrol wagon.

A computer check was then conducted on the vehicle appellant was riding and revealed that the motorcycle had been stolen. Since appellant was placed into the patrol wagon, and thus effectively placed under arrest prior to the officers receiving the results of the NCIC check, appellant maintains that the police lacked probable cause to arrest him for the stolen vehicle. Appellant asserts that since the police officers lacked probable cause to arrest him on the stolen vehicle charge, his detention on the instant burglary charges was likewise tainted. We find appellant’s argument to be wholly without merit.

The established test for determining whether an officer had sufficient probable cause to legally justify a warrantless arrest involves looking at the facts and circumstances confronting the officer at the time of the arrest. As our Supreme Court noted in Commonwealth v. Travaglia, 502 Pa. 474, 484, 467 A.2d 288, 292 (1983), cert. denied, Lesko v. Pennsylvania and Travaglia v. Pennsylvania, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984),

A police officer may arrest without a warrant where there is probable cause to believe that a felony has been committed and that the arrestee is the felon. Probable cause exists where the facts and circumstances within the knowledge of the officer are reasonably trustworthy and sufficient to warrant a person of reasonable caution in believing that the arrestee has committed the offense. Furthermore, we note that the standard of probable cause

must be applied to the totality of the circumstances facing the police. Commonwealth v. Kazior, 269 Pa.Super. 518, 410 A.2d 822 (1979). Thus,

[w]hen we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element____ We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might____ Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond-a-reasonable-doubt’ standard which we apply in determining guilt or innocence at trial.

Commonwealth v. Simmons, 295 Pa.Super. 72, 83, 440 A.2d 1228, 1234 (1982), quoting Commonwealth v. Devlin, 221 Pa.Super. 175, 178, 289 A.2d 237, 239 (1972) (emphasis in original).

In the instant case, the officers had received information about the Upper Darby burglary shortly before witnessing appellant in the process of unloading industrial equipment from a yellow, Chevrolet pickup truck in a residential neighborhood just after midnight. As the officers approached the truck, appellant and his two confederates ran away. The officers chased appellant into an alley from which he later emerged with the motorcycle. Before spotting appellant’s attempted escape, the officers determined that the truck appellant had been unloading fit the description of the trucks taken during the burglary.

We find that possessed of this information, the officers had more than sufficient probable cause to arrest appellant in connection with the burglary. Further, we are of the opinion that the question of whether or not the police had probable cause to arrest appellant on the stolen vehicle charge has no bearing on this issue. Therefore, it is clear that the illegal arrest issue is devoid of arguable merit. As such, trial counsel cannot be deemed ineffective for failing to raise or preserve the issue. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Appellant’s second contention is that his trial counsel was ineffective in failing to preserve the issue concerning the qualifications of the Commonwealth’s expert witness. We note that the determination of a witness’ qualification as an expert rests in the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion. Further, an expert may acquire his knowledge through practical experience and need not have received his expertise through academic training. Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984).

In this case, the Commonwealth’s expert had been employed by the Delaware County Crime Lab for over five years and, although academically trained as a chemist, had also worked in comparing tool marks, tool impressions, tire and shoe marks. Thus, the court deemed the witness qualified to testify as to the comparison of appellant’s sneaker prints to those found at the crime scene.

In the record, we find no abuse of discretion by the trial court in admitting the witness’ testimony as expert. Thus, the issue has no arguable merit and trial counsel cannot be found ineffective for failing to raise or preserve it. Hubbard, supra.

Appellant’s final contention is that his trial counsel was ineffective for failing to request the trial judge to recuse himself after he had heard testimony about an unrelated criminal incident (the stolen motorcycle) during appellant’s suppression hearing. Although the panel hearing appellant’s direct appeal believed that this issue may have had arguable merit and, so, remanded the case, the trial court found this issue to be without merit because of the prevailing view that judicial fact finders are capable of disregarding most prejudicial evidence. See Commonwealth v. Council, 491 Pa. 434, 421 A.2d 623 (1980). Further, to necessitate recusal, the evidence heard at the suppression hearing must not only be inadmissible, but also of a highly prejudicial nature. Commonwealth v. Lewis, 314 Pa.Super. 298, 460 A.2d 1149 (1983).

Appellant failed to show that the inadmissible evidence concerning the stolen motorcycle was of such a highly prejudicial nature that the trial judge would have been obligated to recuse himself if requested. As the Court opined in Lewis, we too are of the opinion that because of the instincts developed by the trial judge’s training and experience, which allow him to make decisions unaffected by irrelevant, inadmissible or prejudicial developments, appellant has failed to prove the arguable merit of his issue. Because this issue lacks arguable merit we cannot deem trial counsel ineffective for failing to pursue it. Hubbard, supra.

Because appellant’s issues are devoid of arguable merit, we find that the trial court properly dismissed his claims of ineffective assistance of counsel.

Order affirmed.

      . In his original appeal from the judgment of sentence, three of appellant's issues had been waived due to trial counsel’s failure to brief and argue them in his post-trial motions or, in the case of appellant’s recusal issue, had failed to assert a recusal motion at trial. The panel reviewing the direct appeal believed that appellant’s recusal issue may have been of arguable merit but remanded the case for an evidentiary hearing on all of appellant’s ineffectiveness claims.

      . We note that trial counsel did assert this issue in his pre-trial motion to suppress and preserved the issue throughout the trial. The issue was waived after counsel, having determined the issue to be meritless, failed to brief or argue the issue in appellant’s post-trial motions.

      . Upon further investigation, the officers located the second pickup truck on a side street about one-half block away.

      . Assuming, arguendo, that the issue did have arguable merit, trial counsel’s testimony at the evidentiary hearing reveals that he carefully considered whether to move for recusal. Trial counsel was of the opinion that the trial court was skeptical of the Commonwealth’s evidence and, thus, made the reasoned decision not to ask for recusal. Therefore, appellant also failed to prove that his trial counsel had no reasonable basis for his inaction. Given counsel’s reasonable basis, we could not find him ineffective for failing to raise the issue. Hubbard, supra.


text:
    510 A.2d 1257
    Mary Ann MILLER, Appellee, v. ROYAL INSURANCE CO., Appellant.
    Superior Court of Pennsylvania.
    Argued April 3, 1986.
    Filed June 26, 1986.

      George D. Sheehan, Jr., Philadelphia, for appellant.
    Michael B. Egan, Philadelphia, for appellee.
    Before McEWEN, OLSZEWSKI and KELLY, JJ.
   OLSZEWSKI, Judge:

Appellant, Royal Insurance Company (“Royal”), challenges the lower court’s judgment upon its order denying appellant’s petition to modify the award of arbitrators. That court found that no error of law was committed by the arbitrators in stacking uninsured motorist coverages under a commercial fleet policy. We disagree and reverse the order of the court below.

This case arose from a motor vehicle collision involving appellee, Mary Ann Miller, and an uninsured motorist. Mrs. Miller was driving a vehicle owned by Wes II Air Freight (“Wes II”) and assigned to her husband, Joseph Miller, as Wes II’s corporate secretary. The car was covered by an insurance policy issued by Royal to Wes II. Pursuant to Arbitration Act of 1927, the uninsured motorist claim was arbitrated before an arbitration panel who found in favor of the claimant and against Royal in the amount of $70,000. To reach the award of $70,000, the arbitrators stacked coverage for three vehicles insured under this fleet policy. The extent of uninsured motorist coverage per vehicle insured under the policy was $25,000.

