author: WIEAND, Judge:

text:
    661 A.2d 1386
    Jean A. PAULSHOCK, Appellee, v. Anthony N. BONOMO, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 15, 1995.
    Filed June 13, 1995.
    Reargument Denied Aug. 18, 1995.

      Michael Beltrami, Hazleton, for appellant.
    Sherry A. Scwalbach, Wilkes-Barre, for appellee.
    Before WIEAND, BECK and BROSKY, JJ.
   WIEAND, Judge:

This is an appeal from an order imposing a duty of support on the alleged biological father of a child born during coverture to an intact family. After careful consideration, we reverse. The evidence was insufficient to rebut the presumption that the child was a child of the marriage.

Jean and Gary Paulshock were married on September 13, 1980. They have a daughter, Courtney, who was bom on January 14, 1986. In July, 1989, Jean began an extramarital affair with Anthony Bonomo, which continued for several years. On June 17, 1991, while she was still married, Jean gave birth to a daughter, Lauren Paulshock. Gary Paulshock, Jean’s husband, was named as Lauren’s father on the child’s birth certificate.' During the period of possible conception, Jean had engaged in sexual intercourse with both her husband and Anthony Bonomo. In November, 1992, Jean and Anthony ended their relationship. During that month, Jean also informed Gary of her extramarital affair and her belief that Lauren was Anthony’s child. In or about March, 1993, Jean and Gary separated.

On January 8, 1993, Jean filed a complaint seeking child support from Anthony. After a motion for judgment on the pleadings had been denied, an evidentiary hearing was held. Conflicting testimony was presented as to whether Anthony had acknowledged paternity of Lauren. There was also evidence introduced concerning the results of human leukocyte antigen (HLA) tests which the parties, by agreement, had undergone. These tests tended to establish Anthony’s paternity of Lauren and exclude Gary as a possible father. By order of July 20, 1993, the trial court held that the presumption that a child born of the marriage is a child of the husband had been overcome by clear and convincing evidence, and that the doctrine of estoppel did not apply to the facts of this case. The parties subsequently waived their right to a jury trial and requested that the court make a final adjudication of paternity based on the existing record. By order of November 10,1993, the court found that Anthony Bonomo was Lauren Paulshock’s father. A support order was thereupon entered directing Anthony to pay $100 per week in child support for Lauren, as well as $25 per week toward arrearages. Anthony appealed.

“[T]he presumption that a child born to a married woman is a child of the marriage is an extremely strong one, and can only be overcome by clear and convincing evidence to the contrary.” John M. v. Paula T., 524 Pa. 306, 314, 571 A.2d 1380, 1384 (1990), cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990). See also: Kohler v. Bleem, 439 Pa.Super. 385, 654 A.2d 569 (1995); Coco v. Vandergrift, 416 Pa.Super. 444, 611 A.2d 299 (1992); Donnelly v. Lindenmuth, 409 Pa.Super. 341, 597 A.2d 1234 (1991). “The presumption can be overcome by proof that the husband was impotent or did not have sexual access to the wife when the child was conceived.” Freedman v. McCandless, 539 Pa. 584, 591, 654 A.2d 529, 532 (1995). See also: Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct 2333, 105 L.Ed.2d 91 (1989); Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993); Selm v. Elliott, 411 Pa.Super. 602, 602 A.2d 358 (1992). In the absence of evidence overcoming this presumption, the results of blood tests are irrelevant. John M. v. Paula T., supra, 524 Pa. 306, 571 A.2d 1380. See also: McCue v. McCue, 413 Pa.Super. 71, 76-77, 604 A.2d 738, 740-741 (1992); Donnelly v. Lindenmuth, supra at 346, 597 A.2d at 1236; Scott v. Mershon, 394 Pa.Super. 411, 417-418, 576 A.2d 67, 70-71 (1990). The presumption that a child bom during the marriage is a child of the husband “is always the starting point in a contest involving the parentage of a child born during coverture.” Everett v. Anglemeyer, 425 Pa.Super. 587, 593, 625 A.2d 1252, 1255 (1993); McCue v. McCue, supra at 75, 604 A.2d at 740.

In attempting to avoid the stringency of this presumption, both the trial court and the appellee confused the presumption with paternity by estoppel. While paternity by estoppel and the presumption of paternity relating to a child born during coverture are related, it is clear that the two are distinct concepts. See: McCue v. McCue, supra at 76-77, 604 A.2d at 740-741; Scott v. Mershon, supra at 418-420, 576 A.2d at 70-71. Estoppel is aimed at achieving fairness between the parties by holding them to their prior conduct regarding the paternity of the child. Freedman v. McCandless, supra at 592, 654 A.2d at 533; Jefferson v. Perry, 432 Pa.Super. 651, 656, 639 A.2d 830, 833 (1994); Gulla v. Fitzpatrick, 408 Pa.Super. 269, 279, 596 A.2d 851, 856 (1991). The doctrine of paternity by estoppel states that “under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as father of the child.” John M. v. Paula T., supra at 318, 571 A.2d at 1386. See also: Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961 (1990); Wachter v. Ascero 379 Pa.Super. 618, 550 A.2d 1019 (1988); Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988); Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987).

Whether or not there was an estoppel in this case, the record is clear that appellee’s evidence was insufficient to overcome the presumption of paternity arising from the birth of the child during coverture. There is not one iota of evidence that Gary, appellee’s husband, was impotent or that he did not have sexual access to his wife during the period of conception. On the contrary, it is undisputed that he and appellee regularly engaged in sexual intercourse during the period of possible conception. The presumption, the Supreme Court has said, can only be overcome by clear and convincing evidence of non-access. See: Freedman v. McCandless, supra; Jones v. Trojak, supra; Cairgle v. American Radiator and Standard Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951); Dennison v. Page, 29 Pa. 420 (1857). This means “testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-1204 (1989). Where, as here, access to his wife by her husband is conceded, the evidence is insufficient to overcome the presumption. See: McCue v. McCue, supra. Moreover, because the presumption of paternity has not been overcome, the results of the blood tests are irrelevant to determine paternity. See: John M. v. Paula T., supra.

Because the presumption that a child born during coverture is a child of the marriage has not been overcome, the trial court erred by concluding that appellant, a third party to the marriage, was the child’s father. Therefore, the order which imposed on him a duty to provide support must be reversed.

Order reversed and vacated.

      . The trial court's estoppel analysis was flawed. It focused only on whether Gary had proven by clear and convincing evidence “that he [was] not estopped from denying paternity.” Gary is not a party to the instant action. If estoppel is applicable to the facts of this case, which we do not decide, then it would be Jean in relation to whom estoppel must be considered. We also observe that the trial court's reliance on 23 Pa.C.S. § 4343(a) is misplaced. That statute deals with the paternity of a child bom out of wedlock.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    661 A.2d 1388
    COMMONWEALTH of Pennsylvania v. Ruben GARCIA, Appellant.
    Superior Court of Pennsylvania.
    Argued April 4, 1995.
    Filed July 13, 1995.

      Joseph P. Burt, Erie, for appellant.
    Kenneth A. Zak, Asst. Dist. Atty., Erie, for Commonwealth, appellee.

      Before POPOVICH, FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence entered following appellant’s convictions for possession of cocaine, a schedule II controlled substance, and possession of this drug with the intent to deliver.

Appellant presents the following issues for our review: (1) whether the suppression court erred in refusing to suppress the evidence; (2) whether the trial judge erred by questioning a surrebuttal witness; (3) whether the trial judge erred in limiting defense counsel’s closing argument to a period of twenty minutes; (4) whether the prosecutor’s references to appellant’s need for an interpreter constituted misconduct which necessitates the grant of a new trial; (5) whether the trial judge’s actions relating to trial counsel’s contumacious behavior deprived appellant of his right to a fair trial; and (6) whether trial counsel’s contemptuous conduct constituted ineffective assistance of counsel. For the reasons set forth below, we affirm.

Before addressing appellant’s claims, it is necessary to recount the pertinent facts giving rise to this appeal. During the early morning hours of November 10, 1992, Detective Steven Goodzich of the Erie Police Department received information from two confidential informants that appellant, Ruben Garcia, had cocaine in his car and on his person. Detective Goodzich further learned that appellant was accompanied by Carrie Ferraro, and that they were in a bar/restaurant known as Luigi’s Tavern. Detective Goodzich was also informed that appellant’s white Cadillac, in which the cocaine was stored, was parked nearby. Detective Goodzich relayed this information to Officer Terry Dawley who was on duty with his canine partner, Cujo, at the time.

Officer Dawley, who was previously acquainted with both appellant and Ms. Ferraro, proceeded to Luigi’s Tavern where he observed appellant’s car parked across from the bar. Shortly thereafter, he saw the pair exit the tavern and enter appellant’s vehicle. Appellant left the area and drove eastward; Officer Dawley followed. While driving, the officer observed appellant repeatedly looking in his rearview mirror and leaning over towards the passenger side of the car. As a result of this suspicious conduct, Officer Dawley signaled to appellant to pull his vehicle over.

Appellant complied and in response to Officer Dawley’s instructions, exited the car and stood by the trunk. Officer Dawley told appellant that he was suspected to be in possession of drugs; the officer then asked appellant if he would permit the car to be searched. Appellant consented and told the officer to “go ahead.” Before Officer Dawley could perform the search, however, he noticed that appellant had his hands in his pockets. Concerned for his own safety, the officer thrice asked appellant to remove his hands. Appellant simply looked at the officer, said nothing and steadfastly refused to remove his hands so that they were visible. In view of appellant’s behavior, the officer believed that appellant was in possession of a weapon and removed appellant’s hands from his pockets. The officer then reached into appellant’s pocket and removed its contents. Although no weapons were discovered, Officer Dawley found a plastic bag containing eleven smaller plastic packets which were later confirmed to contain cocaine. Appellant was then placed under arrest.

