author: ROWLEY, Judge:

text:
    480 A.2d 266
    COMMONWEALTH of Pennsylvania v. Russell George CROLL, II, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1983.
    Filed July 6, 1984.

      Howard N. Stark, Allentown, for appellant.
    Robert F. Hawk, Assistant District Attorney, Butler, for Com., appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   ROWLEY, Judge:

This is a direct appeal from the judgment of sentence entered in the Court of Common Pleas of Butler County, following appellant’s conviction for sales of obscene material. Although we affirm appellant’s conviction, we vacate the judgment of sentence and remand for resentencing.

On March 10, 1981, Pennsylvania State Police Officers Joseph Rozum and Robert Martin entered the Adult Book Store in Penn Township, Butler County. In the rear of the store, they observed motion picture booths. The door of each booth bore a placard indicating the type of film shown therein. Officer Rozum entered one such booth, deposited twenty-five cents into a film projector, and watched performances of sexual acts between a woman and various animals. Officer Martin then viewed the film.

Subsequently, the officers approached appellant. Appellant and another individual, Robert Katz, were standing behind the sales counter; appellant was instructing Katz on the use of the cash register. When Officer Rozum expressed interest in the movie he had seen, appellant removed the film, wrapped in cellophane, from a display case. At that point, another individual pointed to a different film on display, and within appellant’s presence, explicitly described its sexual content, recommending it to the officers. Thereupon appellant removed the recommended film and handed it to Officer Rozum, who purchased it. Payment was tendered to appellant, who in turn handed the money to Katz to be deposited in the cash register. Officer Rozum also questioned appellant concerning the availability of women, or items involving teenagers, on the premises. Appellant stated that neither was available.

Following inquiry about a third film located in the display case, appellant proffered the film to Officer Martin. This film was similarly purchased. On March 31, 1981, Officer Rozum filed a criminal complaint against appellant, charging him with sales of obscene and other sexual materials, and criminal conspiracy. Although the magistrate had not viewed the films in question, a summons was issued and served on appellant. Represented by counsel, appellant appeared at the arraignment; no arrest warrant was issued. Formal arraignment was waived, and a trial date was set.

Prior to trial, appellant filed a motion to quash the information. Following an evidentiary hearing, the motion was denied. On September 28, 1981, appellant was tried before the Honorable George P. Kiester and a jury, and found guilty. Motions for a new trial or arrest of judgment were timely filed, and denied following oral argument. On April 19, 1982, appellant was sentenced to a two-year term of probation. One of the conditions of probation required payment of “a penalty of $10,000.00 for the use of the County of Butler.” One week later, a motion to modify the sentence was filed. Prior to the trial court’s disposition of that motion, an appeal was taken to this court.

On appeal, appellant claims that judgment should be arrested on the grounds that: (1) the statute is unconstitutional, (2) that the complaint was accepted and the summons issued without a showing of probable cause and (3) that the evidence was insufficient to support the verdict. In the alternative, appellant argues that he is entitled to a new trial because of errors committed during the selection of the jury and during the trial court’s instructions to the jury. Finally, appellant contends that he is entitled to a new sentencing hearing. Finding merit in only the last of appellant’s complaints, we will affirm the conviction but remand for resentencing.

I. MOTION IN ARREST OF JUDGMENT

a. Constitutionality

Initially, appellant argues that the obscenity statute is unconstitutionally vague. This question has, however, been considered and decided adversely to appellant by this Court. See Commonwealth v. Doe, 316 Pa.Super. 1, 462 A.2d 762 (1983). Appellant’s argument was ably refuted by Judge Johnson in that case. Appellant concedes that the Pennsylvania Act was amended “with slavish adherence to” the decision of the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, reh. denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973). In spite of that, he argues that “obscenity is impossible of definition” and that we should, therefore, “set a higher standard for the State of Pennsylvania in obscenity criminal matters.” Art. I, § 7 of the Pennsylvania Constitution provides, inter alia, that “[t]he free communication of thoughts and opinion is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.” The underlined portion of the section has been a part of Pennsylvania’s Constitutional heritage since 1790. Former President Judge Cercone of this Court, in discussing this provision, although in an equity proceeding for an injunction against the sale and distribution of obscene materials, said:

Since the case of Commonwealth v. Sharpless, 2 S. & R. 91 (1815) the courts of Pennsylvania have assumed that the publication of obscenity was a crime indictable at common law, part of our received jurisprudence, and hence not protected from prosecution for abuse of the liberty of free expression. We have found no authority in this Commonwealth that extends to obscene matter the limited right to exemption from prosecution or punishment for its publication, which right many other forms of expression enjoy under the second element of our Constitution’s free speech guarantee. Nor have we found authority in our case law which holds that matter cannot be enjoined from further publication once it has been determined to be offensive, where that determination has been made by a jury applying a definition of obscenity the vagueness of which is not contested.
It follows therefrom that there is in Pennsylvania no fundamental right to protection from prosecution for the publication of matter abusive of the right to free expression, viz. obscene matter. In short, obscenity does not enjoy the full protection of Art. I, § 7 of the Pennsylvania Constitution of 1874.

Long v. 130 Market St. Gift & Novelty, etc., 294 Pa.Super. 383, 400-401, 440 A.2d 517, 526 (1982) (Citations and footnotes omitted).

It is clear to us, and we therefore hold, that Art. I, § 7 of the Pennsylvania Constitution affords no greater protection from prosecution for the distribution and sale of obscene materials than do the First and Fourteenth Amendments to the United States Constitution.

b. Probable Cause

Next, appellant contends that his motion to quash should have been granted because the District Justice failed to view the films before accepting the Complaint and issuing the summons. As appellant notes, Pa.R.Crim.P. 134, directs the issuing authority to ascertain that probable cause exists, before issuance of a summons or arrest warrant. In determining whether probable cause exists to support prosecution under the obscenity statute, 18 Pa. Cons.Stat. § 5903, a judicial officer must, appellant contends, independently review the suspect materials to decide whether they are in fact obscene. Because this was not done here, he argues, the magistrate could not properly issue the summons.

We note that a preliminary hearing was conducted on May 6, 1981, at which time the issuing magistrate concluded that the Commonwealth had established a prima facie case and held appellant for court. Thus, this case is analogous to Commonwealth v. Krall, 452 Pa. 215, 304 A.2d 488 (1973). In Krall, a criminal complaint charging the defendant with burglary was filed before a justice of the peace, and an arrest warrant obtained. A preliminary hearing was then held before the same judicial officer, and the case was held for court. An “Application to Dismiss Charges” was subsequently filed in which the defendant alleged that the complaint and arrest warrant failed to provide the issuing authority with information from which she could have made a neutral and independent determination of probable cause for arrest. Following denial of the motion, the defendant was indicted, tried, and convicted of the burglary.

On appeal, Krall continued to assert the illegality of the arrest warrant, contending that all the proceedings which followed, including the trial and conviction, were therefore rendered nugatory. Recognizing that the “mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent indictment or information, by which the court acquires jurisdiction over the person of the defendant,” the Court refused to vacate the judgment of sentence. Commonwealth v. Krall, 452 Pa. at 219, 304 A.2d at 490 (Citations omitted.) As the Court concluded, once the issuing authority conducted a preliminary hearing, heard the Commonwealth’s witnesses, and determined in a neutral and independent manner that a prima facie case was established, the accused could not logically show that his detention (or his release on bail) was not supported by probable cause. In accord, see Commonwealth v. Walker, 243 Pa.Super. 388, 365 A.2d 1279 (1976), and Commonwealth v. Mills, 235 Pa.Super. 173, 340 A.2d 900 (1975).

In the instant case, appellant voices no objection to the manner in which the preliminary hearing was conducted, nor to the magistrate’s finding that the Commonwealth had made out a prima facie case. In light of Krall, supra, appellant will not now be heard to complain about the legitimacy of the magistrate’s initial determination that a summons should issue.

c. Sufficiency Of The Evidence

In testing the legal sufficiency of evidence to support a verdict, a reviewing court is not permitted to substitute its judgment for that of the fact finder, but is restricted to assessing the evidence in the light most favorable to the verdict winner and drawing all proper inferences that the evidence suggests in that party’s favor. Commonwealth v. Smith, 490 Pa. 374, 416 A.2d 517 (1980); Commonwealth v. Jones, 291 Pa.Super. 69, 435 A.2d 223 (1981). While, a criminal conviction may not be based upon mere surmise or conjecture, the Commonwealth’s burden in proving a criminal offense or the elements thereof may be sustained by means of wholly circumstantial evidence. Commonwealth v. Berrios, 495 Pa. 444, 434 A.2d 1173 (1981); Commonwealth v. Harrison, 289 Pa.Super. 126, 432 A.2d 1083 (1981). Moreover, it is within the province of the trier of fact, in a criminal prosecution, to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. So, too, the finder of fact is free to believe all, part or none of the evidence. Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980); Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979); Commonwealth v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1979).

