text:
    482 A.2d 563
    Zdenka DRAKULICH v. Nikola DRAKULICH, Appellant.
    Superior Court of Pennsylvania.
    Argued March 28, 1984.
    Filed Sept. 21, 1984.

      Malcolm B. Jacobson, Norristown, for appellant.
    Daniel C. Barrish, Norristown, for appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   BROSKY, Judge:

This appeal is from the dismissal of appellant’s petition to reduce support payments. Appellant argues that the changed circumstances justifying the sought for reduction were present in the form of an order of a Yugoslavian court compelling him to pay $600 a month support to his son and mother. The court below concluded that this order had been obtained by appellant for the fraudulent purpose of appearing to have greater financial obligations than he does, in fact, have. We do not review that conclusion directly. For even assuming, arguendo, that the Yugoslavian support order was not collusively obtained, appellant’s economic circumstances are not so changed that a reduction in support payments would be mandated. Affirmed.

The relevant procedural history starts with an order of the Montgomery County Court of Common Pleas on March 18, 1981 directing that payments of $100 a week be made by appellant to appellee. On July 25, 1981, a Yugoslavian court in Belgrade entered an order against appellant herein in the amount of $600 a month for the support of his mother and son. Approximately one week later, on August 3, 1981, appellant filed a petition to decrease the $100 a week support order based on the changed circumstances of the Yugoslavian support order. The Master recommended that the petition be dismissed, timely exceptions to which were taken. A year later the matter was heard de novo by the Court of Common Pleas, which dismissed appellant’s petition. This appeal followed.

Initially, it should be determined whether a Yugoslavian support order is capable of taking on the character of a binding obligation upon a resident of this Commonwealth. For, if it cannot, it is a mere chimera, of no substance and incapable of supporting the conclusion that it has changed a Pennsylvanian’s circumstances. For the following reasons we conclude that a Yugoslavian support order can be enforced in this Commonwealth.

The Restatement 2d, Conflict of Laws at § 98 reads: A valid judgment rendered in a foreign nation after a fair trial in a contested proceeding will be recognized in the United States so far as the immediate parties and the underlying cause of action are concerned.

Subject to some limitations, Pennsylvania follows this rule.

A 1963 case of this Commonwealth’s Supreme Court summarized Pennsylvania’s attitude toward the court orders of foreign countries.

Although we must give full faith and credit under the mandate of the United States Constitution to a decree of adoption by a court of a sister state if such court had jurisdiction over the parties and the subject matter, judicial decrees rendered in foreign countries depend for recognition in Pennsylvania upon comity...

In re Christoff's Estate, 411 Pa. 419 at 422, 192 A.2d 737 at 738 (1963).

Applying Pennsylvania law, the Third Circuit explained the concept of comity.

Comity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law, but one of practice, convenience, and expediency. Although more than mere courtesy and accommodation, comity does not achieve the force of an imperative or obligation. Rather, it is a nation’s expression of understanding which demonstrates due regard both to international duty and convenience and to the rights of persons protected by its own laws. Comity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect.

Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435 at 440 (1971), cert. den., 405 U.S. 1017, 92 S.Ct. 1294, 31 L.Ed.2d 479 (1972).

In Christoff's Estate, supra, Justice Jones concluded that this Commonwealth would “ordinarily grant recognition and credit to the decrees” of foreign tribunals “unless the decree is so palpably tainted by fraud or prejudice as to outrage our sense of justice, or where the process of the foreign tribunal was invoked to achieve a result contrary to our laws or public policy or to circumvent our laws or public policy.” In re Christoff's Estate, supra, 411 Pa. at 424, 192 A.2d at 739.

Thus, the Yugoslavian support order could potentially be enforced in Pennsylvanian courts by either of its beneficiaries against appellant.

The Court of Common Pleas came to the conclusion the Yugoslavian order should not be given credibility because, in effect, “the process of the foreign tribunal was invoked ... to circumvent our laws.”

This Court was not convinced that the Yugoslavian Support Order was a legitimate and valid judgment in view of the fact that defendant willingly agreed not to appeal. Given the persistence with which defendant has fought against the non-support actions instituted by his wife, the Court finds it incredible that he would acquiesce to a judgment significantly greater than that of plaintiffs and forbear any right he would have to appeal such a judgment.
The timing of the Yugoslavian support order, in that it only came about after Judge Brown had ordered support payments to defendant’s wife, and the agreement by the parties that the foreign order would be non-appealable leads this Court to believe that the support order was procured for fraudulent purposes. As such, it is not entitled to any credibility from this Court.

It is not necessary for us to decide whether or not the court below erred in concluding that the Yugoslavian support order was collusively obtained in order to reduce the wife’s support payments. Assuming that the Yugoslavian order represents a valid on-going obligation, its existence does not justify a reduction in the support payments made to appellee. The economics of the situation lead to this conclusion.

The total amount of appellant’s support payments, foreign and domestic, is $1,000 per month. This is 44.5% of his net income of $2245 per month. Considering the number of adults being supported in two separate households, this total amount is not exorbitant.

Also, appellant is left with $1,245 per month net income for his personal maintenance. He is not beggared even by the combined Yugoslavian and Pennsylvania support payments.

Further, we note that the $100 per week support payment to appellee, appears to be a rather low figure when viewed in light of her net income of $163 per week and his net income.

It was appellant’s “burden of proving by competent evidence sufficient facts which show a material and substantial change in circumstances.” Shuster v. Shuster, 226 Pa.Super. 542 at 545, 323 A.2d 760 at 761 (1974). While the Yugoslavian order is a change in appellant’s circumstances, it is not — in view of appellant’s and appellee’s respective incomes — a material and substantial change in those circumstances which would justify a reduction in support. Commonwealth ex rel. Daubert v. Daubert, 270 Pa.Super. 124, 410 A.2d 1280 (1979). Accordingly, there was no clear abuse of discretion in the court’s order denying the petition to decrease support. Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa.Super. 301 at 303, 310 A.2d 672 at 673 (1973).

Affirmed.

      . This amount included $400 month support for his 23 year old son and $200 a month for his octogenarian mother.

      . It is an awkward curiosity that each of our Republic’s 50 states is free to recognize, or not, subject to their own rules, the judgments of courts of foreign nations. One commentator has rather percipiently stated,
      ... much can be said for the suggestion that the measure of respect to which judgments of foreign nations are entitled should be regulated by a uniform national law rather than be left to the diverse views of the individual states. Furthermore, since the effect of such judgments in this country clearly affects our relations with other nations, the question would seem properly to fall within the federal sphere.
      Reese, "The Status in This Country of Judgments Rendered Abroad,” 50 Colum.L.Rev. 783 at 788 (1950).
      This unseemly variety would seem to run counter to the central proposition of our federal system that matters affecting foreign relations are within the purview of federal, not state, law. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964).

      . There is no reason to doubt that this policy would include the recognition of foreign support orders. Though this does not appear to have occurred as yet in this Commonwealth, several of our sister states have had the opportunity to enforce foreign support orders. See Cox v. Pow, 182 So.2d 31 (Fla.App., 1966) and cases cited therein and 2 A.L.R.2d 1103, § 2-3.

      . An appellate court may independently arrive at different grounds from that advanced on appeal in affirming a lower court. Commonwealth v. Cunningham, 247 Pa.Super. 302, 372 A.2d 473 (1977).

      . We note here that the Pennsylvania Supreme Court in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984) announced a uniform state formula in support cases, although this Court recognizes that Melzer involved only support for children.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    482 A.2d 567
    COMMONWEALTH of Pennsylvania v. Efrain FERNANDEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1984.
    Filed Sept. 21, 1984.

      Nino V. Tinari, Philadelphia, for appellant.

      Stephen G. Heckman, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before OLSZEWSKI, POPOVICH and CERCONE, JJ.
   OLSZEWSKI, Judge:

Appellant was convicted by jury of two counts of second-degree murder, burglary, and criminal attempt-robbery on December 29, 1981. Following oral argument, post-verdict motions were denied. Appellant was sentenced to two concurrent terms of life imprisonment on the second-degree murder charges, ten to twenty years’ imprisonment on the burglary charge and five to ten years’ imprisonment on the criminal attempt-robbery charge. The burglary and criminal-attempt sentences were to run concurrently with each other but consecutively to the two life sentences.

On September 28, 1974, appellant, Robert Tome, Sigisfredo Ortiz, and a man named Santiago entered the residence and place of business of Doris and Jean Maiale, planning to steal a large amount of cash which they believed to be on the premises. While subduing the Maiale sisters, Tome shot them each in the head. Panicked and before even taking the money they came to steal, the would-be robbers fled to Philadelphia. Roberto Tome was tried and convicted of the murders and related crimes in 1975. Sigisfredo Ortiz entered a plea of guilty to attempted robbery and testified for the Commonwealth at both the Tome and Fernandez trials. Santiago died before being brought to trial. Appellant, Fernandez, was apprehended by the police in Puerto Rico in 1981.

