author: WIEAND, Judge: OLSZEWSKI, Judge,

text:
    597 A.2d 1156
    COMMONWEALTH of Pennsylvania, v. Daniel CARTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 28, 1991.
    Filed Oct. 1, 1991.

      Mitchell S. Strutin, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before WIEAND, OLSZEWSKI and MONTGOMERY, JJ.
   WIEAND, Judge:

On February 29, 1980, following trial by jury, Daniel Carter was found guilty of rape, involuntary deviate sexual intercourse, robbery (seven counts), burglary and conspiracy because of his participation in a robbery of United Vending Services in Philadelphia on August 5, 1975. During the robbery, two female employees were sexually assaulted. Post-trial motions were denied following an evidentiary hearing, and Carter was sentenced to serve terms of imprisonment which, in the aggregate, were for not less than sixteen (16) years nor more than seventy (70) years. A timely direct appeal was dismissed for failure of counsel to file a brief. Pursuant to a subsequent P.C.H.A. petition, however, Carter was granted leave to file another appeal. In that nunc pro tunc appeal, defense counsel filed an Anders brief asserting that the issues advanced by Carter were lacking in merit. The Superior Court affirmed the judgment of sentence by memorandum decision. Carter then filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. On July 18, 1990, habeas corpus relief was granted, and it was ordered that Carter’s appeal in the Superior Court be reinstated within ninety (90) days or that, alternatively, a new trial be granted. On August 31, 1990, the Superior Court ordered that Carter’s appeal be reinstated upon petition of the Commonwealth.

In this reinstated appeal, Carter raises the following issues:

I. Whether prior appellate counsel rendered ineffective assistance of counsel when he failed to raise the issue in the prior appeal of trial counsel’s ineffectiveness for failing to object to the trial court’s alibi instruction which neglected to inform the jury that it should acquit if the defendant’s alibi evidence, even if not wholly believed, raised a reasonable doubt of his guilt.
II. Whether prior appellate counsel rendered ineffective assistance of counsel when he failed to raise the issue in the prior appeal of trial counsel’s ineffectiveness for failing to object to the Commonwealth’s presentation of evidence concerning the defendant’s failure to appear at a court hearing and the trial court’s instruction to the jury regarding same.
III. Whether prior appellate counsel rendered ineffective assistance of counsel when he failed to raise the issue in the prior appeal of trial counsel’s ineffectiveness for failing to present character testimony on behalf of the defendant at trial.

Because there is arguable merit in the third of appellant’s contentions, we are constrained to vacate the judgment of sentence and remand this case for an evidentiary hearing.

The standard we employ to evaluate claims of ineffective assistance of counsel has been stated by the Pennsylvania Supreme Court in the following manner:

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). See also: Commonwealth v. Rollins, 525 Pa. 335, 344, 580 A.2d 744, 748 (1990); Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). To establish prejudice under this standard “requires [a] showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). See also: Commonwealth v. Pierce, 515 Pa. 153, 157-158, 527 A.2d 973, 974-975 (1987); Commonwealth v. Gainer, 397 Pa.Super. 348, 352, 580 A.2d 333, 335 (1990) (en banc). Additionally, “[bjecause the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant.” Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). See also: Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986).

At trial, appellant presented an alibi defense in which he asserted that he had been at school during the commission of the robbery. The trial court instructed the jury with respect to his alibi defense as follows:

The defense in this case is that the defendant was not present at the scene of the alleged crime. We refer to the nature of the defense as an alibi; that’s the legal term for a defense that he was not there. Obviously, a defendant cannot be guilty in a crime charged unless he’s at the scene of a crime especially in the nature of this. The defendant, therefore, has offered himself and the circumstantial evidence or other evidence that he was at another place at the time when the incidents were said to have occurred. Among the things that you consider when you come to evaluate this evidence, you must consider whether or not the evidence of an alibi covers the entire time when the offense is shown to have been committed, and whether it precludes the possibility of the defendant’s presence at the scene of the crime. You should consider this evidence along with other evidence in the case in determining whether the Commonwealth has met its burden of proving guilt beyond a reasonable doubt, that the crime has been committed and that the defendant committed the crime.
The defendant’s alibi evidence that he was not present may in and of itself work as an acquittal, or it together with other evidence may be sufficient to raise a reasonable doubt in your minds which would operate also as an acquittal. When you come to consider then this alibi testimony, you will have not only to consider it in the context of other evidence in this case, but also in conjunction with the testimony of the two young ladies who testified that the defendant was the person that assailed them. The law clearly is that if a jury finds the testimony of these two eyewitnesses believable and also believes that their testimony and identification was positive and Unqualified and based on opportunity to observe, then the identification testimony may be sufficient to convict the defendant, although there were three or four other witnesses who gave testimony intending to show that he was elsewhere at the time of the incident. There was physical evidence in this case, photographs of physical evidence. You will also consider that as circumstantial evidence when you come to determine the effect of the evidence.