While Officer Dawley was talking with appellant, two other Erie Police officers arrived to assist. They parked nearby and noticed Ms. Ferraro moving nervously in the front seat of appellant’s car. The officers, again acting out of concern for their own safety, asked Ms. Ferraro to exit the vehicle. Ms. Ferraro complied. After a pat-down frisk disclosed that Ms. Ferraro had no weapons, the officers looked inside the car and noticed a clear plastic baggie containing a white substance, which was later determined to be cocaine, lying on the floor near the passenger seat. The officers then apprised Officer Dawley of their discovery.

At this point, Officer Dawley decided to conduct a sniff-search of the vehicle to determine whether any additional quantities of cocaine was present. Accordingly, Rudy, a trained drug-dog, was brought to the scene and exposed to the vehicle. Rudy exhibited a positive response in the hood area of the car, thus signifying that drugs were located therein. Consequently, the vehicle was impounded and towed to police headquarters. Based on the above information, Officer Dawley obtained a warrant to. search the car. The search yielded an additional packet of cocaine which had been secreted in the engine compartment near the battery. As a result, appellant was charged with various offenses arising out of this incident.

Appellant filed a motion to suppress the physical evidence seized from his person and vehicle. The motion was denied and appellant was convicted of the above crimes following a jury trial held in June of 1993. Appellant timely filed post-trial motions which were denied. On July 19, 1993, appellant was sentenced to a term of five (5) to ten (10) years imprisonment. Appellant then timely appealed therefrom.

Appellant initially challenges the lower court’s refusal to suppress the physical evidence. Before we can address this issue, we must first ascertain whether it has been sufficiently preserved for review. “It is well-established that issues not raised in post-trial motions are not preserved for appellate review. This rule applies even where the issue was properly presented in a pre-trial motion.” Commonwealth v. Metz, 534 Pa. 341, 345, 633 A.2d 125, 127 (1993). See also Pa.R.Crim.P., Rule 1123, 42 Pa.C.S.A. and comment thereto (only those issues included in written post-verdict motions are considered preserved for appellate review). However, an exception to this rule exists in certain limited circumstances where the defendant raises the issue post-trial in a procedurally defective manner and the trial court chooses to overlook the defect and address the issue on its merits. Commonwealth v. Metz, supra. The requisite limited circumstances are not present here.

Appellant did not contend that the lower court had erred in denying his suppression motion in his timely filed post-trial motions. Nor did appellant attempt to raise the issue in supplemental post-trial motions. Rather, this issue was not expressly presented to the trial court until it was raised in appellant’s statement of matters complained of on appeal. Judge Bozza did not discuss appellant’s procedurally defective method of presenting this issue. Opinion of Judge Bozza, filed 8/24/94, at 1-2. Nor did the trial judge appear to have directly considered its merits. He instead noted that the suppression motion had been heard and decided by Judge Connelly, and that Judge Connelly’s opinion and order were attached to Judge Bozza’s discussion and made a part thereof. Id.

The above review demonstrates that appellant did not raise the suppression issue at any time during the post-trial motion stage of the proceedings. Nor did appellant file or request permission to file supplemental post-trial motions for the purpose of raising this claim. Although appellant included this issue in his Rule 1925(b) statement, the trial court neither addressed this procedural defect nor expressly discussed the merits of the issue. Under these circumstances, appellant’s challenge to the suppression ruling must be deemed waived. Commonwealth v. Metz, 534 Pa. at 345-346, 633 A.2d at 127 (defendant waived issue on appeal where he did not raise it at all at the post-trial stage, not even in a procedurally defective manner, and the trial court did not explicitly choose to overlook the omission and address the issue on its merits). Compare Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (1988) (per curiam order), construed in Commonwealth v. Metz, supra (issue was not waived where it was presented in supplemental post-trial motions filed without leave but the trial court addressed it on its merits).

In his second allegation of error, appellant argues that the trial judge erred by questioning a surrebuttal witness regarding a possible violation of the trial court’s previous “gag-order” which precluded the disclosure of any information pertaining to the confidential informants’ identities and testimony. With regard to this issue, this court has observed:

A new trial is required only when the trial court’s questioning is prejudicial, that is when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial. It is always the right and sometimes the duty of the trial judge to interrogate witnesses. However, questioning from the bench should not show bias or feeling or be unduly protracted.

Commonwealth v. Ables, 404 Pa.Super. 169, 184, 590 A.2d 334, 341 (1991), allocatur denied, 528 Pa. 620, 597 A.2d 1150 (1991) (citations omitted). Accord Commonwealth v. Roldan, 524 Pa. 366, 369, 572 A.2d 1214, 1215 (1990). We will examine the trial court’s conduct with these considerations in mind.

The trial transcript revealed that Detective Goodzich and Ms. Ferraro were called as rebuttal witnesses. Prior to Detective Goodzich testifying, however, the trial court closed the courtroom to the public. Ñ.T., 6/16/93, at 160-161. The trial judge further admonished the jury, counsel, appellant and everyone else in the courtroom that the names of the informants, their testimony and their role in this case was not to be divulged. Id. at 156-157 and 189-190. To rebut the testimony proffered by Detective Goodzich and Ms. Ferraro, appellant presented the testimony of Mary McNaughton and other witnesses. During her cross-examination by the prosecution, Ms. McNaughton was asked whether she knew why she was re-called to testify and whether she was informed that Ms. Ferraro had testified. N.T. 6/17/93 at 31. Ms. McNaughton responded that she knew that Ms. Ferraro had testified because she had been present in court, albeit outside of the courtroom. Id. Ms. McNaughton was also asked whether she had learned from any source exactly what Ms. Ferraro had said. Id. at 31. Ms. McNaughton’s answer was somewhat ambiguous in that she stated “not really” and only further denied knowing the substance of Ms. Ferraro’s testimony after additional questioning. Id. at 31-32. Upon the completion of Ms. McNaughton’s examination by both counsel, the following exchange occurred:

THE COURT: Hold on just a minute, ma’am. Did you say you were outside the courtroom yesterday?
THE WITNESS: Yes, I was.
THE COURT: During the time that Carrie Ferraro was testifying?
THE WITNESS: Yes, I was.
THE COURT: Did you hear her testimony when you were sitting outside?
THE WITNESS: No.
THE COURT: Thank you. You may step down.

Id. at 33-34.

The trial judge’s interrogation discloses that he merely attempted to clarify whether Ms. McNaughton had learned of the substance of Ms. Ferraro’s testimony in violation of his prior ruling. The examination was not protracted and was conducted in an unbiased and non-prejudicial manner. Moreover, the questioning redounded to appellant’s benefit by strengthening the witness’ credibility. The prosecutor’s cross-examination attempted to elicit an admission from Ms. McNaughton that she had learned of the substance of Ms. Ferraro’s testimony and had tailored her own testimony accordingly. However, the trial court’s examination made it clear that Ms. McNaughton had not heard Ms. Ferraro’s testimony and thus dispelled any negative inferences sought to be raised by the prosecutor. When viewed in this context, we do not believe that the trial judge’s concise questioning was so prejudicial as to mandate the award of a new trial. See Commonwealth v. Roldan, 524 Pa. at 371-372, 572 A.2d at 1216 (trial judge’s interrogation was not prejudicial where it benefitted the defendant and clarified the essence of the testimony by directly stating what the witnesses had been unwilling/unable to say); Commonwealth v. Ables, 404 Pa.Super. at 184-185, 590 A.2d at 341 (examination of defendant’s expert witness was not prejudicial as it merely clarified the testimony).

Appellant next asserts that the trial judge erred by imposing a twenty minute time limit on defense counsel’s closing arguments. The length of closing argument is a matter which is entirely within the discretion of the trial judge. Commonwealth v. Buccieri, 153 Pa. 535, 551, 26 A. 228, 234 (1893); Baxter v. City of Philadelphia, 426 Pa. 240, 254, 231 A.2d 151, 159 (1967), appeal dismissed, 389 U.S. 573, 88 S.Ct. 695, 19 L.Ed.2d 784 (1968). See also Commonwealth v. Morris, 320 Pa.Super. 139, 149, 466 A.2d 1356, 1361 (1983) (it is the trial court’s responsibility to insure that final argument to the jury is kept within proper accepted bounds).

Where the discretion exercised by the trial court is challenged on appeal, the party bringing the challenge bears a heavy burden____ [I]t is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or [the judgment is] the result of partiality, prejudice, bias or ill-will, as shown by the evidence of record, discretion is abused. We emphasize that an abuse of discretion may not be found merely because the appellate court might have reached a different conclusion, but requires a showing of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.

Paden v. Baker Concrete Construction, Inc., 540 Pa. 409, —, 658 A.2d 341, 343 (1995) (citations and quotation marks omitted). Review of the trial court’s decision in accordance with these principles discloses that no abuse of discretion occurred here.

The facts of this case were not unduly complicated. There was no dispute that the cocaine was found on appellant’s person and in his car. Thus, the only question to be resolved by the jury was whether appellant possessed the cocaine knowingly/intentionally or whether the drugs were planted by Ms. Ferraro and/or Mr. Voorhis for the purpose of furthering his cooperation with the police in exchange for the dismissal of the charges pending against Mr. Voorhis. Moreover, the trial judge imposed the same time limitation on the Commonwealth. We further observe that defense counsel was an experienced trial attorney who was able to fully, adequately and cogently summarize his position and the pertinent evidence within the allotted time period. See N.T. 6/17/93 at 46-66. In fact, the trial court permitted defense counsel to speak well in excess of the time limits. See Opinion of Judge Bozza, filed 8/24/94, at 4 (indicating that counsel spoke for an additional ten minutes). Under these circumstances, the trial judge’s decision to limit the length of closing argument did not constitute an abuse of discretion as defined in Poden.

