author: POPOVICH, Judge:

text:
    460 A.2d 1127
    COMMONWEALTH of Pennsylvania v. Donna POTTS, Appellant. COMMONWEALTH of Pennsylvania v. Frank COCCHIARA, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1983.
    Filed April 29, 1983.

      Rochelle S. Friedman, Pittsburgh, for Potts, appellant at No. 1228.
    Carl Max Janavitz, Pittsburgh, for Cocchiara, appellant at No. 1229.
    Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.
   POPOVICH, Judge:

After a trial by jury, appellant, Donna Potts, was found guilty of Prostitution (18 Pa.C.S.A. § 5902(a)(1)) and Criminal Conspiracy (18 Pa.C.S.A. § 908(a)(1)). Following the denial of post-trial motions, appellant’s sentence on the Prostitution conviction was suspended, but she was placed on probation for one (1) year for her Criminal Conspiracy conviction. This appeal followed. We affirm.

The facts, viewed in a light most favorable to the Commonwealth, consist of the following: Because of information received from a confidential informant, Detective James Toler, of the vice control division of the Pittsburgh police, was directed to an advertisement appearing in the May 5, 1979 edition of The Pittsburgh Press. The ad read: “Companions for all occasions. We come directly to your door. Senior citizens, veterans, and invalids welcome. Call 261-0931.” (N.T. 22). As a result of this publication, on May 9,1979 Detective Toler phoned the number listed in the paper from Room 290 of the Viking Motel, situated at 1150 Banks ville Road, Pittsburgh. The detective told the male on the other end of the line that his name was “Carl Rosenberger,” that he was staying at Room 290 of the Viking Motel and that he was looking for a young girl, about twenty-five years of age. (N.T. 239-240) After 2 or 3 minutes, Detective Toler was called back by the Escort Service and the male he had just spoken to said he was checking to make sure that he (“Carl Rosenberger”) was in the room. Within 45 minutes of the initial call, a female knocked on Detective Toler’s door. The detective identified himself as “Carl Rosenberger” and said to the girl, “You must be Marsha.” To which she responded, “Yes” and walked into the room. The detective talked to the girl about price. That is, he told her he wanted to have sexual intercourse, and the first price mentioned was seventy dollars for the Escort Service. The second price was forty-to-fifty dollars for the girl’s tips. (N.T. 243) However, when the detective was unable to produce his wallet for the female’s inspection, she left.

The next time Detective Toler had occasion to phone the number listed in The Pittsburgh Press was on May 16, 1979. Detective Toler again called the number from the Viking Motel; however, this time it was from Room 126. Toler told the male on the other end of the phone that he “was Walter Stevens, [he] was staying at the Viking Motel, Room 126. And [he] asked the unknown male on the other end of the phone what was—what was the going rates.” (N.T. 30) Toler also told the listener that he “wanted a tall woman with black hair, around thirty years old.” (N.T. 31) To this inquiry, Toler received a satisfactory response. The call was made at about 9:30 p.m.

On the evening in question, at approximately 10:00 p.m., appellant knocked on Detective Toler’s door and asked him if he was “Walter Stevens.” Toler answered, “Yes.” The appellant then asked for and received Toler’s wallet. She said she wanted to check his “ID.” After appellant was satisfied that the person she was dealing with was the individual whose name appeared on the cards in the wallet, “she gave [the detective] a piece of paper to fill out [his] name and address and [his] signature.” (N.T. 34) Also, on this “form,” he was to list his age, height, weight, social security number and driver’s or operator’s plate number. After supplying the information sought, Detective Toler asked appellant what he would get for his money and she replied, “It will cost seventy dollars for the escort service.” (N.T. 36) Following the detective’s response of, “Well, okay,” Miss Potts stated that she would have to check in. Miss Potts dialed the phone, read the name of “Walter Stevens” off and that he had stated to her that he was from Altoona. The detective testified that he did not see the number dialed by the appellant, nor could he say with whom appellant was conversing. ■

When Miss Potts was done with the phone and the detective inquired, “What else do I get for my money?” she responded that for another seventy dollars he would get whatever he wanted. The detective informed the girl that he desired to engage in oral sodomy, to which Miss Potts said, “Okay.” At this stage of the discussion, Detective Toler handed Miss Potts one hundred and fifty dollars. Miss Potts placed the money in her purse and gave the detective ten dollars in change. Thereafter, Miss Potts motioned to the detective to remove his clothing. After the two were naked, the appellant had sat up on the bed with her back against the head board, the detective revealed his true identity and placed appellant under arrest. Subsequently, Toler searched appellant’s purse to remove the money he had paid her. In doing so, the detective retrieved two slips of paper. One slip was a carbon copy of the other which he had filled out earlier under the alias of “Walter Stevens.” Also, in the purse, the detective discovered a pocket paging device, but, not knowing what it was at the time, returned it to the appellant. Appellant was, thereafter, advised of her Miranda rights and transported to the Public Safety Building in Pittsburgh. Once there, Miss Potts wanted to make a phone call. Detective Toler stated, “Well ... we will go over to the Union Trust Building to search for Frank Cocchiara.” Hearing this, appellant appeared surprised and asked the detective, “How do you know him?” (N.T. 98) The detective did not answer.

It so happened that on the day appellant was arrested (May 16, 1979), the police had secured a warrant to search Room 980-A of the Union Trust Building in Pittsburgh. The warrant was executed after the appellant’s arrest, at approximately 11:00 p.m. The police knocked on the office door and identified themselves. After waiting for about a minute and a-half without any response from within, the police entered the premises by means of a pass key obtained from the security guard and found Frank Cocchiara, appellant’s co-defendant, in the office. The police supplied Cocchiara with a copy of the warrant prior to commencing a search of the premises. As a result of the search of Room 980-A of the Union Trust Building, the police confiscated the following evidence:

1) A piece of paper (Commonwealth’s Exhibit No. 5) that was taped to the side of the air-conditioner. The paper had “about thirty male names on [it], and on the top right hand [side] it ha[d] ‘Carl Rosenberger.’ ” (N.T. 247) “And on the top of that it ha[d] ‘V-i-k’ and an arrow pointing to the name ‘Carl Rosenberger.’ ” (N.T. 248)
2) A phone directory (Commonwealth’s Exhibit No. 8) that had four slips of paper in it. One of the slips had written on it “Walter Stevens, 126” and the letters “V-i-k”. (N.T. 236)
3) Four slips of paper (Commonwealth’s Exhibit No. 9) that were exactly “the same kind as the ones [Detective Toler] got off Miss Potts.” (N.T. 234) That is, they had the same fine printing on them and each requested the same type of information from the applicant as was sought from Detective Toler.
4) A photostatic copy of a freehand sketch of an Escorts Plus form. “It ha[d] a phone number ‘261-0930’ and ‘261-0931, Escorts Plus, male, female, full service.’ ” And farther down the sheet was another sketch that read: “ ‘Full service, Escorts Plus, male, female.’ And it ha[d] a phone number, ‘261-0930, 261-0931.’ ” (N.T. 232)

Additionally, Detective Edward Conley, one of the officers who accompanied Detective Toler in the execution of the warrant, testified that, during the search, he called headquarters and had someone there dial “261-0391”—this number was the one that appeared in the newspaper ad—to see if the phone in Cocchiara’s office would ring. Shortly after making the request, the phone rang and the caller was from police headquarters. Furthermore, Detective Conley recalled answering the phone a total of three times while in Cocchiara’s office. On two occasions a female voice asked for “Frank” and the last call was from a male caller “want[ing] to know if there were any female escorts available.” (N.T. 150)

It is interesting to observe that Detective Conley, in recounting the circumstances surrounding Donna Potts’ arrest, recalled “notic[ing] a little black thing ____ It looked like a transistor or something[]” fall out of appellant’s purse when it was emptied onto the bed at the Viking Motel. Detective Conley was on duty with Detective Toler at the Viking Motel. Moreover, Detective Toler also testified to finding a white envelope for beepers—electronic paging devices—that “had the name ‘Donna’ ” on it in Cocchiara’s office in the Union Trust Building. (N.T. 76)

Norman Rockwell, the manager of the Union Trust Building, was called by the Commonwealth to establish the fact that Cocchiara entered into a lease for Room 980-A on April 4, 1979 under the name of “Second Part, Inc., doing business as Escorts Plus.” (N.T. 108)

As is relevant to the case at bar, we note that at trial the Commonwealth produced the testimony of a Charles Henshaw, sales manager for Airsignal International of Pittsburgh, Inc., a company involved in the leasing of pocket paging devices (“beepers”).

While on the stand, Mr. Henshaw stated that on April 12, 1979 he leased three beepers to Frank Cocchiara. The numbers were “227-9172, -82 and -92”. (N.T. 200) He went on to state that each beeper has its own private telephone number, and that these numbers are purchased through the Bell System in blocks of one hundred so as to avoid any confusion with a public subscriber to a telephone. The witness also recalled that the model leased by Cocchiara had the capacity (“range”) to make them useful anywhere in the Allegheny County area.

After the completion of the Commonwealth’s case, the jury was instructed as to the law to apply in reaching its verdict. Following the jury’s verdict finding the appellant and co-defendant Frank Cocchiara guilty as charged, post-trial motions were denied and sentence was imposed. This appeal followed. As stated previously, this appeal is concerned solely with the claims proffered by the appellant, Donna Potts, and not Frank Cocchiara. See note 1, supra.