Five issues are raised in this appeal. First, appellant argues that his constitutional right to protection against self-incrimination and his presumption of innocence were abridged by the lower court’s grant of a pretrial motion to have appellant shave his beard. The purpose of the order was to facilitate identification of appellant by a Commonwealth witness. We hold that the order did not violate appellant’s constitutional rights.

Although this is an issue of first-impression for us, there is a plethora of case law available from other jurisdictions. At the outset, we recognize that Article I, Section 9 of the Pennsylvania Constitution, providing that an accused “cannot be compelled to give evidence against himself,” does not expand the protection against self-incrimination afforded by the Fifth Amendment to the United States Constitution and made applicable to the states by virtue of the Fourteenth Amendment. Commonwealth v. Moss, 233 Pa.Super. 541, 334 A.2d 777 (1975). The Fifth Amendment has consistently been held to exclude only evidence which is testimonial in nature. United States v. Lamb, 575 F.2d 1310 (10th Cir.), cert. denied sub nom. Clary v. United States, 439 U.S. 854, 99 S.Ct. 165, 58 L.Ed.2d 160 (1978). Testimonial evidence is communicative evidence as distinguished from demonstrative or physical evidence. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (held, extraction of blood is demonstrative physical evidence). Justice Holmes recognized this distinction many years ago when he wrote that “the prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910).

We recognize that compelling appellant to shave his beard represents an extra-ordinary intrusion of the Commonwealth’s police power into the respect which it must accord to the dignity and integrity of its citizens. Nevertheless, we are persuaded that the order served the interests of justice in obtaining demonstrative evidence of appellant’s appearance, at the time of the murders, for the jury as finder of fact. Appellant was not compelled to communicate protected knowledge by the order, nor does a careful barbering shock the conscience as a method of discovery “too close to the rack and screw.” We reject appellant’s argument that the order reflected a predetermination of appellant’s guilt. Appellant contends that the order to shave implied the court’s acceptance of the Commonwealth’s identification of the perpetrator. We disagree. The order served the Commonwealth’s interest in pursuing the effective enforcement of criminal law through the discouragement of dissemblance or disguise.

Appellant next alleges error in the lower court’s refusal to declare a mistrial after the Commonwealth’s chief witness, Ortiz, alluded to appellant’s subsequent illicit drug activities. We hold that the lower court properly refused to declare a mistrial.

At trial, the following exchange occurred during the Commonwealth’s direct examination of Ortiz:

“Q. Anyway, after you last saw Fernandez that day, that’s September 28, did you ever see him again after then?
“A. Fernandez, I seen him on the street before Seventh, on Cambria (the remainder of the witness’ answer was unintelligible.)
“MR. TINARI: I object and move for a mistrial.”

N.T., Volume I, December 18, 1981, p. 367.

At sidebar, defense counsel contended that Ortiz had said that he had met Fernandez at Cambria and he was “copping dope.” The trial judge denied the motion for a mistrial, but issued a cautionary instruction and proceeded to voir dire the jury to ascertain what they had heard. Two jurors among the fourteen empaneled had heard Ortiz testify that he saw Fernandez engaged in drug dealing activity. Both jurors indicated that their verdict would not be influenced by Ortiz’ comment.

The decision to grant a mistrial lies within the sound discretion of the trial court and will be reversed only where there is a manifest abuse of that discretion. Commonwealth v. Seigrist, 253 Pa.Super. 411, 385 A.2d 405 (1978). It is settled that evidence of a distinct crime, not charged in the information, cannot be introduced against a defendant due to its prejudicial impact. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). Nevertheless, the extreme remedy of a mistrial is not automatically required if it is determined that the inference of prior criminality was innocuous and that effective curative instructions were immediately given. Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977).

We accept the conclusion of the court below that the statement, under the circumstances, was innocuous, and agree that it was unintentionally elicited by the prosecutor and not responsive to the question. Further, the Commonwealth did not exploit the reference to drugs. Finally, the lower court’s prompt and thorough response purged the comment of any prejudice to appellant.

Appellant next alleges error in the lower court’s refusal to grant a mistrial following Ortiz’ testimony concerning identification of appellant from photographs supplied by the police. During appellant’s cross-examination of Ortiz, the following exchange occurred:

“Q. You do recall telling police authorities here in Montgomery County about a description of the person whom you say was Chiggie (appellant’s nickname), is that correct?
“A. Actually I was shown some pictures and I picked it out of the pictures.”

N.T., Volume II, December 21, 1981, p. 182.

Appellant argues that this testimony permitted a reasonable inference by the jury of appellant’s prior criminal activity, thereby constituting reversible error. We disagree and hold that the reference did not reasonably allow such an inference. Absent prejudice resulting from the reference, appellant’s motion for mistrial was properly denied. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972); compare Commonwealth v. Krasner, 285 Pa.Super. 389, 427 A.2d 1169 (1981) (no error where witness testified she was shown a few pictures by police officer); Commonwealth v. Craft, 455 Pa. 616, 317 A.2d 213 (1974) (passing references not prejudicial).

Appellant next argues that the court below erred in refusing to allow the introduction of alibi testimony from one Carlos Santiago who would have testified that appellant was with him on the day of the murders. The lower court ruled that the testimony was precluded due to appellant’s failure to give notice of intent to present an alibi defense under Pa.R.Crim.P., Rule 305 C, 42 Pa.C.S. Rule 305 C requires that notice must be given at the time of filing of the omnibus pretrial motion, within thirty days after arraignment. Pa.R.Crim.P., Rules 305-307, 42 Pa.C.S.

In this issue of first impression, appellant argues that Rule 305 violated his right to present a defense under the Sixth Amendment to the United States Constitution and under Article I, Section 9 of the Pennsylvania Constitution. We disagree and hold that the court below properly refused to allow the introduction of alibi testimony.

Rule 305 addresses the delicate balance between the interest of the accused in presenting a full and complete defense and the interest of the Commonwealth in avoiding fabricated alibis, unfair surprise, and the inevitable delay of justice wrought by an “eleventh-hour defense.” See Williams v. Florida, 399 U.S. 78, 81-82, 90 S.Ct. 1893, 1895-1896, 26 L.Ed.2d 446 (1983). Appellant’s argument is all the more poignant where he faces life sentences for his murder convictions.

The Supreme Court of the United States has expressly reserved the question of the constitutionality of the preclusion of witness alibi testimony for noncompliance with notice provisions. Wardius v. Oregon, 412 U.S. 470, at 472 n. 4, 93 S.Ct. 2208, at 2211 n. 4, 37 L.Ed.2d 82 (1973); Williams v. Florida, 399 U.S. at 83 n. 14, 90 S.Ct. at 1897 n. 14, 26 L.Ed.2d 446 (1970). Williams is of particular interest to us. There, the Court held that a Florida statute requiring advance notice of an alibi defense was valid on its face. The Court reasoned that there is ample room in the adversary system for a rule “designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.” 399 U.S. at 82, 90 S.Ct. at 1896. Rule 305 C serves this same pursuit of justice and is constitutional on its face.

Appellant also argues that Rule 305 C is unconstitutional as applied to the facts of this case. This argument lacks merit. Rule 305 C(l)(d) gives a trial court three options when a defendant fails to file and serve notice of an alibi defense: (1) the court may exclude entirely any evidence offered by the defendant in the form of alibi witnesses other than defendant himself; (2) the court may grant a continuance for the purpose of further investigation by the Commonwealth; or (3) the court may make such other order as the interests of justice require.

As the lower court points out, appellant had ample time to serve notice of his alibi defense from his arraignment on September 2, 1981, through several continuances and up to the beginning of trial on December 17, 1981. It was not until the middle of the sixth day of trial, after the Commonwealth had presented its case-in-chief and after the defense had presented the testimony of two witnesses, that counsel for appellant proffered the alibi testimony.

Under these circumstances, the interests of justice demand that the alibi testimony be excluded. The Commonwealth had no prior notice of the existence of an alibi witness. Compare Commonwealth v. Vecchiolli, supra. Appellant delayed giving notice. Further, he failed to justify that delay. Introduction of the testimony at that stage of the proceedings would clearly have prejudiced the Commonwealth’s ability to prove its case. See United States ex rel. Snyder v. Mack, 372 F.Supp. 1077 (E.D.Pa.1974). These same factors persuade us that a continuance would have been inappropriate. The incident was seven years old. Appellant had ample opportunity to prepare an alibi defense. To have stayed proceedings after six days of testimony, long enough for the Commonwealth to prepare a rebuttal to the proposed alibi, would have diminished the jurors’ recollection of the prior testimony. Rule 305 C(1)(d) is designed to avoid this potential chaos.

Finally, appellant argues that his trial before a death-qualified jury violated his right to equal protection of the law and of due process. Although appellant raised this issue in his post-verdict brief, we agree with the court below that this issue was abandoned at the time of post-trial argument and therefore waived for purposes of our review. Lower court opinion at 29; see Commonwealth v. Urbina, 290 Pa.Super. 117, 434 A.2d 157 (1981).

The judgment of sentence is affirmed.

      . Commonwealth v. Tome, 484 Pa. 261, 398 A.2d 1369 (1979).