Appellant claims in his fourth issue that the prosecutor’s repeated references to appellant’s need for an interpreter constituted misconduct which requires the grant of a new trial. Appellant has not appropriately developed this claim in the argument portion of his brief, as the rationale supplied to this court consists solely of a single conclusory sentence. However, appellant has failed to explain the manner in which the prosecutor’s actions were improper and why the award of a new trial is the appropriate remedy for the alleged misconduct. Appellant also has neither referred us to any relevant authority in support of his position nor indicated the places in the record where the challenged remarks can be found, in contravention of Pa.R.A.P., Rule 2119(b), (c) and (d), 42 Pa.C.S.A. Because appellant has failed to support this claim with proper argument, we deem it to be waived. Commonwealth v. Gooding, 437 Pa.Super. 193, 200-201, 649 A.2d 722, 725-726 (1994); Commonwealth v. Rodgers, 413 Pa.Super. 498, 520, 605 A.2d 1228, 1239, allocatur denied, 532 Pa. 655, 615 A.2d 1311 (1992) (issues were deemed waived by this court where they were not developed or supported with appropriate argument).

In his penultimate allegation of error, appellant contends that the trial court erred by limiting trial counsel’s style and by reprimanding counsel for his contemptuous behavior in front of the jury. Appellant has again failed to properly support this argument with citations to pertinent authority and specific references to the record. Moreover, appellant’s reasoning is deficient in that it consists of nothing more than self-serving and conclusory assertions regarding the purported hostility between the trial judge and defense counsel and its allegedly prejudicial effect on the jury. We accordingly find this issue to be waived. Commonwealth v. Gooding and Commonwealth v. Rodgers, supra.

Appellant’s final challenge pertains to the alleged ineffectiveness of trial counsel based on his contemptuous conduct. To be eligible for relief, appellant must demonstrate that:

(1) the underlying claim is of arguable merit; (2) the particular course chosen by counsel did not have some reasonable basis designed to effectuate his [client’s] interests; and (3) counsel’s ineffectiveness prejudiced him. Counsel is presumed to have acted in his client[’s] best interest; thus, it is appellant’s burden to prove otherwise.

Commonwealth v. Walker, 540 Pa. 80, —, 656 A.2d 90, 98 (1995) (citations omitted). Appellant’s arguments and trial counsel’s behavior will be examined in accordance with this standard.

Trial counsel is expected to vigorously defend his/her client’s interests. Nevertheless, zealous advocacy has its limits, as lawyers are required to act in a respectful, professional and courteous manner towards the court, opposing counsel and the witnesses. There is no question that defense counsel’s conduct transgressed the bounds of propriety here. Appellant’s underlying claim therefore has arguable merit. However, appellant is not entitled to any relief unless he can show that trial counsel’s conduct was unreasonable and that he was prejudiced, ie., that the result in this case would have been different absent such conduct. Commonwealth v. Walker, supra; Commonwealth v. Edmiston, 535 Pa. at 237-238, 634 A.2d at 1092.

The record reflects that the behavior for which trial counsel was ultimately sanctioned was intentionally employed as a strategy for advancing appellant’s best interests by providing the jury with a favorable opinion of appellant and a negative view of the police informants. Opinion of Judge Bozza, filed 8/24/94, at 6. We also observe that the jury was unaware of the fact that trial counsel had engaged in contumacious behavior because the discussions concerning his conduct and the contempt proceedings all occurred outside the presence of the jury. In addition, the evidence of appellant’s guilt was overwhelming as there is no question that the drugs were found on his person and in his car, and his defense to the charges was highly incredible when considered in light of the other evidence. When viewed in this manner, it is evident that the conduct complained of inured to appellant’s benefit rather than his detriment. Accordingly, we are not persuaded that relief should be granted in this instance.

Judgment affirmed.

      . 35 P.S. § 780-113(a)(16) (defining the crime of possession); 35 P.S. § 780-104(2)(i)4 (classifying cocaine as a Schedule II controlled substance).

      . 35 P.S. § 780-113(a)(30).

      . The confidential informants were later identified as Carrie Ferraro and her boyfriend, Pat Voorhis. Although both informants contacted Detective Goodzich, Mr. Voorhis’ information came from Ms. Ferraro, who had actually observed appellant in possession of the drugs. Detective Goodzich initially became acquainted with Mr. Voorhis when he was arrested on a drug-related interdiction. In exchange for Mr. Voorhis’ cooperation, Detective Goodzich ultimately withdrew the various charges against Mr. Voorhis. Detective Goodzich later met/spoke with Ms. Ferraro during his dealings with Mr. Voorhis.

      . A total amount of 10.22 grams of cocaine was seized from the car and appellant’s person.

      . This motion was heard and decided by Judge Connelly.

      . Judge Bozza presided over the trial, post-trial and sentencing proceedings.

      . Appellant was represented during the pretrial and suppression proceedings by Dennis Williams, Esq. Appellant was represented at trial, post-trial and the sentencing by AJ. Adams, Esq., a public defender. For clarity and ease of discussion, we will refer to Mr. Adams as trial counsel. Due to his behavior at the trial, Attorney Adams was convicted of criminal contempt. This court affirmed Mr. Adams’ conviction; further review was denied. In re: A.J. Adams, 435 Pa.Super. 202, 645 A.2d 269, allocatur denied, 539 Pa. 686, 653 A.2d 1225 (1994).

      . Appellant is represented on appeal by Joseph Burt, Esq., another member of the public defender’s office. Attorney Burt filed a motion to withdraw due to the relationship between counsel and the challenges to prior counsel's representation. This court denied the motion.

      . Post-sentencing motions are now optional under the amended Rules of Criminal Procedure; issues are therefore preserved for appeal regardless of whether they are included in the post-sentencing motion. Pa.R.Crim., Rule 1410.B, 42 Pa.C.S.A. and Comment thereto (present rule). However, the amendments only apply to those cases in which the determination of guilt occurs on or after January 1, 1994. Id., Note (present rule). Because appellant was convicted prior to this date, the amended rule is inapplicable. We must accordingly determine whether appellant’s claims have been preserved pursuant to the prior pertinent caselaw and rules. Consideration thereof discloses that except for his first allegation of error, which is more fully discussed infra, appellant’s other claims were raised in his post-trial motions.

      . The judge’s comments suggest that he did not address the merits of the issue but merely referenced Judge Connelly’s disposition for the purpose of satisfying Pa.R.A.P., Rule 1925(a), 42 Pa.C.S.A., which requires that the judge who entered the order appealed from must file at least a brief statement of the reasons for the order, or for the rulings or other matters complained of, or shall specify in writing the place in the record where such reasons may be found.

      . Even if we were to consider this issue, appellant would not be entitled to any relief. The police had a reasonable suspicion that appellant was engaged in criminal activity based on their existing knowledge of appellant’s drug trafficking, the information supplied by the confidential informants, as well as appellant’s behavior in furtively looking into his rearview mirror, leaning toward the passenger side of the car and refusing to remove his hands from his pockets despite being thrice requested to do so by the officer. Based on this information, the police were certainly justified in stopping appellant for investigative purposes. In the Interest of S.J., 425 Pa.Super. 270, 276-277, 624 A.2d 1068, 1070-1071 (1993) (effective crime prevention and detection allow the police to approach a person for the purpose of investigating possible criminal behavior; the police, acting on an anonymous informant’s tip, had reasonable suspicion to stop the defendant and detain her for questioning). Officer Dawley was likewise permitted to conduct a pat-down search of appellant in light of his suspicious conduct in refusing to remove his hands from his pockets. Compare S.J. (frisk and search was unreasonable absent observation of other unusual or suspicious behavior which would lead the officer to conclude that the suspect was armed). As conceded by appellee, Officer Dawley did not merely frisk appellant but reached into his pocket and retrieved a plastic packet of drugs therefrom. Although the removal of the cocaine from appellant’s pocket was unlawful, see id., suppression of the evidence is not required. While Officer Dawley spoke with appellant, the other assisting officers asked Ms. Ferraro to exit the car based on her own unusual behavior and movements; this action was proper. Commonwealth v. Morris, 422 Pa.Super. 343, 349-351, 619 A.2d 709, 712-713 (1992), allocatur denied, 534 Pa. 654, 627 A.2d 731 (1993) (officer was justified in ordering passenger to exit vehicle and conducting a pat-down search based on his observation of the passenger’s furtive movements in attempting to conceal a bag under the seat). After Ms. Ferraro got out of the car, the officers saw a clear plastic bag of a substance, suspected to be cocaine, lying in plain view on the floor. Observation of the drugs, coupled with the subsequent discovery of additional quantities of cocaine upon execution of the search warrant, clearly provided sufficient probable cause to lawfully arrest appellant. Id., 422 Pa.Super. at 350-351, 619 A.2d at 713 (passenger was lawfully arrested after he was properly asked to exit the car and vials of crack-cocaine were seen in plain view); Commonwealth v. Williams, 419 Pa.Super. 380, 385-386, 615 A.2d 416, 419 (1992), allocatur denied, 533 Pa. 651, 624 A.2d 110 (1993) (defendant was lawfully arrested where police detected an odor of marijuana and observed a marijuana cigarette butt in plain view). The drugs found on appellant’s person thus would have been inevitably discovered since the police would have been lawfully permitted to search appellant incident to his arrest. Commonwealth v. Brundidge, 533 Pa. 167, 174-177, 620 A.2d 1115, 1119-1120 (1993) (suppression of improperly seized evidence is not required where it is established that the evidence would have been inevitably discovered through an independent source); Commonwealth v. Williams, supra (police officer may conduct a warrantless search of the arrestee’s person incident to a lawful arrest). Suppression of the evidence would therefore have been improper in this instance.

      . Ms. McNaughton was previously called to testify during the presentation of appellant’s defense.