On appeal, appellant avers that: 1) the Prostitution statute is unconstitutional; 2) the trial court erred in not granting a mistrial; 3) the trial court erred in regard to certain evidentiary rulings; 4) the trial court erred in denying certain requested points for charge; and 5) the trial court erred in refusing a motion for a directed verdict of acquittal.

Appellant’s first argument concerns the constitutionality of subsection (a) of Section 5902, which reads:

“(a) Prostitution.—A person is guilty of prostitution; a misdemeanor of the third degree, if he or she: (1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business;”
18 Pa.C.S.A. § 5902(a)(1).

In particular, appellant asserts that the statute is unconstitutionally vague and overbroad, and, therefore, violates the right to due process of law guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States of America because the terms “sexual activity” and “business” are inadequately defined.

The void-for-vagueness doctrine, as extensively developed by the United States Supreme Court, is a due process doctrine incorporating notions of fair notice and warning. Smith v. Goguen, 415 U.S. 566, 572, 94 S.Ct. 1242, 1246, 39 L.Ed.2d 605 (1974).

In determining the sufficiency of the notice, a statute must of necessity be examined in light of the conduct with which the accused is charged. Parker v. Levy, 417 U.S. 733, 757, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439, 458 (1974); Commonwealth v. Hughes, 468 Pa. 502, 364 A.2d 306 (1976); Commonwealth v. Dodge, 287 Pa.Super. 148, 429 A.2d 1143 (1981). In compliance thereto, this Court finds that Potts was charged with, and found guilty of, “engaging] in sexual activity as a business in violation of Section 5902(a)(1) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 5902(a)(1).” (See “Criminal Action No: CC 7903596A,” at page 1) “Sexual activity” is defined in subsection (f) of the same section to “include[ ] homosexual and other deviate sexual relations.”

Potts contends that the absence of a more concise definition for “sexual activity” and “business” leaves the police, magistrate and ordinary citizen in a quandary as to the conduct proscribed. (Appellant’s Brief at 9) On this point, the United States Supreme Court has stated, in rejecting the contention that a statute prohibiting a “crime against nature” was unconstitutionally vague in Rose v. Locke, 423 U.S. 48, 49-50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185, 188 (1975), that:

“It is settled that the fair-warning requirement embodied in the Due Process Clause prohibits the States from holding an individual ‘criminally responsible for conduct which he could not reasonably understand to be proscribed.’ But this prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for ‘[i]n most English words and phrases there lurk uncertainties.’ Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid. All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.” (Citations omitted) (Footnote omitted) See also Commonwealth v. Hughes, supra; Commonwealth v. Baggs, 258 Pa.Super. 133, 139, 392 A.2d 720, 723 (1978); People v. Superior Court of Alameda County, 19 Cal.3d 338, 138 Cal.Rptr. 66, 68-69, 562 P.2d 1315 (1977); Commonwealth v. Israeloff, 8 D. & C.3d 5, 11-12 (1978).

The same high Court:

“... has consistently held that lack of precision is not itself offensive to the requirements of due process. ‘... [T]he Constitution does not require impossible standards’; all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices----’” (Emphasis added) Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498 (1957), quoting United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877, 1883 (1947); see also District of Columbia v. Garcia, D.C.App., 335 A.2d 217, cert. denied, 423 U.S. 894, 96 S.Ct. 192, 46 L.Ed.2d 125 (1975).

To discern the “common understanding and practice” attributed to the present Prostitution statute necessitates tracing its development. See Regents of University of California v. Bakke, 438 U.S. 265, 284, 98 S.Ct. 2733, 2745, 57 L.Ed.2d 750 (1979).

In Commonwealth v. Lavery, 247 Pa. 139, 142, 93 A. 276 (1915), our Supreme Court said that prostitution was “not mere fornication or adultery confined to one man, but indiscriminate illicit intercourse for hire with any man seeking it,” but in Commonwealth v. Stingel, 156 Pa.Super. 359, 361, 40 A.2d 140, 141 (1944), this Court held that “indiscriminate cohabitation” was no longer necessary, since “the Legislature ha[d] broadened the compass of the term” by the Act of June 24, 1939, P.L. 872, § 103; 18 P.S. § 4103. “Prostitution” was there defined as “the offering or using of the body for sexual intercourse for hire.” Also, in this Commonwealth’s statutes (e.g., the Act of June 30, 1923, P.L. 982 and the Act of June 24, 1939, P.L. 872), the word “fornication” was dropped from the language of the sections relating to similar offenses. Commonwealth v. Robertson, 178 Pa.Super. 281, 286, 116 A.2d 224, 227 (1955); Commonwealth v. Dougan, 5 D. & C.3d 406, 408 (1978).

In the present Act [18 Pa.C.S.A. § 5902], the Legislature did not eradicate the commonly understood definition of “prostitution” but merely clarified it to include “homosexual and other deviate sexual relations.” Id.; see Commonwealth v. Miller, 469 Pa. 24, 28, 364 A.2d 886, 887 (1976).

It cannot be gainsaid that “prostitution” has persisted since biblical times, and, as such, has acquired a traditional meaning, i.e., “indiscriminate illicit intercourse for hire.” See Commonwealth v. Lavery, supra; People v. Costello, 90 Misc.2d 431, 433, 395 N.Y.S.2d 139 (1977); Commonwealth v. King, 374 Mass. 5, 372 N.E.2d 196, 201-202 (Mass. 1977); Commonwealth v. Israeloff, supra.

As for the meaning of “business,” Black’s Law Dictionary (Rev. 5th Ed.1979), p. 302, defines it as:

“Employment, occupation, profession, or commercial activity engaged in for gain or livelihood. Activity or enterprise for gain, benefit, advantage or livelihood____” (Emphasis added)

Taking into account the facts presented at trial and recounted supra, we find that the jury could have reasonably inferred that Potts was involved in a “commercial activity engaged in for gain.” To find to the contrary would be an aberration of the facts. Additionally, this Court concludes that “sexual activity,” when interpreted according to its fair import, Commonwealth v. Skufca, 475 Pa. 124, 321 A.2d 889 (1974); Commonwealth v. Israeloff, supra; 1 Pa.C.S.A. § 1903; 18 Pa.C.S.A. § 105, encompasses an agreement to perform, for hire, “sexual intercourse and fellatio”—the activity which Potts consented to perform for the paid-in-advance consideration of $140.00. Such conduct falls squarely within the traditional understanding of the term “prostitution.” Therefore, appellant cannot successfully maintain that Section 5902(a)(1) is unconstitutionally vague on its face. See Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 2111 (1971); Commonwealth v. Dodge, supra; Commonwealth v. King, supra.

Appellant has advanced many hypothetical situations to this Court in an attempt to raise the spectre of citizens unknowingly engaging in behavior which might arguably be prohibited by the statute. It is sufficient to remark that:

“... even if a statute is imprecise, a person who is given fair warning that his conduct is criminal in nature has no standing to complain that other persons who engage in a different course of conduct may not constitutionally be prosecuted under that statute.” (Citation omitted) United States v. Pray, 452 F.Supp. 788, 796 (M.D.Pa.1978); Summers v. Anchorage, 589 P.2d 863, 868 (Alaska, 1979).

Moreover, this Court wishes to make it clear that the statute in question is not broad enough to proscribe noncommercial sexual activity, such as the exchange of sexual acts as a part of social companionship. Nor is it a vague attempt to regulate sexual conduct in general. See Comment to Section 251.2(1) of the Proposed Official Draft of the Model Penal Code, p. 236.

In regard to appellant’s argument that Section 5902(a)(1) is overbroad, this Court, in order to agree that such an assertion has merit, must find that the statute in question:

"... offends the constitutional principle that ‘a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’ ” (Citations omitted) Zwickler v. Koota, 389 U.S. 241, 250, 88 S.Ct. 391, 396, 19 L.Ed.2d 444, 451 (1967); see also Commonwealth v. DeFrancesco, 481 Pa. 595, 393 A.2d 321 (1978).

Suffice it to say that this Court does not view the statute to be so amorphous that it has the traditional trappings of a vague statute which attempts to regulate sexual acts which result, for whatever motives, from ordinary social situations. Instead, this Court sees it as providing an ascertainable standard of conduct directed at a defined evil (commercial exploitation of sexual gratification) and is not so vague as to inhibit the exercise of constitutionally protected freedoms so as to be overbroad.

As for appellant’s second averment, the matter concerns Detective Toler’s response to the Assistant District Attorney’s series of questions, i.e.:

“[Assistant District Attorney:]
Q Did th[e female that knocked on the door of the Viking Motel on May 16, 1979] identify herself? [Detective Toler:]
A She asked me if I was Walter Stevens, and I said ‘Yes.’ I said ‘You’re Donna?’ She said, ‘Yes.’ I said, ‘Come on in.’
Q Did you know her last name at the time?
A Yes, sir.
Q How did you know her last name?
MISS FRIEDMAN [Appellant’s Counsel]: Objection.
THE COURT: Objection sustained.
MR. JANAVITZ [Appellant’s co-defendant’s counsel]: I move for a mistrial on the basis of the response to the question.
MISS FRIEDMAN: I would concur in that motion.”
(N.T. 92 & 93)

After both counsels for the defense moved for a mistrial, the trial court denied the request.