Appellant contends that the trial court’s alibi instruction was inadequate and that counsel should have objected because the jury was not specifically told that its verdict should be one of acquittal if the alibi evidence, “even if not wholly believed,” raised a reasonable doubt as to his presence at the scene of the crime. See: Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980) and Commonwealth v. Willis, 520 Pa. 289, 553 A.2d 959 (1989).

The precise argument which appellant now advances in support of his claim that counsel was ineffective has been rejected by the Superior Court on no less than seven occasions. In Commonwealth v. Jones, 386 Pa.Super. 467, 563 A.2d 161 (1989), allocatur granted, 525 Pa. 632, 578 A.2d 926 (1990), the Court, sitting en banc, reasoned as follows:

Jones argues here that the “even if not wholly believed” language articulated in Pounds must be incorporated into an alibi charge, and that trial counsel was ineffective for failing to object to the court’s charge at bar. Jones’s argument directly contravenes established case law of this court. In Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1984), this court specifically stated that “we do not interpret Pounds as creating standard language for an alibi instruction. So long as the trial judge makes it clear that the defendant’s failure to prove an alibi is not tantamount to guilt, the Pounds safeguards are preserved.” Johnson, 336 Pa.Super. at 18, 485 A.2d 397. In Commonwealth v. Bright, 361 Pa.Super. 261, 522 A.2d 573 (1987), a panel of this court again considered an appellant’s argument that the “even if not wholly believed” language of Pounds must be used in an alibi instruction. Like the Johnson court before it, the Bright court rejected this argument, stating, “appellant is merely contesting the form of the instruction rather than its substance.” Bright, 361 Pa.Super. at 267, 522 A.2d 573. Most recently, in Commonwealth v. Quarles, 361 Pa.Super. 272, 522 A.2d 579 (1987), the appellant argued that the trial court’s charge was defective because it did not specifically tell the jury that the alibi testimony offered by the appellant’s witness “did not have to be totally accepted to acquit” the appellant. Quarles, 361 Pa.Super. at 280, 522 A.2d 579. As did the Superior Court panels in Johnson and Bright, the Quarles court found the appellant’s contention meritless. The court stated:
The trial judge in his charge to the jury regarding appellant’s alibi stated: “The defense evidence to the effect that he was not present either by itself or together with other evidence may be sufficient to raise a reasonable doubt of his guilt in your minds.” ... Appellant’s trial counsel, consequently, did not render ineffective assistance of counsel by failing to object to the trial court’s alibi charge since the judge’s alibi charge informed the jury that the alibi, by itself or with other evidence, may be sufficient to raise reasonable doubts in the jurors’ minds about appellant’s guilt.
Quarles, 361 Pa.Super. at 280, 522 A.2d 579 (emphasis in original).
Clearly, a trial court alibi charge will not per se be deemed erroneous for failing to parrot the language of the Pounds Court. Rather, what is required of the trial court is that it make clear to the jury that the defendant’s failure to prove alibi is not tantamount to guilt. Here, the court told the members of the jury that they should consider Jones’s alibi testimony, in conjunction with the other evidence offered, to determine whether the Commonwealth met its burden of proving beyond a reasonable doubt that the crime was committed by Jones. Furthermore, the court at bar, like the trial court in Quarles, told the jury that Jones’s alibi evidence, either by itself or together with other evidence, may be sufficient to raise a reasonable doubt of Jones’s guilt and acquit him. Accordingly, after evaluating the trial court’s charge as a whole, we find that the trial court’s alibi charge was proper here. See Commonwealth v. Riggins, 374 Pa.Super. 243, 542 A.2d 1004 (1988). Because counsel will not be deemed ineffective for failing to pursue a meritless claim, we find that trial counsel and post-verdict motions counsel were not ineffective for failing to object to the trial court’s charge. See Commonwealth v. Blagman, 350 Pa.Super. 367, 504 A.2d 883 (1986).