This standard is equally applicable where some of the evidence is circumstantial rather than direct, as long as the combination of evidence links the accused to each element of the crime beyond a reasonable doubt. Commonwealth v. Meredith, 490 Pa. 303, 416 A.2d 481 (1980); Commonwealth v. Soltis, 311 Pa.Super. 195, 457 A.2d 562 (1983).

Appellant’s challenge to the evidence is three-fold. He claims that there is no evidence that the officers to whom the films were sold were over the age of seventeen, that his knowledge of the obscene character of the films has not been established, and that the Commonwealth failed to produce expert testimony concerning statewide community standards.

Appellant maintains that the Commonwealth failed to establish that the films were sold to persons over the age of seventeen. We cannot agree. During cross-examination, Officer Martin stated that he had been a state trooper for eleven years, and that at the time of trial he was thirty-three years old. Moreover, both officers testified at trial; the jury could reasonably have inferred from his appearance, demeanor, and position that Officer Rozum was also over seventeen years old. See Commonwealth v. Nelson, 320 Pa.Super. 488, 467 A.2d 638 (1983).

Appellant also challenges the adequacy of proof concerning his knowledge of the obscene nature of the films sold. This claim is equally without merit. We are guided here by the decision in Commonwealth v. Doe, 316 Pa.Super. 1, 462 A.2d 762 (1983). As in this case, the defendant in Doe did not examine the specific articles purchased, but merely processed the sale without viewing their contents. Nevertheless, the evidence was found sufficient to prove beyond a reasonable doubt that the defendant had reason to know, or inquire into the obscene nature of the material in question. In Doe, the defendant was the sole employee working within the store at the time of the sale, and had been employed there for a number of months. In addition, various sexual items were displayed in plain view throughout the store. Furthermore, although certain magazines were wrapped in clear cellophane so that their contents could not be viewed, the covers clearly displayed performances of sexual acts.

Here, appellant was acting in a supervisory capacity during the sales transactions. Moreover, the doors of the viewing booths clearly provided notice of the nature of the films available for sale. Additionally, appellant was party to a conversation in which the contents of at least one of the purchased films was explicitly described. Finally, appellant’s ability to answer specific questions concerning the availability of additional items within the store reflects his knowledge of the store’s merchandise. Thus, although each of the films tendered was wrapped in cellophane, the jury could nonetheless have reasonably inferred that appellant was aware of the character of the films sold to Officers Rozum and Martin.

Appellant’s final insufficiency claim focuses on the Commonwealth’s failure to produce expert testimony of statewide community standards. An identical contention was raised in Long v. 130 Market St. Gift & Novelty, etc., supra. As this court noted in Long, appellant’s position reflects a prior holding of the Pennsylvania Supreme Court. See Commonwealth v. LaLonde, 447 Pa. 364, 288 A.2d 782 (1972). Observing that Mr. Justice Eagen’s opinion in Commonwealth v. Rodgers, 459 Pa. 129, 327 A.2d 118 (1974), expressly overruled the LaLonde view, this Court concluded, per Judge Cercone, that motion picture films themselves

are enough evidence for a jury, in applying our statewide standard, to determine whether the average person would find the materials appealing to prurient interests.

Long v. 130 Market Street Gift, supra, 294 Pa.Super. at 393, 440 A.2d at 522.

Thus, appellant’s insufficiency argument fails here as well.

II. MOTION FOR A NEW TRIAL

a. Jury Selection

Turning to appellant’s arguments in support of his motion for a new trial, he first challenges the jury selection process, characterizing as error the trial court’s failure to individually and privately question the veniremen or permit defense counsel to personally question them.

Voir dire examination is designed to secure a competent, fair, impartial and unprejudiced jury. In pursuit of this objective, the right of a litigant to inquire into bias or any other subject which bears on the impartiality of a prospective juror has been generally recognized. Nevertheless, the scope and form of voir dire examination rests in the sound discretion of the trial judge, whose decisions will not be reversed absent a palpable abuse of discretion. Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982), cert. denied, 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983); Commonwealth v. Bossick, 305 Pa.Super. 196, 451 A.2d 489 (1982). See also Commonwealth v. Herron, 243 Pa.Super. 319, 365 A.2d 871 (1976), and Pa.R.Crim.P. 1106(d).

Prior to voir dire, Judge Kiester notified counsel of the particularized questions he had drafted. Defense counsel voiced no objections to the proposed questions, nor did he offer additional questions. Rather, counsel merely requested permission to personally question the prospective jurors. This request was denied.

Although the record does not disclose the total number of persons summoned, the entire panel of veniremen was present in the courtroom for selection of the jury. After twenty-six persons were called as prospective jurors for the case, Judge Kiester propounded general questions to all of the assembled members of the venire regarding their knowledge of the charges against appellant, and their ability to sit as fair and impartial jurors. The following more specific questions were also asked:

Has any member of the panel been involved in any way in the controversy over the Adult Book Store in Penn Township?
Have you visited or patronized the store?
Has any member of the panel picketed or protested the establishment of the store?
Have you publicly or privately stated a position for or against the operation of this adult book store?
Have you formed an opinion as to the guilt or innocence of the defendant from any publicity the case has received or for any other reason?

During this questioning, eleven of the twenty-six prospective jurors and seven members of the general array were excused for cause.

Upon conclusion of the court’s questioning, defense counsel renewed his request to personally conduct voir dire, which was again denied. Contending that the expressions of bias and prejudice by the seventeen individuals excused for cause must have influenced the remaining veniremen, counsel then moved for a mistrial. It is the denial of this motion that we now consider.

Appellant argues that the existence of seventeen veniremen who indicated their lack of impartiality constituted prejudice as a matter of law and impaired the impartiality of the jurors who finally heard the case. To alleviate or discover the full extent of this prejudice, the trial court was required, appellant maintains, to specifically ask the remaining jurors whether the numerous assertions of bias would affect their ability to fairly decide the case. Thus, he argues, the voir dire conducted by the trial judge was inadequate. He claims that jurors will, arguably, respond more candidly if questioned individually and privately, and that Judge Kiester should, therefore, have shifted to an individualized voir dire, in light of the responses initially elicited. Alternatively, appellant contends that the trial court erred in denying defense counsel an opportunity to extensively question the jury himself. We disagree.

The purpose of voir dire is to draw out any bias or prejudice, and thereby facilitate the removal of jurors with predisposed opinions. Here this objective was accomplished. Following brief statements of disapproval of the proliferation of “adult” establishments, or admissions that petitions to the same effect had been signed, seventeen persons were excused. Yet appellant now complains about these disapproving comments, arguing that consequently the remaining jurors were “tainted.” However, appellant provided no evidence supportive of his contention that references to the petitions influenced the remaining veniremen. Although at one point defense counsel alluded to the circulation of petitions within Butler County, no petition was ever presented to the trial judge. Moreover, it was not shown that those jurors who had not signed the petitions were aware of their content, or that the petitions in any manner referred to appellant. Furthermore, the excused jurors’ references to the petitions were not inflammatory. Each juror merely voiced his distaste or attested to the signing of a petition; there were no lengthy denunciations of this type of commercial activity, nor were opinions as to appellant’s guilt stated. Finally, we note that assessment of the demeanor of potential jurors is within the province of the trial judge. Commonwealth v. Bachert, supra. Judge Kiester conducted the examination of the jurors, and to his satisfaction, all who were selected pledged their ability to fairly and impartially consider the case. While eighteen jurors were dismissed for cause, this by no means suggests a community so consumed with sentiment against appellant as to “impeach the indifference of jurors who displayed no animus of their own.” Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589, 596 (1975), quoted in Commonwealth v. Bachert, supra, 499 Pa. at 411, 453 A.2d at 938. Thus, we find no evidence in the record that any of the seated jurors harbored a reservation that would prevent discharge of their duty in accordance with their oath. Accordingly, we find no palpable abuse of discretion here.

Emphasizing the number of jurors openly disdainful of adult book stores, appellant would have us presume prejudice. Since this determination is one of law and not dependent on the trial judge’s observation of the demeanor of the potential jurors, it is subject to ordinary review, rather than the strict standard of palpable error. Commonwealth v. Rough, 275 Pa.Super. 50, 418 A.2d 605 (1980). We find, however, that no error was committed in refusing defense counsel’s requests.

The law recognizes the impossibility of requiring that jurors be free from all prejudices, and demands only that a prospective juror accept his sworn responsibility and attempt to reach a decision solely on the facts presented at trial. Commonwealth v. Rough, supra. Thus, it would be jurisprudentially unsound to endorse a rule of law proscribing every circumstance which provides an opportunity for the exercise of an untoward influence, without the necessity of establishing that there was in fact prejudice resulting from the event. Commonwealth v. Richardson, 476 Pa. 571, 383 A.2d 510 (1978). In exceptional circumstances, however, the “potentiality” of prejudice has resulted in the award of a new trial.