Under the law of this Commonwealth:
“ 'To warrant a characterization as prejudicial the testimony must convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense.’ ” (Emphasis added) Commonwealth v. Starks, 484 Pa. 399, 408, 399 A.2d 353, 357 (1979), quoting Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978) see generally Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978); Commonwealth v. Hall, 264 Pa.Super. 261, 399 A.2d 767 (1979).

Additionally, in reviewing a trial court’s decision not to declare a mistrial, an appellate court should not reverse “absent a flagrant abuse of discretion.” (Citations omitted) Commonwealth v. Conti, 236 Pa.Super. 488, 495, 345 A.2d 238, 242 (1975).

In making our determination that the trial court did not err in denying appellant’s motion for a mistrial, we are guided by this Court’s holding in Commonwealth v. Griffin, 236 Pa.Super. 344, 344 A.2d 517 (1975), allocatur denied on December 19, 1975. In Griffin, a police officer, in response to a question by the district attorney as to whether he knew the accused, stated that he was “acquainted] with him professionally.” Id., 236 Pa.Superior at 345, 344 A.2d at 518. Judge Van der Voort, writing for the court en banc, and relying upon our Supreme Court’s decision in Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972), “f[ound] that the officer’s statement, even when considered alone, d[id] not create the prohibited implications.” (Emphasis in original) Ibid. Since we find the facts in Griffin to be indistinguishable from the ones in the case at bar, we hold, as did the Court in Griffin, that the officer’s response was not so prejudicial as to convey to the jury that Potts was guilty of involvement in prior criminal activity. “Furthermore, nothing in the Officer’s testimony suggested that the way he knew the defendant was a result of a prior arrest or conviction. Merely because a police officer knows someone or knows where they may be found does not suggest that the person has been engaged in prior criminal activity. A policeman may know someone because they reside in the same neighborhood or for any other number of reasons. We refuse to hold that a policeman’s statement to the effect that he knew someone ... raises an inference of prior criminal activity. Any such holding would defy all logic and good sense.” Commonwealth v. Sanders, 296 Pa.Super. 376, 379, 442 A.2d 817, 818 (1982). Thus, we hold that the trial court was not guilty of committing reversible error in denying appellant’s motion for a mistrial.

The third point preserved by appellant for our review centers around an evidentiary ruling by the trial court in admitting into evidence the testimony of Charles Henshaw concerning “beepers,” which appellant states was error “since it was not relevant, was immaterial to the issues involved and utterly without foundation.” (Appellant’s Brief at 17)

To start with, a judge has broad discretion as to the manner in which a trial is to be conducted, particularly with regard to the admission or exclusion of evidence. Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1981).

Upon an examination of the applicable rules of evidence, one finds that a basic requisite for the admissibility of any evidence in a criminal case is that it be competent and relevant. Commonwealth v. Batty, 482 Pa. 173, 393 A.2d 435 (1978); 1 Wharton’s Criminal Evidence § 151 at 274 (1972). Since appellant does not assail the competency of Mr. Henshaw to testify on the subject of electronic paging devices, we need to determine if such testimony, as it relates to Cocchiara’s purchase of the device from Henshaw, was relevant to advancing the Commonwealth’s case against the appellant.

“Relevance,” although not precisely and universally defined by the law, 31A C.J.S. Evidence § 158 at 431 (1964), has been repeatedly held by the Pennsylvania courts to be evidence which “tends to increase or decrease the probability of a material fact” in issue. Commonwealth v. Chism, 480 Pa. 233, 246, 389 A.2d 1041, 1048 (1978). Stated another way, any legal evidence is admissible if, and only if, it logically or reasonably tends to prove or disprove a material fact in issue, or to make such a fact more or less probable, or if it affords the basis of a logical or reasonable inference or presumption as to the existence of a material fact in issue. 31A C.J.S. Evidence § 600 at 389 (1964); Commonwealth v. Diggs, 260 Pa.Super. 349, 356-57, 394 A.2d 586, 590 (1978), citing McCormick on Evidence § 185 at 437-438 (2nd Ed.1972). Based on such a standard, we find that Mr. Henshaw’s testimony was a link in the chain of events establishing a nexus between appellant and Cocchiara in the operation of a prostitution service. For example, there was some evidence to indicate that the appellant was in possession of an electronic device on the evening of her arrest at the Viking Motel, and an envelope for “beepers,” with the name “Donna” written on its face, was seized by police from Cocchiara’s office within a half-hour of her arrest. Further, appellant, while at the Public Safety Building following her arrest, acknowledged being aware of the identity and existence of Frank Cocchiara when Detective Toller indicated, in passing, that he was about to search the Union Trust Building for Cocchiara. (N.T. 98) Therefore, we conclude that the trial court committed no error in permitting Mr. Henshaw to testify to the leasing agreement entered into between himself and Cocchiara for three “beepers.” Since the relevancy of such testimony was established, it was for the jury to decide what weight, if any, was to be given thereto.

Appellant’s fourth argument alleges error on the part of the trial court in refusing to charge the jury that “in Pennsylvania consenting adults may fornicate legally[.]” We shall not dwell on this matter for long because appellant was charged with engaging in sexual activity as a business, which, as decided supra, requires proof that the accused did so “for gain.” There is thus no need to place before the jury the question of whether the complained of conduct was entered into consensually. Thus, to have acceded to appellant’s required point for charge, given the particular facts instantly, would have resulted in charging on law applicable to no facts in the case. See Brancato v. Kroger, 312 Pa.Super. 448, 458 A.2d 1377 (1983); Frank v. Peckich, 257 Pa.Super. 561, 391 A.2d 624 (1978).

Appellant’s fifth argument also deals with the commission of a purported error in the trial court’s refusal to charge on a requested point. In particular, appellant urges that the jury should have been informed “that one transaction does not necessarily constitute a business,” so as to constitute a violation of the Prostitution statute.

This Court has had the occasion, recently, to define the term “business” as it applies to violations of Section 5902(a)(1). Commonwealth v. Danko, 281 Pa.Super. 97, 421 A.2d 1165 (1980). In Danko, in deciding what evidence would be sufficient to demonstrate beyond a reasonable doubt that an accused was engaging in sexual activity as a business, we stated:

“The evidence that appellant offered to engage in specific sexual acts for a price, used words commonly used by prostitutes to describe those acts, accepted the money offered for one of those acts, and undressed in preparation for it, was sufficient to prove that [the accused] was then engaging ‘in sexual activity as a business.’ There is no need for the officer to participate in the sexual activity to the extent of having intercourse with appellant.” Id., 281 Pa.Superior at 108, 421 A.2d at 1171.

Instantly, we have evidence that Miss Potts accepted the money ($140.00) offered by Detective Toler to engage in a specific sexual act and she undressed in preparation for it. Since such conduct is sufficient to prove that Miss Potts “was then engaging ‘in sexual activity as a business[,]’ ” Commonwealth v. Danko, supra, we fail to perceive how the trial court’s refusal to read the tendered point for charge was prejudicial, as required by Commonwealth v. Henderson, 249 Pa.Super. 472, 378 A.2d 393 (1977). Under the case law of this jurisdiction, a single transaction is, in fact, sufficient to contravene the Prostitution statute.

Lastly, appellant presents the claim that the trial court erred in refusing to grant her motion for a directed verdict.

The test to be utilized in determining if a directed verdict should be granted is “if the prosecution’s evidence, and all inferences arising therefrom, considered in the light most favorable to the prosecution are insufficient to prove beyond a reasonable doubt that the accused is guilty of the crimes charged.” (Citations omitted) Commonwealth v. Finley, 477 Pa. 382, 384, 383 A.2d 1259, 1260 (1978). We note that the preceding standard is equivalent to that used to rule on a sufficiency of the evidence argument. See, e.g., Commonwealth v. Harrison, 289 Pa.Super. 126, 432 A.2d 1083 (1981).

We do not intend, at this stage of the discussion, to reiterate the facts presented by the Commonwealth in its case-in-chief, and set forth supra. This Court is of the opinion that, viewing the evidence in accordance with the applicable standard, the evidence introduced against the appellant was sufficient to establish her guilt as to Prostitution and Criminal Conspiracy. As we remarked in Commonwealth v. Harrison, supra:

“ ‘ “... it is not necessary that each piece of evidence be linked to the [defendant] beyond a reasonable doubt. It is only necessary that each piece of evidence include the [defendant] in the group who could be linked while excluding others, and that the combination of evidence link the [defendant] to the crime beyond a reasonable doubt.” ’ ” (Citation omitted) Id., 289 Pa.Superior at 136, 432 A.2d at 1089.

We hold that the evidence was sufficient to support the trial court’s denial of the motion for a directed verdict. Consequently, we find no merit to any of the issues raised on appeal, and appellant’s request for relief is denied.

Judgment of sentence affirmed.