Id., 386 Pa.Superior Ct. at 471-472, 563 A.2d at 163. See also: Commonwealth v. Woods, 394 Pa.Super. 223, 575 A.2d 601 (1990); Commonwealth v. Lott, 392 Pa.Super. 371, 572 A.2d 1279 (1990); Commonwealth v. Payne, 385 Pa.Super. 9, 559 A.2d 951 (1989); Commonwealth v. Quarles, 361 Pa.Super. 272, 522 A.2d 579 (1987), allocatur denied, 517 Pa. 592, 535 A.2d 82 (1987); Commonwealth v. Bright, 361 Pa.Super. 261, 522 A.2d 573 (1987), allocatur denied, 517 Pa. 597, 535 A.2d 1056 (1987); Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1984).

Instantly, we have evaluated the alibi charge given at appellant’s trial in light of the requirements set forth in Commonwealth v. Jones, supra, and other Superior Court decisions and conclude that the trial court’s alibi instruction was correct and did not imply that appellant’s failure to prove alibi would be tantamount to guilt.

Appellant contends, however, that the Superior Court cases, which have held that the “even if not wholly believed” language is not required in all alibi instructions, are in direct contravention of the Supreme Court decisions in Pounds and Willis and, therefore, were incorrectly decided. As a three judge panel, however, we are bound to follow the precedent established by the Court en banc in Commonwealth v. Jones, supra.

Moreover and in any event, the trial in this case was completed before the Supreme Court decided Pounds on July 3, 1980. The Supreme Court, in Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977), has said:

We cannot impose upon trial counsel the qualities of a seer---- For this reason, we examine counsel’s stewardship under the standards as they existed at the time of his action, ... and counsel will not be deemed ineffective for failing to predict future developments in the law.

Id., 476 Pa. at 89-90, 381 A.2d at 881 (footnote and citations omitted). Consequently, it has become a well settled principle in this Commonwealth that “counsel will not be deemed ineffective for failing to predict a change in the law.” Commonwealth v. Davis, supra. See also: Commonwealth v. Yarris, 519 Pa. 571, 606, 549 A.2d 513, 531 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 708 (1989); Commonwealth v. Johnson, 516 Pa. 407, 418, 532 A.2d 796, 802 (1987); Commonwealth v. Garrity, 509 Pa. 46, 55, 500 A.2d 1106, 1111 (1985).

Appellant’s trial counsel did not have the benefit of the decision in Pounds, and, as such, may not be held accountable for failing to object to the trial court’s jury instruction on grounds that it did not comply precisely with the language of that decision.

Appellant next argues that counsel should have objected when the Commonwealth introduced evidence of his failure to appear at a prior trial listing, and, again, when the trial court instructed the jury that such a failure would permit an inference that appellant was conscious of guilt. Appellant argues that the mere failure to appear for trial is not enough to create an inference of flight or consciousness of guilt. He contends, therefore, that trial counsel was ineffective for failing to object to the evidence of appellant’s failure to appear at the prior trial date and the jury instruction thereon.

Appellant’s argument is based upon a decision by the Superior Court in Commonwealth v. Babbs, 346 Pa.Super. 498, 499 A.2d 1111 (1985). There, the Court held that the mere failure of a defendant to appear for trial, without evidence of flight or concealment, was insufficient to permit the factfinder to infer a consciousness of guilt. The Babbs Court reasoned as follows:

The rule of law in this Commonwealth is that “[w]hen a person commits a crime, knows that he is wanted therefor, and flees or conceals himself, such conduct is evidence of consciousness of guilt, and may form the basis in connection with other proof from which guilt may be inferred.” Commonwealth v. Coyle, 415 Pa. 379, 393, 203 A.2d 782, 789 (1964). Accord: Commonwealth v. Whack, 482 Pa. 137, 142-143, 393 A.2d 417, 419-420 (1978); Commonwealth v. Tinsley, 465 Pa. 329, 333, 350 A.2d 791, 792-793 (1976). This rule has not heretofore been expanded to permit an inference of guilt merely because a defendant has failed to appear for trial. A failure to appear on the day set for trial does not have the same connotation as pre-arrest flight or concealment and cannot be said to point unerringly to consciousness of guilt.