Where prospective jurors were exposed for long periods of time to individuals whose interest in the outcome of the case was unquestionably antagonistic to the position of the accused, reversal has been warranted. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972), cert. denied, 417 U.S. 949, 94 S.Ct. 3078, 41 L.Ed.2d 670 (1974). In Turner, supra, two deputy sheriffs who provided key testimony leading to the defendant’s conviction had charge of the jury during the three-day trial and fraternized with them outside the courtroom during the performance of their duties. Although there was no proof that the deputies spoke to the jurors about the case itself, the Court concluded that it “would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution.” Turner, 379 U.S. at 473, 85 S.Ct. at 550, 13 L.Ed. at 429. In Stewart, supra, the accused was charged with first degree murder. Prior to trial, defense counsel was informed by a juror that the victim’s father had been a member of the panel from which the trial jury was selected, and that the father had been in the same room with the trial jury for as long as two and one-half days. Although when asked during voir dire whether they knew anyone connected with the case each juror responded negatively, “the possibility still remain[ed] that some incident occurred during their association ... with the victim’s father, which was so inherently prejudicial that it rendered impartiality impossible.” Id., 449 Pa. at 57-58, 295 A.2d at 307.

Prejudice has also been presumed in cases where the jury has been made aware of an accused’s prior criminal record. For example, in Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209, cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973), the defendant was tried in connection with the killing of a seminarian and a local attorney. The incident received extended media coverage, which included reports by the authorities that the accused was the confessed triggerman, and had a record of violent crimes. Nonetheless, a request for a change of venue was denied. On appeal, our Supreme Court reversed, holding that the nature of the accounts released by the police were so “inherently prejudicial” that the defendant need not have shown a nexus between the publicity and actual jury prejudice, and hence he did not have the burden of showing identifiable prejudice. Mr. Justice Eagen was also concerned with the source of the prior record information.

Statements such as those of the police and the prosecutor in this case create an even more substantial risk of a denial of a fair trial, because of the position in the community these individuals hold, and also suggest an official disregard of safeguards inherent in a fair trial.

Id., 451 Pa. at 198, 303 A.2d at 214.

Similarly, in Commonwealth v. Bobko, 453 Pa. 475, 309 A.2d 576 (1973), a trial booklet which indicated that the defendant was under indictment for charges unrelated to the present proceeding was distributed to the jury. Possession of that material might well have predisposed the jury to believe the defendant guilty, the Court observed, thereby denying him the presumption of innocence. Thus, a new trial was granted.

Cases discussing “inherent prejudice” are concerned, then, with prejudicial information as applied in particular circumstances, not with prejudice in the abstract. See Commonwealth v. Romeri, 504 Pa. 124, 470 A.2d 498 (1983). The circumstances here do not support a finding of prejudice. Here fellow jurors whose only connection with the case resulted from their call to jury duty responded to a few questions asked by the trial judge. Each was immediately removed sua sponte. Thus, this case does not involve any relationships between the veniremen and the case due to familial, financial, or situational ties with the parties, counsel, or witnesses. Furthermore, no reference was made to any other allegedly criminal activity on appellant’s part. In fact, as noted above, nothing in the record suggests that appellant himself was in any way referred to by those jurors excused. Cf. Commonwealth v. Bachert, supra (Where no juror who was impaneled had read the article in question, it could hardly be said that such publicity denied appellant the opportunity for a fair trial) and Commonwealth v. Dolhancryk, 273 Pa.Super. 217, 417 A.2d 246 (1979) (Where news reports related to co-defendant’s trial, and thus court could not conclude that the reports conveyed information prejudicial to defendant, no abuse of discretion was found.)

On these facts, we do not find or presume prejudice. Accordingly, we affirm the trial judge’s decisions regarding the appropriate scope and form of voir dire in the instant case.

b. Jury Instructions

Appellant’s next challenge is directed to the jury instructions. Contending that the trial judge did not properly define the term “average person” as used in the obscenity statute, appellant asserts error. In reliance on Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977), appellant notes that the reactions of a sensitive or callous minority are not to be considered in determining whether a given work is obscene, and thus, Judge Kiester should have specifically explained this aspect of the standard to the jury.

This objection was not timely raised, however, and thus has not been preserved for appellate review. Rule 1119(b), Pa.R.Crim.P., states

No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate...
(Emphasis added.)

As noted in Commonwealth v. Rineer, 310 Pa.Super. 241, 456 A.2d 591 (1983), compliance with Rule 1119(b) advances the purpose underlying the Rule — ensuring that the trial court is given an opportunity to avoid error. Review of the record in the instant case demonstrates that defense counsel did not specifically object to the omission. Although objections were raised concerning the trial court’s definitions of “prurient interest” and “sexual conduct,” the evidence of a sale by the defendant, and the Commonwealth’s reference to the media as setting the applicable standard, the objection now before us was not specifically articulated. Appellant’s “general exception to the charge” did not suffice to apprise the trial judge of the claimed error as required by Rule 1119(b), and thus is not now reviewable.

III. SENTENCE

Lastly, appellant contests the propriety of the sentence. Specifically, he questions the imposition of the $10,-000.00 fine as a condition of probation in the instant case.

The Sentencing Code provides:

The court shall not sentence a defendant to pay a fine unless it appears of record that:
. (1) the defendant is or will be able to pay the fine; ...
In determining the. amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.

42 Pa.Cons.Stat. § 9726(c) and (d).

The transcript of the sentencing hearing indicates that appellant, a high-school graduate, was then earning $190.00 a week (net) as a clerk at the Adult Book Store, and was regularly paying support for two children. Yet, with these few facts before him, and without inquiring into appellant’s ability to pay a substantial penalty, a $10,000.00 fine was imposed. As the transcript reveals, the sentencing judge assumed the existence of an agreement or understanding between appellant and his employer, to the effect that the employer would pay any penalty imposed upon conviction. Explicitly postponing a determination of appellant’s ability to comply with this probationary term, the trial court continued:

Should you fail to pay the penalty and costs within a reasonable period of time, a violation hearing of course will be conducted which will make inquiry into the entire matter of ability to pay and responsibility to pay.

(Sent.Transc., April 19,1982, p. 19.) See Commonwealth v. Watson, (J. 07029/84, filed April 13, 1984).

Accordingly, pursuant to 42 Pa.Cons.Stat. § 9726(c) and (d), we vacate the sentence and remand for resentencing in accordance with this opinion.

Judgment of sentence vacated. Case is remanded for resentencing.

Jurisdiction is relinquished.

      . Subsequently, the conspiracy charge was nol prossed.

      . Appellant’s motion to modify sentence was denied on July 26, 1982, some three months after appellant had filed an appeal to this court. A second appeal was then filed on August 23, 1982. In that Notice of Appeal, appellant indicated that the appeal was taken from the April 19, 1982 judgment of sentence and the July 26, 1982 order denying the motion to modify. We note this here merely to point out the procedural inaccuracy of such an action. Defense counsel quite properly filed an appeal within thirty days following entry of the judgment of sentence, despite the pendency of the motion to modify sentence. The second Notice of Appeal was, then, superfluous; at the time the motion to modify was denied, the trial court no longer had jurisdiction in this matter, given the filing of the original Notice of Appeal.

      . Judge Kiester focused on the fact that a warrant had not been issued for appellant’s arrest, distinguishing between Rule 102 (Use of Summons or Warrant of Arrest in Court Case) and Rule 119 (Requirements for Issuance of Arrest Warrants). Because Rule 119 explicitly states that no arrest warrant shall issue but upon probable cause, and Rule 102 is silent as to probable cause, the trial judge concluded that . Pennsylvania requires a finding of probable cause only prior to issuance of arrest warrants. In light of the language of Rule 134, we find this analysis unpersuasive.

      . The preliminary hearing transcript has not been certified to this court as part of the original record. However, Judge Kiester’s Memorandum and Order, filed on September 23, 1981, which disposed of appellant’s motion to quash, refers to the preliminary hearing, and its result. As neither the Commonwealth nor appellant has disputed the facts as set forth therein, we rely on that statement of events.

      . Nor, logically speaking, could appellant question the magistrate’s determination at the preliminary hearing, given the subsequent verdict, and our disposition of appellant’s sufficiency claims, discussed herein.

      . The Commonwealth argues waiver here. However, appellant did file written post-trial motions, albeit in boiler-plate form, challenging the sufficiency of the evidence. Although such a cursory presentation would be inadequate today in light of Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983), we nonetheless find that appellant adequately preserved this contention in this case.

      . The son-in-law of one juror was “involved in law enforcement,” and thus that juror was excused upon stating that he would therefore be biased in favor of the Commonwealth.