Our Supreme Court recently “reserve(d) for another day the questions of whether a ‘class one’ insured may stack coverages under a fleet policy, and whether the owner and/or officers of a corporation are ‘class one’ insureds under a policy issued in the name of a corporation.” Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 338 n. 4, 473 A.2d 1005, 1010-1011 n. 4 (1984). That other day has arrived in the form of the case sub judice.

The court below determined that appellee is a class one insured. We agree, however, this classification becomes irrelevant in light of our determination that coverages under a fleet policy may not be stacked.

The Court of Appeals of Maryland has noted that “(t)here is a decided split of authority around the country on intrapolicy stacking.” Howell v. Harleysville Mutual Insurance Co., 305 Md. 435, 439, 505 A.2d 109, 111 (1986). The Howell court went on to say that, in spite of the split of opinion in the area of consumer policies, “in dealing with the question of whether a claimant-employee should be permitted to stack the coverages provided under a commercial fleet policy insuring several vehicles for which separate premiums were paid, the courts are virtually unanimous (in refusing to allow stacking).” Id.

One of the most common reasons for denying stacking of fleet policies is that such policies potentially cover a multitude of vehicles. It is argued “that to allow stacking would be to make premium costs prohibitively expensive and would not be within the reasonable expectations of the insurer and the employer-policyholder ....” Yeager v. Auto-Owners Insurance Co., 335 N.W.2d 733, 739 (Minn. 1983). See Linderer v. Royal Globe Insurance Co., 597 S.W.2d 656 (Mo.Ct.App.1980) (employee denied stacking of underinsured motorist coverage for a fleet of 1,420 vehicles); Lambert v. Liberty Mutual Insurance Co., 331 So.2d 260 (Ala.1976). We are aware that the circumstances of this case prevent these fears from being a reality. Wes II is a closely held corporation with only four shareholders, one of whom is Joseph Miller, appellee’s husband. Mr. Miller is also a member of Wes II’s board of directors and an executive officer of the corporation. Appellee seeks to stack coverage for three vehicles in a total fleet of ten. Factually, this case appears to more closely resemble that facing the Supreme Court of Minnesota in Yeager, 335 N.W.2d at 733. The Yeager court decided that when it was not faced with a “large commercial policy ... arguments about prohibitive costs and reasonable expectations ... (had) no force....” Id. at 739. We do not agree. If the insured-employer, Wes II, wanted additional protection against uninsured motorists, it was free to contract for that protection with its insurer, Royal. It declined to do so. We will not rewrite the insurance contract to permit stacking in this instance.

The order of the court below is reversed. Judgment is vacated. Jurisdiction is relinquished.

KELLY, J., concurs in the result.

      . See Note, Intra-Policy Stacking of Uninsured Motorist and Medical Payments Coverages: To Be Or Not To Be, 22 S.D.L.Rev. 349, 351 n. 10 (1977). In fact, that note indicates that as of the time it was written of twenty-three states dealing with the question of intra-policy stacking thirteen had refused to allow such stacking.

        Howell v. Harleysville Mutual Insurance Co., 305 Md. 435, 439, 505 A.2d 109, 111 (1986).

      . Cases not permitting stacking include: Fuqua v. Travelers Ins. Co., 734 F.2d 616 (11th Cir.1984); Guarantee Ins. Co. v. Anderson, 585 F.Supp. 408 (E.D.Pa.1984); Burke v. Aid Ins. Co., 487 F.Supp. 831 (D.Kan.1980); Lambert v. Liberty Mutual Insurance Company, 331 So.2d 260 (Ala.1976); Marks v. Travelers Indem. Co., 339 So.2d 1123 (Fla.Dist.Ct.App.1976); Travelers Ins. Co. v. PAC, 337 So.2d 397 (Fla.Dist.Ct.App.1976); Ohio Cas. Ins. Co. v. Stanfield, 581 S.W.2d 555 (Ky.1979); Burns v. Fernandez, 401 So.2d 1033 (La.Ct.App.1981); Linderer v. Royal Globe Ins. Co., 597 S.W.2d 656 (Mo.Ct.App.1980); Utica

        Mut. Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984); Cunningham v. Ins. Co. of N. America, 213 Va. 72, 189 S.E.2d 832 (1972). To the contrary are Boroos v. Roseau Agency, Inc., 345 N.W.2d 788 (Minn.App.1984); Lundy v. Aetna Cas. & Sur. Co., 92 N.J. 550, 458 A.2d 106 (1983); and American States Ins. v. Milton, 89 Wash.2d 501, 573 P.2d 367 (1978). Anderson, 585 F.Supp. 408, noted at 413, n. 3, that the New Jersey Legislature amended its uninsured motorist statute to reverse the result in Lundy for accidents occurring after January 1, 1984.

        Id.


text:
    510 A.2d 1259
    COMMONWEALTH of Pennsylvania, Appellant, v. Edward RHODES, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Timothy COHN, Appellee.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1986.
    Filed June 23, 1986.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellant.
    John H. Corbett, Jr., Public Defender, Pittsburgh, for Rhodes, appellee.
    Mark H. Rubenstein, Pittsburgh, for Cohn, appellee.
    Before OLSZEWSKI, HOFFMAN and ROBERTS, JJ.
   OLSZEWSKI, Judge:

This appeal comes before us on behalf of the Commonwealth challenging the decision of the lower court to sustain appellees’ demurrer to charges of attempted burglary and possession of instruments of a crime. For the reasons to be discussed, we find it necessary to affirm the judgment and dismiss the Commonwealth’s appeal.

In moving for a demurrer, appellees admitted all the facts which the Commonwealth’s evidence tended to prove and all inferences reasonably deducible from those facts. Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1979); Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569 (1976). It was upon this standard that the lower court granted the demurrer and upon which the following facts appear on the record.

On August 9, 1984, police officer Richard Martine of the City of Pittsburgh Police Department was on routine patrol. While cruising Penn Avenue in the downtown section of the City of Pittsburgh at approximately 3:30 a.m., he received a police broadcast over the radio that the Ander’s Clothing Store burglar alarm system had been activated. The officer responded to the broadcast, and upon arriving at the store inspected the front door, but did not observe any activity. Officer Martine then drove around the block and entered an alleyway leading to the rear of the building. There he observed two men, one jumping from an oil drum underneath a windowsill, and the other standing next to the oil drum. Defendant Rhodes was identified as the man jumping from the oil drum, and the other man was identified as defendant Cohn. (Trial Transcript, pages 4-6). It was also discovered that the fan cover affixed to the building had been removed and the fan blades bent. Neither of the two men had anything in their possession; however, a flashlight, a hammer, and a pair of pliers were found inside a canvas gym bag, zipped closed.

The Commonwealth called as its witnesses two employees of the Allegheny Crime Laboratory, who testified that they had examined and compared dirt taken from the clothes of the defendants with a dirt sample taken from the windowsill of the building. Although they testified that the samples were similar, they were unable to state with certainty that the dirt from the clothes had come from the windowsill. They also admitted that the samples were not “unusual” (Trial Transcript, page 108) and that the dirt on the clothes was similar to soil samples in the area (Trial Transcript, page 86).