      . The issue was raised in one prior case, but was resolved by the Pennsylvania Supreme Court before reaching the merits. Commonwealth v. Bassi, 284 Pa. 81, 130 A. 311 (1925).

      . See generally 24 A.L.R. 4th 592. We also note the excellent and informative opinion by Judge Yohn, below. Commonwealth v. Fernandez, No. 1879-81, slip op. (Montgomery County 1982).

      . See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966):
      "... (B)oth federal and state courts have usually held that it offends no protection against compulsion to submit'to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.”

        Id. at 764, 86 S.Ct. at 1832 (citation omitted).

      . Compare Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966):
      "To maintain a ‘fair state-individual balance’ ... to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors ...”

        Id. at 460, 86 S.Ct. at 1620.

      . Compare United States v. Satterfield, 572 F.2d 687 (9th Cir.), cert. denied, 439 U.S. 840, 99 S.Ct. 128, 58 L.Ed.2d 138 (1978) (held, requiring defendant to wear disguise for identification not improper).

      . See Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952) (held, coercing defendant to undergo “stomach pumping” to obtain narcotics violated Due Process Clause under the Fourteenth Amendment).

      . Appellant draws his argument from the dissent in Andrews v. State, 291 Md. 622, 436 A.2d 1315 (1981); but see Commonwealth v. Richbourg, 260 Pa.Super. 438, 394 A.2d 1007 (1978) (held, ordering defendant to stand during trial, thereby placing him in “spotlight,” works no prejudice).

      . N.T., Volume I, December 18, 1981, pp. 394-408.

      . Despite warnings of the lower court of possible prejudice, appellant’s counsel made frequent reference to the pictures. N.T. Volume II, December 21, 1981, pp. 210-239. Cf. Commonwealth v. Oglesby, 274 Pa.Super. 586, 418 A.2d 561 (1980) (no error where possible inference of prior criminal conduct resulted from appellant’s cross-examination of witness).

      . The witness was permitted to testify as to other matters. Lower court opinion at 15.

      . Rule 305 states in pertinent part:
      C. Disclosure by the Defendant
      (1) Mandatory:
      (a) Notice of Alibi Defense: A defendant who intends to offer the defense of alibi at trial shall, at the time required for filing the omnibus pretrial motion under Rule 306, file of record notice signed by the defendant or the attorney for the defendant, with proof of service upon the attorney for the Commonwealth, specifying intention to claim such defense. Such notice shall contain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of witnesses whom the defendant intends to call in support of such claim.
      Pa.R.Crim.P., Rule 305, 42 Pa.C.S.

      . Appellant refers this Court’s attention to Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), which struck down a Texas procedural statute providing that persons charged as principals, accomplices, or accessories in the same crime could not be witnesses for each other. Washington is distinguished from the instant case in that Rule 305 C does not absolutely bar an accused from calling alibi witnesses. The case of Alicea v. Gagnon, 675 F.2d 913 (7th Cir.1982), is also inapposite, addressing only the constitutionality of excluding the alibi testimony of the defendant himself. See Pa.R.Crim.P., Rule 305 C(1)(d), 42 Pa.C.S. providing that a defendant’s own alibi testimony cannot be excluded. In the instant case, appellant did give alibi testimony in his own behalf. N.T., Volume III, December 24, 1981, pp. 251-278.

        See also Commonwealth v. Vecchiolli, 208 Pa.Super. 483, 224 A.2d 96 (1966) (former preclusion of alibi rule, Pa.R.Crim.P., Rule 312, 42 Pa.C.S., held facially constitutional).

      . See Epstein, Advance Notice of Alibi, 55 J.Crim.L., Criminology & Police Science 29: "If all the defendant risks is a continuance, he will purposely not give notice because the continuance is valuable to him. When it is granted, it comes after the prosecution has presented its evidence and allows it to get cold.” Id. at 35-36.


author: MONTEMURO, Judge:

text:
    482 A.2d 573
    COMMONWEALTH of Pennsylvania v. Darryl JORDEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1984.
    Filed Sept. 21, 1984.

      John P. Cotter, Philadelphia, for appellant.
    Leslie Ann Sudock, Assistant District Attorney, Philadelphia, for Com., appellee.

      Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   MONTEMURO, Judge:

This is an appeal from judgment of sentence. On October 29, 1981, following a trial before the Honorable John J. Chiovero and a jury, the appellant, Darryl Jorden, was found guilty of rape, criminal conspiracy, and possessing instruments of crime. The appellant’s post-verdict motions for a new trial and in arrest of judgment were filed, briefed, and argued, but denied by the court. On May 10, 1982, the appellant was sentenced to five (5) to ten (10) years imprisonment on the conspiracy charge, two and one-half (2V2) to five (5) years imprisonment on the weapons charge, and seven and one-half (7V2) to fifteen (15) years imprisonment on the rape charge. A motion to modify sentence was subsequently filed; but also denied.

The appellant asserts five instances of error by the trial court. We have carefully reviewed the appellant’s arguments in conjunction with the entire certified record and the relevant law, and conclude that his arguments are without merit.

The instant charges arose out of an incident on July 1, 1980, the facts of which are clearly set forth in the Opinion of Judge Chiovero, filed pursuant to Pa.R.A.P.1925.

On July 1, 1980 the Complainant, Kelly Mock, and several friends were at 2539 North 29th Street in Philadelphia. The Defendant, Darryl [sic] Jorden, and Co-Conspirator, Duwayne Johnson, were admitted to said premises by one of the guests. While Duwayne Johnson was arguing with one of the guests, the Defendant seized the Complainant at knife point and stated, “We can do this the easy way or the hard say.” The Defendant then cut the Complainant’s hair with the knife stating, “This is the hard way.”
The Defendant and Duwayne Johnson held the Complainant’s arms and forced her into the kitchen. At this point the Defendant was holding a hammer and Duwayne Johnson was in possession of a knife. Duwayne Johnson left the Defendant and the Complainant alone in the kitchen. The Defendant knocked the Complainant on the floor and removed her pants. He then forced her to have sexual intercourse with him during which time the Complainant protested. Shortly after, Duwayne Johnson returned to the kitchen and also forced the Complainant to have sexual intercourse with him.
During this time, one of the guests waived down Police Officer Foster Morgan who was driving a marked police car in the 2500 block of North 29th Street. Shortly thereafter the Defendant and Duwayne Johnson were apprehended by the Philadelphia Police. (Footnotes omitted).

Lower Court Opinion, at 2.

The appellant initially argues that the trial court erred in denying his petition to dismiss pursuant to Pa.R.Crim.P. 1100. The relevant facts are as follows: A criminal complaint was filed on July 2, 1980; thus the mechanical run date for Rule 1100 purposes was December 29, 1980. On November 13, 1980, the appellant signed a waiver of his Rule 1100 rights until January 30, 1981. On January 28, 1981, the Commonwealth filed a petition to extend the run date; however, on the next day, the appellant signed a second waiver of his Rule 1100 rights until April 17, 1981. Trial was scheduled for April 13, 1981.

On April 13, 1981, a hearing was held on appellant’s pretrial motions. A motion to suppress physical evidence and the statement of co-defendant, Duwayne Johnson, was denied. A motion to sever appellant’s trial from that of co-defendant was granted. On April 15, 1981, the appellant again signed a waiver of his Rule 1100 rights until July 15, 1981. Trial was scheduled for June 22, 1981.

On June 22, 1981, the case was called to trial; however, the appellant, who had been free on bail, failed to appear. Judge Chiovero, presiding over the trial (as well as Johnson’s), issued a bench warrant, subject to the instruction: “Hold, bring before Judge Chiovero only$”

On July 13, 1981, the Commonwealth filed a petition to extend the run date, citing the appellant’s default in appearance and alleging that they would not be able to bring the appellant to trial before July 15, 1981, despite due diligence.

On August 6, 1981, the appellant was captured. At that time, Judge Chiovero was away on vacation. On September 10, 1981, shortly after Judge Chiovero’s return, a hearing was held on the bench warrant and bail was revoked. Judge Chiovero also scheduled a hearing on the Commonwealth’s petition to extend on September 21, 1981. Due to defense counsel’s unavailability, the hearing was not held until September 22, 1981. Following the hearing, the court directed both parties to submit memoranda on the Rule 1100 issues. The appellant then executed a waiver of his Rule 1100 rights until November 16, 1981, reserving any objection he had to violation of Rule 1100 occurring in the period between August 7 and September 22. The case was listed for trial on October 16, 1981.

On September 30, 1981, the appellant filed a motion to dismiss under Rule 1100(f). On October 16, 1981, the court heard argument on both the Commonwealth’s petition to extend and the appellant’s petition to dismiss. At the conclusion of argument, the court granted the petition of the Commonwealth and extended the run date to December 15, 1981; the appellant’s petition was denied. Trial commenced on October 21, 1981.

The appellant now contends that the trial court’s disposition of the Rule 1100 issue was erroneous because the Commonwealth did not exercise due diligence in scheduling a hearing on its petition to extend prior to the Rule 1100 run date. The appellant’s argument is premised on Commonwealth v. Simon, 283 Pa.Super. 203, 423 A.2d 1060 (1981). In Simon, the court found that a defendant’s speedy trial right had been violated where the Commonwealth failed to explain why there was not a timely hearing on its petition to extend. See also, Commonwealth v. Ray, 240 Pa.Super. 33, 360 A.2d 925 (1976).