      . Even were we to address this issue, it is plain that no relief would be due. The record contains three instances in which the prosecutor briefly questioned appellant and two other witnesses regarding appellant’s ability to converse in and comprehend English. N.T., 6/16/93 at 100; N.T. 6/17/93 at 6 and 37. The prosecutor’s examination does not suggest an attempt to ridicule appellant merely because he used an interpreter. Instead, the questions sought to attack appellant’s credibility by implying that appellant did not need an interpreter since he was able to adequately communicate with the police and others on prior occasions. Appellee’s Brief at 14. Matters pertaining to credibility are certainly appropriate subjects for cross-examination. Assuming, arguendo, that the prosecutor's examination on this subject was inappropriate, a new trial is not required. A prosecutor’s improper examination or comments require reversal only when they create a fixed bias or hostility toward the defendant such that the jury could not objectively weigh the evidence and render a true verdict. Commonwealth v. Ford, 539 Pa. 85, 105, 650 A.2d 433, 442 (1994); Commonwealth v. Edmiston, 535 Pa. 210, 232, 634 A.2d 1078, 1089 (1993). The questions here were not of the 1ype which would induce the jury to form a fixed bias and hostility towards appellant such that they could not objectively weigh the evidence. Moreover, the questions were isolated in nature and the significance thereof may well have escaped the jury’s attention since it was neither exploited by the prosecutor nor otherwise explained in his closing statement. Appellant thus was not prejudiced by these questions.
      However, an attack on a defendant’s credibility based on his/her desire to testify through an interpreter should not be the preferred mode of impeachment, as it comes perilously close to impinging upon the defendant’s exercise of his/her fundamental constitutional rights. See Commonwealth v. Pana, 469 Pa. 43, 48-51, 364 A.2d 895, 898-899 (1976) (defendant’s ability to use an interpreter encompasses numerous fundamental rights; trial court abused its discretion by refusing to permit the defendant to testify in Spanish via an interpreter and by suggesting that the defendant fabricated his language barrier where the defendant had patent difficulty understanding and speaking English). Full comprehension is critical in any legal proceeding, and perhaps even more so in a criminal matter where fundamental liberty interests are at stake. Id. It therefore would be neither unreasonable nor an attempt at fabrication for an individual for whom English is a second language to utilize an interpreter at trial to ensure that the questions and responses are fully understood, even though he or she would not do so for ordinary conversational purposes.

      . In any event, a new trial would not be warranted on this ground. As conceded by appellant, the record reflects that the trial court’s discussions with counsel primarily occurred outside of the presence of the jury. N.T. 6/15/93 at 127-129; N.T. 6/16/93 at 21, 152 and 179-181; N.T. 6/17/93 at 39-41 and 107-108. The jury was informed that objections and evidentiary matters would be heard at sidebar outside of their hearing. N.T. 6/15/93 at 5-6. Thus, the mere fact that sidebar discussions occurred could not have led the jury to believe that some egregious impropriety had been committed by trial counsel. Of the few incidents which did take place before the jury, there is nothing in the record which even remotely suggests that the trial judge did or said anything to impugn trial counsel or appellant. N.T. 6/16/93 at 185— 187; N.T. 6/17/93 at 54, 56, 59-60 and 63-64. See also In re: A.J. Adams, 435 Pa.Super. at 209, 645 A.2d at 273 (discussing the great patience which the trial judge showed to defense counsel, the fact that the judge went out of his way to caution defense counsel regarding his inappropriate behavior and that the judge recognized and respected trial counsel's skills as an attorney). In fact, the trial judge’s remarks reflect only his intention to have sidebars with counsel or his issuance of instructions to the jury after ruling upon proper objections made by the district attorney. N.T. 6/16/93 at 185-187; N.T. 6/17/93 at 54, 56, 59-60 and 63-64. The trial court’s rulings/instructions made during closing argument likewise were not prejudicial. The instructions were appropriate and did not indicate that trial counsel had committed any gross misconduct; rather, two of the objections and instructions could reasonably have been interpreted as being favorable to trial counsel. N.T. 6/17/93 at 54 and 64 (in response to the prosecutor’s objections concerning defense counsel’s recapitulation of certain evidence, the trial court merely told the prosecutor that the testimony was a matter for the jury to recall and did not admonish defense counsel or otherwise indicate that his assessment was incorrect). In addition, similar objections occurred during the prosecutor’s closing argument and the trial court made it clear that its instructions applied to both the prosecutor and defense counsel. N.T. 6/17/93 at 56 and 59. The record therefore does not support appellant’s characterization of the relationship between defense counsel and the trial judge, or that appellant could have been prejudiced in any manner thereby. See Commonwealth v. Davis, 258 Pa.Super. 224, 230, 392 A.2d 766, 768 (1978) (defendant was not prejudiced by trial judge’s actions where jury did not know that defense counsel was held in contempt, the heated exchange between counsel and the judge was a brief and isolated incident, and cautionary instructions were given to the jury).

      . Our decision should not be construed as a condonation of the tactics employed by trial counsel in this case.


author: FORD ELLIOTT, Judge:

text:
    662 A.2d 1
    COMMONWEALTH of Pennsylvania v. Raymond LUCCI, Appellant. COMMONWEALTH of Pennsylvania, Appellant, v. Raymond LUCCI.
    Superior Court of Pennsylvania.
    Argued Dee. 14, 1994.
    Filed June 28, 1995.

      James J. Ross, Ambridge, for appellant.
    Ahmed T. Aziz, Asst. Dist. Atty., Aliquippa, for Com., appellee.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the judgment of sentence entered on May 23, 1994, in the Court of Common Pleas, Criminal Division, Beaver County. For the reasons set forth below, we vacate the judgment of sentence and find entrapment of the appellant as a matter of law. Because our vacatur moots the issue of the propriety of appellant’s sentence raised by the Commonwealth, as well as the other issues raised by appellant, we do not reach those issues.

A brief review of the record is appropriate at this time. Following a trial by jury, appellant was found guilty of four out of five counts of possession, possession with intent to deliver, and delivery of a controlled substance. The basis for appellant’s conviction was a series of five cocaine sales to a paid government informer between January 1991 and June 1991. According to the record, appellant sold between one-half and one ounce of cocaine to the paid informer, Bill Vranesevich, and two undercover agents on January 30, 1991, February 6, 1991, February 14, 1991, June 14, 1991, and June 21, 1991.

Appellant argues that the verdicts on all charges should be set aside because he was entrapped as a matter of law. The basis for appellant’s argument is that the behavior of the paid confidential informant, Bill Vranesevich, who contacted appellant within two weeks of appellant’s release from a drug rehabilitation center, rose to the level of egregiousness to support entrapment as a matter of law. (Appellant’s brief at 19.) In order to decide this issue, we must first review the law of entrapment in Pennsylvania, and, in particular, entrapment as a matter of law.

The defense of entrapment is codified at 18 Pa.C.S.A. § 313 and provides in pertinent part that:

(a) General rule. — A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by ...
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(b) Burden of proof. — Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of the evidence that his conduct occurred in response to an entrapment.

The law of entrapment has evolved over the years in Pennsylvania. Today, Pennsylvania employs the so-called “objective” test for entrapment, whereas the federal courts utilize the “subjective” standard. The objective test was first enunciated by Mr. Justice Frankfurter in his concurrence in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) (Frankfurter, J. concurring, joined by Harlan, J. Douglas, J. and Brennan, J.). As the notes to the Pennsylvania Standard Jury Instructions on the defense of entrapment explain:

Section 313 follows Model Penal Code, Proposed Official Draft, § 2.13 (1962) except that it eliminates a Model Penal Code requirement that the defense be tried by the court. Section 313 adopts the ‘objective’ approach to entrapment which is new to Pennsylvania law.... The old Pennsylvania law required that the defendant be an otherwise innocent person until the police or their agent, through creative activity, planted the idea to commit a crime in his mind and induced him to do so ... Crimes Code § 313 and Model Penal Code § 2.13 follow the minority view of the United States Supreme Court as articulated by Justice Frankfurter in his concurring opinion to Sherman v. United States ... This view — the objective approach — conceives the entrapment defense as aimed at deterring police wrongdoing. The defense provides a sanction for overzealous and reprehensible police behavior comparable to the exclusionary rule. The focus of the defense is on what the police do and not on what kind of person the particular defendant is — whether he is innocent or predisposed to crime.

Pa.Crim. Suggested Standard Jury Instructions, Subcommittee Note § 8.313 (Pa.Bar Institute, 1985) (citations omitted). Further insight into the law of entrapment in Pennsylvania is provided by our supreme court in Commonwealth v. Weiskerger and Commonwealth v. Clapps, 520 Pa. 305, 554 A.2d 10 (1989), in which that court adopted our analysis of the objective standard which we articulated in Commonwealth v. Jones, 242 Pa.Super. 303, 363 A.2d 1281 (1976):

Thus, the test for entrapment has shifted in emphasis from a consideration of a particular defendant’s readiness to commit crime, a subjective test, to an evaluation of the police conduct, an objective test, to determine whether there is a substantial risk that the offense will be committed by those innocently disposed. To determine whether an entrapment has been perpetrated in any particular case, therefore, the inquiry will focus on the conduct of the police and will not be concerned with the defendant’s prior criminal activity or other indicia of a predisposition to commit crime.

Weiskerger/Clapps, supra at 311, 554 A.2d at 13, citing Jones, supra at 310-11, 363 A.2d at 1285.

This court addressed the objective standard in general and entrapment as a matter of law in particular in Commonwealth v. Thompson, 335 Pa.Super. 332, 484 A.2d 159 (1984). In Thompson, this court found entrapment as a matter of law in a case in which a young, attractive, female police officer exploited her . femininity to lure Thompson into obtaining drugs for her, after chiding him repeatedly when he failed. Id. at 334-335, 484 A.2d at 160-162. Thompson was a middle-aged, married, male police officer with a mentally retarded daughter at home and was the subject of an undercover investigation. The female police officer conceded that she engaged in an ongoing flirtation with Thompson, allowing him to kiss her, put his arms around her in public, and introduce her to his friends prior to his obtaining drugs for her. Id. at 341, 484 A.2d at 164. There was also uncontradicted testimony that all meetings and telephone calls were at the initiative of the undercover officer. Id. In finding entrapment as a matter of law, the Thompson court stated:

The test for entrapment in Pennsylvania under section 313 is an objective one which ‘focus[es] on the conduct of the police and will not be concerned with the defendant’s prior criminal activity or other indicia of a predisposition to commit crime.’ ... This statute represented a significant shift in Pennsylvania law, in that it rejected the then-existing use of a subjective test in entrapment cases, i.e., a test which focused on the defendant’s predisposition to commit the crime.
While the judicial focus in entrapment cases had changed, the case law has been consistent in Pennsylvania in holding that the determination of whether police conduct constitutes entrapment is for the jury, unless the evidence of police conduct clearly establishes entrapment as a matter of law____ Thus, after the defense of entrapment has been properly raised, the trial court should determine the question as a matter of law wherever there is no dispute as to the operative facts relating to the defense.