“A person is guilty of a burglary if he enters a building ... with intent to commit a crime therein....” 18 Pa.C.S. A.Sec. 3502(a). “A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” 18 Pa.C.S.A.Sec. 901(a). A person is guilty of possessing instruments of crime if he possesses them with the intent to employ them criminally. 18 Pa.C.S.A.Sec. 907(a).

The lower court determined that the above elements were not satisfied by the evidence presented by the Commonwealth. The judge reasoned that the Commonwealth did not produce enough evidence to prove the crime of attempted burglary merely because: the defendants were present in an alleyway, accessible from a public street; the building’s alarm system had been activated and the defendants were found nearby; and the cover of a ventilation fan affixed to the building was removed and the fan blades bent. The United States Supreme Court recently dealt with the issue presently before us in Smalis v. Pennsylvania, - U.S. -, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). The Court per Justice White stated:

When a successful post-acquittal appeal by the prosecution would lead to proceedings that violate the Double Jeopardy Clause, the appeal itself has no proper purpose. Allowing such an appeal would frustrate the interest of the accused in having an end to the proceedings against him ... (T)he Double Jeopardy Clause bars a post-acquittal appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into “further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.” (Citation omitted).

The Court held then that in situations such as the present where the lower court has determined that a demurrer is proper, the Commonwealth must abide by its decision and cannot take an appeal. To hold otherwise would violate the Double Jeopardy Clause. Therefore, we find it necessary to affirm the lower court and dismiss the instant appeal based on Smalis.

Judgment affirmed. Appeal dismissed.


author: DEL SOLE, Judge: CIRILLO, President Judge,

text:
    510 A.2d 1389
    COMMONWEALTH of Pennsylvania, Appellant, v. Anthony JACKSON. COMMONWEALTH of Pennsylvania, Appellant, v. Percy FAVORS.
    Superior Court of Pennsylvania.
    Argued Jan. 29, 1986.
    Filed May 27, 1986.
    Reargument Denied July 7, 1986.

      Edward J. Borkowski, Assistant District Attorney, Pittsburgh, for Com., appellant.
    Norma Chase, Pittsburgh, for Jackson, appellee.
    Paulette J. Balough, Assistant Public Defender, Pittsburgh, for Favors, appellee.
    Before CIRILLO, President Judge, and DEL SOLE and BECK, JJ.
   DEL SOLE, Judge:

The Appellees in this case were each charged on August 14, 1984, with one count of riot and one count of failure of disorderly persons to disperse upon official order. The charges against the Appellees, who are prison inmates, result from their involvement in the obstruction of a prison guard’s attempt to lock up another inmate who had stabbed an officer in the dining hall of the State Correctional Institution in Pittsburgh. On November 27, 1984, each Appellee made an oral motion to dismiss on the grounds that the charges were de minimis, which was granted by the trial court. The Commonwealth appeals from this Order.

At the hearing on Appellees’ pre-trial motions to dismiss, the trial judge asked the Assistant District Attorney to describe what the case was about. The following exchange took place:

MS. ANGELL: [Assistant District Attorney] Your Honor, it was in the dining room during dinnertime. There was an assault by a prisoner.
THE COURT: Not one of these two individuals?
MS. ANGELL: No. When the officer ordered that the prisoner be taken from the cafeteria and taken into custody, Mr. Jackson then stood up and screamed. He stood up and screamed: Let’s block the aisle. It was at that time that 30 people gathered around him. They blocked the guard from leaving. Mr. Favors then got up and blocked the guard from the other way. There were approximately 60 or 70 prisoners there at that time. It was not one to one or anything like that.
THE COURT: All right. Is that about all there was to it?
MS. ANGELL: Yes.
THE COURT: And if the Commonwealth proves their case, is that what their case is going to be?
MS. ANGELL: Yes.
THE COURT: The motions are granted.

The legislature has provided that a trial judge may exercise discretion to dismiss a case as de minimis under certain conditions. The statute provides:

(a) General Rule — The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the conduct of the defendant:
(1) was within a customary license or tolerance, neither expressly negative by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;
(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
(3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the General Assembly or other authority in forbidding the offense.
(b)-The court shall not dismiss a prosecution under this section without filing a written statement of its reasons, except that if the attorney for the Commonwealth is the moving party for such dismissal no such written statement need be filed.

18 Pa.C.S.A. § 312.

The trial judge in this case stated that he felt compelled to dismiss the charges against the Appellees in the interests of justice. He cited the facts that both the Appellees were already serving prison terms, had been dealt with administratively by the prison authorities and that the cost of a jury trial would be substantial especially in the light of the increased security measures which would be required. The trial judge found that the Appellees’ conduct did not justify the expense of a trial in light of the facts that the guards’ paths were only temporarily blocked and that the Commonwealth did not intend to present evidence that the Appel-lees’ acts led to violence.

We believe that the trial judge acted within his discretionary powers in the interests of judicial economy in this case. We find no abuse of discretion and we affirm the Order of the trial court.

Order affirmed.

CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge,

dissenting:

I respectfully dissent. The actions taken by appellees in surrounding, obstructing, and interfering with the corree-tional officer as he attempted to discharge his duties clearly fall within the scope of the charges filed against appellees. The appellees’ obvious culpability notwithstanding, the majority has determined that these charges were properly dismissed under 18 Pa.C.S.A. § 312 as being de minimis. I cannot agree.

The trial court and the majority cite four bases for finding a proper dismissal of the charges: (1) appellees were already serving prison terms; (2) appellees had already been dealt with by prison officials; (3) the costs of trial would be too high; and (4) the actions did not result in violence. It is my view that considering the attendant circumstances, these factors are insufficient to justify a dismissal of the charges under any provision of Section 312.

The fact that appellees are serving sentences on other convictions does not detract from either the danger presented by allowing inmates to take part in such disturbances or the need to discourage such action. Conviction for previous crimes does not fall within any of the three provisions of Section 312 as a circumstance which permits dismissal of current charges.

The fact that appellees have been dealt with by prison administrators likewise is not a basis under Section 312 for a determination that those charges did not warrant prosecution. Nor can the cost of a trial justify the dismissal of the charges. The cost of trial has nothing to do with the nature of the defendants’ conduct and does not warrant dismissal under subsection (1) and (2), nor is it an extenuating circumstance within the intended scope of subsection (3).

The fact that appellees’ actions fell short of any violent results is the least meritorious ground advanced by the majority to support dismissal of the charges as de minimis. First, these charges alone do not require any evidence of violence to sustain a conviction. More important, however, is the fact that it is precisely this potential outbreak of violence, stemming from such disorderly conduct, that we must seek to discourage by prosecuting those involved.

While an offense of similar character may perhaps be dismissed in another setting, the nature of the correctional institution and the present and potential danger posed by appellees’ actions dictate that these charges not be dismissed as de minimis. Whatever marginal costs are involved in prosecuting such violations, they are more than outweighed by our Commonwealth’s interest in maintaining law and order within the prison system.

For the foregoing reasons I submit that the charges against appellees were improperly dismissed as de minim-is.