We conclude that the appellant’s argument is without merit. First, we find Simon is inapposite because the Commonwealth set forth the reasons why there was a delay; i.e., the appellant’s failure to appear and the trial judge’s vacation. Second, we note that in Commonwealth v. Williams, 310 Pa.Super. 501, 456 A.2d 1047 (1983), this court held:

Nor does an unexplained delay in holding a hearing and ruling on a timely filed application to extend the time for commencement of trial necessarily warrant discharge under Rule 1100 absent some prejudice resulting from the delay. Commonwealth v. Fairley, 298 Pa.Super. 236, 444 A.2d 748 (1982). Our Court has recognized that ruling on a timely filed application to extend the time for commencement of trial may occur after the run-date. Id. It is only when some prejudice is alleged to have resulted to the defendant from the delay that we must inquire into the reasons for the delay. Id.

Id., 310 Pa.Superior Ct. at 508, 456 A.2d at 1051. Herein, appellant has alleged no prejudice. Consequently, we need not consider this issue further.

Appellant, alternatively, argues that the trial court erred in granting the Commonwealth’s petition to extend because it was facially defective in that it requested an extension of sixty days without averring facts to support that such a motion was necessary. This argument misconstrues Rule 1100. The Commonwealth’s petition need not set forth any specific amount of time requested for an extension, as can be deduced from reading Pa.R.Crim.P. 1100(c)(3). Rather it is the trial court’s order granting a motion for extension which “shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court’s business, and the record shall so indicate.” Pa.R.Crim.P. 1100(c)(4). Thus appellant’s contention is patently meritless.

The appellant’s second contention is that the trial court erred in denying defense counsel’s motion for mistrial raised during the jury deliberations. The factual context of the motion is as follows: On October 28, 1981, at 11:20 A.M., the trial court completed its charge and the jury retired for deliberations. At 2:05 P.M., the jury requested a clarification with respect to the court’s charge on carrying a concealed weapon. At 2:14 P.M., the jury was brought into the courtroom and a clarifying instruction was given. At 2:20 P.M., the jury retired for further deliberations.

At 4:25 P.M., the judge read to counsel a note which was received from the foreperson of the jury. The note read: “Your Honor, we have reached an impasse at 11 to 1. What is your desire?” Defense counsel requested a mistrial. The trial judge refused the mistrial, and dismissed the jury for the day, instructing the jurors to return at 9:30 A.M., the next day.

On October 29, 1981, at 10:11 A.M., the jury was reconvened in the courtroom and the trial judge stated:

THE COURT: I have before me the note which you submitted to the court crier yesterday. I will read it into the record, and I quote: “Your Honor, we have reached an impasse at 11 to 1. What is your desire?”
Well, my desire is that you return to deliberate upon your verdict with a view toward reaching a unanimous agreement if it can be done without violence to your individual judgment. And I instruct you further that in order to return a verdict, each juror must agree thereto. Jurors have a duty to consult with one another and to deliberate, as I said, with a view of reaching an agreement if it can be done without violence to individual judgment.
Each juror must decide the case for himself but only-after an impartial consideration of the evidence with his fellow jurors. In the course of deliberations a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous. No juror should surrender honest convictions as to the weight or effect of the evidence solely because of the opinion of his fellow jurors or for the mere purpose of returning a verdict.
In addition, I would advise you that it is not necessary that you advise the Court of the numerical breakdown should you reach an impasse again. Do you understand? All right. I appreciate your cooperation, and I ask you to please return to the jury room and continue your deliberations.

(N.T. October 29, 1981, at 692-93). The jury then retired for further deliberation.

At 2:20 P.M. of the same day, the trial judge informed counsel of a note which had been received from the jury at 1:15 P.M., which stated, “Your Honor, we are hopelessly deadlocked.” Defense counsel again moved for a mistrial. The court heard both counsels’ argument on the question of mistrial. At 3:05 P.M., the jury was brought into the courtroom, and instructed by the judge:

THE COURT: I wish to thank you for your diligence and your conscientious efforts in connection with this matter. I am in receipt of your note signed by your foreperson, and I quote again for all of you: “Your Honor, we are hopelessly deadlocked.”
The trial of this case or during the course of the trial of this case you heard testimony for approximately four days from numerous witnesses and a considerable amount of evidence was presented. It is my view that, perhaps, further deliberations may be in order. Of course, I could be mistaken in that regard. I would like, with your permission, to read to you once again the responsibilities that the jurors have to each other and ask you to deliberate further. I do not wish to compel you to reach a verdict or force you in that regard, but I do want to afford you additional time, since you have been in deliberations only about eight hours, and I think that, perhaps, you should be afforded some additional time.
Consequently, I am going to read to you once again that, number one, in order to return a verdict each juror must agree thereto, and I know you are aware of that. Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement if it can be done without violence to individual judgment.
Each juror must decide the case for himself but only after an impartial consideration of the evidence with his fellow jurors. In the course of deliberation a juror should not hesitate to reexamine his or her views and change his or her opinion if convinced it is erroneous. No juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors or for the mere purpose of returning a verdict.
Now, with that I am going to ask you again to return and deliberate further, and I will be here in court together with the other attorneys. If there are any further communications which you care to make with the Court, you may do so through the court officer who will be in attendance. Thank you.

(N.T. October 29, 1981 at 712-13). At 3:12 P.M., the jury again retired for deliberations until 3:34 P.M. when a verdict of guilty on all charges was returned.

The appellant’s claim of error is based on two grounds:

(1) that it was error to deny a mistrial when the jury communicates that it is “hopelessly deadlocked” and such communication occurs approximately twenty-three hours after the court is first informed that the jury is at an impasse; and (2) that the trial court erred in not polling the jury as to whether further deliberations would be fruitful.

Initially, we note that a motion for mistrial is directed to the discretion of the court and this court will not reverse a trial court’s decision absent flagrant abuse of discretion. Commonwealth v. Green, 287 Pa.Super. 220, 429 A.2d 1180 (1981); Commonwealth v. Stokes, 279 Pa.Super. 361, 421 A.2d 240 (1980). In Commonwealth v. Fields, 317 Pa.Super. 387, 464 A.2d 375 (1983), the court reiterated the standard set forth in Commonwealth v. Farrell, 265 Pa.Super. 41, 52-53, 401 A.2d 790, 796 (1979) (quoting, Commonwealth v. Phillips, 183 Pa.Super. 377, 382, 132 A.2d 733, 736 (1957)):

“In determining whether to grant the request, the necessary inquiry is whether the alleged occurrence was prejudicial to the defendant, ‘that is, [whether] it is of such a nature ... that it may reasonably be said to have deprived the defendant of a fair and impartial trial.”

Id., 317 Pa.Super. at 400, 464 A.2d at 382.

With respect to the appellant’s first contention, the question before us is whether the charge given by the trial judge coerced the jury into reaching a verdict. In Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971), the supreme court rejected the use in this Commonwealth of the charge set forth in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). The court stated “a conviction will be reversed if the jury’s verdict was effectively coerced by the trial judge’s charge.” Commonwealth v. Spencer, supra, 442 Pa. at 335, 275 A.2d at 303. The court further recommended that trial courts consult the ABA Project on Minimum Standards for Criminal Justice, Trial by Jury § 5.4 (Approval Draft 1968), as a guideline to follow when juries are deadlocked.

The appellant does not contest the content of the charges given by the trial court. Indeed, such a contention would be meritless because examination of both charges demonstrates that they compare favorable with the standards recommended by the supreme court in Spencer. Rather, he contends that it was error for the court to charge the jury a second time after it indicated that it was “hopelessly deadlocked” and such communication occurred twenty-three hours after it indicated it was at an “impasse.” The black picture painted by appellant does not reflect what actually occurred. In reality, the jury had only deliberated for a total of approximately eight hours, when it sent the note to the judge saying the jurors were deadlocked. The trial judge believed that this was not an inordinately long time' to deliberate in a case which was tried for four days. Moreover, we find no abuse of discretion in instructing the jury as to their duties a second time inasmuch as this procedure is specifically outlined in the ABA standards advocated by the supreme court. Id. § 5.4(b). Consequently, we find no error in the court’s denial of the motion for mistrial. Cf. Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154, cert. denied, Penn v. Pennsylvania, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982); Commonwealth v. Porter, 300 Pa.Super. 260, 446 A.2d 605 (1982).

The appellant’s third allegation of error is that the trial court erred in allowing Philadelphia Police Detective Stephen Chopko to testify that the complainant was “crying, sobbing and trembling” four hours after the rape. The appellant contends that the testimony was improper because it was irrelevant, prejudicial and hearsay. We note that the hearsay ground was never raised at trial and is thus waived. With respect to appellant’s contention that the evidence was irrelevant and prejudicial, we disagree.