Id., 346 Pa.Superior Ct. at 502, 499 A.2d at 1113. See also: Commonwealth v. Barnes, 406 Pa.Super. 58, 593 A.2d 868 (1991) (following Babbs and holding that trial counsel’s failure to object to jury instruction that defendant’s failure to appear at preliminary hearing permitted inference of consciousness of guilt was arguably ineffective assistance and required remand for evidentiary hearing).

A review of the record in this case, however, discloses that appellant’s reliance upon the decision in Commonwealth v. Babbs, is misplaced. The Commonwealth’s evidence was not limited merely to appellant’s failure to appear when the case was called for trial. Rather, the Commonwealth’s evidence was that appellant had failed to appear for a scheduled trial date on July 5,1978, that a bench warrant had been issued for his arrest, and that he had not been apprehended until July 20, 1979. On that date, moreover, appellant attempted to avoid apprehension by giving police a false name. This evidence was sufficient to permit an inference that appellant had fled, and/or concealed his whereabouts to avoid prosecution. On this basis, the trial court could properly instruct the jury that an adverse inference could be drawn. See and compare: Commonwealth v. Knox, 290 Pa.Super. 104, 108 n. 3, 434 A.2d 151, 153 n. 3 (1981) (evidence of defendant’s failure to appear for trial and eventual apprehension four months later properly received to establish consciousness of guilt); Commonwealth v. Smith, 250 Pa.Super. 460, 467-468, 378 A.2d 1239, 1243 (1977) (defendant’s flight from jurisdiction after posting bond was properly received as evidence of consciousness of guilt); Commonwealth v. Myers, 131 Pa.Super. 258, 264-265, 200 A. 143, 146 (1938) (evidence of defendant’s failure to appear for trial, issuance of bench warrant for his arrest, efforts of police to locate him and his apprehension approximately six months later was properly received as evidence of consciousness of guilt; “flight” includes not only leaving the jurisdiction, but also any concealment to avoid arrest or prosecution). Because evidence of appellant’s consciousness of guilt was properly received and because the jury was properly instructed with respect thereto, neither appellant’s trial counsel nor his first appellate counsel will be deemed ineffective for failing to assert the same. The claim was wholly lacking in merit.

Appellant’s final contention is that trial counsel was ineffective for failing to present character testimony on his behalf. More specifically, appellant asserts that counsel failed to inform him of his right to call character witnesses and that, if he had been informed of this right, he could have given trial counsel the names of several witnesses who would have been available to testify that he had a good reputation for being an honest and law abiding citizen. In support of this claim, appellant has appended to his brief the affidavits of four individuals who have stated that they were aware of appellant’s good reputation in the community and would have been available to testify at appellant's trial if they had been contacted by defense counsel.

In Commonwealth v. Luther, 317 Pa.Super. 41, 463 A.2d 1073 (1983), the defendant asserted that trial counsel had been ineffective during his trial for rape by failing to present character testimony at trial and by failing to fully advise the defendant prior to trial regarding the importance of obtaining character witnesses. The Superior Court agreed that counsel had been ineffective, concluding that:

[T]he decision of counsel to forego the presentation of character testimony at the trial: (1) was ill advised; (2) was a decision made without adequately informing his client of the value of such evidence; and (3) was principally defective by a failure to adequately prepare for the presentation of such testimony.

Id., 317 Pa.Superior Ct. at 54, 463 A.2d at 1080. See also: Commonwealth v. Simler, 320 Pa.Super. 342, 467 A.2d 355 (1983). Cf. Commonwealth v. Schultz, 335 Pa.Super. 306, 484 A.2d 146 (1984) (counsel ineffective for failing to request or object to absence of jury instruction that character evidence, standing alone, is sufficient to raise reasonable doubt).