      . Appellees were charged under:
      (a) 18 Pa.C.S.A. § 5501(2) Riot:
      A person is guilty of riot, a felony of the third degree, if he participates with two or more others in a course of conduct:
      (1) ....
      (2) With the intent to prevent or coerce official action
      (b) 18 Pa.C.S.A. § 5502 failure of disorderly persons to disperse upon official order:
      Where three or more persons are participating in a course of disorderly conduct which causes or may reasonably be expected to cause substantial harm or serious inconvenience, annoyance or alarm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the area to disperse. A person who refuses or knowingly fails to obey such an order commits a misdemeanor in the second degree.


author: POPOVICH, Judge:

text:
    511 A.2d 171
    COMMONWEALTH of Pennsylvania v. Clyde Eugene HILL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 16, 1986.
    Filed June 4, 1986.
    Petition for Allowance of Appeal Denied Dec. 18, 1986.

      Clyde E. Hill, in propria persona.
    Katherene Holtzinger-Conner, Deputy District Attorney, Harrisburg, for Com., appellee.
    Before WICKERSHAM, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the court below which dismissed without a hearing the Post Conviction Hearing Act petition which had been filed by appellant, Clyde Hill. We affirm.

The complicated procedural history of this case reveals the following:

On October 18, 1973, appellant was convicted of two (2) counts of murder of second degree by a jury under the old Crimes Code. Appellant received consecutive terms of life imprisonment. No post-verdict motions were filed. A direct appeal to the Supreme Court followed, and the judgments of sentence were affirmed. Commonwealth v. Hill, 453 Pa. 349, 310 A.2d 88 (1973). (Hill I).

On May 9, 1977, appellant filed a pro se PCHA petition and appellant was granted the opportunity to file post-verdict motions nunc pro tunc. These motions were denied by the court en banc and appellant launched another direct appeal to the Supreme Court. Commonwealth v. Hill, 492 Pa. 100, 422 A.2d 491 (1980). The Supreme Court transferred the matter to a special Superior Court panel which affirmed the judgment of sentence. Commonwealth v. Hill, 273 Pa.Super. 118, 416 A.2d 1117 (1979). Appellant’s petition for allowance of appeal was granted, and our Supreme Court affirmed the judgment of sentence by an equally divided Court. Commonwealth v. Hill, 492 Pa. 100, 422 A.2d 491 (1980) (Opinion in Support of Reversal by Roberts, J., joined by O’Brien and Flaherty, JJ.) (Hill II).

In March of 1982, appellant instituted habeas corpus proceedings in the federal district court, which denied appellant relief. Hill v. Zimmerman, 542 F.Supp. 700 (M.D.Pa.1982). On appeal, the United States Court of Appeals for the Third Circuit vacated the order of the federal district court in order that appellant might pursue his claim in the state court system. Hill v. Zimmerman, 709 F.2d 232 (3rd Cir.1983), cert. denied, 464 U.S. 940, 104 S.Ct. 354, 78 L.Ed.2d 318 (1983).

On June 22, 1983, appellant filed a petition for reconsideration nunc pro tunc with our Supreme Court in order to have counsel appointed or for further post conviction relief. On August 22, 1983, our Supreme Court granted appellant’s petition for the appointment of counsel and referred the matter “to the Court of Common Pleas of Dauphin County for the Appointment of Counsel and expedited PCHA proceedings.” “ORDER OF COURT” Record # 19. Counsel was appointed, and a supplemental PCHA petition was filed and denied without a hearing.

Appellant then filed another pro se petition with the Supreme Court for writ of habeas corpus or for supervisory certification of appeal which was transferred to our Court for disposition. On November 1, 1984, we directed that the appeal should be considered as if timely filed. This Court dismissed the appeal on March 26, 1985, due to a failure to file briefs. On July 22, 1985, we granted appellant’s petition for reconsideration and directed the appellant to petition for the appointment of counsel or to file a brief pro se. Counsel was appointed, and, as a result, the matter is ripe for reconsideration.

Appellant raises the following issues: (1) whether trial counsel was ineffective for failing to object to the trial court’s instruction that appellant had the burden of proving insanity and for failing to object to the court’s instruction on malice; (2) whether appellant was deprived of his right to due process because the trial court instructed the jury that appellant had the burden to prove the elements of the murder charge; (3) whether trial counsel was ineffective for failing to object to the psychiatrist’s comment which was elicited by the prosecution regarding the possibility that appellant could commit a crime again; (4) whether trial counsel was ineffective for soliciting testimony regarding the non crimen falsi prior convictions of the appellant; and (5) whether prior PCHA counsel was ineffective for failing to allege due process violations which were inherent in the trial court’s instruction to the jury regarding the presumption of malice.

Under the applicable Post Conviction Hearing Act which was in effect at the time of appellant’s petition, the following was provided:

§ 1180-3. Eligibility for relief
To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under section 5 (§ 1180-5) and must prove the following:
(d) That the error resulting in his conviction and sentence has not been finally litigated or waived.
§ 1180-4. When an issue is finally litigated or waived (a) For the purpose of this act, an issue is finally litigated if:
(1) It has been raised in the trial court, the trial court has ruled on the merits of the issue, and the petitioner has knowingly and understanding^ failed to appeal the trial court’s ruling; or
(2) The Superior Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue and the petitioner has knowingly and understanding^ failed to avail himself of further appeals.
(3) The Supreme Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue.
(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.
Additionally, an issue is waived if
(1) The petitioner knowingly and understanding^ failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
19 P.S. § 1180-4.

In this case, the issues were not addressed at the Supreme Court level in Hill II because that Court found that trial counsel’s failure to object timely to the insanity charge rendered the issue waived. However, the merits of the insanity issue were addressed at the Superior Court level. In appellant’s previous appeal to this Court, we stated:

During the trial of appellant, Clyde Eugene Hill, in 1973, the jury was charged, without objection by the defense, that appellant had the burden of proving the defense of insanity by a preponderance of the evidence. Subsequent to appellant’s conviction the Supreme Court of Pennsylvania held that it is error to place such a burden on a defendant. Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974). Appellant in this appeal from the judgment of sentence contends, as he did in nunc pro tunc post-verdict motions, that his judgment of sentence should be reversed and a new trial granted because the burden of proving insanity was placed upon him.
The issue before us is whether appellant is entitled to have the law of Demmitt, supra, applied to his case. This specific issue was before the Supreme Court of Pennsylvania in Commonwealth v. Ernst, 476 Pa. 102, 381 A.2d 1245 (1977). Six justices of the Supreme Court considered the Ernst appeal. The six justices agreed, although for different reasons, that an appellant is entitled to the benefit of the Demmitt decision if during trial an objection was entered to the charge placing the burden of proving insanity on the accused.
The six justices, however, did not agree as to whether the benefit of Demmitt was to be accorded to an appellant at whose trial no objection was entered to the charge placing the burden on the accused. Three justices, Justices O’Brien, Roberts and Manderino, joined in an opinion by Justice Roberts which expressed the view that all convictions, whether or not prior to Demmitt, must be reversed if the burden of proving insanity was placed on the accused. Chief Justice Eagen and Justice Pomeroy joined in an opinion by Justice Pomeroy expressing the view that in cases prior to Demmitt relief should be given only if the defense had objected to the burden of proof charge when given during an accused’s trial. Justice Nix, the sixth justice sitting in the Ernst appeal, joined in the result which denied relief to appellant Ernst.
Although a majority of the seven members of the Supreme Court have not as yet expressed a view on whether a conviction should be reversed when the burden of proof as to insanity is erroneously placed without objection, on the accused, the appellant in Ernst, similarly situated to appellant before us, we denied relief. Accordingly, we likewise deny relief to the present appellant. In doing so, however, we urge that the Supreme Court again consider the issue raised in Ernst by granting a petition for allowance of appeal in this case, should one be filed, so that a controlling decision may be reached in the matter. See also Commonwealth v. Colbert, 476 Pa. 531, 383 A.2d 490 (1978); Commonwealth v. Lynch, 477 Pa. 390, 383 A.2d 1263 (1978); Commonwealth v. Rose, 57 Pa. 380, 21 A.2d 880 (1974).