On direct examination, the complainant told her version of the rape. On cross-examination, defense counsel pointed out inconsistencies between her testimony and a summary of her statement on the night of the rape which was included in the police “49” report. The complainant testified that her statement on the night of the rape was inaccurate because she was upset because of the rape.

We conclude that because defense counsel attempted to impeach her and put her veracity in issue, the Commonwealth was entitled to introduce evidence for the purpose of corroborating complainant’s explanation that she was upset at the time she gave her original statement to the police. Detective Chopko’s testimony concerning his observation of her physical condition around the time she gave her statement to the police is relevant and probative as explaining inaccuracies or omissions in that statement. Moreover, such relevance and probative value outweighs any prejudice to the appellant.

The appellant’s fourth argument is that the trial court erred, and thereby prejudiced the appellant, by reversing itself on an evidentiary ruling at trial, after the appellant took the stand to testify. The facts are as follows:

In its case-in-chief, the Commonwealth sought to introduce evidence, by way of the testimony of a court clerk, that the appellant had failed to appear at a previous trial listing and that a bench warrant had been issued. The evidence was proffered as evidence of flight indicative of a guilty mind. Defense counsel objected stating that the evidence was irrelevant and prejudicial. Counsel also stated that, although at the time he was not going to put the appellant on the stand to testify, if the evidence of flight was allowed, the appellant would be virtually compelled to testify to explain his failure to appear.

Although the trial judge was inclined to agree with the position of the prosecutor, he sustained counsel’s objection “in an effort to be ultra fair to the defendant.” (N.T. October 26, 1981, at 405). The Commonwealth thereafter rested.

The next day, October 27, 1981, the appellant testified in his own defense as to his version of the criminal incident. On cross-examination, the prosecutor began to probe into appellant’s failure to appear at the prior trial listing. Defense counsel quickly interposed an objection and at sidebar stated that his objection was based on the court’s ruling the day before, and that counsel would have never let appellant testify if counsel believed that ruling court be reversed. The objection was overruled and the previously inadmissible testimony was allowed.

The appellant now asserts, in effect, that the trial judge should be estopped from changing his evidentiary ruling; stating: “General principles of due process required that the court not reverse a ruling which the defendant relied upon [sic].” We disagree. Although appellant may have indeed relied on the initial ruling, this reliance was not warranted, reasonable or justified.

Initially, we note that evidence of flight is admissible as indicative of a defendant’s consciousness of guilt. Commonwealth v. Coyle, 415 Pa. 379, 203 A.2d 782 (1964); Commonwealth v. Smith, 250 Pa.Super. 460, 378 A.2d 1239 (1977). The trial judge, in making his initial ruling was aware of this, as indicated by his agreement with the prosecutor’s position. The evidence was, nevertheless, excluded as noted in the lower court opinion at 7, because of counsel’s assertion that the appellant would be virtually compelled to testify in response to the evidence. When the appellant chose to testify anyway, the only remaining reason for not permitting the testimony was removed.

A criminal defendant must be aware that when he takes the stand, he will subject himself to cross-examination. As stated by the court in Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971), cert. denied, Camm v. Pennsylvania, 405 U.S. 1046, 92 S.Ct. 1320, 31 L.Ed.2d 589 (1972):

A defendant cannot protect himself against wide-ranging cross-examination merely by announcing that he is taking the stand solely to refute the voluntariness of his confession. On the contrary, he subjects himself to good-faith cross-examination and the discretionary rulings of the trial judge as to the permissible scope of that cross-examination. In deciding to take the stand, the defendant must weigh the risks of so doing against the risks of not doing so. Since, in the case before us, there was no advance ruling by the court on the consequences of appellant taking the stand and there was no agreement by the district attorney not to cross-examine, we find no prejudice of which appellant can now complain.

Id. 443 Pa. at 265-266, 277 A.2d at 331.

In addition to the fact that the evidence was admissible in both the Commonwealth’s case-in-chief, and on cross-examination of the appellant, and that a criminal defendant is subject to wide-ranging cross examination, we note that the determination of admissibility of a particular item of evidence at trial is a dynamic, not a static determination.

Evidence which is originally determined to be inadmissible may later be admitted when additional foundation is laid, when additional facts are adduced which establish relevancy, or if the evidence is offered for a different purpose. See Wigmore Evidence §§ 18-19 (Chad.Rev.1970). Consequently, we hold that counsel was not justified in relying on the original ruling on the admissibility of the proffered evidence.

The appellant’s final argument is that the sentence of the trial court was excessive because it was greater than the sentence imposed on appellant’s co-conspirator. The imposition of sentence is a matter vested in the sound discretion of the sentencing judge. Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982); Commonwealth v. Bryner, 285 Pa.Super. 305, 427 A.2d 236 (1981). We find no abuse of discretion.

Judgment of Sentence Affirmed.

      . 18 Pa.C.S. 3121

      . 18 Pa.C.S. 903

      . 18 Pa.C.S. 907

      . On April 24, 1981, appellant's co-conspirator, Duwayne Johnson, was found guilty of rape in a trial before Judge Chiovero and a jury.

      . We do not mean to imply that the charge given by the trial judge herein was the same as or similar to an Allen charge. For the content of an Allen charge, see Commonwealth v. Spencer, 442 Pa. at 334 n. 4, 275 A.2d at 302 n. 4.

      . The appellant’s alternative argument — that the court should have polled the jury to determine if further deliberations would be fruitful — is equally without merit. Commonwealth v. Kivlin, 267 Pa.Super. 270, 406 A.2d 799 (1979).

      . The appellant’s claim is that the sentence is excessive, not that the sentencing judge failed to state on the record the reason for the disparate sentences. Cf. Commonwealth v. Velez, 329 Pa.Super. 15, 477 A.2d 879 (1984).


author: JOHNSON, Judge:

text:
    482 A.2d 580
    FIDELITY CONSUMER DISCOUNT COMPANY, Appellant, v. Juanita R. CLARK, Trustee for Anne Clark, Real Owner and Juanita Clark, Trustee and Juanita Clark, Individually, a/k/a Juanita Wheeler, and Rob R. Wheeler, Mortgagor, and United States of America.
    Superior Court of Pennsylvania.
    Submitted April 2, 1984.
    Filed Sept. 21, 1984.

      George Willner, King of Prussia, for appellant.
    Neil Leibman, Philadelphia, for Clark, appellee.
    Richard J. Stout, Philadelphia, for U.S., appellee.
    Before WIEAND, JOHNSON and LIPEZ, JJ.
   JOHNSON, Judge:

On February 6, 1978 Appellees Juanita Clark and Rob Wheeler executed a mortgage on their property at 7422 Georgian Road, Philadelphia, Pa. and a security agreement in favor of Appellant, Fidelity Discount Company, obligating these Appellees to pay Appellant $6,552 in thirty-six monthly installments of $182.00 each. Under the terms of the security agreement, Appellant obtained a security interest in Appellee Wheeler’s 1975 Ford LTD and his 1973 Plymouth Wagon.

Beginning in May 1980 Appellees Clark and Wheeler stopped making payments to Appellant. In October 1980 Appellant took possession of Appellee Wheeler’s 1975 Ford LTD and notified him by letter dated October 30, 1980 that the vehicle could be redeemed by paying the entire balance on the loan on or before November 12, 1980. That letter went on to indicate “[f]ailure to do so will result in your automobile being sold at public or private sale.” (R. at 27) Appellant received no response from Appellee Wheeler and the 1975 Ford LTD was sold on November 28, 1980 for $100.00.

In December 1980 Appellant took possession of Appellee Wheeler’s 1973 Plymouth wagon and notified him by letter dated December 11, 1980 that the car could be redeemed on or before December 23, 1980. The body of the December 11th letter was identical to the earlier October 30th letter sent to Appellee Wheeler except for the identification of the automobile to be sold and the last date for redemption. (R. at 27a) Again Appellant received no response from its December 11, 1980 letter. The 1973 Plymouth Wagon was sold for $50.00 on January 14, 1981.

On February 20, 1981 Appellant filed Complaint in Mortgage Foreclosure against Appellees Clark and Wheeler seeking to foreclose on the mortgaged premises located at 7422 Georgian Road, Philadelphia, Pa.. The United States of America was also named as defendant because the Federal government had recorded a lien of $904.98 against the premises. Appellees Clark and Wheeler filed an Answer and Counterclaim in which they denied that their mortgage was in default and alleged that the cars represented payment in full which satisfied the mortgage.

The trial court in its order of March 10, 1982 ruled in favor of Appellees Clark and Wheeler and against Appellant on the mortgage foreclosure action and entered a verdict against Appellant in the amount of $225.39 on the Counterclaim pursuant to 13 Pa.C.S. § 9507(a).

The trial court in its opinion found the sales of the two vehicles to have been public under the Uniform Commercial Code. The court went on to hold that Appellant failed to comply with the Code’s notice requirements for public sales which are set forth in 13 Pa.C.S. § 9504(c) and state in relevant part:

Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor. . . .

On appeal Appellant argues that the two vehicles were sold at private sales rather than at public sales and further that Appellant complied with the notice provision for private sales. We agree.