      . It needs to be mentioned that appellant’s co-defendant, Frank Cocchiara, also was convicted at the same trial of Promoting Prostitution (18 Pa.C.S.A. § 5902(b)(1)) and Criminal Conspiracy (18 Pa.C.S.A. § 903(a)(1)). His appeal from the judgment of sentence is somewhat more involved. That is, initially, Cocchiara was sentenced on December 4, 1980, and a timely appeal was filed with the prothonotary of this Court and docketed at No. 1229 Pittsburgh, 1980. However, pursuant to Cocchiara’s counsel’s Petition For Modification Of Sentence, the trial court entered an Order dated December 26, 1980 which read:
      "IT IS HEREBY ORDERED that the sentence imposed December 4, 1980, be vacated and that a hearing on the said Petition for Modification of Sentence be held on Wednesday, January 7, 1981 ____”
      (Record No. 15)
      At the January 7th hearing, Cocchiara’s December 4, 1980 sentence was "amended” so that instead of serving his 3- to 6-month prison term for promoting prostitution by continuous confinement in jail, he could complete his sentence on Fridays through Sundays from 8:00 AM until 4:00 PM in the county jail. Also, Cocchiara was to serve as a psychiatric aid in the prison. The sentence for the conspiracy conviction remained the same, i.e., a $1,000 fine and three (3) years probation to take effect after Cocchiara had completed his initial sentence for promoting prostitution. As before, an appeal was filed; this time it was from the January 7, 1981 judgment of sentence and the prothonotary of this Court docketed the case at No. 152 Pittsburgh, 1981. However, by Order dated February 14, 1983, this Court granted Cocchiara’s "Petition For Withdrawal" of the case docketed at No. 152 Pittsburgh, 1981.

      Since the appeal at No. 1229 Pittsburgh, 1980 was rendered moot by the lower court vacating the judgment of sentence upon which it was based, see Commonwealth v. Corson, 298 Pa.Super. 51, 444 A.2d 170 (1982); Pa.R.Crim.P. 1410, and because Cocchiara’s subsequent appeal at No. 152 Pittsburgh, 1981 was withdrawn, Cocchiara has presently no appeal pending before this Court.

      . Appellant’s, Donna Potts’, brief to this Court appears to be the by-product of a joint effort on the part of appellant’s and co-defendant Cocchiara’s counsel, both of whom are members of the same law firm. We bring this point out, inasmuch as in the "Argument II” section of the brief the only party attacking the sufficiency of the evidence in the context of the trial court erring in not granting a demurrer at the end of the Commonwealth’s case is co-defendant Cocchiara. (See Appellant’s Brief at 11-13) Thus, since appellant’s name appears nowhere in this portion of the brief concerning the purported trial court error, we need not address the sufficiency of the evidence question since it is not advanced by the appellant Donna Potts. See Sheppard v. Old Heritage Mutual Insurance Co., 492 Pa. 581, 425 A.2d 304 (1980) (failure to pursue an issue on appeal is just as effective a waiver as is the failure to initially raise the issue); Kubert v. Fidelity Bank, 245 Pa.Super. 60, 369 A.2,d 293 (1976) (failure of appellant to allege in his brief to appellate court that lower court erred by denying his claim that bank had violated his constitutional right to travel constituted a waiver of such an issue); Hanrahan v. John Hancock Mutual Life Insurance Co., 143 Pa.Super. 557, 18 A.2d 512 (1941); see generally Commonwealth v. Dalahan, 262 Pa. 615, 396 A.2d 1340 (1979).

      . Only two states have identical statutes, yet the constitutionality of neither has been ruled upon. See New Jersey: N.J.S.A. 2C:34-1 (1982); North Dakota: N.D.Century Code Ann. § 12.1-29-03 (1976).

      . One is permitted to utilize legal dictionaries, treatises and judicial opinions to interpret language in statutes. Rose v. Locke, supra; Commonwealth v. King, supra.

      . This type of activity is considered unlawful even if carried out in private. See Comment to Section 251.2(1) of the Proposed Official Draft of the Model Penal Code—Pennsylvania’s statute on prostitution is modeled after this.

        If an offer standing alone were not prohibited conduct, the police could not be complainants in prostitution cases unless they first actually performed acts of intercourse with the person they were arresting—a practice which no doubt would create a great deal of marital dissatisfaction and public criticism. People v. Johnson, 60 Ill.App. 183, 17 Ill.Dec. 382, 386, 376 N.E.2d 381, 385 (1978).

      . See Appellant’s Brief at 9.

      . See note 2, supra. Thus, we are, in actuality, responding to appellant's attack on the sufficiency of the evidence.


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    460 A.2d 1139
    COMMONWEALTH of Pennsylvania v. Joseph George ROMERI, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1981.
    Filed May 6, 1983.
    Petition for Allowance of Appeal Granted Aug. 8, 1983.

      Thomas J. Calnan, Jr., Allentown, for appellant.
    William H. Platt, District Attorney, Allentown, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   McEWEN, Judge:

We here review an appeal from the judgment of sentence imposed after appellant was convicted by a jury of murder in the second degree, burglary, theft by unlawful taking, receiving stolen property and criminal conspiracy. Appellant was sentenced to serve a term of life imprisonment upon the murder conviction and a consecutive term of from two to seven years upon the other convictions.

Stella A. Bremmer was eighty years of age when she was bludgeoned to death on November 9, 1978. Four days later, appellant voluntarily accompanied two officers to the Allentown Police Station for questioning. Since appellant was not yet 17 years of age, the police provided for the presence of his mother, who with appellant was apprised of the Miranda warnings. Appellant thereafter gave and subsequently wrote and signed a statement admitting his complicity in the killing of Stella A. Bremmer during the commission of the burglary of her home. The juvenile probation officer of appellant, as well as another juvenile officer, were present with appellant and his mother when appellant made his statement, and the mother herself signed as a witness to the execution of the statement by her son.

The record reflects that appellant and co-defendant, Michael Reinhard, after consuming a quantity of marijuana, gained entry to the house of Mrs. Bremmer through an open rear window. Appellant and the co-defendant then searched the house and took a small amount of money. The co-defendant testified that while he was in the kitchen he heard “muffled sounds” from upstairs, as a result of which he ascended the stairs, and saw appellant standing with a pipe over the bloodied body of Stella Bremmer.

Appellant testified that in addition to smoking marijuana, he ingested LSD, two or three bottles of ale and a swallow of whiskey or wine. He further testified that he was not certain whether or not he hit the victim, but since his accomplice told him he struck Stella Bremmer, he therefore believed that he inflicted the blows. Appellant also indicated uncertainty as to whether the statement he made to Detective Monahan was part of his honest recollection.

The record reflects that appellant, while incarcerated, wrote a letter to his mother in which he stated, inter alia:

... Mom, I talked to my lawyer last night. Mom, I am facing life in jail. I need your help. Do as my lawyer tells you to, please. He says I have a chance of being found not guilty. That means I can get away with murder____

Prior to the trial, the court denied the following applications of appellant: (1) a petition to transfer the case to juvenile court; (2) a motion to suppress the statement to Detective Monahan; and (3) a motion for bail.

On the morning of trial, April 2, 1979, a local daily newspaper reported upon the court opinion and order that denied the petition of appellant to transfer the case to the juvenile court. That same article also reported upon the opinion and order of the court that denied the petition of co-defendant Michael Reinhard for transfer to juvenile court.

Appellant, prior to the empaneling of a jury, moved for a change of venue as a result of the newspaper article, but the court held the motion under advisement. That evening, another local newspaper reported the “plea for venue change”. Upon completion of voir dire, the trial judge denied the motion of appellant for change of venue.

Appellant asserts that the trial court erred when it refused to dismiss for cause four prospective jurors who had read or discussed the newspaper article of April 2,1979, and had been thereby challenged for cause. Our eminent President Judge William F. Cercone, in Commonwealth v. Lucchese, 233 Pa.Super. 273, 279, 335 A.2d 508, 511 (1975), delineated the principle pertinent to this issue:

[T]he fact that a juror has read a newspaper account concerning the accused and the crime at bar does not require that the juror be excluded for cause. It must be shown that the juror has formulated a fixed opinion precluding him from reaching a verdict based solely on the evidence produced at trial____

The Pennsylvania Supreme Court reiterated this principle when the eminent Justice Robert N.C. Nix, Jr., in Commonwealth v. Hoss, 469 Pa. 195, 200-01, 364 A.2d 1335, 1338 (1976), declared:

The mandate for a fair and impartial jury does not require that the prospective jurors be free of all knowledge of the facts and circumstances surrounding the incident which forms the basis of the trial.
Thus, the critical question where members of the panel have been exposed to pre-trial media publicity, is whether or not they are capable of casting aside any impressions or opinions they may have formed and render a verdict based solely upon the evidence presented to them during the course of the trial.

The en banc opinion of the Common Pleas Court provided the following description of the effort to secure an impartial jury:

[T]he Court, in recognizing the weight that a judicial opinion would receive in the community, took care to insure the selection of an impartial jury for trial. Wide latitude on voir dire examination was extended by the Court in recognition of the problem; every defense challenge for cause was granted where a prospective juror had read a recent newspaper article involving the case— whether or not that prospective juror had any recollection of the newspaper account or had formed an opinion. Of the fourteen (14) jurors seated, not one had read the allegedly prejudicial publicity.