In finding that trial counsel was ineffective for failing to call character witnesses, the Luther Court stressed the importance of character testimony when it said:

It has long been the law in Pennsylvania that an individual on trial for an offense against the criminal law is permitted to introduce evidence of his good reputation in any respect which has “proper relation to the subject matter” of the charge at issue. Commonwealth v. Castellana, 277 Pa. 117, 122, 121 A. 50, 51 (1923) (quoting Cathcart v. Commonwealth, 37 Pa. 108, 111 (1860)). See Commonwealth v. Stefanowicz, 118 Pa.Super. 79, 81, 179 A. 770, 771 (1935). Such evidence has been allowed on a theory that general reputation reflects the character of the individual and a defendant in a criminal case is permitted to prove his good character in order to negate his participation in the offense charged. See McCormick on Evidence, § 191, p. 454 (2d ed. 1972). Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 480 (1972). The rationale for the admission of character testimony is that an accused may not be able to produce any other evidence to exculpate himself from the charge he faces except his own oath and evidence of good character. Commonwealth v. Castellana, supra.
It is clearly established that evidence of good character is to be regarded as evidence of substantive fact just as any other evidence tending to establish innocence and may be considered by the jury in connection with all of the evidence presented in the case on the general issue of guilt or innocence. See Commonwealth v. Holland, 480 Pa. 202, 389 A.2d 1026 (1978); Commonwealth v. Stoner, 265 Pa. 139, 108 A. 624 (1919). “Evidence of good character is substantive and positive evidence, not a mere' make weight to be considered in a doubtful case, and, ... is an independent factor which may of itself engender reasonable doubt or produce a conclusion of innocence.” Commonwealth v. Gaines, 167 Pa.Super. 485, 492, 75 A.2d 617, 620 (1950) (quoting Commonwealth v. Padden, 160 Pa.Super. 269, 275, 50 A.2d 722, 725 (1947)). See Commonwealth v. Cleary, 135 Pa. 64, 19 A. 1017 (1890); Commonwealth v. Goodman, 182 Pa.Super. 205, 126 A.2d 763 (1956); Commonwealth v. Kohl, 164 Pa.Super. 630, 67 A.2d 451 (1949).
This court has made clear that “[i]n a case ... where intent and credibility are decisive factors leading to either acquittal or conviction, the accused’s reputation is of paramount importance. Indeed, evidence of good character may, in spite of all evidence to the contrary, raise a reasonable doubt in the minds of the jury.” Commonwealth v. Shapiro, 223 Pa.Super. 15, 19-20, 297 A.2d 161, 163 (1972). Accord, Commonwealth v. Stoner, supra; Commonwealth v. Holland, supra. See State v. Gambutti, 36 N.J.Super. 219, 232, 115 A.2d 136, 143 (1955). (The court stated, in prosecution for sex offense, that where there are two direct witnesses involved, complainant and defendant, reputation evidence may well take on significance beyond that which a jury might accord it in an ordinary criminal trial).

Commonwealth v. Luther, supra 317 Pa.Super. at 49-51, 463 A.2d at 1077-1078. See also: Commonwealth v. Neely, 522 Pa. 236, 561 A.2d 1 (1989); Commonwealth v. Giovanetti, 341 Pa. 345, 19 A.2d 119 (1941); Commonwealth v. Aston, 227 Pa. 106, 75 A. 1017 (1910).

The Commonwealth argues that appellant is precluded from relief because he did not provide counsel with the names of potential character witnesses prior to trial. We cannot agree. In meeting the obligation to provide competent representation, a lawyer “must keep the accused fully informed of all options throughout the proceedings.” Commonwealth v. Saxton, 516 Pa. 196, 200-201, 532 A.2d 352, 354 (1987), citing American Bar Association Standards for Criminal Justice 4-3.1(a), 4-3.1(b), 4-3.8, 4-6.2(a). It follows that “counsel’s failure to investigate potentially meritorious defenses ... can constitute ineffective assistance of counsel if no reasonable basis otherwise exists for counsel’s failure.” Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 214 (1983). See also: Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976). Thus, counsel has a duty to consider possible defense strategies and to discuss with his client options which are available. Counsel should inform a defendant of the right to present character witnesses and should discuss with the client whether such witnesses would be advisable under the circumstances of the evidence and defenses available. A criminal defendant cannot be expected to offer to counsel potential character witnesses if counsel has not discussed with him the possible use of such evidence. Cf. Commonwealth v. Luther, supra (finding of ineffectiveness based in part upon counsel’s failure to inform defendant adequately of the need for character testimony).