The major issue before this court is whether the sales by Appellant of the two vehicles were “public” or “private” under 13 Pa.C.S. § 9504(c). We believe that the trial court erroneously concluded that the vehicles were sold at public sales.

The Uniform Commercial Code does not define the term “public sale,” but Section 48, comment c of the Restatement of Security defines “public sale” as “one to which the public is invited by advertisement to appear and bid at auction for the goods to be sold.” This section was cited with approval in In re Bishop, 482 F.2d 381 (4th Cir.1973).

Bishop, like the instant case, involved an interpretation of the identical statutory language of Section 9-504(3) of the Uniform Commercial Code. In Bishop, the lending institution argued that the sale of a boat without advertisement was a private sale under circumstances where the collection manager for the lending institution mentioned the sale to anyone he thought would be interested. The Fourth Circuit concluded that no public sale of the boat occurred and cited the following language from Professor Gilmore’s discussion of § 9-504(3) of the Uniform Commercial Code in his work on Security Interests in Personal Property:

Gilmore, in his commentary on § 9-504(3) of the code, says:
“Presumably the essence of a ‘public sale’ is that the relevant public is not only invited to attend but is also informed, by whatever means of publicity may be appropriate, when and where the sale is to be held. If the sale has not been appropriately publicized, it would not be a public sale no matter where it was held or how it was conducted.” 2 G. Gilmore, Security Interests in Personal Property 1242 (1965).

Id. at 385.

The trial court apparently concluded that the vehicles were sold at public sale based on the testimony of Appellant’s collection manager, Richard A. Beese. His testimony that the sales were “[f]or anybody that wanted to look at it” does not convert a private sale that was never publicly advertised into a public sale under the Uniform Commercial Code.

The clear language of § 9504(c) gives the creditor the option of selling the repossessed collateral at either public or private sale. If the private sale route is chosen, the creditor is only required to give “reasonable notification of the time after which any private sale or other intended disposition is to be made.” 13 Pa.C.S. § 9504(c). With respect to both vehicles, Appellant provided reasonable notice as to the time after which a private sale was to be made.

We are cognizant of this court’s recent opinion in Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983). In that case this court ruled against a lending institution which sold repossessed collateral without giving any notice at all to the debtor. The dictum indicating that the debtor should be appraised “of the time and place of any public or private sale of the repossessed collateral,” is not controlling. Id., 318 Pa.Superior Ct. at 62, 464 A.2d 1266, 1267.

Having determined that the two vehicles were sold at private sale and that reasonable notice of the sales was given to Appellees Wheeler and Clark, we now address the issue of whether the sales of the vehicles were commercially reasonable. Our supreme court in Savoy v. Beneficial Consumer Discount Co., 503 Pa. 74, 468 A.2d 465 (1983) recently discussed what the creditor must establish when the commercial reasonableness of the sale is challenged. Justice Flaherty speaking for the court stated:

When a private sale of repossessed collateral has been made, and the debtor raises the question of the commercial reasonableness of that sale, the great weight of authority holds that the burden of proof on this issue is shifted to the secured party seeking a deficiency judgment to show that, under the totality of circumstances, the disposition of collateral was commercially reasonable.

Id., 503 Pa. at 77, 468 A.2d at 467.

From the record before this court we cannot determine whether Appellant met its burden of proof. The hearing before the trial court took place on November 24 and 25, 1981, but the notes of testimony of November 25, 1981 are not part of the record. Testimony on November 25, 1981 may be important to the question of the commercial reasonableness of the sale since Appellant’s counsel informed them at the conclusion of testimony on November 24, 1981, that he would present a witness the following morning who would testify concerning the condition and contents of the vehicles at time of repossession.

We, therefore, vacate the Order of March 10, 1982 and remand for a determination of the commercial reasonableness of the sales and other proceedings not inconsistent with this opinion. Jurisdiction is not retained.

      . Also Section 9-504(3) of the Uniform Commercial Code.

      . Va.Code Ann. § 8.9-504(3).


author: POPOVICH, Judge:

text:
    482 A.2d 583
    COMMONWEALTH of Pennsylvania v. Tracy ADAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 16, 1984.
    Filed Sept. 21, 1984.

      Neil W. Price, Johnstown, for appellant.
    James A. Nelson, Assistant District Attorney, Ebensburg, for Commonwealth, appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal by the appellant, Tracy Adams, from the judgment of sentence for Rape, Simple Assault and Burglary. We affirm.

The facts, viewed in a light most favorable to the verdict-winner, consist of the following: At approximately 11:00 p.m. on the 7th of April, 1981, Diane Rickabaugh was in her living room watching the news. Her two children were asleep on the third floor. As the news was coming to a close, her dog started to bark and headed toward the back door, which was locked as was the front entrance. Ms. Rickabaugh’s fiancee was not home at the time, so she made her way to the back door. As she did so, she passed the door leading to the basement. It opened and she was hit on the back of the head. She fell to the floor but was not unconscious. Although she could see and hear, she could not shout or move.

After Ms. Rickabaugh was struck, her dog attacked the intruder, but he threw the animal down the cellar steps and slammed the door. He then dragged the victim by the arms into the living room. As the assailant was pulling the victim, she “could ... see him.” (N.T. 67) Although “[i]t wasn’t ... long[,]” she had “an opportunity to observe this individuales] ... face and head.” Id. The victim was dragged to the middle of the living room in front of the television. She lay five feet from the set, which was still on, and about four feet from the lamp that was lit.

At this point, the assailant proceeded to remove the victim’s houserobe, nightgown and panties. He then removed his slacks and placed his penis in the victim’s vagina. When this occurred, Ms. Rickabaugh passed out. Upon awaking, she found that she had been sexually assaulted with a nightstick kept by her near the front door for protection, and that a white substance, presumed to have been “Dream Whip” because of the empty bowl found next to her, had been placed over her body. She also discovered an empty Miller beer bottle on the floor where she lay.

At 12:15 a.m. the victim’s fiancee returned, but, because she was too embarrassed and ashamed, she told him nothing. In fact, she stated she took three showers/baths and was in bed prior to his return. It was only when she got up the next morning with “alot of pains” in her stomach that she called her doctor and told him what had occurred. The doctor directed her to meet him in the emergency room at Memorial Hospital. Upon completion of an examination, a report was prepared by the doctor which read: “In summary, the patient’s physical examination was consistent with history of rape with penetration of her vagina.”

The hospital personnel, with the victim’s arrival, contacted the police. Detective Kiser arrived on the scene and interviewed the victim at the hospital. After her release, he followed her home and she handed over the nightstick, the “Miller’s” beer bottle and her nightgown to the detective. At trial, the attorneys stipulated that the tests conducted on the items proved to be “inconclusive.”

While at the victim’s home, the detective secured no further information concerning the rapist’s description other than he “was a black man.” (N.T. 18) It was not until April 13th, while the victim was on her porch looking down the alley to see where her daughter was, that she saw the man who raped her “may be 10 feet down the alley, standing.” (N.T. 79) He lived only 4-5 houses away, but she had only seen him once before. She ran back into the house with her daughter and told her why she was so frightened. The daughter told her mother that the man’s name was “Tracy.” With this, the victim phoned Detective Kiser to inform him that she had just seen her assailant. The detective arrived with a photo array out of which the victim selected the appellant.

At trial, Ms. Rickabaugh was “positive” on the question of identification, and she was “sure” that the appellant was the rapist.

To rebut the Commonwealth’s case, the appellant testified, along with a host of alibi and character witnesses, as to his whereabouts on the evening in question.

In particular, the appellant recalled going to bed prior to 11:00 p.m. and having to get up to lend Eugene Peoples $2.00 to go drinking. This lasted from 11:00-11:15 p.m. and was corroborated by Ms. Roxanne Walters, who lived with the appellant at the time, and by Mr. Peoples. Thereafter, the appellant stated he went back to sleep and did not leave his residence for the remainder of the evening. This was also confirmed by Ms. Walters.

Each of the witnesses who testified on behalf of the appellant (e.g., Ms. Walters, Mr. Peoples, Mr. Stevens, Mr. Allen and Reverend McGauley) cited him as a person whose reputation in the community for truthfulness and honesty was “good” or “outstanding.”

The trial judge, prior to making his decision, characterized the facts of the assault as “bizarre and unusual.” He also noted that on the critical question of identification it was “not easy to determine. It’s a question of credibility.” Nonetheless, he concluded that Ms. Rickabaugh had been raped and that, “beyond a reasonable doubt[,] ... the defendant [was] guilty.” In doing so, we would like to point out the judge’s remarks concerning one of the appellant’s witnesses, i.e., Eugene Peoples, who believed the appellant to be innocent. It seems that Peoples testified that the morning following the incident, April 8th, he was outraged to hear from Ms. Rickabaugh’s neighbor (Walter Brumbaugh) that the appellant had been accused of rape. Yet, as correctly observed by the judge, the appellant was not accused of committing the offense until the 13th of April. Thus, Peoples’ credibility was called into question for this inconsistency, as well as the fact that he had admitted to pleading guilty to burglary on August 6, 1973, and burglary, larceny and receiving stolen goods on May 21, 1973.