      . We view the circumstances leading to a change of venue request, and those resulting in a motion for a mistrial on the basis of the jury’s receipt of prejudicial pre-trial information, as analogous. We note, incidentally, that a change of venue was not requested in the present case.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    480 A.2d 276
    NATIONWIDE INSURANCE COMPANY OF DELAWARE, Appellant v. William F. ENDERLE and Margaret Enderle, his wife.
    Superior Court of Pennsylvania.
    Argued March 6, 1984.
    Filed July 6, 1984.
    Reconsideration Denied Sept. 14, 1984.
    Petition for Allowance of Appeal Granted March 26,1985.
    Michael Yanoff, Lansdale, for appellant.
    Edward S. Lawhorne, Media, for appellees.
    Before ROWLEY, MONTEMURO and JOHNSON, JJ.
   PER CURIAM:

This is an appeal from judgment entered on a case stated. In reviewing a decision from a case stated, we are confined to the facts presented to the court by the parties, and we cannot go outside of the case stated for facts, nor assume them by way of inference. Wiest v. Mount Lebanon School District, 457 Pa. 166, 320 A.2d 362 (1974), U.S. cert. den. 419 U.S. 967, 95 S.Ct. 231, 42 L.Ed.2d 183 (1974). Thus, the original case stated is essential to our reviewing function.

The record transmitted to this court does not contain the original case stated; nor do the certified docket entries show the filing of such a document in the lower court. Absent the original case stated, we are unable to determine whether the court below properly rendered judgment upon the case stated submitted to it for decision.

Appeal dismissed.


author: BECK, Judge:

text:
    480 A.2d 276
    COMMONWEALTH of Pennsylvania, Appellant, v. Larris FRAZIER. COMMONWEALTH of Pennsylvania, Appellant, v. Eugene BECKMAN, a/k/a Eugene Beckham.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1983.
    Filed July 13, 1984.
    Reconsideration Denied Sept. 11, 1984.

      Marianne E. Cox, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Daniel M. Preminger, Philadelphia, for Frazier, appellee. Richard E. Johnson, Philadelphia, for Beckman, appellee.
    Before McEWEN, BECK and MONTEMURO, JJ.
   BECK, Judge:

Appellees Larris Frazier and Eugene Beckman were convicted of third-degree murder and possession of an instrument of crime in the drug-related shooting of Frederick Armour. The Commonwealth brings the instant appeal from an order awarding a new trial to appellees on the ground that certain statements made by the Commonwealth’s attorney in closing argument constituted impermissible prosecutorial misconduct. We find that the remarks in question did not deny appellees a fair trial and accordingly reverse.

During the Commonwealth’s summation, the assistant district attorney made three allegedly objectionable series of statements:

[First] Mr. Preminger [defense counsel] says to you: Oh, Mr. Frazier, people see him. He goes up visiting to the Richard Allen Projects. Richard Allen Projects, when you can’t even get the water to run and rats and roaches, he’s over here dressed like he’s out of Gentlemen’s Quarterly, pinstripes — what’s he doing up the projects every day?
[Second] You’ve heard testimony from all the witnesses. Clara Sims, Kelvin Wellmaker, Jitter, Mrs. Spates. One thing they’ve all said that every time they’ve seen him, he’s in the Richard Allen Projects.
THE COURT: Every time—
MR. WILLIAMS [prosecutor]: every time they see the defendant Frazier he’s in the Richard Allen Projects.
It is for you to draw the inference as to what that means.
[Third] Remember what Clara Sims said he said? Nobody comes down here and takes things from me and make me look bad.
It’s the Commonwealth’s contention that the killing of Smiley [victim Frederick Armour] was not done of course on a dark night in a dark alley somewhere, which it probably could have been done. You don’t make an example out of somebody by murdering them in a dark alley when only two of you are there. What kind of impression does that make? You do it in front of other people to make an example.
Nobody comes down here, meaning Richard Allen Projects, and make me look bad. Well, what does that mean? It’s for your determination as to what that meant.

N.T. 1784, 1786, 1789-90.

Although the trial court denied Frazier’s immediate motion for a mistrial, it granted Frazier’s post-verdict motion for a new trial which alleged prosecutorial misconduct. Holding that the prosecutor’s comments were equally prejudicial to both appellees, the court awarded the new trial to both.

Our standard of review in this case is defined by the Supreme Court’s holding in Commonwealth v. White, 482 Pa. 197, 199, 393 A.2d 447, 449 (1978): “As with a denial of a motion for new trial, so with the grant of such a motion, our review is limited to ascertaining whether the lower court abused its discretion or committed an error of law.” Even with our review so limited, we are compelled to reverse.

Appellees argue that the foregoing remarks taken as a whole characterized appellee Frazier as a major drug dealer and invited the jury to speculate further along those lines, all of which worked to appellees’ prejudice. Appellees maintain that the prosecutor thereby breached a pretrial agreement designed to avoid tainting the proceedings with evidence of drug use and drug sales other than the specific transaction which allegedly was the source of the hostilities between Frazier and the victim. The Commonwealth’s position is that the assistant district attorney’s remarks were an entirely proper discussion of the evidence of Frazier’s motive for the killing.

With respect to the third portion of the remarks quoted, we agree with the Commonwealth. This discussion of Clara Sims’ testimony that Frazier had threatened the victim saying “Nobody comes down here ... and make [sic] me look bad” is no more than an accurate review of the evidence coupled with a suggestion that the jury could infer motive from that evidence. The prosecutor is always permitted to discuss the evidence and suggest reasonable inferences to be drawn therefrom. Commonwealth v. Tucker, 461 Pa. 191, 335 A.2d 704 (1975); Commonwealth v. Womack, 307 Pa.Super. 396, 453 A.2d 642 (1982). There is no hint in this remark of any extraneous drug-related activity or any other irrelevant matters. We disagree with the trial court’s assessment that these remarks were “inflammatory and prejudicial.”

We find the second series of statements relating to Frazier being seen at the Richard Allen projects proper. In Commonwealth v. Tabron, 502 Pa. 154, 160, 465 A.2d 637, 640 (1983), our Supreme Court recognized that “we have frowned upon attempts to cause the jury to consider facts other than those raised in the particular case before it,” but cautioned that “fairness dictates that the prosecution must also have a degree of latitude in the exercise of advocacy in its position.” The prosecution in the instant case did not exceed those bounds of fair advocacy. In part, the prosecutor’s remarks are justified as rebuttal to the defense’s closing argument. Counsel for appellee Frazier had argued somewhat cryptically in summation that the Commonwealth witnesses had chosen to identify Frazier as one of the perpetrators in a fabricated version of events because he was a frequent visitor to the Richard Allen Homes project and his name and face were familiar to them (N.T. 1772-73). Allegedly improper comments in closing arguments must be evaluated in their full context, including the defense closing. Commonwealth v. Brown, 490 Pa. 560, 417 A.2d 181 (1980).

The first set of remarks containing the “Gentlemen’s Quarterly” comment regarding Frazier’s attire is not responsive to the defense summation and so is not covered by the foregoing reasoning. We find, though, that it is comparable to the kind of sarcastic remark which we found not to be prejudicial in Commonwealth v. Ashmore, 266 Pa.Super. 181, 403 A.2d 603 (1979) (prosecutor commented “He wasn’t raped either” during defense cross-examination of a Commonwealth witness and later pointedly withdrew the word “Gentlemen” when reformulating a question which referred to the defendant). In addition, immediately following the remark, the trial court gave cautionary instruction to the effect that the attorneys in closing may suggest inferences to be drawn from the evidence, but the jury is not required to accept the suggested inferences (emphasis added). See Ashmore, supra, 266 Pa.Superior Ct. at 189, 403 A.2d at 607 (“The nature of the reference coupled with the curative instructions of the court were such as to dissipate the harm.”).

The relatively mild comments in the instant case did not prejudice the jury by stigmatizing the defendant. Compare Commonwealth v. Baranyai, 296 Pa.Super. 342, 442 A.2d 800 (1982) (improper to characterize police officer defendant as “a punk behind a badge,” a “Buford Pusser,” and a “Clint Eastwood” who used “Gestapo tactics”).

The prosecutor did not express a personal opinion as to appellees’ guilt of the crimes charged. Neither did he make any direct reference to other criminal conduct of appellees, i.e., involvement in the illegal narcotics trade. Notwithstanding appellees’ arguments to the contrary, even the implications of the remarks in question do not amount to a characterization of Frazier as a drug dealer unless one engages in the most tenuous of reasoning. Even viewed in the light most favorable to appellees, this single comment does not approach in quality the egregious course of conduct held improper in Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978), where the prosecutor repeatedly described the defendant as a “cocaine pusher” and “cocaine distributor” and hypothesized that “there is some child whose body is being polluted right now by those drugs.” We also note Commonwealth v. Rivera, 470 Pa. 131, 367 A.2d 719 (1976), in which the prosecutor’s reference to the defendant as a “junkie” was held not to require a mistrial.