Id. at 340-341, 484 A.2d at 163-164 (citations and footnotes omitted) (emphasis added). Accord, Commonwealth v. Mance, 422 Pa.Super. 584, 588-590, 619 A.2d 1378, 1380 (1993), aff’d, 539 Pa. 282, 652 A.2d 299 (1995); Commonwealth v. Phillips, 439 Pa.Super. 428, 654 A.2d 591 (1995). From the foregoing, it is clear that we must begin our analysis of appellant’s claim that he was entrapped as a matter of law by looking to the egregiousness of the police conduct in the instant case, and by examining the record to determine whether there exists a dispute as to the operative facts.

Initially, we note, as did the trial court, that there are many disputed facts in this case; however, our careful review of the record reveals that the operative facts are not in dispute. “Operative facts” in the instant case are those that are necessary for appellant to prove by a preponderance of the evidence that he was entrapped. Under the objective test for entrapment, these would be facts that go to the course of conduct of a government officer or agent that “ Svould fall below standards to which common feelings respond, for the proper use of government power.’ ” Thompson, supra at 342, 484 A.2d at 165, quoting Sherman, supra at 382, 78 S.Ct. at 825, 2 L.Ed.2d at 856. A brief summary of the operative facts in the instant case is therefore appropriate.

First, appellant had just completed a drug rehabilitation program less than two weeks before Vranesevich, the paid police informer, contacted him for the first time. Second, there is evidence unrefuted by Vranesevich that he was told about appellant’s rehabilitation experience. Third, there is evidence uncontradicted by Vranesevich that Vranesevich appealed to his prior friendship with appellant, his need for a friend to see him through the death of his mother, and the sympathy engendered by his own admission that he had been through rehabilitation and was “clean” now in order to convince appellant’s wife to relay a message to appellant. Fourth, Vranesevich did not contradict evidence that he used his need for money to help defray the medical expenses associated with his mother’s terminal disease, and appellant’s susceptibility to an offer of “a free high” at a point at which he was struggling to “stay clean,” to induce appellant to sell him cocaine. Fifth, all of the transactions were at the instigation of Vranesevich; appellant did not contact the informer or the narcotics agents to set up additional purchases during the lengthy hiatus between February and June. Having briefly summarized the operative facts of the instant case, we next engage in a more detailed account of these facts as they are supported by the record.

According to Vranesevich’s testimony, Vranesevich approached the Attorney General’s office about becoming a paid informer in late October 1990 upon returning to western Pennsylvania after more than five years in Florida. (Notes of testimony, 2/17/93 at 555a, 575a-576a.) Vranesevich testified that he and appellant had been as close as brothers from the mid-to-late-1970’s until the early 1980’s, having spent several years working together on a daily basis to rebuild appellant’s vintage Camaro. They continued to do things together even after appellant had a one-night affair with Vranesevich’s wife in the mid-1980’s. (Notes of testimony, 2/17/93 at 574a-576a.) Vranesevich further testified that he was working on a number of cases for the government already when, on January 19, 1991, he decided to stop by appellant’s family-owned business to see his old buddy and to introduce him to undercover narcotics agents James Liptak and Larry Fuksa. The agents were introduced to appellant as co-workers. (Notes of testimony, 2/17/93 at 534a, 566a, 583a.) Until Vranesevich brought appellant to the narcotics agents’ attention on January 19, the agents did not know appellant. (Notes of testimony, 2/17/93 at 570a.) The events leading up to that first meeting on January 19th follow.

Appellant’s wife, testifying for the defense, stated that Vranesevich called appellant at home on January 12,1991, just twelve (12) days after appellant was discharged as an outpatient from Greenbriar Treatment Center. Appellant’s wife answered the phone and told Vranesevich that she and appellant had just “been through a lot,” and that she did not want Vranesevich or any of appellant’s other former “drug buddies” to call him or bother him. In response, Vranesevich said that he, too, had been through a drug rehabilitation program, that he was clean, and that his only reason for calling was that his mother was dying of cancer and he needed a friend. Out of sympathy for Vranesevich, appellant’s wife gave appellant the message. (Notes of testimony, 2/18/93 at 687a-689a.) Vranesevich testified that he “did not recall” having this telephone conversation with appellant’s wife; however, when asked under oath if appellant’s wife would be lying if she testified that such a conversation took place, Vranesevich responded: “I wouldn’t call her a liar, no. I just don’t recall that conversation happening.” (Notes of testimony, 2/17/93 at 559a.)

Appellant also introduced evidence that his family had persuaded him to agree to the drug rehabilitation program, and that after he was released, his wife and mother were actively monitoring his telephone calls and restricting his cash resources in an effort to help him stay “clean.” (Notes of testimony, 2/18/93 at 670a-725a.) This testimony was corroborated by Vranesevich, who acknowledged that the family was screening appellant’s calls at home and at work. (Notes of testimony, 2/17/93 at 563a.) Vranesevich persisted in calling, however, resorting to the use of an “alias” to get past the switchboard at appellant’s place of employment. (Notes of testimony, 2/17-18/93 at 563a, 704a-708a.) Vranesevich testified that he and appellant worked out the use of the alias together; however, appellant testified that Vranesevich invented the alias, and that appellant went along with it. (Notes of testimony, 2/17-18/93 at 563a, 794a.) While the testimony conflicts, it is not testimony that goes to the type of inducement at issue in this case; therefore, it is not decisive on the issue of entrapment as a matter of law because it does not address an operative fact.

Both Vranesevich and appellant testified that drugs were not discussed at the first meeting between Vranesevich, the narcotics agents, and appellant on January 19, 1991. (Notes of testimony, 2/17-18/93 at 565a, 752a.) Rather, the main subject of discussion appeared to be Vranesevich’s desire for a new kitchen for his recently purchased home, and his wish to have appellant, whose family owned a kitchen remodeling business, give him an estimate as to the cost of such a project. (Notes of testimony, 2/17/93 at 564a-567a.) In addition, prior to the January 23, 1991 meeting, the first meeting at which drugs were apparently discussed, Vranesevich admitted that he had heard from both appellant and his wife that appellant had just been released from rehabilitation. (Notes of testimony, 2/17-18/93 at 558a, 568a, 754a.) Vranesevich testified that he did not feel the need to tell Agent Liptak that appellant had just been released from rehabilitation at the time because he thought appellant was “just kidding.” (Notes of testimony 2/17/93 at 568a.) Agent Liptak testified, however, that Vranesevich told the agent “somewhere later on,” but during the investigation, that appellant had recently been through treatment. (Notes of testimony 2/17/93 at 621a.) This testimony was uncontradicted by Vranesevich, who testified only that he “did not recall” whether he told the agent about appellant’s attempted rehabilitation. (Notes of testimony 2/17-18/93 at 567a, 621a.) Nevertheless, the record is clear that Vranesevich asked appellant to sell him some cocaine, in exchange for which appellant could keep some for his own use. (Notes of testimony 2/17/93 at 541a.) Appellant had no prior criminal record, nor was his rehabilitation part of a plea agreement with the Commonwealth. From the foregoing, then, the record establishes that a government agent, taking advantage of his past close friendship with appellant, and playing upon appellant’s sympathy, approached an individual who had just completed an extensive drug rehabilitation program for the purpose of inducing him to resume his use of drugs. We turn next to the nature of the drug transactions.

The five drug transactions in which appellant participated had the same pattern. First, appellant would meet Vranesevich and the two narcotics agents at an appointed rendezvous. Sometimes this was a restaurant or bar, sometimes a parking lot, and sometimes appellant’s garage. The “buyers” would then give appellant between $1,000 and $1,900 to purchase the desired amount of cocaine, ranging from one-half to one ounce. Appellant would then leave the “buyers,” having arranged a time and place to deliver the cocaine to them later in the day. Next, appellant would meet with his “source” to purchase the cocaine and would then go to his home to measure and “cut” the cocaine, taking one-sixteenth of an ounce for his own use. Finally, appellant would meet again with the three “buyers” to deliver the cocaine. (Notes of testimony, 2/17-18/93 at 537a-556a, 584a-605a, 755a-776a.)

While Vranesevich’s testimony as to the exact location of these rendezvous conflicted at times with Agent Liptak’s, his own, and/or appellant’s, all agreed to the general format. In addition, testimony was uncontradicted that appellant had no money with which to purchase drugs until it was furnished by the police because his family had him on an allowance of five dollars ($5.00) per day throughout this entire period. (Notes of testimony, 2/18/93 at 772a.) There was conflicting testimony as to whether Vranesevich had a side deal with appellant for a cut of the cocaine, and Vranesevich testified, once again, that he “did not recall” whether he ever used cocaine as part of the investigation of appellant. (Notes of testimony, 2/17— 18/93 at 541a-542a, 561a, 570a, 757a, 761a-763a.) Nevertheless, none of the testimony regarding a “side deal” is central to the issue of inducement and is therefore not an operative fact. Finally, it was undisputed that all five transactions were at the instigation of the police; appellant made no effort to contact his “buyers” during the period from February to June 1991. (Notes of testimony, 2/17-18/93 at 633a-634a, 771a.) Having thus reviewed the operative facts of the instant case, we turn next to the operative facts of other Pennsylvania cases finding entrapment as a matter of law for guidance.

We have already reviewed the facts of Thompson, supra, a case in which an attractive female undercover police officer lured a fellow male officer into obtaining drugs for her in exchange for the promise of sexual favors. Thompson, supra at 333-40, 484 A.2d at 160-63. More recently, this court was confronted with a fact pattern similar to the instant case in Commonwealth v. Wright, 396 Pa.Super. 276, 578 A.2d 513 (1990), appeal denied, 526 Pa. 648, 585 A.2d 468 (1991), a case in which the defendant was found entrapped as a matter of law. While appellant argues that Wright is on all fours with the instant case, the Commonwealth argues that Wright is distinguishable. We agree with the Commonwealth; however, we find that the distinction is one of which the difference is to the benefit of appellant.