As for Ms. Walters, her testimony diverted from that of the appellant in that she testified the appellant barely spoke to the victim when she came to their home in an attempt to give away a puppy. The appellant, on the other hand, remembered that on the same occasion he spoke to the victim for 5-10 minutes at the kitchen table.

On appeal, counsel other than trial counsel (see Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975)), raises questions concerning: 1) the sufficiency of the evidence; 2) the effectiveness of trial counsel; 3) alleged trial court error in not granting a defense witness immunity; 4) the denial of a motion for a mistrial; and 5) the grant of a new trial because of allegedly after-discovered evidence.

Regarding the sufficiency issue, the victim was certain that her assailant had “penetrated” her during the sexual attack. The doctor’s report confirmed this contact. Next, the evidence showed that entry into the premises was not with the consent of the victim. Thus, proof was presented establishing the unlawful entry into the premises of another, and, therefrom it could be reasonably inferred, that it was accomplished for the purpose of committing a crime therein. Compare Commonwealth v. Sudler, 496 Pa. 295, 436 A.2d 1376 (1981).

Having recreated the sexual assault, we believe the victim’s “positive” identification of the appellant as the culprit establishes his role in the incident. That the victim gave a scant description (“a black male”) of her assailant and that she did not identify the appellant as the party involved until 6 days after the incident go to the weight to be accorded her testimony by the trier of fact. Inasmuch as the trier of fact was free to believe all, part or none of the evidence presented at trial, Commonwealth v. Arms, 489 Pa. 35, 413 A.2d 684 (1980), if you couple such a pronouncement with the longstanding law in this Commonwealth that the testimony of one witness, e.g., the prosecutrix, is sufficient to sustain a conviction for an unwarranted sexual attack, Commonwealth v. Crider, 240 Pa.Super. 403, 361 A.3d 352 (1976), we find no reason to overturn the verdict entered in this case. See Commonwealth v. Burak, 232 Pa.Super. 499, 335 A.2d 820 (1975).

No less can be said of the simple assault conviction, which was a reduction by the court, on appellant’s demurrer, from the initial charge of aggravated assault (i.e., the information alleged that the appellant “attempted to cause serious bodily injury to one Diana Rickabaugh by striking her on the head[.]”). The court did so upon its reading of Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978), which held that a punch to the nose, in and of itself, does not prove one’s intent to inflict serious bodily injury. Suffice it say, albeit the evidence was not sufficient to prove that the injury was serious or that the surrounding circumstances established the intent to inflict serious bodily injury, there was that quantum of proof necessary to show that the assailant attempted to cause bodily injury to Ms. Rickabaugh by striking her upon the head with an object hard enough to almost knock her unconscious. 18 Pa.C.S.A. § 2701. There also was no impropriety in the court finding the appellant guilty of simple assault, even though he was not specifically charged with such an offense, since it is a lesser included offense of aggravated assault. See Commonwealth v. Temple, 258 Pa.Super. 269, 392 A.2d 788 (1978).

In assailing trial counsel’s stewardship, appellate counsel alleges that prior counsel from the Public Defender’s Office failed to conduct an investigation, interview witnesses or confer with the accused. However, appellate counsel neglects to inform us what, if anything of relevance, an investigation would have uncovered that did not surface at trial. Counsel’s assertions that the victim’s purported involvement in drugs and an illicit relationship with a Mr. Tollar are not prima facie illuminating on the issue of appellant’s assault of the victim. Stated otherwise, the mere recitation of the “unusual circumstances” of the incident does not enlighten this Court one iota as to what information would have been uncovered if “some independent fact-finding” had occurred.

The appellate counsel’s protestations concerning witness interviewing is equally ambivalent. He states that the appellant sought to get trial counsel in touch with witnesses, but trial counsel refused to see them. However, nowhere are we told the names of these witnesses or what they would have recounted to counsel if he had spoken to them.

Next, on the question of the amount of time spent by trial counsel with the appellant in conference, we have repeatedly observed that mere shortness of time spent conferring with a client does not constitute a basis for a finding of ineffectiveness. Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973). Rather, it is what is able to be accomplished in the time available that is the benchmark against which the “effectiveness/preparedness” of counsel is measured. Commonwealth v. Fleming, 332 Pa.Super. 118, 480 A.2d 1214 (1984). Here, even appellate counsel concedes in his brief to us that trial counsel spent about one-half hour talking with the appellant. Although we have no way of knowing the accuracy of this statement, we can say that appellant was afforded a vigorous defense and competent representation at trial. For example, counsel was successful in having the charge of aggravated assault, at the demurrer stage, reduced to simple assault. Likewise, counsel was able to have a charge of involuntary deviate sexual intercourse dismissed. Also, his cross-examinations were lengthy and probing. Accordingly, counsel was nothing less than prepared to defend the accused.

On the subject of trial counsel’s failure to file a pretrial motion to suppress the photographic array, we note that counsel will not be deemed ineffective if the claim raised has no arguable merit. See Commonwealth v. Carrillo, 319 Pa.Super. 115, 465 A.2d 1256 (1983), petition for allowance of appeal denied January 16, 1984.

Albeit counsel did not seek to suppress the photos, at trial the court heard argument from both sides on the issue and concluded that, inasmuch as the array was not suggestive, if a motion to suppress had been filed, it would not have been successful. Our review of the evidence comports with the result reached by the trial court — the 8 photographs fairly depict a group of men with characteristics closely resembling those possessed by the accused. Thus, trial counsel will not be deemed ineffective for failing to file a useless motion. See Commonwealth v. Carrillo, supra.

Appellate counsel has also raised claims concerning the effectiveness with which trial counsel cross-examined Ms. Rickabaugh and questioned the appellant on direct, as well as his failure to obtain immunity from the court to allow a Mr. Tollar to testify as to an alleged amorous relationship with the victim and his use of drugs with the victim, or to require that the victim undergo psychiatric examination because of her purported use of drugs. We have reviewed the aforesaid and find them to be totally without arguable merit. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

In a similar vein, we find that appellate counsel’s argument that trial counsel fell short of adequately representing the appellant when he failed to demand a trial by jury for his client is belied by the record. Our review of the jury trial waiver colloquy evinces an intent on the part of the accused to waive such right voluntarily and intelligently. See Commonwealth v. Carson, 503 Pa. 369, 469 A.2d 599 (1983); Commonwealth v. Payne, 327 Pa.Super. 139, 475 A.2d 137 (1984).

We earlier mentioned that the appellant’s counsel questioned the propriety of the trial court’s refusal to grant trial counsel’s request for a mistrial. Since the mistrial issue is intertwined with the complained-of suggestiveness of the photographs, our determination supportive of the trial court’s finding that, in fact, they were not suggestive dispenses with the need to address the matter further.

Lastly, we wish to respond to appellate counsel’s request for an evidentiary hearing. He seeks one on the basis that, “a continuing investigation conducted by professional investigators working for ... present counsel” has uncovered evidence which “tends to exculpate” the appellant.

Appellate counsel has reproduced the typed affidavits of four individuals which he considers to be of sufficient magnitude to warrant an evidentiary hearing to delve further into the matter. We disagree.

The first affidavit is that of Deborah Ondo, a once close friend of the victim and a Vincentian Sister of Charity in Pittsburgh. She recounts in her statement that the victim had related to her other instances of assault that could never be verified. Thus, she, although not knowing the appellant prior to the incident, could not “believe he was capable of this,” and she disbelieved the victim’s story.

The second affidavit is that of Thomas Severas, a convicted criminal who purchased, allegedly, drugs from the victim upon his release from jail after the incident.

Joan Weaver was the third affiant who supposedly knew the victim to be a drug user and “strongly suspect[ed]” Steve Tollar to be “a secret boyfriend of RICKABAUGH.”

The last sworn statement was that of a Paul Martin, who wrote that he was a friend of the victim and her fiancee. Although he gave his personal opinion that he “came to disbelieve that any crime really took place,” nonetheless he did admit that the victim, on the evening of the assault, was “upset about being attacked ... by a big and husky black man[.]”

Under the standard followed in this jurisdiction to assess whether “after-discovered” evidence has been produced to justify post-conviction relief, see Commonwealth v. Johnson, 291 Pa.Super. 566, 436 A.2d 645 (1981), the aforecited excerpts fall short of the mark. Consequently, we see no need to remand for an evidentiary hearing. On the contrary, upon a review of all of the claims proffered by counsel for the appellant, we are compelled to affirm the ruling of the court below.

Judgment of sentence affirmed.


author: POPOVICH, Judge: CIRILLO, Judge,

text:
    482 A.2d 589
    COMMONWEALTH of Pennsylvania v. John PASCHALL, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1984.
    Filed Sept. 21, 1984.

      Charles D. Younger, Assistant Public Defender, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com., appellee.
    Before CIRILLO, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

The appellant, John Paschall, Jr., contends that the evidence was insufficient to support his conviction for burglary and conspiracy. Because we find that the Commonwealth showed nothing more than appellant’s mere presence at the crime scene, we must reverse the judgments of sentence and order the appellant discharged.