Even if we were to find that the “Gentlemen’s Quarterly” comment was improper, we do not agree that a new trial is indicated. Not every improper or intemperate remark by the prosecutor mandates a new trial; rather, a new trial is necessary only if “the unavoidable effect [of the comments] would be to prejudice the jury, forming in their minds fixed bias and hostility towards the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Dreibelbis, 493 Pa. 466, 477-78, 426 A.2d 1111, 1117 (1981), quoting Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975); Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979). We hold that the prosecutor’s closing remarks in this case did not deprive appellees of a fair trial.

It is therefore clear that the trial court misapplied the law when it granted a new trial. The closing remarks of the prosecutor could not and did not create in the minds of the jury a fixed prejudice or bias against either appellee which deprived them of a fair trial.

The order granting a new trial is reversed and the case remanded for sentencing. Jurisdiction is relinquished.

ORDER

And Now, this 11th day of September, 1984 Appellee’s “Motion to Amend Judgment”, which this court shall treat as a petition for reconsideration, is denied because the time period for reconsideration has expired. It is the understanding of this Court, however, that neither this Order nor our Order of July 13, 1984, which remains in force, precludes the trial court from entertaining and disposing of any post-verdict motions properly before the court prior to sentencing.

      . Only the first two comments were the subject of objections by defense counsel. The third comment was quoted by the lower court in its opinion and apparently formed part of the basis for its decision. See infra note 3.

      . Although the pretrial conference in which this agreement was reached is not of record, its existence was mentioned during the trial and the substance of the evidentiary restrictions was discussed by the lower court in its opinion. See Lower Court Opinion at 4-6.

      . Lower Court Opinion at 7. Neither defense counsel objected to these remarks at trial. Normally, failure to make a timely objection acts as a waiver of a claim of prosecutorial misconduct. Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Dobson, 302 Pa.Super. 57, 448 A.2d 92 (1982). Therefore, the trial court was not in a position to grant relief based on these statements even if they were objectionable. We therefore base our conclusion first on waiver, but even absent waiver, we would hold that these remarks were not inflammatory and prejudicial.

      . This opinion discusses the issues primarily with reference to appellee Frazier because the comments in question referred only to Frazier. The prosecutor did not characterize or even name Beckman in these remarks. Hence, it follows from our conclusion that Frazier was not prejudiced that Beckman also was not denied a fair trial. Frazier properly raised the issue of prosecutorial misconduct upon which the post-verdict court granted relief. Beckman raised only boilerplate motions before the post-verdict court. In light of the fact that the lower court granted relief to both Frazier and Beckman on the same issue, we have reviewed the issue as to both appellees and deny them both relief.


author: BECK, Judge: JOHNSON, Judge,

text:
    480 A.2d 281
    Joseph WALACAVAGE, v. EXCELL 2000, INC., Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1984.
    Filed July 27, 1984.

      Richard Wagner, Schuylkill Haven, for appellant.
    Joseph H. Jones, Jr., Pottsville, for appellee.
    Before CIRILLO, BECK and JOHNSON, JJ.
   BECK, Judge:

This case requires us to consider whether a corporation may appear in court and be represented by a corporate officer and shareholder who is not an attorney. We hold that a corporation may not be represented by a person who is not an attorney in our courts.

We have before us consolidated appeals stemming from two separate actions involving two different transactions between the parties. In No. 3416 Philadelphia 1982 (“No. 3416”), appellee Joseph Walacavage (“Walacavage”) sued appellant Excell 2000, Inc. (“Excell”) on a loan from Walacavage to Excell, alleging that Excell had failed to make any payments. The case proceeded to trial without a jury; the court found for Walacavage in the amount of $17,-605.47. Excell appeals from the judgment entered on the verdict. In No. 590 Philadelphia 1983 (“No. 590”), Walacavage brought an action against Excell, claiming that Excell had breached a partnership agreement between it and Walacavage regarding the purchase of a parcel of land. Excell appeals from an order of the lower court granting Walacavage’s preliminary objections in the nature of a motion to strike the preliminary objections of Excell and accordingly dismissing Excell’s preliminary objections to Walacavage’s complaint. We affirm the court below at No. 3416 and quash the appeal at No. 590.

Both of Excell’s appeals present serious procedural defects. In No. 3416, appellant Excell filed no exceptions to the decision of the trial judge. Under Pa.R.C.P. 1038(d), “matters not covered by exceptions are deemed waived.” Therefore, appellant has preserved no issues for appellate review, and we must affirm the judgment. Knisely v. Knisely, 295 Pa.Super. 240, 441 A.2d 438 (1982).

In No. 590, Excell has attempted to take an appeal from an interlocutory order. The court’s order is in effect no more than an order dismissing Excell’s preliminary objections. Such an order is not final; neither party is put out of court. We have consistently held that an appeal does not lie from an order dismissing preliminary objections which do not raise a question of jurisdiction. See, e.g., Balter v. Balter, 284 Pa.Super. 350, 425 A.2d 1138 (1981); 2401 Pennsylvania Avenue Corp. v. Southland Corp., 236 Pa. Super. 102, 344 A.2d 582 (1975). Therefore, the appeal at No. 590 is interlocutory and must be quashed.

The underlying issue, one of first impression in Pennsylvania, is whether the trial court erred in denying Excell, a corporation, the right to be represented in court by a non-lawyer who in this case was a corporate officer.

All of Excell’s pleadings, motions, and briefs filed with both the lower court and this Court are signed by Richard J. Wagner, who describes himself as the “President and Stockholder” of Excell. Wagner is not a member of the bar of this or any other jurisdiction. In No. 3416, the court corresponded with Wagner before trial regarding Excell’s need for counsel. At trial, the court neither granted Wagner permission to conduct Excell’s defense nor prevented him from doing so; rather, the court informed Wagner that he would expose himself to the risk of criminal prosecution for the unauthorized practice of law if he cross-examined witnesses or called any witnesses on Excell’s behalf. Wagner responded that he had no intention of practicing law without a license and he remained silent at the trial except for making a few generalized objections to the proceedings.

In No. 590, appellee Walacavage objected to Excell’s preliminary objections on the ground that Wagner as a layman was without authority to plead on Excell’s behalf. The court agreed that Excell’s preliminary objections were not properly presented for this reason and dismissed them.

Excell argues that it has the right to appear “pro se” through Wagner. Excell therefore contends that its failure to file exceptions to the trial judge’s decision in No. 3416 resulted from the court’s improper threats of criminal prosecution and should be disregarded by this Court. In No. 590, Excell argues that the court erred in dismissing its preliminary objections on the grounds that Wagner could not act for Excell. Excell maintains that the trial court’s actions violated Excell’s rights to due process and equal protection of the laws secured by the Fifth and Fourteenth Amendments to the United States Constitution, and that the court practiced “invidious discriminatory animus” against Excell in violation of the federal civil rights statutes, specifically 28 U.S.C. § 1343.

Excell’s claims are meritless. Although the question has never been directly addressed by our appellate courts, we find that the law is clear. The federal courts and the courts of our sister states have consistently held that a corporation may appear in court only through an attorney at law admitted to practice before the court. See, e.g., Simbraw, Inc. v. United States, 367 F.2d 373 (3rd Cir.1966); MOVE Organization v. Department of Justice, 555 F.Supp, 684 (E.D.Pa.1983); MacNeil v. Hearst Corp., 160 F.Supp. 157 (D.Del.1958); Merco Construction Engineers, Inc., v. Municipal Court, 21 Cal.3d 724, 581 P.2d 636, 147 Cal.Rptr. 631 (1978); Oahu Plumbing & Sheet Metal, Ltd. v. Kona Construction, Inc., 60 Haw. 372, 590 P.2d 570 (1979).

The reasoning behind the rule is that “a corporation can do no act except through its agents and that such agents representing the corporation in . Court must be attorneys at law who have been admitted to practice, are officers of the court and subject to its control.” MacNeil, supra; 160 F.Supp. at 159. This rule holds even if the corporation has only one shareholder. Shamey v. Hickey, 433 A.2d 1111 (D.C.App.1981).

The Shamey court further explained that the purpose of the rule was “not the protection of stockholders but the protection of the courts and the administration of justice,” and that a person who accepts the advantages of incorporation for his or her business must also bear the burdens, including the need to hire counsel to sue or defend in court. Id. at 1113, quoting from Mercu-Ray Industries, Inc. v. Bristol-Myers Co., 392 F.Supp. 16, 17 (S.D.N.Y.), aff’d., 508 F.2d 837 (2d Cir.1974).

The policy underlying the rule was best summarized by the Third Circuit in Simbraw, quoting from the opinion of the District Court: “ ‘The confusion that has resulted in this case from pleadings awkwardly drafted and motions inarticulately presented likewise demonstrates the wisdom of such a policy.’ ” 367 F.2d at 375. We agree with this statement, and we note that it accurately describes the instant case. Excell’s pleadings and briefs are rambling, and their averments and arguments are often improperly framed or simply irrelevant. Wagner’s inept handling of Excell’s case has resulted in the failure to present an effective defense at the trial level, and premature and otherwise defective appeals at this level — all problems which a skilled attorney could have avoided.