The Wright court, relying heavily on the analysis in Thompson, found entrapment as a matter of law under the following set of facts. In exchange for a probationary sentence, Ken Doran agreed to help gather information concerning drug dealing on the Penn State campus. Toward that end, Doran cultivated a friendship with Wright and, in reliance on that friendship, asked Wright to purchase some marijuana for him “as a favor,” alleging that Doran’s work prevented him from purchasing it for himself. The police were fully aware of all of Doran’s actions and made up the lies he told Wright. Wright received neither drugs nor money for his efforts, his only form of compensation being reimbursement for gas money and two cartons of lemonade. Wright, supra at 277-283, 578 A.2d at 514-516. In finding entrapment as a matter of law, the court focused heavily on the fact that Doran’s testimony corroborated Wright’s as to the operative facts, including Wright’s reasons for engaging in the drug transactions. The court also noted the heavy degree of police involvement in fabricating lies about Doran’s inability to purchase the drugs for himself. Id. at 277-279, 290-294, 578 A.2d at 514, 521-522.

In the instant case, we have an even more egregious set of uncontradicted “operative facts”: a targeted “seller” released from an intensive drug rehabilitation program within two weeks; appeals to sympathy and friendship to convince appellant’s wife to tell appellant that the informant wished to contact appellant; appeals to sympathy and susceptibility to drugs to induce appellant to return to drug use and to traffic in drugs; and no effort on the part of appellant to engage in drug transactions with the police officers during the lengthy hiatus between February and June. While the level of actual police involvement in creating the inducement is not as high in the instant case as it was in Wright, nevertheless, the case before the court presents exactly the kind of situation that the defense of entrapment was intended to address. Appellant argues, and we agree, that under the facts of this case, the conduct of the government agent described above rises to the level of outrageousness supporting our finding of entrapment as a matter of law.

As we have already noted, when § 313 was enacted, the legislature adopted the objective analysis of entrapment enunciated by Justice Frankfurter in his concurrence in Sherman, supra. Both the Wright and Thompson courts relied heavily on Justice Frankfurter’s analysis in Sherman. It is therefore instructive to review the facts of Sherman and the analysis of Justice Frankfurter with an eye toward the case before us.

Sherman, as in the instant case, involved a recovering drug addict. In Sherman, the informant met the petitioner at a doctor’s office where both were being treated for narcotics addiction. A mild friendship based on their common problem developed. In time, the informant asked petitioner if he knew of a good source of narcotics, or if he could supply the informant with a source because the informant was not responding to the treatment. Despite the petitioner’s attempts to avoid the issue, the informant persisted. Petitioner finally succumbed to the pressure of the informant’s alleged suffering. Id. at 371, 78 S.Ct. at 820, 2 L.Ed.2d at 850-851. Subsequently, government agents observed petitioner give narcotics to the informant in return for money supplied by the government on three separate occasions. Id. The majority of the Sherman Court held that the petitioner had been entrapped as a matter of law. In so holding, however, the Court relied on the subjective test for entrapment; namely:

[Whether] ‘the criminal design originate[d] with the officials of the government, and they implant[ed] in the mind of an innocent person the disposition to commit the alleged offense and induce[d] its commission in order that they may prosecute.’

Id. at 372, 78 S.Ct. at 821, 2 L.Ed.2d at 851, quoting Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 212, 77 L.Ed. 413, 417 (1932).

As noted supra, Pennsylvania no longer follows the subjective analysis of the Sherman majority; rather, it has adopted the objective analysis of the Sherman concurrence. As a result, the only issue is:

whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.

Sherman, supra at 382, 78 S.Ct. at 825, 2 L.Ed.2d at 856 (Frankfurter, J. concurring). As Justice Frankfurter explained:

The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the government to bring about conviction cannot be countenanced.

Id. at 380, 78 S.Ct. at 824, 2 L.Ed.2d at 855 (Frankfurter, J. concurring). That is surely our case today. It is hard to imagine what public policy is served by allowing the police or their agents to approach recovering drug addicts, newly discharged from rehabilitation programs to which they have submitted of their own free will, to lure them back into narcotics use. As the Sherman concurrence stated:

The power of government is abused and directed to an end for which it was not constituted when employed to promote rather than detect crime and to bring about the downfall of those who, left to themselves, might well have obeyed the law. Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.

Id. at 384, 78 S.Ct. at 826-827, 2 L.Ed.2d at 858 (Frankfurter, J. concurring).

The Commonwealth argues that the instant case is controlled by Commonwealth v. Manley, 252 Pa.Super. 77, 380 A.2d 1290 (1977), a case in which the police had no knowledge of the informant’s conduct. As our review of the record indicates, however, Agent Liptak admitted being told that appellant had recently completed a drug rehabilitation program. (Notes of testimony, 2/17/93 at 621a.) Furthermore, even if Agent Liptak did not know exactly how many times Vranesevich called appellant, or what the particular persuasive measures employed by Vranesevich were, nevertheless, we agree with the Sherman Court that the Commonwealth must take responsibility for the acts of its agents. Even using the subjective test for entrapment, with its strong component of criminal predisposition on the part of the accused, the Sherman majority found that the petitioner had been entrapped as a matter of law when the government allowed its informant, as part of a plea agreement, to approach a recovering addict and urge him to return to his narcotics habit. Although the government in Sherman likewise claimed ignorance of the tactics used by its informant, the Sherman Court stated emphatically:

The Government cannot disown [an informant] and insist it is not responsible for his actions — [The informant] was an active government informer ... In his testimony the [government] agent in charge of the case admitted that he never bothered to question [the informant] about the way he had made contact with petitioner. The Government cannot make such use of an informer and then claim disassociation through ignorance.

Id. at 373-75, 78 S.Ct. at 821-22, 2 L.Ed.2d at 852. Finally, § 313 itself demands such accountability, applying as it does to “[a] public law enforcement official or a person acting in cooperation with such an official.” 18 Pa.C.S.A. § 313(a) (emphasis added).

Lastly, we note that our finding of entrapment as to the first offense necessitates our finding entrapment as to all counts. As the Sherman Court stated:

It makes no difference that the sales for which petitioner was convicted occurred after a series of sales. They were not independent acts subsequent to the inducement but part of a course of conduct which was the product of the inducement.

Id. The Pennsylvania Standard Jury Instructions echo this analysis:

The defense [of entrapment] provides a sanction for overzealous and reprehensible police behavior comparable to the exclusionary rule.

Pa.Crim. Suggested Standard Jury Instructions, supra at Subcommittee Note § 8.313. As such, the fruit of the first entrapment, like the fruit of an illegal search, cannot be utilized by the Commonwealth in its case against appellant.

We do not decide today that the police may never approach a person who has recently been released from a drug rehabilitation program; the Commonwealth may very well, in certain cases, be able to create a factual question for the jury on this issue. Entrapment as a matter of law is, ironically, fact specific. All we decide today is that, based upon the uncontroverted testimony at trial on the operative facts of this case, appellant was entrapped as a matter of law where: 1) a former very close friend; 2) appealing to the bonds of friendship and the sympathy engendered by the alleged impending death of his mother; 3) and claiming that he, himself, had been through rehabilitation and was now “clean”; 4) approached appellant repeatedly about selling drugs in exchange for which appellant could have a “free high”; 5) all the while knowing that appellant was just out of rehabilitation and that his family was doing everything in its power to help him remain drug-free. As the Thompson court, in reliance upon the Sherman concurrence, stated:

Although entrapment necessarily must be decided on a case-by-case basis, impermissible activity may include ‘[ajppeals to sympathy, friendship, the possibility of exorbitant gain and so forth.’

Thompson, supra at 343, 484 A.2d at 165 (citing Sherman, supra).

We do not, and are not asked to, decide today whether this particular appellant was ready to sell drugs when Vranesevich first approached him, nor whether he would have sold drugs to someone else if Vranesevich had not made the offer. As this court stated in Commonwealth v. McGuire, 339 Pa.Super. 320, 488 A.2d 1144 (1985):

Pennsylvania’s entrapment statute addresses the concern over ‘unconventional’ investigatory methods, and the potentialities inherent in these overreaching tactics. As such, the analysis only incidentally involves a particular defendant.

Id. at 328, 488 A.2d at 1149 (emphasis added). All we decide is that the government has a responsibility to ensure that the tactics used by its informants do not fly in the face of the goal of the state to reduce, not increase, illegal drug use, even if by only one person.

For the foregoing reasons, the judgment of sentence is vacated, and jurisdiction is relinquished.

      . Appellant raises seven (7) issues on appeal:
      I. Whether the verdicts on all charges should be set aside on the basis that defendant was entrapped as a matter of law;
      II. Whether the verdicts on the charges in the informations at Nos. 599 and 600 Pittsburgh 1992 should be set aside on the basis that the Commonwealth’s evidence was so contradictory that it failed to establish these crimes beyond a reasonable doubt;
      III. Whether defendant should be granted a new trial on the basis that the trial court refused to admit mental health records of the informant, a key government witness, which contained his admissions of dishonest and deceitful conduct;
      IV. Whether defendant should be granted a new trial on the basis that the trial court refused to admit expert medical testimony regarding the susceptibility of a recently recovering cocaine addict to participate in a cocaine transaction in exchange for cocaine as inducement as that issue related to the entrapment defense;
      V. Whether defendant should be granted a new trial on the basis that the trial court refused to admit expert testimony on the issues of the inadequacy and absence of investigative reports and absence of investigative techniques;
      VI. Whether defendant should be granted a new trial on the basis that the trial court erred by charging the jury on voluntary intoxication under the facts of this case;
      VII. Whether defendant should be granted a new trial on the basis that the court erred by giving the voluntary intoxication charge to the jury in response to the jury's only question during deliberations, when the jury only asked for the definition of entrapment.

      . 35 P.S. §§ 780-113(a)(16), (30).