Because the Superior Court addressed the merits of the insanity issue and because that decision has not been disturbed by our Supreme Court, the insanity issue has been finally litigated. See Commonwealth v. Thomas, 335 Pa.Super. 323, 327, 484 A.2d 155, 157 (1984) (“Since these issues were fully considered on direct appeal, they were fully litigated and not open to collateral attack.”)

Appellant also argues that trial counsel was ineffective for failing to object to the trial court’s instruction on malice. Normally, this issue would have been waived because of appellant’s failure to raise the issue previously. 19 P.S. § 1180-4(c) (“There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.”)

However, the record establishes that appellant had been represented by the Public Defender’s Office of Dauphin County at trial and during his first direct appeal to the Supreme Court, which was in 1973. Additionally, the court appointed private counsel to assist appellant in framing the issues which were not presented in his first post conviction petition. However, because the Public Defender’s Office assisted appellant’s first private counsel in prosecuting the petition and because appellant objected to this arrangement, the court allowed appellant the opportunity to file post-trial motions nunc pro tunc. The court also appointed second private counsel in order to assist appellant. Appellant’s second private counsel represented appellant from January, 1978 up to and including his second direct appeal to the Supreme Court (Hill II), which occurred in 1979.

Appellant argues that extraordinary circumstances exist which justify his failure to raise the issue of trial counsel's ineffectiveness previously. According to appellant, prior PCHA counsel’s ineffectiveness constitutes extraordinary circumstances “[s]ince present counsel was appointed after the denial by the lower court of the petitioner’s Post Conviction Hearing Act petition, the present appeal is the earliest stage in the proceedings at which counsel who[se] ineffectiveness is being challenged no longer represented] the Appellant.” Brief for Appellant at 30. Because the record does indicate that this is the first stage in the proceedings in which prior PCHA counsel, appellant’s second private counsel, no longer represented the appellant, the issue is preserved. Commonwealth v. Seachrist, 478 Pa. 621, 387 A.2d 661 (1978).

In analyzing the merits of the malice issue, we must examine the following which was given by the trial court:

“There is a fundamental principle of our system of criminal law and that is that the Defendant is presumed innocent. The mere fact that he was arrested and is accused of a crime is not any evidence against him. Furthermore, the Defendant is presumed innocent throughout the trial unless and until you conclude based on a careful and impartial consideration of the evidence that the Commonwealth has proven him guilty beyond a reasonable doubt.

“It is not the Defendant’s burden to prove that he is not guilty. Instead, it is the Commonwealth that always has the burden of proving each and every element of the crime charged and that the Defendant is guilty of that crime beyond a reasonable doubt. Indeed, the person accused of a crime is not required to present evidence or prove anything in his own defense except in this particular trial where the Defendant raises a defense of insanity, and in that situation the burden rests on the Defendant to prove to your satisfaction that defense. I will come to that in a few minutes.

“Although the Commonwealth has the burden of proving that the Defendant is guilty, that does not mean that the Commonwealth must prove its case beyond all doubt or to a mathematical certainty, nor must it demonstrate the complete impossibility of innocence. A reasonable doubt must fairly arise out of the evidence that was presented or out of the lack of evidence presented with respect to some element of the crime. A reasonable doubt must be a real doubt. It may not be an imagined one, nor may it be a doubt manufactured to avoid carrying out an unpleasant duty.

“So, to summarize, you may not find the Defendant guilty in this or any other case based on a mere suspicion of guilt. The Commonwealth has the burden of proving the Defendant guilty beyond a reasonable doubt. If it meets that burden, then the Defendant is no longer presumed innocent and you should find him guilty. On the other hand, if the Commonwealth does not meet its burden, then you must find him not guilty.

“Ladies and Gentlemen, in a homicide case the Commonwealth has the burden of proving beyond a reasonable doubt (1) that a death has occurred, (2) that the death resulted from a criminal agency, and (3) that the Defendant is legally responsible for the death. The burden is upon the Commonwealth to prove the Defendant guilty beyond a reasonable doubt, as I have told you.

“The Defendant in this case, as you know, is charged with the crime of murder and I have just read to you the Statute relating to the charge of murder. You will note that the Statute does not define the word ‘murder’. It just tells you what murder is, first degree and second degree.

“Since it is your important duty to determine first the guilt or innocence of the Defendant on the charge contained in the indictments it becomes the Court’s duty to explain to you the law applicable to murder. Murder is described to be when a person of sound memory and discretion unlawfully kills any reasonable creature in being under the peace of the Commonwealth with malice aforethought express or implied. The distinguishing criterion of murder is malice aforethought, but it is not malice in the ordinary understanding alone. Ordinarily, you think of malice as a particular spite, a grudge, or a particular ill will. Malice is a legal term and implies much more. It comprehends not only a particular ill will, but every case where there is a wickedness of disposition, hardness of heart, cruelty, recklessness or consequences and a mind regardless of social duty, although a particular person may not be intended to be injured.

“Murder, therefore, at common law embraces cases where no intent to kill existed, but where the state or frame of mind termed ‘malice’ in its legal sense prevailed.

“Sometime ago, as I pointed out, the Legislature of Pennsylvania considered that there was a manifest difference in the degree of guilt where a deliberate intention to kill existed on the one hand and where no deliberate intention to kill appeared on the other hand. So the Legislature divided murder into two degrees — murder in the first degree and murder in the second degree.

“I have read to you that the Act of 1939, the Criminal Code, defines a willful, deliberate and premeditated killing to be murder in the first degree.

“In this case before you can find the Defendant guilty of murder in the first degree it will be necessary for you to find that the murder was perpetrated by the Defendant by a willful, deliberate and premeditated killing. So, naturally, I must define that for you. What does the law mean when it says ‘willful, deliberate and premeditated?’

“Under the provisions of the law it has been held that the intention to kill is the essence of the offense. Therefore, if an intent to kill exists, it is willful. If the intention is accompanied by such other circumstances as evidence a mind fully conscious of its own purpose and design to kill and to select the instrument or to frame the plan to carry this design into execution, it is premeditated.

“The law fixes no length of time as necessary to form the intention to kill, but leaves the existence of a fully formed intent as a fact to be determined by the jury from all the facts and circumstances of the case.