We do not hold that counsel’s failure to discuss all strategic options with a defendant is per se ineffective assistance. “A decision by counsel not to take a particular action does not constitute ineffective assistance if that decision was reasonably based, and was not the result of sloth or ignorance of available alternatives.” Commonwealth v. Collins, 519 Pa. 58, 65, 545 A.2d 882, 886 (1988). See also: Commonwealth v. Christy, 511 Pa. 490, 501, 515 A.2d 832, 837 (1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d 857 (1987); Commonwealth v. Twiggs, 460 Pa. 105, 110-111, 331 A.2d 440, 443 (1975). “ ‘[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.’ ” Commonwealth v. Lee, 401 Pa.Super. 591, 600-601, 585 A.2d 1084, 1089 (1991), quoting Strickland v. Washington, supra, 466 U.S. at 690-691, 104 S.Ct. at 2068, 80 L.Ed.2d at 695. The relevant inquiry in cases such as this is whether counsel’s failure to pursue a particular defense theory was reasonable. See: Commonwealth v. Blair, 491 Pa. 499, 506, 421 A.2d 656, 660 (1980) (“The decision not to present a particular defense is a tactical one and will not be deemed ineffective stewardship if there is a reasonable basis for that position.”), e.g. Commonwealth v. Davenport, 494 Pa. 532, 431 A.2d 982 (1981) (counsel’s choice of self-defense theory over that of voluntary intoxication was reasonable); Commonwealth v. Garcia, 370 Pa.Super. 132, 535 A.2d 1186 (1988) (strategy seeking acquittal rather than one seeking verdict of manslaughter was effective assistance of counsel).

Instantly, appellant’s contention that trial counsel failed to advise him of the option of calling character witnesses has at least arguable merit. Such evidence would not have been inconsistent with the trial strategy of alibi which counsel pursued at trial and, indeed, may have bolstered appellant’s alibi defense. If, as appellant has alleged, character witnesses could have been obtained for his trial, then trial counsel’s failure to inform appellant of that option may have deprived appellant of an available defense having substantial potential for success. Therefore, we cannot summarily dismiss appellant’s allegation that he was denied the effective assistance of counsel.

Because there has not yet been an evidentiary hearing to determine whether trial counsel explored with appellant the possibility of presenting character witnesses or whether counsel had a reasonable basis for not doing so, we cannot determine on the present state of the record whether appellant was denied effective assistance of counsel. “When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the [trial court] to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, [the Superior] Court will remand for such a hearing.” Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987). See also: Commonwealth v. McBride, 391 Pa.Super. 113, 121, 570 A.2d 539, 543 (1990); Commonwealth v. Copeland, 381 Pa.Super. 382, 397, 554 A.2d 54, 61 (1988).

The judgment of sentence is vacated, at least for the time being, and the case is remanded for an evidentiary hearing to determine whether trial counsel and prior appellate counsel were ineffective with respect to appellant's claim that he was deprived of the use of character evidence at his trial. If counsel are found to have been ineffective, a new trial must be granted. If counsel were not ineffective, however, the judgment of sentence may be reimposed. Jurisdiction is not retained.

OLSZEWSKI, J., files a concurring and dissenting opinion.

OLSZEWSKI, Judge,

concurring and dissenting.

For the reasons articulated by the majority, I concur as to the disposition of the first two issues. I respectfully dissent as to the disposition of the third issue and recommend that the appeal be dismissed and judgment of sentence be affirmed.

Appellant asserts that his prior appellate counsel was ineffective for failing to raise, in the previous appeal, the issue of trial counsel’s ineffectiveness for failing to call witnesses to testify as to appellant’s character. The proper inquiry is “whether the disputed action or omission by [appellant's trial] counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends.” Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). Both appellant and the majority rely upon Commonwealth v. Luther, 317 Pa.Super. 41, 463 A.2d 1073 (1983) to take them through the inquiry. The present case is quite distinct from Luther.

When questioning the legal soundness of trial counsel’s decision not to offer character testimony, the Luther Court stressed the importance of character testimony when an accused is unable to produce evidence other than his own oath and evidence of others attesting to his character. Id., 463 A.2d at 1077. The current appellant’s defense was alibi. He offered alibi witnesses at trial and, thus, was not limited, like the defendant in Luther, to offering evidence of good character.