      . The only conflicting testimony on this issue was the discrepancy between what Vranesevich told Agent Liptak at the time of the first meeting, and what Vranesevich testified to under oath at trial. See notes of testimony, 2/17/93 at 565a-567a.

      . As previously noted, appellant had no prior convictions for drug trafficking and his rehabilitation program was not a part of a plea agreement with the government, in exchange for parole. On the contrary, the Commonwealth concedes that appellant went into rehabilitation at the behest of family members, who were doing everything in their power to help appellant overcome his addiction.


text:
    662 A.2d 9
    COMMONWEALTH of Pennsylvania v. Robert McNAMARA, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 8, 1995.
    Filed July 7, 1995.

      Samuel C. Stretton, West Chester, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before DEL SOLE, FORD ELLIOTT and CERCONE, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on July 13, 1994. We affirm.

The following synopsis of the relevant factual and procedural history of this case is adopted from the Opinion of the Honorable Jane Cutler Greenspan:

In the evening of August 2, 1993, at 6:00 p.m, [sic] the victim, Anthony Mangigian, parked his maroon 1987 Chevrolet Camaro at Rhawn Street and Roosevelt Boulevard. Prior to leaving, the victim locked the car, activated its burglar alarm, and did not give anyone permission to enter or move the car. Several valuable items, including a blue tool box, were left in the car. In the morning of August 3, 1993, at around 2:00 or 2:30 a.m., the victim discovered that his car was missing. At 5:00 a.m. the same morning, a Philadelphia police officer saw defendant exiting the driver’s seat of a reportedly stolen maroon Chevrolet Camaro. The officer followed defendant as he walked from the maroon Camaro to a gray Chevrolet Camaro parked nearby. The officer observed defendant place a blue tool box — which defendant had taken from the maroon Camaro — through the driver’s side of the gray Camaro.
In addition to defendant, the officer also noticed five males surrounding the maroon Camaro. Initially, the officer held these five individuals for investigation, later releasing them since they were not seen in, nor had they possessed anything from, the maroon Camaro. Since the officer was occupied with these five suspects, he did not immediately stop the defendant. However, the officer recognized defendant from the neighborhood and also knew where he resided. The police later contacted the victim ... [who] identified the car as his....
Officers at the scene directed the victim to the gray Camaro located up the street from the victim’s stolen car. The victim subsequently identified and retrieved his blue tool box from the back seat of the gray Camaro. Later in the morning, the officer who had previously observed defendant place the blue tool box into the gray Camaro, visited defendant at his 1940 Ruan Street, Philadelphia residence. Upon seeing the officer, defendant closed the door on him. Thirty minutes after the officer’s visit, defendant surrendered at the police station.

Trial court opinion, 9/23/94 at 1, 2 (citations to notes of testimony and footnotes omitted). The trial court summarized the procedural history as follows:

On August 8, 1993, defendant, Robert McNamara, was arrested and charged with theft by receiving stolen property.[] ... [A] jury trial followed on May 17, 1994, and defendant was subsequently found guilty of theft by receiving stolen property____ Post-sentence motions were argued and subsequently denied on July 13, 1994, and defendant was sentenced to serve not less than three (3) years, nor more than seven (7) years, consecutive to any other time, for theft by receiving stolen property ...

Id. at 1.

On appeal, appellant presents four issues. Although appellant has couched the first issue in terms of prosecutorial error, we believe that a correct statement of the issue concerns alleged trial court error in not declaring a mistrial based upon improper opening and closing remarks by the prosecutor. The second issue raises the constitutionality of the preliminary stages of the jury selection process in Philadelphia County, a process which appellant alleges is also violative of the Pennsylvania Rules of Criminal Procedure. Appellant’s third issue alleges trial court error in not striking for cause jurors who initially indicated an inclination to believe police officers over lay witnesses, or who were victims, and/or relatives or friends of victims, of similar crimes. Finally, appellant alleges trial court error in failing to instruct the jury that mere knowledge of criminal activity is not a basis for a criminal conviction, even when coupled with presence at the scene of the crime. (Appellant’s brief at 4.) Because the trial court opinion both accurately and adequately addresses the first, third, and fourth issues, we shall adopt it with respect to these issues, with the following comments added for emphasis.

We note, in relation to appellant’s third issue, namely, that the trial court erred in not striking certain jurors for cause, our supreme court has stated:

It is true, of course, that an accused has the right to challenge a prospective juror for lack of impartiality. We do not expect jurors to be free from all prejudices, however; rather, the law requires them to be able to put aside their prejudices and determine guilt or innocence on the facts presented.... The purpose of the voir dire examination is not to provide a better basis upon which a defendant can exercise his peremptory challenges, but to determine whether any venireman has formed a fixed opinion as to the accused’s guilt or innocence____ The burden of proving that a venireman should be excused for cause is on the challenger who must demonstrate that he or she possesses a fixed, unalterable opinion that would prevent him or her from rendering a verdict based solely on the evidence and the law.

Commonwealth v. Smith, 518 Pa. 15, 36, 540 A.2d 246, 256 (1988) (citations omitted) (emphasis added). We note that the trial court required appellant to meet this burden, and that appellant failed. (Trial court opinion, 9/23/94 at 8.) That appellant failed to meet his burden is evident from our review of the record below.

Appellant admits that the trial court questioned all of the prospective jurors who indicated on their questionnaires that they had been or knew victims of crimes, along with those who indicated that they would tend to believe police officers over lay witnesses; nevertheless, appellant categorizes this questioning as perfunctory. We agree with appellant that, if his right to question prospective jurors was limited by the trial court, which engaged in only a cursory review of the jurors’ answers, he would have a legitimate basis for alleging error on the part of the trial court. Our careful review of the record, however, convinces us that neither of these allegations of error is true. First, when either of the attorneys requested an opportunity to ask a specific question of one of the jurors, that request was granted. For example, when Assistant District Attorney Sweeney queried, “May I ask a question on one of these previous answers?” the trial court responded, “Certainly.” (Notes of testimony, 5/16/94 at 65.) Counsel for appellant, however, chose not to ask any specific questions of the jurors; rather, he merely challenged them for cause based upon their answers on the questionnaire, even after they indicated they could be fair in response to the trial court’s questioning. (See notes of testimony, 5/16/94 at 82-86.) At no time was appellant’s counsel denied the opportunity to ask a specific question of a particular prospective juror. As the trial judge stated when appellant’s counsel challenged six (6) jurors for cause after sitting quietly while they were questioned:

I will tell you right now, go to the person you really have a claim about because these are not claims; where they indicated something on their sheet and I have questioned them about that and they indicated they could be fair, that is not a basis to strike them for cause because they put it down on their sheet. Go to something that is an indication in their answers as to why they could not be fair.

Notes of testimony, 5/16/94 at 86-87.

In addition, in response to appellant’s argument that the trial court’s questions were perfunctory, we note that the judge’s questions and the venirepersons’ responses to them occupy sixty-four (64) pages of testimony. Furthermore, of the forty (40) prospective jurors questioned during voir dire, nine (9) were excused by agreement, and one (1) of the six (6) challenged by appellant was excused for cause. It does not seem appropriate, therefore, to categorize the trial judge’s voir dire as “perfunctory.” We would therefore affirm on this basis, as well as on the grounds stated by the trial court in her opinion.

The only remaining issue for our review, then, is the legality, in both a constitutional and procedural sense, of the preliminary stages of the jury selection process in Philadelphia County. The gravamen of appellant’s complaint is that he had a constitutional and procedural due process right to be present with counsel at all phases of the jury selection process, and that all of the jury impanelling proceedings should have taken place in open court before the judge. (Appellant’s brief at 19, 20.) In support of his argument, appellant relies upon “the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and related provisions under the Pennsylvania Constitution.” (Id. at 19.) Appellant also relies upon Pa.R.Crim.P. Rule 1106, 42 Pa.C.S.A., which provides in pertinent part:

(a) Voir dire of prospective trial jurors and prospective alternate jurors shall be conducted, and the jurors shall be selected, in the presence of a judge.
(c) Voir dire, including the judge’s ruling on all proposed questions, shall be recorded in full unless the recording is waived....
(d) The judge may require the parties to submit in writing a list of proposed questions to be asked of the jurors regarding their qualifications. The judge may permit the defense and the prosecution to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the Court shall permit the defense and the prosecution to supplement the examination by such further inquiry as it deems proper.

Id. In addition, Pa.R.Crim.P. Rule 1117, 42 Pa.C.S.A. provides:

(a) The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule____

Id. Appellant claims that Philadelphia’s practice of guiding prospective jurors through a questionnaire concerning their “bias, prejudice, ability to be fair, etc.” by video-tape, outside everyone’s presence, was violative of both the aforementioned Rules and of appellant’s constitutional due process rights. (Appellant’s brief at 12.) While appellant has failed to provide this court with an account of the procedure in Philadelphia County so that we may evaluate its adherence to these Rules and to the constitutional interests they are designed to protect, nevertheless, the Commonwealth has provided its account. We will therefore set forth the Commonwealth’s account of Philadelphia County’s preliminary procedure:

Prior to the commencement of the court day, between two hundred and three hundred venirepersons, who have received summons to appear for jury service, assemble in the Jury Assembly room to check in and to go through the administrative steps preparatory to their assignment to individual courtrooms for voir dire. These administrative procedures are performed by court administrative personnel. No judges, prosecutors, defense counsel or other lawyers, criminal defendants, or other parties are present in the Jury Assembly room.
One of the administrative procedures carried out in the Jury Assembly room is the assigning of numbers to the venirepersons, and the random selection of those numbers by computer, to ensure that each panel of twenty venirepersons ultimately sent out to each of the various courtrooms for voir dire is a random cross-section of the pool of venirepersons summoned that day. As the venirepersons arrive in the Jury Assembly room and hand in their summons, the number on their summons is assigned them as their juror number, entered into a computer and randomized. When a trial courtroom telephones requesting a venire panel be sent there, the computer then randomly assigns twenty venirepersons to the venire panel, and randomly gives each venireperson in the panel a panel number from 1 to 20 which determines their [sic] order on the panel. The computer prints out a sheet giving the randomized list of venirepersons, juror numbers and panel numbers, which accompanies the venirepersons to the trial courtroom.
... In the Jury Assembly room another one of the administrative procedures carried out is the distribution to the massed venirepersons of a questionnaire. This elicits background information from the venirepersons — name, marital status, occupation, schooling, number and sex of children, and area of residence. It also gives venirepersons the opportunity to indicate, by ‘yes’ or ‘no’ answer, if there is a reason they believe might prohibit them from serving as jurors: whether they have any physical or psychological disabilities; whether they have previously been a juror; whether they have any religious, moral, or ethical beliefs that would prevent them from sitting in a criminal case; whether they have any problem with following the instructions of the court in a criminal case; whether they, or persons close to them, has [sic] ever been a victim, defendant or witness in a criminal case; whether they, or persons close to them, have ever been employed law enforcement officers or other law-related jobs; whether they have any problem that might interfere with jury deliberations; and, whether they believe there is any other reason they could not be fair jurors. To assist the venirepersons in completing this questionnaire, a videotape is played which walks the venirepersons through it, reading the questions aloud. When the questionnaires are completed, they are collected by the court administrative personnel. When a panel of venirepersons is sent to a trial courtroom to under go [sic] voir dire, their questionnaires are forwarded to the trial courtroom, with copies for the judge, plaintiff'prosecutor, and defendant, to provide them with this background information for use in their voir dire questioning.