“The Supreme Court has said this, and I quote: “It is true that such is the swiftness of human thought that no time is so short in which a wicked man may not form a design to kill and frame the means of executing his purpose. Yet this suddenness is opposed to premeditation and a jury must be well convinced upon the evidence that there was time to deliberate and premeditate. The law regards, and the jury must find, the actual intent, that is to say, the fully formed purpose to kill with so much time for deliberation and premeditation so as to convince them that their purpose is not the immediate offspring of rashness or impetuous temper, and the mind has become fully conscious of its own design.”

“So, Ladies and Gentlemen, if there be time to frame in the mind fully and consciously the intention to kill and to select the weapon or means of death and to think and know beforehand, though the time be short, the use to be made of it, there is time to deliberate and premeditate.

“As I pointed out before, the proof of the intention to kill and the disposition of mind to constitute murder in the first degree, the proof of that lies on the Commonwealth, but that proof need not be expressed or positive. It can be inferred from all the facts and circumstances of the case. If from all the facts attending the killing the jury can fully and reasonably and satisfactorily infer the existence of the intention to kill and the malice of heart with which it was done, they will be warranted in so doing.

“In this connection on the charge of first degree murder and the intention to kill, I must charge you that under the Law of Pennsylvania he who uses upon the body of another at some vital part with a manifest intention to use it upon him a deadly weapon such as an ax, a gun, a knife, or a pistol, must in the absence of qualifying facts be presumed to know that his blow is likely to kill, and knowing this, must be presumed to intend the death which is the probable and ordinary consequence of such an act. He who uses a deadly weapon without a sufficient cause of provocation must be presumed to do it wickedly or from a bad heart.

“Ladies and Gentlemen, it necessarily follows from what we have said that all murder which is not of the first degree is necessarily murder of the second degree. That includes all unlawful killings under circumstances of depravity of heart and disposition of mind regardless of social duty, but where no intention to kill exists or can be reasonably and fully inferred. Therefore, in all cases of murder, if no intention to kill can be inferred or collected from the evidence and circumstances, the verdict must be murder in the second degree.

“Ladies and Gentlemen, the Defendant has suggested and mentioned to you the subject of voluntary manslaughter. What is voluntary manslaughter? That is defined to be the unlawful killing of another without malice express or implied. Voluntary manslaughter often so nearly approaches murder it is necessary to clearly differentiate. The difference is this: Manslaughter is never attended by legal malice or depravity of heart, that condition or frame of mind before spoken or exhibiting wickedness of disposition, recklessness of consequences and cruelty. Therefore, to reduce an intentional blow, stroke or wounding resulting in death to voluntary manslaughter there must be sufficient cause of provocation and a state of rage or passion without time to cool placing the Defendant beyond the control of his reason and suddenly impelling him to the deed.

“If any of these be lacking, that is, if there be provocation without passion or passion without provocation, or if there is time to cool and reason, or if there is time to cool and reason has resumed its way, the killing will be murder. Our Pennsylvania Supreme Court in a recent decision has said this: ‘The unlawful killing to be voluntary manslaughter must take place in the heat of passion before the blood has had time to cool off, and that passion must be produced by a legally sufficient provocation.’ By ‘passion’ of course we mean anger, fear, rage or terror.

“The Supreme Court has said that in order for a killing to be reduced from murder to voluntary manslaughter the evidence must establish that the killing was perpetrated in the heat of passion, yet that passion must be the result of provocation that would incite a reasonable man into such a frenzied condition. The provocation, in short, must be legally adequate.

“Our highest Court has said that no words nor meer gestures however false, foul or insulting will free a party killing from the guilt of murder, nor will slight or trivial injuries although they amount to an assault, or in some cases even a blow. In other words, Ladies and Gentlemen, insulting or scandalous words are not sufficient cause of provocation nor are actual indignities to the person of a light and trivial kind. You will keep that in mind when you consider the evidence in this case.

“The Defendant has asserted the defense of insanity. Insanity which exists at the time of an alleged crime is a complete defense to the crime. The Defendant has the burden of proving an insanity defense by a fair preponderance of the evidence. By a preponderance of the evidence we mean that if you take all the evidence on this particular issue and balance it out, if it tips ever so slightly in favor of the Defendant, he has sustained the preponderance of the evidence.

“The term ‘insanity’ has a special meaning in the Criminal Law. Abnormal conditions which medical science might regard as mental illness do not necessarily amount to what the law regards as insanity. The legal test or definition of insanity is this: ‘A person is insane if at the time of committing an act he is as the result of mental disease unable to understand the nature and quality of his act or to distinguish between right and wrong with respect to that act.’ Stated more simply, a person is insane if at the time of committing an act and as a result of mental disease he was either incapable of knowing what he was doing, or if he did know what he was doing, [sic] was incapable of judging that it was wrong to do so. The term ‘mental disease’ in this test means a disease or infirmity of the mind as distinguished for example from a mere deficiency of character, temper or social adjustment. The critical time when insanity must exist in order to be a defense is at the time when the alleged criminal act was committed.”

(N.T. at 269-275) (Emphasis added).

According to appellant, the trial court’s instruction was unconstitutional under federal law because the prosecution was not required to prove malice in order to establish appellant’s murder conviction beyond a reasonable doubt. Instead, appellant argues, “[b]y its very words, it made proof of use of a gun conclusive proof of the distinct element of malice aforethought without independent satisfaction of the Commonwealth’s burden on the issue.” Brief for Appellant at 18.

At the time of appellant’s trial, the instruction which was given represented a correct statement of law in Pennsylvania. Commonwealth v. O’Neal, 441 Pa. 17, 271 A.2d 497 (1970); Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970).

Even appellant concedes as much in his brief when he states:

Although the portion of the charge quoted in the text was made during an explanation of first-degree murder, it set forth a presumption both of intent, an element of first degree murder, and malice, an element of all murder. Thus, in repeating the charge, the court stated:
“Our Courts have said that he who uses a deady weapon without a sufficient cause of provocation must be presumed to do it wickedly or from a bad heart. That is the essence, Ladies and Gentlemen, of a willful, deliberate and premeditated killing, wherein against the essence of the killing is killing with malice aforethought where you find an intent to kill.”
The instruction of a dual presumption was in accord with Penna. law. See Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970); Commonwealth v. Green, 294 Pa. 573, 144 A. 743 (1929).

Brief for Appellant at 16, ftn. 4.

The state of the law in Pennsylvania which was in effect at the time of appellant’s trial has been set forth as follows:

this Court has consistently held that the use of a gun on a vital part of the deceased’s body raises the presumption that the defendant shot with the intent to kill the deceased. Commonwealth v. Gidaro, 363 Pa. 472, 70 A.2d 359; Commonwealth v. Chapman, 359 Pa. 164, 58 A.2d 433; Commonwealth v. Scott, 284 Pa. 159, 130 A. 317. However, the inference or presumption that arises from the intentional use of a deadly weapon on the vital part of the body of another human being is merely a factual presumption. In the absence of any other evidence as to the defendant’s intent, it is sufficient to sustain a finding of murder in the first degree. When evidence is introduced to overcome or rebut this presumption, the question of defendant’s intent becomes one for the triers of fact. The triers of fact may, however, consider the presumption along with all other credible evidence presented on the issue of intent. Commonwealth v. Gibbs, 366 Pa. 182, 76 A.2d 608; Commonwealth v. Gidaro, 363 Pa. 472, 70 A.2d 359, supra; Commonwealth v. Wucherer, 351 Pa. 305, 41 A.2d 574; Commonwealth v. Kluska, 333 Pa. 65, 3 A.2d 398; Commonwealth v. Troup, 302 Pa. 246, 153 A. 337; Commonwealth v. Green, 294 Pa. 573, 144 A. 743; Tiffany v. Commonwealth, 121 Pa. 165, 15 A. 462.
Commonwealth v. Ewing, 439 Pa. 88, 91, 264 A.2d 661, 663 (1970) (Emphasis in original).