Our review of the record does not indicate that any juror had an opinion that was fixed so as to preclude a deliberation and decision solely upon the evidence. As a result we conclude there is no merit to this contention of appellant.

Appellant next asserts that he was arrested without probable cause at his place of employment. He argues, therefore, that any statements subsequently made were the fruit of an illegal arrest and, for that reason, should have been suppressed. “In reviewing the findings of the suppression court, this court must determine whether the record 'supports the suppression court’s factual findings and the legitimacy of the inferences and conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.’ ” Commonwealth v. Crissy, 304 Pa.Super. 38, 450 A.2d 89 (1982) (quoting Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976) and Commonwealth v. Hunt, 280 Pa.Super. 205, 421 A.2d 684 (1980)).

The suppression hearing record reflects that investigating officer Gerald Monahan, who was dressed in civilian clothing and accompanied by a juvenile officer, located appellant at his place of employment, identified himself and said: “I would like to talk to you. Would you mind coming down to the police headquarters with me?” Detective Monahan testified that he informed appellant that he was not under arrest stating: “You aren’t getting blamed for a thing. I just want to talk to you.” The detective further testified that he asked appellant “if his mother would come with them”, indicated that the conference would take about an hour, and offered to return appellant to his place of employment at the termination of the interview. The record, clearly establishes that appellant was aware that he was not told that he was under arrest, and that after locating Mrs. Romeri, appellant, of his own volition, accompanied the officers to the police headquarters. The record further reflects that before being questioned, appellant was apprised of the Miranda rights and of the right to a private conference with his mother and his probation officer, who was, at his request, made available to him for counseling. It was not until after appellant made his confession that he was told he was under arrest.

The determination of when an arrest occurs depends on an evaluation of all the surrounding circumstances. Commonwealth v. Crissy, supra, 304 Pa.Superior at 42, 450 A.2d at 91. An arrest may be constructive or actual, id., and is accomplished by “any act that indicates an intention to take a person into custody and subjects him to the actual control and will of the person making the arrest.” Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311 (1963), cert. denied, Bosurgi v. Pennsylvania, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963) (quoting 5 Am. Jur.2d, Arrest § 1, p. 695). See also Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974). “An arrest may thus be effectuated without the actual use of force and without a formal statement of arrest.” Commonwealth v. Benson, 280 Pa.Super. 20, 27, 421 A.2d 383, 386 (1980). See also Commonwealth v. Holmes, supra; Commonwealth v. Crissy, supra; Commonwealth v. Haggerty, 282 Pa.Super. 369, 422 A.2d 1336 (1980), rev’d on other grounds, 495 Pa. 612, 435 A.2d 174 (1981); Commonwealth v. Allessie, 267 Pa.Super. 334, 406 A.2d 1068 (1979). However, the question of when an arrest occurs is determined by an objective standard, namely, the reasonable impression conveyed to the person subjected to seizure or detention rather than the subjective view of such person or of the arresting officer. Commonwealth v. Holmes, supra; Commonwealth v. Richards, supra; Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982); Commonwealth v. Crissy, supra; Commonwealth v. Haggerty, supra; Commonwealth v. Benson, supra.

Our review of the suppression record leads us to conclude that appellant was not arrested at his place of employment. Appellant testified that he willingly decided to proceed to the police station and that no force was employed by detective Monahan to compel this decision. There is no evidentiary basis for a conclusion that detective Monahan arrested appellant at his job or that appellant had been subjected to his control and will. Accordingly, we reject the contention of appellant that the statements subsequently made were suppressible as the product of an unlawful arrest.

Appellant further contends that the trial court improperly denied the motion to suppress the confession of appellant for the reason that the confession was obtained through trickery, subterfuge and deceit. The hearing judge held the confession admissible on the basis of the decision of this court in Commonwealth v. Thomas, 258 Pa.Super. 332, 392 A.2d 820 (1978). The Pennsylvania Supreme Court, however, reversed that decision and stated, as it concluded that a counsellor of adult prisoners was not an “interested adult”:

The Commonwealth has the burden of establishing that, prior to waiving Fifth Amendment rights, a juvenile had the opportunity to consult with an ‘interested adult.’ The individual must be both interested in the juvenile’s welfare and informed and aware of the juvenile’s fifth and sixth amendment rights. See e.g., Commonwealth v. Barnes, 482 Pa. 555, 394 A.2d 461 (1978). This Court’s ‘interested adult’ cases rest upon a concern that juvenile immaturity may preclude self-protection from overbearing police interrogation. The rule intends that overbearance may be avoided by consultation with individuals such as a ‘lawyer, adult relative or friend,’ who can provide a juvenile with the ‘protection which his own immaturity could not.’ Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 1213, 8 L.Ed.2d 325 (1962). Accord, Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948).

Commonwealth v. Thomas, 486 Pa. 568, 571, 406 A.2d 1037, 1038 (1979). (footnotes omitted). See also Commonwealth v. Williams, 309 Pa.Super. 63, 454 A.2d 1083 (1982) (1982). The Supreme Court thereby accepted the view expressed in the Thomas dissent by our distinguished colleague Judge Edmund B. Spaeth, Jr., joined by our eminent President Judge William F. Cercone, that:

Any other interpretation of the Supreme Court’s requirement of an ‘interested adult’ would make no sense, for it would read the Court as saying that its requirement could be satisfied in either of two mutually inconsistent ways: either by affording the juvenile access to one of two parties initially interested in his welfare—an attorney or parent—or by affording him access to a person only casually interested.

Commonwealth v. Thomas, supra 486 Pa. at 572, 406 A.2d at 1038 (quoting the dissent of Judge Spaeth in Commonwealth v. Thomas, 258 Pa.Super. 332, 441-42, 392 A.2d 820, 825 (1978)).

Nonetheless, we will not disturb the finding of the hearing judge that the mother of appellant and juvenile probation officer Zydel were “interested adults” since the hearing judge actually based his conclusions upon the notions that the Supreme Court declared to be decisive in such situations:

[W]e note the dissent of Judge Spaeth in Thomas. However, we are satisfied that the reasons for his dissent in Thomas are not present in the case. In Thomas, Judge Spaeth disagreed with the majority’s conclusion that a prison counsellor was an ‘interested adult' for the purpose of an effective juvenile Miranda waiver. In the case at bar the defendant’s mother, unquestionably an ‘interested adult’ was present and there is no question that the Miranda rights were fully explained to her and the defendant. Judge Spaeth also concluded that the police made no reasonable effort to afford the appellant access to an ‘interested adult.’ Again the facts in our case are contrary to that conclusion, because the police, at the defendant’s request, brought in Probation Officer Zydel, who the defendant regarded as an interested adult, and Ms. Zydel once again informed the defendant and his mother of the Miranda rights. Finally, Judge Spaeth in his Thomas dissent concluded the police impermissibly interfered with such access to an ‘interested adult’ as was provided by remaining in the room while the juvenile conferred with an adult. However, in the present case it is undisputed that the juvenile, his mother and the Probation Officer had the fullest privacy.

Appellant next argues that the trial court erred in denying his petition to transfer the murder charge from adult to juvenile court. If appellant is to prevail, he must show a gross abuse of the broad discretion of the hearing judge who refused the transfer application. Such abuse may not merely be an error of judgment, but must be a misapplication of the law or an exercise of manifestly unreasonable judgment based upon partiality, prejudice or ill will. Commonwealth v. Bey, 249 Pa.Super. 185, 375 A.2d 1304 (1977).

The pertinent portion of the Juvenile Act provides:

Section 6322. Transfer from criminal proceedings (a) General rule.—..., if it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this chapter shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the division or a judge of the court assigned to conduct juvenile hearings, ... If it appears to the court in a criminal proceeding charging murder, that the defendant is a child, the case may similarly be transferred and the provisions of this chapter applied....

42 Pa.C.S.A. § 6322. It is thus clear under the Juvenile Act that a criminal proceeding charging murder by a juvenile may be transferred to the division of the court assigned to conduct juvenile hearings. The careful process that must be employed in connection with such a transfer was articulated by the Pennsylvania Supreme Court when in Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1979), it held:

Murder has always been excluded from the jurisdiction of the juvenile courts.... Having continued to place murder, even when a young offender is involved, within the original and exclusive jurisdiction of the adult court, the assumption that the need for adult discipline and legal restraint exists in cases of this heinous nature also continues. With this in mind it becomes the juvenile’s burden to show that he does not belong in the criminal court. In other words, it is the youth who must prove that he belongs in the juvenile setting by showing his need and amenability to the ‘program of, supervision, care and rehabilitation’ which he would receive as a juvenile. In the event the evidence does not affirmatively demonstrate that he is the kind of youth who would benefit from the special features and programs of the juvenile court system and in the evént no special reason exists for sparing the youth from adult prosecution and punishment (as for instance, evidence of mental illness or retardation) jurisdiction would necessarily remain within the criminal court system.