Commonwealth brief at 9-10, 13-14.

Both parties and the trial court below agree that “jury selection is a ‘critical stage’ of the prosecution against an accused which calls for the assistance of counsel.” Commonwealth v. Shirey, 333 Pa.Super. 85, 106, 481 A.2d 1314, 1325 (1984), overruled on other grounds, Commonwealth v. Anderson, 379 Pa.Super. 589, 550 A.2d 807 (1988). The parties are also in agreement that voir dire is “the examination and interrogation of prospective jurors.” Pa.R.Crim.P. Rule 3(s), 42 Pa.C.S.A. This court has previously held, however, that “[i]t is widely recognized that a defendant’s presence during all stages of the trial does not extend to purely procedural matters preparatory to the trial.” Commonwealth v. McLaurin, 292 Pa.Super. 392, 397, 437 A.2d 440, 443 (1981). The crux of appellant’s issue, therefore, is whether the procedures outlined above, adopted by the Philadelphia courts to expedite the processing of venirepersons so that they can more quickly be sent to individual courtrooms for voir dire, are administrative proceedings as the Commonwealth alleges, or are a part of voir dire itself. A determination of this issue requires us to analyze the nature of these proceedings to determine whether any of appellant’s due process rights are in jeopardy if the proceedings are conducted outside the scrutiny of the court and defense counsel.

This court, in Commonwealth v. Carter, 219 Pa.Super. 280, 281 A.2d 75 (1971), was confronted with a similar allegation of an infringement of appellant’s due process rights. In Carter, appellant was not included in an in-chambers determination that one juror and one alternate should be dismissed because they had seen appellant in shackles. Although appellant’s counsel, the prosecutor and the judge made the determination, appellant claimed a violation of his constitutional right to be present at all phases of his trial. Id. at 285-87, 281 A.2d at 79. In its analysis of Carter’s due process rights, this court adopted the standard enunciated by the Supreme Court in Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), rev’d on other grounds, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); namely, that “a defendant’s presence is required only where there is a reasonable substantial relation to the fullness of the opportunity to defend the charge.” Carter at 287, 281 A.2d at 80, citing Snyder, supra. Finding that Carter had accepted the alternate juror who was substituted as a qualified alternate, this court found no violation of Carter’s due process rights. Id.

Applying the Carter/Snyder test to the instant case, we must next determine at what point in the jury selection process there exists a reasonable, substantial relation to the fullness of the opportunity to defend. To make this determination, we have reviewed the case law of other jurisdictions, and the procedure promulgated for use in the federal courts. In U.S. v. Williams, 927 F.2d 95 (2nd Cir.1991), cert. denied, Davis v. U.S., 502 U.S. 911, 112 S.Ct. 307, 116 L.Ed.2d 250 (1991), the court of appeals addressed the constitutionality of a procedure adopted by the district court for the southern district of New York. Under the court’s procedure, “any person summoned for jury service may be (1) excused by a district judge or the Clerk of Court upon a showing of undue hardship or extreme inconvenience, for such period as the judge or the Clerk of Court deems necessary....” Id. at 97 (citation omitted). The court of appeals compared this language to the language of the Jury Selection and Service Act of 1968, Pub.L. No. 90-274, 82 Stat. 53 (codified as amended at 28 U.S.C. §§ 1861-78 (1988)), which provides that “any person summoned for jury service may be (1) excused by the court, or by the clerk under supervision of the court if the court’s jury selection plan so authorizes, upon a showing of undue hardship or extreme inconvenience, for such period as the court deems necessary____” Williams at 97, quoting 28 U.S.C. § 1866(c) (emphasis added). In Williams, two “talesmen” were temporarily excused by the clerk of courts from a panel of prospective jurors sent to appellants’ court room. The clerk was acting pursuant to specific instructions from the trial judge; therefore, the court of appeals did not have to reach the issue of whether the southern district plan was consistent with the federal statute. Williams, supra at 97. The appellate court did, however, note that the excusal of the two talesmen was not constitutionally forbidden. Id. at 95. In so determining, the second circuit distinguished Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), cited by appellants in Williams and by appellant in the instant case. Gomez held that the voir dire of a jury had to be conducted by a judge rather than a magistrate because “voir dire is a critical stage of the trial during which the defendant has a constitutional right to be present.” Williams, supra, at 96, citing Gomez, supra, at 873, 109 S.Ct. at 2246. The Williams court then stated:

Voir dire is not an issue in the instant case. Voir dire is conducted by the judge in the courtroom, not by the clerk in the central jury room.

Williams, supra at 96. The Williams court continued:

Moreover, even if the excuse of the two jurors was error, it was harmless error. Although appellants argue that under Gomez harmless error analysis does not apply, the court in Gomez relied on the distinction between voir dire, which is the jurors’ first introduction to the substantive factual and legal issues in a case, and a mere ‘administrative impanelment process. ’ ... [I]n this case, the trial judge conducted the entire voir dire. Excusing two potential jurors without exposing any jurors to the substance of the case was part of the ‘administrative impanelment process,’ and any error in this procedure [because it did not comply with § 1866(c), supra ], was harmless.

Williams, supra at 97, quoting Gomez, supra (citations omitted) (emphasis added). The critical moment, therefore, at which an accused’s constitutional rights attach during voir dire is that moment at which the jurors are introduced to the substantive factual and legal issues in the case.

Applying this test to the Philadelphia County procedure delineated by the Commonwealth in its brief and quoted extensively supra, we note that at no point in that procedure are the jurors introduced to the substantive issues of an' accused’s case. Rather, all questions are designed to elicit background information that will help the judge, counsel, and the accused evaluate the prospective jurors’ availability, capability, impartiality, and similarity to defendant. Having found that the Philadelphia County procedure is not voir dire, we also find that the jury selection process is not fundamentally flawed; therefore, appellant is entitled to no relief on this basis.

Likewise, we find no merit to appellant’s claim that the random selection of venirepersons, and their random ordering by computer prior to assignment to a court room, interferes with his constitutionally protected right to enter peremptory challenges in the order most advantageous to his case. (Appellant’s brief at 22.) As we have already noted, “the purpose of voir dire is not to provide a better basis upon which a defendant can exercise his peremptory challenges,” Commonwealth v. Smith, supra at 36, 540 A.2d at 256, but to ensure that none of the jurors has “formed a fixed opinion as to the accused’s guilt or innocence.” Id. The randomness made possible by computer selection is designed to protect appellant’s constitutionally protected right to be tried by “a jury of his peers” rather than by a jury selected for some impermissible reason. If the random ordering that results interferes with optimal use of appellant’s peremptory challenges, that is an unfortunate, but unavoidable, consequence. Compare Jury Selection and Service Act of 1968, supra, 28 U.S.C. § 1863(b)(3), (4) (“procedures for jury selection “shall be designed to ensure the random selection of a fair cross section of the persons residing in the community ... they shall ensure that the names (of people in the region] are placed in a master jury wheel” ... (or a device similar in purpose and function).”) and Id. at § 1864(a) (“From time to time as directed by the district court, the clerk or a district judge shall publicly draw at random from the master jury wheel the names of as many persons as may be required for jury service. The clerk or jury commission may, upon order of the court, prepare an alphabetical list of the names drawn---- The clerk or jury commission shall mail to every person whose name is drawn from the master wheel a juror qualification form accompanied by instructions to fill out and return ... ”).

For the foregoing reasons, judgment of sentence is affirmed, and jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 3925:
      (a) Offense defined. — A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

      . While we are grateful to the Commonwealth for this detailed account of administrative procedure in Philadelphia County, we must note that the Commonwealth's reliance in its brief on Pa.R.Crim.P. Rule 1107, 42 Pa.C.S.A., which is similar in its goals to the procedure delineated above, is misplaced. Rule 1107 was amended by order of the supreme court on September 15, 1993, to take effect in January 1994 as the Commonwealth states; however, the September 15, 1993 order was suspended December 17, 1993, until further order of the court. To date, no such order has been entered. As a result, Rule 1107 is not currently in effect.

      . We note, however, that, since rescinded Rule 1107 mandated disclosure in a questionnaire of a juror’s "relationship to any court, any defendant, any witness, any law enforcement officer, or any attorney,” Rescinded Pa.R.Crim.P. 1107(b), 42 Pa.C.S.A, such a mandate would appear to impermissibly cross the line into matters properly left for voir dire if it would require jurors to be introduced to the particulars of the accused's case. Since, in the instant case, it is clear from the transcript that the prospective jurors were first apprised of appellant’s identity, as well as the identity of the witnesses, the court officials and the relevant law enforcement personnel, in the courtroom by the trial court judge, we find no such encroachment. (Notes of testimony. May 16, 1994 at 30-33.)