Viewing the evidence in a light most favorable to the verdict-winner, as well as all reasonable inferences therefrom, see Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976), the following is deducible from the record: At approximately 7:15 a.m. on the 28th day of August, 1981, Robert Sutton was looking out of his living room window. As he did so, he “noticed 2 black males coming out of the field at the end of the ... street. They walked up the street. They got approximately parallel to Mr. Beasley’s house [, which was situated across the street from Sutton’s residence,] and walked across his lawn and right to the back of his house.” (N.T. 55) At this time, the weather was clear and it was daylight outside. Id.

Mr. Sutton stated that he “almost immediately” recognized one of the men as someone whom he had known socially for about a year as “Smokie.” This was the appellant. Sutton also recalled his observation of appellant’s face, at a distance of about 30-40 feet, lasted for 45-50 seconds. The witness’ view of the appellant as he walked away from him and toward the Beasley home amounted to 30 seconds. Mr. Sutton also noticed that the appellant was wearing a black jacket with a tan stripe on each sleeve.

After Sutton watched the two men walk to the rear of his neighbor’s house, he lost sight of them because from his vantage point he could not see if they entered the premises. Nonetheless, he phoned the police to report a “burglary in progress” before leaving for work at 7:30 a.m. The police arrived on the scene within 15-20 minutes of the call and found that the house had been unlawfully entered through a broken rear window on the first floor. The second floor bedroom had been ransacked and Mr. Beasley, who had gone to work at about 6:30-6:35 a.m. that morning, advised the police of the loss of $1,940 in jewelry (three watches, three chains and one ring), coins he had stored in a glass jar, cameras and a .380 automatic pistol. Most of the stolen merchandise was recovered in the woods located behind Mr. Beasley’s residence stuffed into two pillow cases. This is consistent with the testimony of Melinda Oliver, also a neighbor, who saw two black males running from the back of Mr. Beasley’s house into the woods nearby with pillow cases (two) in hand. However, she could not identify either of the fleeing felons or recall what they were wearing.

After the Commonwealth introduced evidence that Mr. Sutton had identified the appellant from a photographic array, it concluded its case.

In defense, the appellant took the stand and testified that during the time in question he was at home, having been dropped off there by his uncle, Curtis Melvin, following an all night card game the evening before.

According to Curtis Melvin, a witness called by the defense, Ernest Beasley, Kevin Beasley and Robert Sutton entered his apartment within hours of the reported crime and found a bag in the lower shelf of his stove. The bag was emptied onto a chair. The contents were described by Melvin as consisting of an automatic pistol, various gold watches and jewelry monogramed with Ernest Beasley’s wife’s name. On rebuttal, Beasley denied having found any of the stolen merchandise in Melvin’s apartment, albeit he did not dispute having entered the premises and telling Melvin to inform the appellant that he wanted his property back.

It appears that Beasley had learned from certain sources that the appellant, whom he thought to be the guilty party, was in Melvin’s apartment. The trio went there to discuss with the appellant the return of the merchandise, but the appellant was neither present nor did he reside there.

After the entry of the jury’s verdict, timely post-trial motions were filed, denied and sentence was imposed — two to eight years for burglary and a concurrent sentence of 2-8 years for criminal conspiracy. This appeal followed.

In assessing appellant’s sufficiency of the evidence claim, we are mindful that the Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence, which, of necessity, draws into play the affixing of a line of demarcation between the requisite degree of persuasion (“beyond a reasonable doubt”) and impermissible speculation. See Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972). The former is required while the latter is not tolerated as the basis for a conviction. Commonwealth v. Meredith, 490 Pa. 303, 416 A.2d 481 (1980). Thus, in the Commonwealth’s efforts to establish guilt predicated upon circumstantial evidence, it must be kept in mind that, “[t]he inferred fact must flow, beyond a reasonable doubt, from the proven fact where the inferred fact is relied upon to establish the guilt of the accused or the existence of one of [the] elements of the offense.” Commonwealth v. Meredith, supra, 490 Pa. at 310, 416 A.2d at 485. We believe that the prosecution has failed to do just that in the case here.

To illustrate our point, we look to this Court’s recent holding in Commonwealth v. Jones, 312 Pa.Super. 496, 459 A.2d 11 (1983).

In Jones, at approximately 1:30 p.m., a Beatrice Woodall heard a “heavy thump” that caused her to rise from bed to investigate. She looked out her 1st floor rear window, found nothing unusual and returned to bed on the second floor. Shortly thereafter, she heard footsteps coming from the second floor of her next door neighbor’s (Reverend Wallis’) rowhouse. The Reverend had departed his locked premises at about 12:45 that afternoon and Ms. Woodall looked out her front window to find that he had not yet returned. Thus, she went to her back window and saw the appellant, Wallis’ adjoining neighbor on the other side, and another man, walking in Wallis’ enclosed back yard toward the rear of the fence. Appellant was observed with something under his arm. Both men then climbed the concrete fence separating the properties, jumped into appellant’s yard and walked into appellant’s home. Wallis returned at 2:30 p.m. to find his rear basement window knocked in and two cameras, several bottles of whiskey, jewelry and a coin collection missing.

Following the non-jury trial, the appellant was convicted of burglary, theft by unlawful taking, receiving stolen property and conspiracy. On appeal, we reversed on the basis that the evidence was circumstantial and established no more than appellant’s mere presence at the scene. In particular, as is relevant here, we stated:

Here, there is no direct evidence that appellant pushed in the window, entered the house and stole the various items. The Commonwealth’s evidence merely places appellant and another individual in his neighbor’s enclosed yard at the approximate time of the burglary. The Commonwealth has failed to offer any evidence indicating that appellant participated in the crime and thus, has failed to prove his guilt beyond a reasonable doubt. Accordingly, we must reverse the judgments of sentence and order appellant discharged. (Footnotes omitted)

Id., 312 Pa.Superior Ct. at 499-500, 459 A.2d at 13 (Collecting cases concerning mere presence as insufficient, without more, to uphold a conviction).

In the case sub judice, as in Jones, the appellant was “positively” identified as walking onto an individual’s backyard whose premises were burglarized, with entry being made through a rear, ground level window. However, the weakness in the Commonwealth’s case is the absence of any connection between the appellant’s presence and innocuous actions (“walking”) on the scene. See In re Amos, 287 Pa.Super. 446, 430 A.2d 688 (1981) and compare with Commonwealth v. Herman, 271 Pa.Super. 145, 412 A.2d 617 (1979). “The relatively early hour of the day, although not wholly lacking in probative value, was insufficient to transform the Commonwealth’s suspicious circumstances into proof beyond a reasonable doubt.” (Footnote omitted) Commonwealth v. Jones, 291 Pa.Super. 69, 74, 435 A.2d 223, 226 (1981).

Further, sufficient evidence also does not exist to support conviction for conspiracy. The facts and circumstances show neither a criminal agreement nor an overt act in furtherance of a criminal agreement. See Commonwealth v. Johnson, 272 Pa.Super. 375, 415 A.2d 1246 (1979). It must be remembered that, even assuming for the sake of argument that the goods were kept at Melvin’s apartment, there is no evidence linking the accused with Melvin’s premises aside from a familial relationship. Thus, this Court cannot make the leap from “surmise” as to how the goods may have found their way to the apartment and “reasonably inferring” appellant’s involvement in a confederacy that unlawfully entered into Beasley’s home for the purpose of committing a crime therein.

Accordingly, in light of the Commonwealth’s failure to establish appellant’s guilt beyond a reasonable doubt, see Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973); Commonwealth v. Weaver, 309 Pa.Super. 509, 455 A.2d 1199 (1982); Commonwealth v. McCrea, 308 Pa.Super. 284, 454 A.2d 132 (1982), we vacate the judgments of sentence and order the appellant discharged.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent.

Issues of credibility are left to the trier of fact for resolution. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976). The dispositive issue turned on the credibility of the appellant himself.

Mere presence on the scene both immediately prior to and subsequent to the commission of a crime and flight there from is not sufficient evidence to prove involvement in the crime. Commonwealth v. Goodman, 465 Pa. 367, 370-71, 350 A.2d 810, 811-12 (1976); see also Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973); Commonwealth v. Jones, 291 Pa.Super. 69, 435 A.2d 223 (1981). The instant case is distinguishable from Goodman, supra, and its progeny. The appellant took the stand in his own defense and testified as to his whereabouts on the morning of the burglary. He stated that he was at home.

On appellate review of a criminal conviction, it is not our function to weigh the evidence, thereby substituting our judgment for that of the trier of fact. Commonwealth v. Farquharson, supra. Had the appellant not taken the stand in order to present an alibi, the evidence of presence and flight from the scene would have stood alone as the only pieces of circumstantial evidence. However, those factors combined with the alibi provide a sufficient basis for conviction. See Commonwealth v. Rosetti, 322 Pa.Super. 536, 469 A.2d 1121 (1983).

      . This dispenses with the need to address appellant’s mistrial claim.

      . On this question that conviction of a crime cannot rest upon mere presence, but that additional proof is required, see Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973); Commonwealth v. Stores, 317 Pa.Super. 109, 463 A.2d 1108 (1983) (Collecting cases).