Id., 462 Pa. at 622-23, 342 A.2d at 106-07. (footnotes and citations omitted) (emphasis in original). The Court observed that “the determinative factors in deciding whether the youth is amenable to juvenile treatment will differ from case to case” and outlined an approach for determining whether to grant a transfer:

Such determination should be made after careful review of the individual child’s personal make-up, (e.g., mental capacity and maturity as determined by consideration of his home and school environment situation, emotional attitude, and pattern of living) his previous history (including any previous contact with law enforcement agencies and/or juvenile courts) and the nature and circumstances of the alleged homicide (e.g., inquiry into whether the killing was committed in an aggressive, violent or wilful manner, whether the safety of the community requires lengthy incarceration, whether it is more desirable to dispose of the entire offense in one court should the juvenile’s associates in the alleged homicide be adults not within the juvenile jurisdiction).

Id., 462 Pa. at 623 n. 13, 342 A.2d at 106-07 n. 13. (citations omitted) (emphasis in original) See also Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980). In any event, the law is clear that any transfer determination under the Juvenile Act is within the sound discretion of the Common Pleas Court. Commonwealth v. Pyle, supra 462 Pa. at 618, 342 A.2d at 104 (1975); Commonwealth v. Barber, 275 Pa.Super. 144, 151, 418 A.2d 653, 660 (1980).

Appellant alleges in his brief that the hearing court relied almost entirely on the “enormity of the crime” to deny the petition to transfer and that the trial court, therefore, abused its discretion by applying an improper standard, thereby ignoring the historic purpose of the juvenile court system. Our review convinces us that both the certification hearing court and the court en banc adequately reviewed and properly disposed of this claim. The record reflects that while the hearing court took into consideration the youth of appellant, the testimony of the psychologist and the psychiatrist concerning appellant was not favorable. Certainly the “enormity of the crime”, the manner of its commission which the court described as “particularly vicious”, and the character of appellant as reflected by his letter to his mother seeking her assistance to enable him to “get away with murder” were factors of considerable influence upon the decision of the court to proceed with trial in the criminal court. Our careful study of the entire record and the briefs leads us to share the conclusion of the hearing judge that appellant failed in his burden and did not establish the amenability of a trial in the juvenile court system. As the hearing judge opined in holding the case inappropriate for transfer to Juvenile Court:

We have weighed and considered the evidence presented to Joseph Romeri’s personal makeup, character, maturity, family and home situation, his previous contact with law enforcement agencies, his direct role in the killing of Mrs. Bremmer as well as his almost complete, callous disregard to the enormity and horror of his actions. We simply do not believe that Romeri’s need for care, guidance and control as a juvenile is outweighed by the state and society’s need to apply legal restraint and discipline as an adult. Accordingly, we conclude that the evidence does not affirmatively demonstrate that Romeri is amenable to treatment as a juvenile.

Appellant further contends that the court erred in allowing the initiation and prosecution of the non-homicide charges in adult court. He voices the argument that when a juvenile is charged with homicide it should not cause the automatic certification of non-homicide charges to criminal court and urges that the proper procedure for charging a juvenile with homicide and other related charges which arise out of the same incident is to: (1) initiate the non-homicide charges in juvenile court; and (2) thereafter certify such charges to criminal court. We conclude that the Lehigh County en banc opinion properly decided the issue when it determined that the criminal adult court had jurisdiction over the lesser related charges as well as the murder charge. It is clear that such charges constituted an integral part of the murder offense. Since the juvenile court, in the first instance, had no jurisdiction over the murder charge and since the lesser related charges were integrally related to that charge, the hearing court did not err when it denied the motion of appellant to transfer the lesser related offenses to juvenile court. See Commonwealth v. Keefer, 470 Pa. 142, 367 A.2d 1082 (1976), cert. denied, Keefer v. Pennsylvania, 434 U.S. 1009, 98 S.Ct. 717, 54 L.Ed.2d 751 (1978), reh. denied, 435 U.S. 938, 98 S.Ct. 1514, 55 L.Ed.2d 534 (1978).

Appellant next argues that the trial court improperly denied a motion to limit evidence under Pennsylvania Rule of Criminal Procedure Rule 305 E by allowing into evidence the letter written by appellant to his mother. The letter had been a subject at pre-trial proceedings and, therefore, there is no basis for any claim that the Commonwealth failed to disclose the existence of the letter. Appellant cites Pennsylvania Rule of Criminal Procedure 305 B that requires the Commonwealth to permit counsel for the defendant to inspect and copy such evidence. As we have already noted, the letter was the subject of pre-trial proceedings which would, of course, have afforded counsel the opportunity to inspect the letter and counsel for appellant does not contend the Commonwealth refused his request to further inspect or copy that exhibit. We conclude, therefore, that the trial court properly ruled upon this issue. Cf Commonwealth v. Gibson, 271 Pa.Super. 499, 414 A.2d 364 (1979) (where defense counsel was aware at suppression hearing that only eyewitnesses to crime initially failed to identify defendant, no merit to contention that Commonwealth withheld evidence).

Appellant proceeds to contend that it was error to permit voir dire on the death penalty, since the result of such an empaneling was a “death-qualified” jury. Appellant contends, therefore, that this jury selection procedure excluded “persons who indicated they would be most conscientious in applying the reasonable doubt standard” and included persons “more apt to convict—or convict of a higher degree.” In addressing this issue, the Pennsylvania Supreme Court in Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976), stated:

In Witherspoon [v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), reh. denied, Witherspoon v. Illinois, 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186 (1968) ], the Supreme Court of the United States refused to accede to this argument because the data there before it were ‘too tentative and fragmentary’, 391 U.S. at 517-18, 88 S.Ct. at 1776-1775, 20 L.Ed.2d at 782. This Court likewise rejected the same contention in Commonwealth v. Speller, 445 Pa. 32, 282 A.2d 26 (1971) because it was ‘without persuasive foundation and is mere speculation.’ 445 Pa. at 35, 282 A.2d at 28. See also Commonwealth v. Hudson, 455 Pa. 117, 314 A.2d 231 (1974); Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972); Commonwealth v. Roach, 444 Pa. 368, 282 A.2d 382 (1971).

Commonwealth v. Martin, supra 465 Pa. at 162, 348 A.2d at 405. See also Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981) (Larsen, J., dissenting); Commonwealth v. Ashburn, 459 Pa. 625, 331 A.2d 167 (1975). Accord Smith v. Balkcom, 660 F.2d 573 (5th Cir.1981), mod. and reh. denied, 671 F.2d 858 (5th Cir.1982), recalled, 677 F.2d 20 (5th Cir.1982), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982). It is clear, however, that a conviction by a death-qualified jury will be reversed if the defendant so convicted can prove that such jury was prone to favor the prosecution in the determination of guilt. Witherspoon v. Illinois, supra 391 U.S. at 517-18, 88 S.Ct. at 1774-75, 20 L.Ed.2d at 782-83. See also Commonwealth ex rel. Fitzpatrick v. Bullock, 471 Pa. 292, 302 n. 8, 370 A.2d 309, 313-14 n. 8 (1977); Commonwealth v. Roach, supra 444 Pa. at 371, 282 A.2d at 384.

Our careful study of the entire record leads us to conclude that this contention of appellant is based upon pure speculation. Appellant has failed to introduce any evidence to support his claim that the exclusion of prospective jurors opposed to the death penalty prejudiced him. Rather, the record establishes that the trial court permitted appellant to engage in extensive individual voir dire, affording him an ample opportunity to secure a competent and fair jury.

Appellant also asserts that several errors were committed in the charge provided by the trial judge to the jury. We have reviewed each of the contentions of appellant and conclude there is no merit to any of the assertions of error. It is well settled in Pennsylvania that appellate review of the charge of the court for prejudicial and reversible error requires that the charge be read and considered in its entirety since error will not be predicated upon isolated excerpts of the charge. Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980); Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978); Commonwealth v. Todaro, 301 Pa.Super. 1, 446 A.2d 1305 (1982). Our study of the charge of the court leaves us with the conclusion that the charge as a whole was adequate and proper and did not contain any reversible error.

We have completed a thorough review of the entire record as well as of the briefs of the parties and conclude that the distinguished court en banc, specifically the learned Judges Maxwell E. Davidson, David E. Mellenberg and James N. Diefenderfer, has in an able and thorough opinion, very perceptively addressed and quite correctly ruled upon the remaining contentions of appellant.

Judgment of sentence affirmed.

      . The handwritten statement of appellant given to the Allentown police reads as follows:
      Thursday the 9th [November] 1978, before I went to Mike's house, I got drunk. I then went to Mike’s house and we went out for a ride. When we came home we were bored so we went over to the church to investigate. We found an open window then went inside. We had no intentions of taking anything. We walked around and the floor creaked. When we were just about to leave Mike had found a bottle of whiskey or something so we took that. We went for a ride then back. Mike drove because I couldn't. When we got back we decided to investigate Stella’s so we went on the parking deck to see if she was home. We guessed she was either away or sleeping. When we tried to get into the back window, it made a loud noise so we left. We figured that she would hear the noise and call the police. When we got back from another ride we saw all the lights out and no police around so we tried again. This time the window opened so we went in to investigate. We stayed on the 1st floor and found about $10.00. Then we went upstairs quietly. I didn’t see anybody then when I closed my eyes I opened them again and I saw blurredness then I saw Stella. I snapped out. Mike then held her down and I hit her with something but I don’t remember how many times and what it was. After I hit her we split because she was making funny noises. After I got something to eat we went back. We figured she was dead but she wasn’t. I got in my mind to call an ambulance then leave but I was so blitzed I couldn’t. After we got some purses we left and I got rid of the gloves purses and object. When I speak of Mike I mean Mike Reinhard 414 Oak Street. When I speak of Stella I speak of Stella Bremer 418 Oak Street. Purses [were] taken [the] 2nd time in Stella’s house.