However, because appellant has raised the malice issue under the rubric of counsel’s ineffectiveness, we must examine appellant’s claim under our two prong test. First, we must determine if the issue counsel failed to raise is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Then, if the issue is of arguable merit, we must determine if counsel had a reasonable basis for not raising the issue. Id.

In examining the arguable merit of this particular issue, the case of Commonwealth v. Stanton, 316 Pa.Super. 397, 463 A.2d 19 (1983) is controlling. In Stanton, the defendant contended that counsel was ineffective for failing to object to a jury charge during a murder trial which also occurred under the old Crimes Code. According to Stanton, the trial court’s charge “created either a conclusive or mandatory presumption that a killing which results from a voluntary act is malicious and is murder in the second degree. Such presumptions would constitute reversible error under County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), and Sand- strom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).” Id., 316 Pa.Superior Ct. at 400, 463 A.2d at 21.

The objectional jury charge contained the following language:

Now, if you find that this killing by the defendant resulted from a voluntary act without justification or excuse, the presumption is that the killing is malicious. Therefore, being presumed to be malicious, the killing would be presumed to be murder. All unlawful malicious killings are murder, but it is only where the elements of first degree murder have been proved to your satisfaction that a conviction for that degree could be had.

The court further instructed the jury:

In all unlawful killings without justification or excuse, where the act of slaying was voluntary, the presumption is that it is murder of the second degree only and the burden is upon the Commonwealth to prove that it is first degree murder.

Id., 316 Pa.Superior Ct. at 398-399, 463 A.2d at 20-21.

We further commented:

In our evaluation of appellant’s contention, we note that “[t]his Court has consistently held that, in reviewing jury instructions for prejudicial and reviewable error, the charge must be read and considered as a whole ... Error cannot be predicated on isolated excerpts of the charge. It is the general effect of the charge that controls.” Commonwealth v. Woodward, 483 Pa. 1, 4, 394 A.2d 508 (1978) (citations omitted).
In reviewing the whole charge, we first conclude that the court’s instruction in the second paragraph quoted above simply served to distinguish for the jury the difference between first and second degree murder.
The only presumption a reasonable juror could have interpreted the instruction as creating was that once murder was found, it was presumptively only second degree murder absent additional proof by the Commonwealth. Such a presumption certainly was not harmful to appellant, but was, if anything beneficial to him under the 1939 Penal Code.[*]
As to the first paragraph quoted above, we find that the effect of the whole charge was to create merely a permissive presumption of malice.[**] For example, the trial court specifically stated the following in its charge:
Now, the use of a weapon such as a firearm, against a vital part of a person’s body, such as the head or chest, is a fact from which you may infer the existence of malice.[***]
A permissive presumption is constitutionally valid if it can “be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57, 82 (1969). We have no difficulty in concluding with substantial assurance that malice is more likely than not to flow from the proof of an “unlawful killing without justification or excuse, where the act of slaying was voluntary.[”]
Appellant also argues that the questioned instruction shifted the burden of production or persuasion to appellant to show justification or excuse. Again, considering the entire charge, we believe the trial court clearly explained to the jury that the Commonwealth must prove all the factors upon which guilt may depend.
Therefore, we find that objections on the above grounds to the questioned portions of the charge would have been meritless. Since counsel cannot be found ineffective for failing to advance a meritless claim, Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), we find no merit to appellant’s first issue.
[*] The 1939 Penal Code, in effect at the time of the Fineman killing, provided for only two degrees of murder:
18 P.S. § 4701.
[**] A permissive presumption “allows — but does not require — the trier of fact to infer the elemental fact from proof ... of the basic one and ... places no burden of any kind on the defendant.” Ulster County, 442 U.S. at 157, 99 S.Ct. at 2224, 60 L.Ed.2d at 792.
[***] The testimony in this case revealed that appellant shot the victim in the head.
Id.

Similarly, we find that the jury instruction which was given during appellant’s trial on the issue of malice “was to create merely a permissive presumption of malice.” Id. The trial court reiterated that the prosecution had the burden of proving guilt beyond a reasonable doubt. Therefore, counsel cannot be found ineffective for failing to advance this claim. Id.

In any event, even if the issue is of arguable merit, counsel would have had a reasonable basis for not raising the issue sooner since the instruction was a correct statement of law at the time of appellant’s trial. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).

Appellant also argues that trial counsel was ineffective for failing to object to the psychiatrist’s comment and also for failing to solicit certain testimony regarding appellant’s convictions. Because these issues should have been raised sooner and also because appellant has failed to allege extraordinary circumstances for failing to raise the issues previously, these issues are deemed waived. Commonwealth v. Hubbard, supra.

Order is affirmed.

WICKERSHAM, J., did not participate in the consideration of nor decision in this appeal.

      . Act of June 24, 1939, P.L. 872, as amended, 18 P.S. § 4701, et seq. Murder of the second degree in this case would now be designated as murder of the third degree. See 18 Pa.C.S.A. § 2502(c). The trial judge in this case was the Honorable Richard B. Wickersham, who is now a member of this Court.

      . Act of January 25, 1966, P.L. (1965) 1580, § 1, 19 P.S. §§ 1180-1 et seq; repealed, Act of April 28, 1978, P.L. 202, No. 53 § 2(a) [1397]. The current Post Conviction Hearing Act is found at 42 Pa.C.S.A. §§ 9541 et seq. We note, however, that the result is the same under either Act.

      . This special panel consisted of Manderino, Watkins, and Cirillo, JJ. Justice Manderino filed a separate concurring opinion.


author: KELLY, Judge:

text:
    511 A.2d 180
    COMMONWEALTH of Pennsylvania v. Henry J. BAILEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1986.
    Filed June 3, 1986.

      Robert J. Donatoni, West Chester, for appellant.
    Joseph W. Carroll, III, Assistant District Attorney, West Chester, for Com., appellee.
    Before ROWLEY, MONTEMURO and KELLY, JJ.
   KELLY, Judge:

This case involves a direct appeal from judgment of sentence imposed upon appellant’s conviction of a variety of crimes in relation to an armed robbery of an AM/PM Mini Mart in Berwyn, Pennsylvania. The sole issue presented on appeal is whether the trial court abused its discretion in failing to grant the appellant’s pre-trial motion in limine with respect to a prior conviction for burglary. We find no abuse of discretion, and affirm.

On June 13, 1984, after a trial by jury, the appellant, Henry Bailey, was convicted of robbery, criminal conspiracy, theft, aggravated assault, recklessly endangering another person, terroristic threats and a violation of the Uniform Firearms Act. Post-trial motions were filed, argued, and denied.