The two exceptions to this rule are inapposite. First, some states have established special small claims courts with informal rules of procedure in which corporate as well as individual litigants are permitted or even required to appear without an attorney. See, e.g., Merco Construction Engineers v. Municipal Court, supra; Oahu Plumbing & Sheet Metal v. Kona Construction, Inc., supra. No such special statutes or rules are involved in the instant case.

Secondly, an exception exists for stockholder’s derivative actions. In Willheim v. Murchison, 206 F.Supp. 733 (S.D.N.Y.1962), appeal dismissed, 312 F.2d 399 (2d Cir.1963), the federal court held that a non-lawyer individual stockholder plaintiff may proceed pro se on the theory that it is the stockholder’s own action even though brought for the corporation’s benefit. The instant appeals are not stockholder’s derivative actions. Nor has Walacavage attempted to “pierce the corporate veil” and assert claims against Wagner individually. Wagner himself has consistently purported to act solely as Excell’s representative. Therefore, Willheim is irrelevant to this case.

Excell’s constitutional claims have also been considered and disposed of by other courts. In Oahu Plumbing, supra., the Hawaii Supreme Court rejected due process and equal protection claims. In Turner v. American Bar Association, 407 F.Supp. 451 (S.D.Ala., N.D.Ind., D.Minn., W.D.Pa., N.D.Tex., W.D.Wis.1975), a consolidation of many similar actions across the nation, the district court rejected the non-lawyer plaintiffs’ claims that denying them the right to represent others in court violated federal civil rights and antitrust statutes, as well as numerous constitutional provisions. Several plaintiffs had also alleged jurisdiction under the Magna Carta, the United Nations Charter, “the Common Law,” and the like; the court found these claims frivolous.

Finding the above-cited federal and state decisions persuasive, we hold that it is likewise the law of Pennsylvania that a corporation may appear and be represented in our courts only by an attorney duly admitted to practice. We further hold that this requirement does not deny corporations due process or the equal protection of the laws. Neither does it deprive corporations or their officers and shareholders of any other constitutional or statutory rights they enjoy as corporate and natural persons, respectively. Accordingly, Excell is entitled to no special or additional relief on these grounds.

The judgment at No. 3416 Philadelphia 1982 is affirmed. The appeal at No. 590 Philadelphia 1983 is quashed.

JOHNSON, J. files a concurring statement.

JOHNSON, Judge,

concurring:

I agree with the majority that the order from which the appeal is taken at No. 3416 Philadelphia, 1982 should be affirmed in that failure to file exceptions to the decision of the trial judge results in a waiver. I also agree that the appeal at 590 Philadelphia, 1983 involves an interlocutory order and must be quashed. Therefore, I see no need to address and take no position regarding any further issues as to whether a corporation can be represented in either the trial court or this court by a corporate officer and shareholder who is not an attorney.

      . Rule 1038(d) was rescinded October 19, 1983, effective January 1, 1984, and replaced by new Rule 227.1. The procedure in the instant case is governed by Rule 1038(d) because the trial took place in 1982.

      . Although Excell characterizes one of its exceptions as a “petition raising question of jurisdiction," the objection actually consists only of a frivolous claim that the complaint is fatally defective because the docket number of the case was omitted from the caption. Such a claim is not jurisdictional in nature.

      . In Phoenix Mutual Life Insurance Co. v. Radcliffe on the Delaware Inc., 439 Pa. 159, 266 A.2d 698 (1970), the Supreme Court held that the corporate defendant/appellant would not be heard to complain on appeal that the trial court erred in allowing the trial to proceed when the corporate defendant was "represented” only by a non-lawyer officer who had clearly been authorized to act by the two other stockholders of the corporation. This holding was based on the principle that the trial court could have allowed the case to proceed to judgment if the defendant had failed to appear at all rather than on any belief that the lay representation was an adequate or proper appearance. The court also expressed approval in dictum of the rule that corporations may not appear in court except by counsel. Nevertheless, Phoenix Mutual is not a holding on the precise issues raised by Excell in the instant case.

      . A narrowly defined exception exists for certain small claims in the Philadelphia Municipal Court. Rule 113(d) of the Rules of the Philadelphia Municipal Court provides that "A corporation must be represented by an attorney, except where the corporation is a defendant and damages are not in excess of 1300.00.”

      . This holding, of course, does not affect the validity of any exception provided for by statute or rule. See supra note 4.


author: JOHNSON, Judge:

text:
    480 A.2d 285
    Richard V. SIRIANNI, Individually and as Administrator of the Estates of Nancy Landis Sirianni, a/k/a Nancy L. Sirianni and Baby Boy Sirianni, a/k/a Luca Landis Sirianni v. NUGENT BROTHERS, INC. and City of Philadelphia and Paul Rimmeir and Carmen Fichera. Appeal of Paul RIMMEIR. Richard V. SIRIANNI, Individually and as Administrator of the Estates of Nancy Landis Sirianni, a/k/a Nancy L. Sirianni and Baby Boy Sirianni, a/k/a Luca Landis Sirianni v. NUGENT BROTHERS, INC. and City of Philadelphia and Paul Rimmeir and Carmen Fichera. Appeal of CITY OF PHILADELPHIA.
    Superior Court of Pennsylvania.
    Argued March 7, 1984.
    Filed July 27, 1984.

      Richard A. Kraemer, Philadelphia, for appellant (at No. 2063) and for appellee (at No. 2390).
    Sarah C. Makin, Assistant City Solicitor, Philadelphia, for appellant (at No. 2390) and for appellee (at No. 2063).
    Stephen G. Console, Philadelphia, for Nugent, appellee.
    Before ROWLEY, MONTEMURO and JOHNSON, JJ.
   JOHNSON, Judge:

The City of Philadelphia and Paul Rimmeir have brought two separate appeals from the order of the Honorable Lawrence J. Prattis denying their separate requests for indemnity for their respective liabilities in tort for the unfortunate accident that resulted in the death of Nancy and Luca Landis Sirianni. In this consolidated opinion, we have undertaken to decide both appeals. We affirm.

On August 11, 1977, Mrs. Nancy Sirianni and the unborn child of the Siriannis were killed when a party wall, located between 1027 and 1029 North Third Street, Philadelphia, collapsed upon Mrs. Sirianni during the demolition of the adjoining properties at 1027 North Third Street. Following the death of his wife and unborn child, Mr. Sirianni filed an action in trespass under the wrongful death and survival statutes naming as defendants the City of Philadelphia, Paul Rimmeir, and Nugent Brothers, Inc. Subsequently, Paul Rimmeir joined Carmen Fichera as an additional defendant.

The case proceeded to trial on February 17, 1981. The jury rendered a verdict in favor of Mr. Sirianni. In answer to special interrogatories, it found that Paul Rimmeir, Nu-gent Brothers, and the City had been negligent and that their negligence was a substantial factor in causing Mrs. Sirianni’s death. The jury also concluded that the negligence of the City and Nugent Brothers was not an intervening and superseding cause so as to relieve Paul Rimmeir of liability. The jury found Nugent Brothers to be 50% negligent. The jury set the percentages of negligence for Paul Rimmeir and the City to be 25% respectively. Carmen Fichera was not found liable. The jury’s verdict is not challenged in these appeals.

Although there is no indication in the record, it is apparent that the questions of indemnity were to be decided by the trial judge upon the whole record after the jury’s verdict. Indemnity was sought by Paul Rimmeir from the City and Nugent Brothers and by the City from Paul Rimmeir and Nugent Brothers. The trial judge concluded that neither the City nor Paul Rimmeir were entitled to indemnity. The trial judge found that both were concurrent tortfeasors and, as such, were not entitled to indemnity. He also concluded that the enactment of the Comparative Negligence Act, 42 Pa.C.S.A. § 7102, abrogated the remedy of indemnity altogether.

After examining the record of the Sirianni case, we have concluded that neither the City nor Paul Rimmeir were without active fault in the death of Mrs. Sirianni.

The remedy of indemnity is a device for shifting liability from one tortfeasor to another. Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 467 A.2d 615 (1983). The key indemnity case in Pennsylvania is Builder’s Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951). In McCabe, our Supreme Court set forth the law of indemnity as follows:

The right of indemnity rests upon a difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable____ [The difference between primary and secondary liability] depends on a difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person.
[Secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible. In the case of concurrent or joint tortfeasors, having no legal relation to one another, each of them owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a primary and secondary one, even though one may have been very much more negligent than the other. The universal rule is that when two or more contribute by their wrongdoing to the injury of another, the injured party may recover from all of them in a joint action or he may pursue any one of them and recover from him, in which case the latter is not entitled to indemnity from those who with him caused the injury.