      . We note that appellant was convicted of second degree murder and that, therefore, the death penalty does not here apply. 42 Pa.C.S.A. § 9711. While this issue would, therefore, appear to be moot (See Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975), cert. denied, Pennsylvania v. Martin, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976); Commonwealth v. Dukes, 460 Pa. 180, 331 A.2d 478 (1975); Commonwealth v. Roach, supra), we shall, nevertheless, address it since it concerns a significant aspect of the procedure for jury selection in a case charging murder.

      . The remaining assertions presented by the Statement of Questions in the brief of appellant are:
      [1] Whether or not the trial court improperly denied defendant’s motion for a change of venue where there was massive pre-trial publicity on the day the trial was set to begin indicating that the court was of the opinion that the defendant was guilty of homicide, which publicity was precipitated by the court erroneously allowing newspaper coverage on the hearing of the petition to transfer to juvenile court, and by disseminating its opinion thereon to the news media?
      [2] Whether or not the defendant was denied equal protection and due process of law under the fourteenth amendment where the defendant was the suspect who broke the case for the prosecution, by confessing and implicating the more culpable accomplice, yet the Commonwealth agreed to certify that the guilt of the accomplice rose no higher than third degree murder while insisting upon the death penalty for the less culpable defendant.
      [3] Whether or not the Commonwealth's evidence in its case in chief, and the corroborating evidence offered by the defendant supports a verdict of guilty to homicide no higher than murder in the third degree?


text:
    460 A.2d 1149
    COMMONWEALTH of Pennsylvania v. Alphonso LEWIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 14, 1982.
    Filed May 6, 1983.
    Petition for Allowance of Appeal Denied Aug. 10, 1983.

      Marlene Cooperman, Philadelphia, for appellant.
    Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   McEWEN, Judge:

We here review an appeal from a judgment of sentence imposed following a non-jury trial at which appellant was found guilty of rape, involuntary deviate sexual intercourse, burglary, possession of an instrument of crime, simple assault and criminal trespass. Appellant received consecutive sentences of from five to ten years each for the crimes of rape and involuntary deviate sexual intercourse and from two to five years for the crime of burglary, for a total period of confinement of from twelve to twenty-five years, to be followed by terms of probation of two years each for the offenses of possession of an instrument of crime, simple assault and recklessly endangering another person. We affirm.

Appellant raises several issues of ineffective assistance of counsel. He initially contends that “trial counsel was ineffective in failing to seek recusal of the trial judge who presided at the pre-trial suppression hearing and [the] non-jury trial.” He then itemizes certain developments during the suppression hearing that would have prevented the trial judge from rendering an impartial verdict. Appellant also asserts that trial counsel was further ineffective by reason of a failure to assert a suppression issue in the post-verdict motions and by reason of the withdrawal of the post-trial motions.

On July 3, 1980, at approximately 4:00 a.m., appellant burglarized the apartment of the victim, entered the bedroom where she was sleeping with her two children, ages two and three, put a knife to her throat and demanded money before proceeding to rape her and force her to engage in various acts of involuntary deviate sexual intercourse, all in the presence of her children.

Appellant was apprehended nine days later when the victim and a neighbor observed appellant in the neighborhood. The distinguished Judge Alfred J. DiBona, Jr. dismissed the motion of appellant to suppress the identification evidence after concluding that probable cause to arrest existed, found appellant guilty after conducting a non-jury trial and permitted trial counsel for appellant to withdraw the timely filed post-trial motions after conducting a colloquy with appellant and concluding the withdrawal was a voluntary and knowledgeable act of appellant.

It is well settled that “[wjhen confronted with a claim of ineffective assistance of counsel, we must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit, and if so, it must be determined whether the course chosen by counsel had some reasonable basis to effectuate his client’s interest.” Commonwealth v. Pittman, 295 Pa.Super. 234, 237, 441 A.2d 436, 437 (1982) (citations omitted). See also Commonwealth v. McKnight, 307 Pa.Super. 213, 453 A.2d 1 (1982); Commonwealth v. Bossick, 305 Pa.Super. 196, 451 A.2d 489 (1982).

We shall first discuss the contention that trial counsel was ineffective for failing to request recusal of the trial judge. The Pennsylvania Supreme Court has suggested that “[tjhe better practice in a multi-judge county would be to have the trial conducted by someone other than the judge who presided over the Suppression Proceedings particularly where there is a waiver of jury accepted.” Commonwealth v. Paquette, 451 Pa. 250, 258, 301 A.2d 837, 841 (1973). The Court again articulated a preference for this practice in Commonwealth v. Goodman, 454 Pa. 358, 362, 311 A.2d 652, 654 (1973), as it concluded “that a judge should honor a request for recusation where prejudicial information is received in a pre-trial proceeding that would be otherwise inadmissible during the trial of the cause.” Whether a trial judge should recuse himself thus depends upon “the type of evidence that the judge hears; if the evidence is inadmissible and is of a highly prejudicial nature, the judge should recuse himself or declare a mistrial if it is too late for recusal.” Commonwealth v. Lee, 262 Pa.Super. 280, 291, 396 A.2d 755, 760 (1978). The judge should also recuse himself whenever there is substantial doubt as to his ability to preside impartially. Commonwealth v. Boyle, 498 Pa. 486, 490, 447 A.2d 250, 252 (1982). The burden to show prejudice, however, is on the party seeking recusal. Commonwealth v. Council, 491 Pa. 434, 421 A.2d 623 (1980); Commonwealth v. Martin, 307 Pa.Super. 118, 452 A.2d 1066 (1982). “If the evidence is admissible or not of a highly prejudicial nature, recusal is not required”, Commonwealth v. Lee, supra, 262 Pa.Super. at 291, 396 A.2d at 760, and while it may be the better practice to have a different judge preside over trial than preside over pre-trial proceedings, such a practice is not constitutionally required and has not been made the basis for setting aside a verdict reached in an otherwise proper trial. Commonwealth v. Baxter, 282 Pa.Super. 467, 422 A.2d 1388 (1980). Commonwealth v. Williams, 269 Pa.Super. 544, 410 A.2d 835 (1979). This principle appears to be based on “the prevailing view that judicial fact-finders are capable of disregarding most prejudicial evidence.” Commonwealth v. Council, supra 491 Pa. at 439, 421 A.2d at 625 (footnote omitted). Therefore, the failure of trial counsel to request recusal of the trial judge was not per se, without more, ineffective representation.

Appellant proceeds to assert that the suppression judge would have become prejudiced and thereby unable to serve as trial judge by reason of: (1) evidence presented at the suppression hearing which would have been inadmissible at the trial as hearsay evidence; (2) evidence presented at the suppression hearing which would have been inadmissible at the trial as evidence of other crimes; (3) evidence concerning police photographs indicating appellant had been involved in prior criminal activity; and (4) the adverse determination by the suppression judge upon the credibility of appellant that had to precede denial of the motion to suppress. Since we will hereinafter reject the contentions that the suppression judge had been prejudiced by such evidence, we conclude that counsel was not ineffective by reason of a failure to request the recusal of the trial judge for these specific reasons.

Appellant contends that he was prejudiced since Judge DiBona heard the following testimony at the suppression hearing which was inadmissible at the trial as both hearsay evidence and as evidence of other crimes:

Q. And you were present at the time of the arrest?
A. Yes.
Q. Could you describe to the Court the circumstances that led to that?
A. Yes. It was during the evening hours—well, the later evening, I guess around 9:00 p.m. or so. The tenant on the second floor came down and stated that there was a man out in the backyard who was looking in the houses on 5th Street and he suggested that I look out my window to see if this was the man who had raped me. When I looked out the first floor window I couldn’t see him very well. So he suggested that I go up to the second floor and look out his window because he had a fairly good view from the second floor. So, I went up and I saw this man climbing up on a wall and he was facing me. He was climbing up on the wall. Then he turned to the left to look in a window on 5th Street. When I saw him climbing up, I realized that it was the man that had raped me and the second floor tenant’s wife, she went and called the police and they came to the house.

Hearsay evidence is testimony by a third person as to extra-judicial utterances made by another, when offered to prove the truth of the matter averred therein, and is inadmissible at trial because the competency and veracity of the original speaker are not subject to examination. Commonwealth v. Perry, 279 Pa.Super. 32, 420 A.2d 729 (1980). It is well settled that an out-of-court statement offered to explain a course of conduct is not hearsay. Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980); Commonwealth v. Ryan, 253 Pa.Super. 92, 384 A.2d 1243 (1978). The testimony of the victim that “[t]he tenant on the second floor came down and stated that there was a man out in the backyard who was looking in the houses on 5th Street and he suggested that I look out my window to see if this was the man who had raped me” was not inadmissible hearsay, but was admissible information that explained the events and course of conduct that preceded the arrest of appellant. Therefore, the trial judge had not been exposed to inadmissible hearsay and trial counsel was not ineffective for not requesting recusal for that reason.