On April 9, 1985, the appellant was sentenced to a term of imprisonment of seven (7) to twenty (20) years on the robbery conviction, four (4) to ten (10) years on the conspiracy conviction, and two (2) to five (5) years on the terroristic threats conviction. All sentences were to be served consecutively to each other and to the sentence he was currently serving for violation of parole on a previous robbery conviction.

The appellant contends that the trial court abused its discretion by ruling that a prior burglary conviction could be used for impeachment purposes. Faced with that ruling the appellant declined to take the stand.

The admissibility of evidence of prior convictions for the purpose of impeaching a defendant/witness is within the sound discretion of the trial judge and will not be reversed absent an abuse of discretion by the trial judge. Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978); Commonwealth v. Kearse, 326 Pa.Super. 1, 473 A.2d 577 (1984). In exercising its discretion, the trial court should consider the factors set forth by our Supreme Court in Roots, supra:

1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) The likelihood, in view of the nature and extent of the ■ prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecution’s case and the prosecution’s need to resort to the evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant’s credibility.

482 Pa. at 39-40, 393 A.2d at 367. The burden is upon the Commonwealth to show that the need for prior conviction evidence overcomes its inherent potential for prejudice. Id.

On June 12, 1984, a hearing was held in accordance with the dictates of Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), in order to determine whether any of the appellant’s prior convictions would be admissible for the purpose of impeachment. The appellant had prior robbery convictions in 1977 and 1983 in addition to the prior burglary conviction in 1979.

Upon review of the transcript of the hearing, we find that the court did, in fact, consider the factors specified in Roots, supra. It is also clear from the transcript that the court considered our ruling in Kearse, supra. The trial court weighed the arguments of counsel in terms of the Roots factors and decided that evidence of the prior burglary would be admissible for impeachment purposes but that the robbery convictions would not. We shall discuss each of the Roots factors, seriatim.

First, “burglary is a crime connoting ‘dishonesty’ by any definition.” Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971). See also Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976). Hence, evidence of a prior conviction for burglary is an appropriate basis for impeaching the credibility of a defendant witness under the first factor to be considered in the Roots test. Commonwealth v. Clark, 280 Pa.Super. 1, 421 A.2d 374 (1980); Commonwealth v. Herman, 271 Pa.Super. 145, 412 A.2d 617 (1979).

Second, the trial court ruled that only evidence of a single prior conviction for non-confrontational burglary would be admissible for the purpose of impeaching the defendant/witness. Thus, the trial court effectively neutralized the tendency of the appellant’s serious criminal record “to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged” by excluding evidence of the two previous robbery convictions. See Commonwealth v. Perrin, 484 Pa. 188, 398 A.2d 1007 (1979). We note that under similar circumstances this Court in Richardson, supra, upheld the decision of a trial court to allow evidence of two prior robbery convictions to be admitted for the purpose of impeaching the credibility of the defendant/witness in a robbery trial. In the instant case the learned trial judge was clearly solicitous of the appellant’s rights with respect to the second of the Roots factors.

Third, the appellant’s age and circumstances do not weigh in the appellant’s favor. The appellant was born on April 27, 1954. He has since accumulated a serious criminal record as an adult. He has prior robbery convictions in 1978 and 1983, as well as the 1979 burglary conviction. At the time of the instant offenses the appellant was on parole from a terroristic threats conviction and on probation for another robbery. He had been released from custody only seventeen days earlier. The day before the instant offenses were committed, the appellant committed another robbery which resulted in an additional conviction. Sentencing Transcript at 3-4.

The appellant was twenty-five years old at the time of his burglary conviction in 1979. At the time of the Bighum hearing in June of 1984, the burglary conviction was five years old. It should be noted that the use of the five year old conviction is the result of the trial judge’s solicitousness of the appellant’s interests and not subsequent good conduct by the appellant. Thus, it is apparent that neither the appellant’s age at the time of the prior burglary conviction nor the time between that conviction and the instant offenses attenuates the relevancy of the prior burglary conviction with respect to the third prong of the Roots test.

Fourth, even though the appellant was the only potential defense witness, the prejudicial effect of admitting the appellant’s criminal record did not completely outweigh the prosecution’s need for the impeachment evidence under the Roots test. Contrary to the contention of the appellant, the Commonwealth’s case was not overwhelming. The appellant was not caught “virtually red-handed” as in Roots, supra. No conclusive physical evidence linked the appellant to the crime. The only eyewitness who could identify the appellant was the victim, Timothy DiAntonio, an eighteen year old clerk who was held at gunpoint and tied-up during the course of the robbery.

The only corroborative evidence available to the Commonwealth was testimony of two bystanders that a green station wagon was at the convenience store at or about the time of the crime, and testimony of Officer Emelio that he stopped a vehicle of similar description operated by the appellant the day after the robbery. Given the number of green station wagons driven in America, this is hardly compelling evidence of guilt.

Had the appellant chosen to testify and flatly denied his guilt, the jury’s inquiry would have been boiled down to a single question of credibility. While the appellant, as the only potential defense witness, had a strong interest in presenting his story to the jury, the importance of the impeachment testimony to the Commonwealth’s case is likewise apparent. See Richardson, supra; Commonwealth v. Gallagher, 341 Pa.Super. 152, 491 A.2d 196 (1985). Moreover, the risk of unfair prejudice to the defendant was greatly minimized by excluding evidence of the prior robbery convictions. Compare Commonwealth v. Williams, 273 Pa.Super. 389, 417 A.2d 704 (1980) (admission of four prior robbery convictions in a robbery trial held to be an abuse of discretion).

Fifth and finally, the Commonwealth had no other means with which to impeach the appellant’s credibility. The appellant made no statements or admissions that could be used for impeachment purposes. Furthermore, the appellant made no proffer as to what his defense would have been had he testified. Thus, the Commonwealth was precluded from exploring the possibility of alternative methods of impeachment.

We find no abuse of discretion. The trial court was more than adequately solicitous of the appellant’s interests. In Perrin, supra, our Supreme Court stated:

It is apparent from this compromise ruling that the Court below weighed the prejudice inuring to the appellant from the introduction of his prior convictions and balanced that prejudice against those factors calling for admission of the appellant’s prior record. The procedures followed by the Court thus conform precisely to the approach we prescribed in Commonwealth v. Bighum, supra, and Commonwealth v. Roots, supra. It is also clear that there are legitimate considerations favoring admission of the appellant’s prior larceny convictions and that the Court’s compromise in permitting the Commonwealth to introduce only one of those convictions is neither manifestly unreasonable nor arbitrary.

484 Pa. 195, 398 A.2d at 1011. Likewise, we find the Court in the instant case properly balanced the Roots factors in allowing a prior burglary conviction to be admitted while excluding two prior robbery convictions. The appellant’s claim of abuse of discretion is, therefore, without merit.

Judgment of sentence is affirmed.

      . The Commonwealth argues that the appellant’s objection is moot, because the appellant did not testify. The Commonwealth cites Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed. 443 (1985). This argument was addressed and rejected in Commonwealth v. Richardson, 347 Pa.Super. 564, 500 A.2d 1200 (1985).