In Luther, the accused's defense to rape charges was consent of the alleged victim. The credibility of the parties was the central issue at trial. The majority misapplies Luther which stated, “In a case where virtually the only issue is the credibility of the witness for the Commonwealth versus that of the defendant, failure to explore all available alternatives to assure that the jury heard the testimony of a known witness who might be capable of casting doubt upon the truthfulness of the Commonwealth witness is ineffective assistance of counsel.” Id., 463 A.2d at 1080 (emphasis added). Such was not the case here. The credibility of the prosecution’s witnesses, victims of armed robbery and sexual assault, was not an issue at trial and it is likely that appellant’s trial counsel soundly believed that character witnesses would not have cast doubt upon the victims’ identification testimony.

Because it is not unsound, as a matter of advocacy, to chose an alibi defense over character defense, appellant’s trial counsel did not render ineffective assistance under the Davis standards. In turn, appellant’s prior appellate counsel did not render ineffective assistance for failing to raise trial counsel’s ineffectiveness on appeal.

For the foregoing reasons, I would dismiss the appeal and affirm the judgment of sentence.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . The Commonwealth has suggested that trial counsel acted reasonably in relying upon the pre-trial investigation of another attorney who had originally been retained to represent appellant, and who eventually died some time in 1979. The record reveals, however, that trial counsel was first appointed on a standby basis in May, 1978 because of the poor health of appellant’s retained counsel. This was over one and one-half years prior to commencement of appellant’s trial. Without any evidence as to trial counsel’s actions during this time, we will not assume that he acted reasonably by relying solely upon the work done by prior counsel without making further inquiry or investigation regarding the trial strategies available to appellant. Counsel at least had an obligation to inquire as to the advice given by prior counsel regarding the options available. On the record now before this court, however, such a determination is not possible.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    597 A.2d 1164
    COMMONWEALTH of Pennsylvania v. William BROTHERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 22, 1991.
    Filed Sept. 27, 1991.

      Harry O. Falls, New Castle, for appellant.
    William M. Panella, Dist. Atty., New Castle, for the Com., appellee.
    Before ROWLEY, President Judge, and BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from a judgment of sentence for escape. Appellant poses the following three questions:

(1) SHOULD THE JURY PANEL HAVE BEEN LIMITED TO PERSONS INCLUDED ON THE JURY LIST?
(2) WAS EVIDENCE IMPROPERLY EXCLUDED?
(3) WAS THE JURY PROPERLY CHARGED?

Appellant’s Brief at 3. For the reasons that follow, we affirm the judgment of sentence.

On August 25,1989, appellant was found guilty by a jury of escape from the Lawrence County Jail. Timely post-trial motions were filed and denied. Appellant was sentenced to incarceration for thirty-six-to-eighty-four months. This timely appeal followed.

I.

Appellant first contends that several jurors’ names were added to the jury array list only a few days before trial, in violation of 42 Pa.C.S.A. § 4524. Section 4524 provides in relevant part: “[a] separate list of names and addresses of persons assigned to each jury array shall be prepared and made available for public inspection at the offices of the commission no later than 30 days prior to the first date on which the array is to serve.” Appellant contends that because the names of the additional jurors were not issued at least thirty days prior to trial, his right to investigate those jurors was denied. After careful review of the record, we agree with the trial court that appellant’s right was not violated.

The Constitution of the Commonwealth of Pennsylvania guarantees that “[tjrial by jury shall be as heretofore, and the right thereof remain inviolate.” Pa.Const. art. I, § 6. “ ‘[I]t is well settled that the word ‘inviolate,’ as used in the constitutional provision quoted, means freedom from substantial impairment. It does not import rigidity of regulation in the manner of impaneling a jury.’ ” Commonwealth v. Eckhart, 430 Pa. 311, 314, 242 A.2d 271, 272-73 (1968) (quoting Commonwealth v. Fugmann, 330 Pa. 4, 28, 198 A. 99, 111 (1938)). See Commonwealth v. Crowder, 444 Pa. 489, 491, 282 A.2d 361, 363 (1971) (irregular method of conducting voir dire examination not substantial impairment of defendant’s right to fair and impartial jury). In the instant case, there may have been a technical violation of 42 Pa.C.S.A. § 4524. However, as the trial court noted in its opinion, there is no evidence that appellant’s right to a fair and impartial jury was impaired by the tardy addition of names. See Opinion, Salmon, J. at 2. Thus, we affirm for the reasons stated in the trial court opinion.