We also reject the contention that the preceding testimony was prejudicial for the reason that it connected appellant with such other criminal activity as loitering and prowling. Although the testimony as to the behavior of appellant in the backyard would cause any person to be suspicious and might form a basis for a charge of loitering and prowling, the probative value of that testimony far outweighs any prejudicial effect. That testimony was clearly part of the history of the event of the arrest and part of the natural development of the facts. See Commonwealth v. Brown, 462 Pa. 578, 591, 342 A.2d 84, 90 (1975); Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932). Since the arrest occurred some days after the crime, a full and fair trial could not have been conducted unless the trier of the facts was apprised of the circumstances of the arrest. In fact, if, hypothetically, the trier of the facts had been precluded by judicial ruling from learning of the facts of the arrest in this instance, we could anticipate a claim by appeals counsel that trial counsel was ineffective for concealing from the trier of the facts information that would have enabled trial counsel to argue that the identification by the victim was inspired by the suggestion of the neighbor. Whatever conclusion might be reached as to whether the admission or the concealment of such evidence was more prejudicial to appellant, the probative value of such evidence is, as we have noted, far greater than any prejudicial effect. Therefore, the trial judge had not been exposed to inadmissible prejudicial testimony of criminal activity and the failure of counsel to seek recusal for this reason was not ineffective representation.

Appellant next argues that the court was prejudiced by testimony concerning police photographs that indicated that appellant had been involved in prior criminal activity. The suppression hearing record reflects that the victim, while being cross-examined by prior counsel of appellant, testified that as part of an identification procedure a “detective had [her] look at pictures at 8th and Race”. We reject the assertion that this revelation of the existence of photographs of appellant at the police headquarters was so prejudicial that the court would have been unable to render an impartial verdict. Rather, we are. of the view that the trial judge has by training and experience developed instincts that permit the entry of determinations based solely upon relevant, admissible evidence and unaffected by irrelevant, inadmissible or prejudicial developments. See Commonwealth v. Corbin, 447 Pa. 463, 291 A.2d 307 (1972). As a result, there is no merit to the assertion that the trial judge was thereby prejudiced and unable to provide for an impartial verdict. Therefore, trial counsel was not ineffective by reason of a failure to request recusal.

We further conclude there is no basis for the contention that the denial of the motion to suppress by Judge DiBona indicated that he questioned the credibility of appellant. The conflict in the testimony did not relate to basic, fundamental points of substance that would affect credibility, but to items that merely reflected an inconsistency between recollections of witnesses. Accordingly, we reject the contention that such a finding reflected a prejudice that required trial counsel to seek recusal.

Appellant proceeds to assert that trial counsel failed to assert in post-trial motions that the trial court erred when it refused to suppress all evidence concerning the identification of appellant by the victim. Appellant fails, however, to express any basis for this contention of error but seems to infer that since trial counsel asserted lack of probable cause for arrest in pretrial motions, trial counsel should have persisted in such claims in post-trial motions.

The cardinal principle for any study of the validity of an arrest without a warrant is that an arrest must be based upon probable cause. As noted by our esteemed colleague, Judge Gwilym A. Price, Jr.:

The burden is on the Commonwealth ‘to show with reasonable specificity facts sufficient to establish that probable cause existed.’ Commonwealth v. Richards, 458 Pa. 455, 464, 327 A.2d 63, 67 (1974) (quoting from Commonwealth v. Holton, 432 Pa. 11, 14-15, 247 A.2d 228, 229-30 (1968)). The crucial test in determining the presence of probable cause is whether ‘the facts and circumstances known to the police or about which they have reasonably trustworthy information at the time of the arrest ... [would] warrant a person of reasonable caution in believing the suspect has committed or is committing a crime.’ Commonwealth v. Bartlett, 486 Pa. 396, 400, 406 A.2d 340, 341 (1979); Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978); Commonwealth v. Pytak, 278 Pa.Superior Ct. 476, 420 A.2d 640 (1980).

Commonwealth v. Rutigliano, 310 Pa.Super. 364, 456 A.2d 654 (1983).

When we consider on appellate review whether there is a sound basis for the findings of the suppression court in light of these prevailing principles, we must determine whether the record provides support for not only the factual findings but also the legitimacy of the inferences and legal conclusions drawn from such findings. We consider, of course, only the evidence of the Commonwealth witnesses and so much of the evidence of the defense as, fairly read in context of the record as a whole, remains uncontradicted. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976); Commonwealth v. Crissy, 304 Pa.Super. 38, 450 A.2d 89 (1982).

We have conducted such a review of the record and conclude that the court properly found that there was probable cause to arrest appellant without a warrant. The record reflects that when the police, nine days after the rape, responded to a summons to “check for a prowler”, the prowler was described as “about five [foot] eight [inches] or so ... about two hundred pounds ... wearing long fatigue pants [without] any shirt on at all and [with] dark shoes on----” The arresting officer observed just such an individual in the immediate vicinity within but a few minutes and promptly brought him to the victim who exclaimed: “That’s the guy that was in the yard ... [t]hat’s the guy that raped me.” There is no merit to the claim that the arrest was invalid for lack of probable cause. As a result, counsel cannot be deemed to have been ineffective for failing to so contend in post-trial motions.

Appellant next claims that counsel was ineffective for withdrawing post-verdict motions prior to sentencing. We conclude, however, that appellant knowingly and intelligently waived his post-verdict rights. The Pennsylvania Supreme Court in Commonwealth v. Taylor, 483 Pa. 60, 394 A.2d 538 (1978), summarized the principles pertinent to a determination of the effectiveness of a waiver of the right to appeal by withdrawal of previously filed post-verdict motions:

A person has the right to a direct appeal, but may waive this right. Commonwealth v. Maloy, 438 Pa. 261, 264 A.2d 697 (1970). The waiver of the right to appeal may be made by withdrawing post-verdict motions. Commonwealth v. Williams, 459 Pa. 589, 330 A.2d 854 (1975). ‘However, in order to be effective as a waiver, the withdrawal of post-verdict motions must have been made with a full knowledge and understanding of its consequential effect on the appellant’s right to appeal.’ Commonwealth v. Williams, supra, 459 Pa. at 591, 330 A.2d at 855. To that end ‘... the accused must be advised that a failure to raise an issue in post-verdict motions precludes raising that issue on appeal.’ Commonwealth v. Tate, 473 Pa. 478, 480, 375 A.2d 341, 342 (1977). ‘Because [post-verdict] motions are a critical step in the post-conviction review process, we will scrutinize closely any waiver of the [appeal rights such motions preserve] in order to insure the appellant has acted voluntarily and with a full understanding of his rights.’ Commonwealth v. Coleman, 458 Pa. 324, 325-26, 327 A.2d 77 (1974).

Id. 483 Pa. at 62, 394 A.2d at 539. It is thus imperative that we determine whether appellant was advised that “a failure to raise an issue in post-verdict motions precludes raising that issue on appeal.” Id.

The record here reflects that the trial judge, upon finding appellant guilty, advised him:

Mr. Lewis, your attorney has ten days to file, on your behalf, motions for new trial and motions in arrest of judgment. Those motions must be in writing and they are limited to the issues raised at this level as well as any issues that may have been raised at the pre-trial proceeding held before this court or any other pre-trial proceeding.
Mr. Lewis, we are now at the post-verdict level of this case, which means that a decision has been entered. The reasons advocating whether you are entitled to a new trial must be in writing, as I’ve indicated, and they must be raised at this level because if they are not, they will not be preserved should an appeal be filed.

The record further indicates that the trial judge provided for the continued representation of appellant at the post-verdict level by trial counsel and that post-verdict motions for a new trial and in arrest of judgment were timely filed alleging that the verdict was contrary to the evidence and to the weight of the evidence. At the post-trial hearing, counsel for appellant advised the court that he instructed appellant “at great length” that the withdrawal of post-verdict motions would effectively preclude the taking of an appeal. The hearing court thereupon engaged in an extensive colloquy with appellant and advised him that: (1) the attorney for appellant was withdrawing post-verdict motions; (2) appellant had an absolute right to have counsel argue such motions; (3) if the motions were not argued the right to appeal on those issues would be lost; and (4) if post-verdict motions were withdrawn, the only issue that would remain before the court would be with respect to sentencing. After each of those admonitions, appellant indicated that he understood the hearing judge. Our study of the record convinces us that the hearing judge adequately advised appellant of the adverse effects of the withdrawal of post-verdict motions. Therefore, we hold that appellant knowingly and intelligently waived the right to appeal by withdrawing such motions and that counsel cannot thus be found ineffective for allowing such withdrawal.

While we need not, in view of this holding, address the assertions set forth in pre-trial motions of appellant, we have, of course, undertaken a quite thorough study of the entire record so as to enable careful consideration of the assertions of appellant. It seems appropriate to observe that this study of the instant appeal does not disclose any merit to the claims that the verdict was contrary to the evidence or that the verdict was contrary to the weight of the evidence.

Judgment of sentence affirmed.

      . It is to be noted that appellant and the prosecutor agreed "to incorporate all of the relevant and admissible testimony which was offered at the [suppression hearing, namely] ... the testimony offered by the complainant, Sharon Landers, as well as, the testimony offered by Officer Harry Otey, [the rape investigation officer] and testimony offered by Officer James Moriarity [the arresting officer].”