Id., 366 Pa. at 325-26, 328, 77 A.2d at 370-71 (emphasis in original).

At trial it was established that since 1976, the properties adjoining the Sirianni property had deteriorated and had fallen into disrepair. In March of 1977, Paul Rimmeir had rented the properties to Carmen Fichera under a lease purchase agreement. The agreement permitted Fichera to demolish the buildings on the properties at his own expense. Fichera did not have the financial resources to hire a demolition contractor so, in the summer of 1977, Fichera began hand demolition of the structures on the properties with the help of a few men he had enlisted for what little money he could pay and his permission to keep the materials after the demolition.

On one occasion, Rimmeir stopped by the properties during Fichera’s demolition work, and agreed to allow Fichera to use his rent money to pay his workers so that demolition could continue. During the demolition, Fichera sold the brick fronts of the building to an unidentified individual, the bricks to be picked up as the demolition proceeded. Allegedly without Fichera’s knowledge and consent the facades were pulled off the building leaving them “open faced” to the street. After the fronts were taken, Fichera’s men ceased working for him because they couldn’t go upstairs to do anything.

Although Mr. Fichera indicated he did not speak to Rimmeir about the progress of the work, his deposition indicated that he had told Rimmeir that his men had stopped working. Sometime after Fichera’s men quit, a City Building Inspector, after viewing the premises, filed a dangerous building report finding the partially demolished buildings to be in an imminently dangerous condition and recommending immediate demolition.

There was ample evidence presented at trial that the partially demolished premises were left “unstable” and in a very dangerous condition.

Following their inspection the City slated the properties for emergency demolition and solicited telephone bids from contractors on the emergency demolition list. Nugent Brothers, Inc. was awarded the bid. The City allowed Nugent Brothers to begin work on August 11, 1977 even though it knew that Nugent Brothers did not have the proper insurance coverage, and having only used Nugent Brothers, Inc. on one prior occasion. Furthermore, the City did not adequately investigate Nugent. It called one reference in Montgomery County and allegedly spoke to a secretary at Philadelphia Redevelopment Authority where Nu-gent Brothers had been a qualified demolition contractor until removed from the list prior to the Sirianni accident. Moreover, the record reveals that a discrepancy existed about whether Nugent Brothers name was authorized to be included on the emergency demolition list prior to soliciting bids for the demolition.

On the morning of August 11, 1977, a city employee stopped by to see if Nugent Brothers had begun the work and departed after a short period of time. No qualified City inspector was available to check on Nugent as the regular inspector had been sick for quite some time. In the afternoon of August 11, 1977, Nugent Brothers negligently built a ramp of debris and used a bulldozer to run up the ramp and bang the party wall connecting the Rimmeir property and the Sirianni property. The decedent, Nancy Sirianni came out of 1029 North Third Street and told the foreman of Nugent Brothers that the party wall was shaking. She returned to her office after the foreman promised to be more careful. Within a few minutes, the party wall collapsed upon her.

Based on these facts the trial court charged on negligence principles including duties of possessors of land to adjoining parties for unsafe conditions, negligent selection of an independent contractor, the peculiar risk doctrine, whether Nugent Brothers exercised reasonable care in performing the demolition work, and whether the conduct of the City and Nugent Brothers was an intervening and superseding cause relieving Paul Rimmeir of liability.

The jury’s verdict affixing liability as to Nugent Brothers, Paul Rimmeir, and the City is indicative of their finding that the negligence of all parties actively contributed to the death of Mrs. Sirianni.

The jury’s verdict indicated that it considered the dangerous condition of the premises and improper demolition practices as concurring causes of the death of Mrs. Sirianni. That the dangerous condition of the property was considered an active contributing factor to Mrs. Sirianni’s death is indicated by the jury’s rejection of the intervening and superseding cause defense of Paul Rimmeir. Moreover, the jury could have found the City liable for both negligent selection of contractor, the peculiar risk doctrine, and failure to supervise the demolition. Any one of these theories would support the conclusion that the City’s negligent conduct was an active contributing factor to causing the accident. In short, the jury could have concluded that negligence of each of these parties was an integral part of the causation of the accident.

As both Paul Rimmeir and the City participated at trial, they are bound by the facts established in the record thereof. Builder’s Supply Co. v. McCabe, supra. Because those facts establish the active fault of both parties seeking indemnity, we hold that neither is entitled to indemnity. See Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 465 A.2d 1231 (1983); Builder’s Supply Co. v. McCabe, supra; Flynn v. City of Chester, 429 Pa. 170, 239 A.2d 322 (1968); see also Stearns v. Mt. Lebanon Township, 167 Pa.Super. 341, 74 A.2d 779 (1950); Golden v. Philadelphia, 162 Pa.Super. 247, 57 A.2d 429 (1948); Wright v. City of Scranton, 128 Pa.Super. 185, 194 A. 10 (1937).

The City also claims indemnity from Nugent Brothers, Inc. based upon contract. The City asserts that its contract with Nugent Brothers included the following indemnity provision found in the Standard Contract Requirements for the City’s Procurement Department:

Suits and claims. — Contractor agrees to indemnify, defend and save harmless, the City, all its officers and subordinates, from all suits and actions of every name, nature, and description brought against them or any of them for or on account of any damages or loss sustained by any party through the Contractor or his agents, servants or employees in the performance or subsequent to the completion of the work under the contract whether such injury or damage be due to the negligence or the inherent nature of the work or to the negligence of the City of Philadelphia, its servants, agents or employees. It is not the intention of this section or of anything herein provided to confer a third party beneficiary right of action upon any person whatsoever and nothing hereinbefore or hereinafter set forth shall be construed as to confer upon any person other than the City of Philadelphia a right of action either under this contract or in any manner whatsoever.

The City argues that this clause was incorporated into its demolition contract because the clause is expressly incorporated into the specifications governing all procedures and requirements which must be met by contractors receiving demolition work. Nugent Brothers argues that the City has “failed to explain, ... how various provisions from City manuals were incorporated into the contract between Nu-gent and the City____” Brief of Nugent Brothers (Appellee No. 2390 Philadelphia, 1982) at 16-17. Our review of the record convinces us that there is no evidence from which we may conclude that the indemnification clause asserted by the City is part of its demolition contract with Nugent Brothers.

We note initially that the record does not clearly indicate the entire procedure used by the City to award emergency demolition contracts. The testimony of John Kennedy at trial indicates that the City used a telephone bidding procedure to award emergency demolition. We have found no explanation of whether the contractual relationship between the City and Nugent Brothers was entirely oral, or whether there was a written memorial of the contract between them executed before the work began. Nothing in the record indicates that Nugent Brothers orally or otherwise agreed to perform the contract in accordance with the standard demolition specifications of the City or agreed to its standard contract requirements. Nor do we have any basis from which we can conclude that the course of dealings between the parties was such as to show Nugent Brothers’ assent to an indemnification provision. In short, we have found nothing in the record before us to substantiate the City’s argument that the indemnification provision was incorporated into the demolition contract between it and Nu-gent Brothers by reference.

The City cites Westinghouse Electric Co. v. Murphy, Inc., 425 Pa. 166, 228 A.2d 656 (1967) in support of its incorporation theory. However, this case is clearly distinguishable. In Westinghouse our supreme court concluded that the course of dealings between the parties showed that the defendant had assented to an indemnification provision. The evidence of course of dealings showed that in prior contracts between the parties assent to and the terms of the contract were manifested in the exchange of purchase orders and acknowledgments and that plaintiff’s purchase order expressly incorporated by reference an appendix containing an indemnification clause. Thus, the presence of a clear incorporation distinguishes Westinghouse from the instant case.

Absent some evidence that the indemnification clause was incorporated by reference, we cannot say that Nugent Brothers assented to indemnify the City and is thereby bound by an indemnification clause that would require Nugent Brothers to save the City harmless from liability caused by the City’s own negligence.

We note further that the City asked only for common law indemnity from Nugent Brothers in its motion for indemnity. However, we need not consider that claim as it was not asserted in this appeal.

Because of our disposition of the City’s contract indemnity claim, we need not consider whether the City waived the benefit of the clause, and we will not consider the City’s claim for damages based upon breach of contract to procure insurance as that claim is not addressed in the order from which this appeal has been taken or properly raised as an issue in this appeal.

Order affirmed.

      . Because we have found that neither party is entitled to common law indemnity we need not consider the question. We do not approve or disapprove of the court’s finding, but simply wait to consider it when it is again before us.

      . The incorporation provision in the Demolition Specifications reads as follows:
      APPLICABLE SPECIFICATIONS — The Standard Contract Requirements of the City of Philadelphia, issue of April, 1976, or latest revision, shall become part of the specifications. If the Special Specifications, the proposal, or the plans modify any of the Standard Contract Requirements or Standard Specifications, they shall supersede the portions of the Standard Contract Requirements or Standard Specifications with which they conflict. (Ref. Clause 15 Standard Contract Requirements.)


author: WICKERSHAM, Judge:

text:
    480 A.2d 291
    COMMONWEALTH of Pennsylvania v. Edward P. KALE, Sr., Appellant.
    Superior Court of Pennsylvania.
    Argued April 3, 1984.
    Filed Aug. 10, 1984.
    Petition for Allowance of Appeal Denied April 16, 1985.

      Bradford H. Charles, Lebanon, for appellant.
    Robert W. Feeman, District Attorney, Lebanon, for Com. appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   WICKERSHAM, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Lebanon County. Appellant, Edward P. Kale, was found guilty after a jury trial of criminal attempt to commit burglary. Post trial motions were filed and subsequently dismissed. On April 19, 1983, the Honorable Robert J. Eby sentenced appellant to serve a term of imprisonment of not less than three (3) to not more than ten (10) years. This timely appeal followed.

On appeal, appellant argues that: (1) the evidence was insufficient to support the verdict or, alternatively, the verdict was against the weight of the evidence; (2) his rights to counsel and due process were violated when he was represented at trial by an attorney whom he had previously alleged was incompetent; and (3) his trial counsel was ineffective. While we find appellant’s first two issues to be meritless, we are unable to decide appellant’s ineffectiveness claims on the record before us. Therefore, we must remand to the lower court for an evidentiary hearing on appellant’s ineffectiveness claims.

Appellant first argues that the evidence was insufficient to support the verdict.

To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978).

Commonwealth v. Frederick, 327 Pa.Super. 199, 210, 475 A.2d 754, 760 (1984), quoting Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).

Instantly, appellant was found guilty of attempting to burglarize a jewelry store. The lower court succinctly reviewed the evidence as follows:

At trial, the testimony of the tenant who resided in the apartment above the jewelry store revealed that on two occasions early in the evening of December 20, 1981, the windows in the rear of the premises were intact (N.T. 17-18). At about 11:15 P.M. the witness heard glass breaking and called the police (N.T. 18). Upon the arrival of the police, she went downstairs to speak with them at which time she noticed that the upper window at the back of the jewelry store storeroom had been broken (N.T. 19).
Upon investigation, the police discovered footprints in the snow which laid in the backyard of the premises. Pursuing those footprints they found the Defendant lying in the snow among the shrubs near a garage (N.T. 46).
Following the Defendant’s arrest and transport to the police station, he was searched. The search produced a pair of leather gloves that contained glass fragments and wood splinters, and a pair of sneakers (N.T. 61-62). As part of their investigation, the police removed samples of glass and wood from the scene and forwarded everything to the State Police Crime Laboratory (N.T. 62, 72-74). Expert testimony was presented at the trial that chemical, refractive and microscopic analyses showed that the particles of glass and wood found in the Defendant’s shoes and gloves were of the same materials and from the same sources as the samples taken from the scene by the police (N.T. 88-98).

Lower ct. op. at 2-3.

Appellant testified that he was hiding in the yard because some people were chasing him. He points out that the police testified that there were pry marks on the door, but that no burglary tools were found. He also notes that one of the officers testified that the window appeared to have been broken out prior to the night in question. If the window had been broken previously, appellant argues, then the glass particles on appellant’s clothing tended to prove only that he, at some point in time, came into contact with the glass, not necessarily that he actually broke the window on the night in question. Thus, appellant contends that he was found guilty due to his mere presence at the scene and because he was hiding at the time the police found him. He contends that the verdict was based on conjecture and speculation and that the evidence was insufficient to support the verdict.

We disagree. Looking at the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, Commonwealth v. Frederick, supra, the evidence was sufficient to find appellant guilty of attempted burglary beyond a reasonable doubt. The Commonwealth’s evidence established more than appellant’s presence at the scene of the crime. First, the police found footprints in the snow that led from the scene of the crime to where the appellant was hiding. Second, glass and wood fragments found in appellant’s gloves and shoes matched the wood and glass from the broken window of the jewelry store. Also, while it is true that one of the officer’s testified that the window may have been broken prior to the night in question, another witness testified that the window was definitely intact just a few hours before the incident. Any conflicts in the testimony presented issues of credibility. It is the province of the fact finder to pass upon the credibility of the witnesses. Frederick, supra. We believe that the evidence was sufficient to prove appellant guilty of attempted burglary beyond a reasonable doubt.

Appellant also contends that the verdict was against the weight of the evidence.

Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion____ The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.

Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984) (citations omitted).

We have already reviewed the evidence at length, and we feel it is unnecessary to repeat it. After a careful review of the record, we agree with the lower court that the verdict was not against the weight of the evidence.

Appellant states the next issue as follows:

Whether [appellant] was not afforded his constitutional right to zealous and devoted counsel because [appellant] had previously declared his trial counsel incompetent in a separate criminal proceeding.

Brief for Appellant at 5.

Appellant was represented at trial by Joseph Mesics, Esquire. Mr. Mesics had previously represented appellant in another matter, following which appellant filed a petition under the Post Conviction Hearing Act containing allegations that Mr. Mesics had been ineffective in his representation of appellant in that prior proceeding. At the time of trial in the instant case, the issue of Mr. Mesics’ competency in that previous proceeding was still being litigated. Appellant contends that an attorney who is publicly declared incompetent by his client will not be able to subsequently zealously represent that client. Therefore, he asks us to hold that in each and every such case, a new attorney must be appointed. Brief for Appellant at 17.

We decline to take such a position. It is axiomatic that a criminal defendant is constitutionally entitled to the effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Under the circumstances of this case, however, we do not believe that appellant’s right to counsel was violated in this regard. Appellant does not assert that his counsel failed to zealously represent him or that his assertion of Mr. Mesics’ incompetency in a prior proceeding set the attorney at odds with his client. In fact, appellant does not urge this court to examine the effect of the allegation of prior incompetency on Mr. Mesics’ attitude toward appellant. Rather, appellant asks us to create a per se rule requiring the appointment of new counsel in all such cases. We do not believe such a rule is appropriate. An attorney cannot be automatically deemed unfit to represent a particular client merely because that client has questioned his competency in a prior proceeding.

The cases cited by appellant are inapposite. In Commonwealth v. Prowell, 249 Pa.Super. 435, 378 A.2d 374 (1977), we held that a defendant may not be represented in a PCHA hearing by a public defender from the same office as the trial counsel who defendant has alleged was incompetent. In Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978) and Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978), the Pennsylvania Supreme Court held that when an appellant raising a claim of ineffectiveness of counsel is represented on appeal by that same counsel, we should entertain the claim only if reversible error is apparent on the record. If the claim is not apparent on the face of the record, then we must remand for appointment of new counsel not associated with the allegedly ineffective counsel. Appellant contends that the rationale behind these cases is that an attorney who has been publicly chastised by a client will not quickly come to the aid of that client. We disagree. Appellant fails to recognize that the cases he relies upon all deal with allegations of ineffectiveness in a prior segment of the same case, whereas instantly, appellant has asserted his counsel’s ineffectiveness in a prior case. The rationale behind the cited cases is that an attorney, or an associate of that attorney, would not be likely to zealously argue his own incompetency. This reasoning is not applicable to the instant case. Mr. Mesics’ representation of appellant in the case at bar is unrelated to his representation of appellant in the prior proceeding. Mr. Mesics was not attempting to argue his own incompetency during the instant trial. Without a showing that counsel failed to assert a possible defense or that counsel did not vigorously defend appellant, we will not hold that appellant’s rights to counsel and due process were automatically violated under the circumstances of this case.

Finally, appellant asserts that trial counsel was ineffective in two respects: (1) counsel failed to request that the court charge the jury that mere presence at the scene and flight upon the arrival of the police is not sufficient to support a conviction; and (2) counsel failed to request that the Commonwealth’s witnesses be sequestered.

Since the evidence against appellant is circumstantial and since the resolution of many of the issues turns on the credibility of the witnesses, we believe that appellant’s ineffectiveness claims may have arguable merit. We cannot decide these issues on the record before us. Therefore, we must remand for an evidentiary hearing on appellant’s ineffectiveness claims.

Affirmed in part and reversed in part and remanded to the lower court for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 901(a).

      . Of course, we recognize that appellant has asserted two claims of incompetency against Mr. Mesics in the case at bar. These will be discussed, infra. Besides these issues, however, appellant fails to show that Mr. Mesics failed to vigorously defend him or otherwise represent him to the best of his ability.

      . As the lower court pointed out, appellant failed to indicate that he was dissatisfied with Mr. Mesics' representation. Following the recording of the jury’s verdict and the recitation of the appellant’s post trial rights, the following colloquy took place:
      [THE COURT]: Mr. Kale, I would ask you, are you satisfied with the services of Mr. Mesics?
      THE DEFENDANT: Yes.
      THE COURT: Do you have any complaint about him, or his representation of you?
      THE DEFENDANT: No.
      N.T. at 135.