II.

Appellant’s last two contentions concern his defense of duress. First, appellant contends that the trial court improperly excluded certain evidence offered to support his defense of duress. Second, appellant maintains that the trial judge did not accurately charge the jury on the duress defense.

A.

With respect to the evidentiary claims, appellant argues that the court improperly excluded evidence that (1) appellant was present at an earlier escape and did not participate; and (2) another inmate was threatened with physical harm if that inmate did not agree to participate in the instant escape. The trial court ruled in both instances that the proffered evidence was irrelevant. N.T. August 24, 1989 at 8, 31. Appellant maintains that the evidence was relevant to the issue of whether he left the jail voluntarily.

Relevance questions are within the sound discretion of the trial judge, and rulings on the relevance of proffered evidence will not be reversed absent a clear abuse of discretion. See Commonwealth v. Scott, 469 Pa. 258, 270-71, 365 A.2d 140, 146 (1976) (admission of allegedly inflammatory and incompetent testimony upheld) (citations omitted); see also Commonwealth v. Shain, 324 Pa.Super. 456, 462, 471 A.2d 1246, 1248-49 (1984) (irrelevant facts may not be admitted); Commonwealth v. Miller, 268 Pa.Super. 123, 133, 407 A.2d 860, 866 (1979) (admission of allegedly irrelevant evidence upheld). “In order for evidence to be relevant, it must tend to establish some fact material to the case or tend to make the fact at issue more or less probable.” Commonwealth v. Haag, 522 Pa. 388, 401, 562 A.2d 289, 296 (1989) (citing Commonwealth v. Myers, 439 Pa. 381, 266 A.2d 756 (1970)). However, even if proffered evidence has some tendency to prove a material fact, it will nonetheless be excluded if it comes within a rule making it inadmissible or if its probative value is outweighed by the danger of its confusing the jury or prejudicing the opposing party. See generally L. Packel & A. Poulin, Pennsylvania Evidence, § 402, at 126-28 (1987 & West Supp.1990). With these principles in mind, we turn to appellant’s specific claims.

-1-

Appellant argues that the trial court incorrectly refused to allow him to cross-examine Mr. Dan McClenahan, the Deputy Sheriff of Lawrence County, regarding a previous escape at which appellant was present but in which he did not participate. Appellant stated his reasons for wanting to elicit the testimony at a sidebar conference:

Your Honor, I think this is clearly relevant. We’re saying that on April 8th Mr. Brothers did not escape of his own volition. I would expect that Deputy McClenahan will testify that on or about February 16th, Mr. Brothers was in a vehicle where by one means or another the door became open, that there were three prisoners in there and that two of them left and that Mr. Brothers made no attempt to leave. I think that would very directly, [sic] his having had an opportunity really to escape a few weeks before this incident happened, that would bear directly on whether or not he voluntarily escaped at the later date.

N.T. August 24, 1989 at 8-9. While a criminal defendant may offer testimony about his reputation as to the character traits relevant to the charge, Commonwealth v. Luther, 317 Pa.Super. 41, 49, 463 A.2d 1073, 1077 (1983) (citations omitted), evidence of specific acts or instances may not be offered to show that the defendant did not have the tendency to commit the particular crime. Commonwealth v. Neely, 372 Pa.Super. 519, 525, 539 A.2d 1317, 1320 (1988) (testimony of good character may be offered only with respect to defendant’s reputation and may not refer to previous specific acts) (citing Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975)), rev’d on other grounds, 522 Pa. 236, 561 A.2d 1 (1989). Here, appellant was attempting to show that because he did not participate in a previous escape he did not voluntarily participate in the instant escape. We recognize that the existence of a previous opportunity to escape may have had some tendency to support appellant’s defense of duress. Nevertheless, we cannot hold that it was a clear abuse of discretion to exclude the evidence because it also tended to show, improperly, that appellant lacked the propensity to escape merely because he did not participate in a previous escape.

-2-

Appellant also sought to introduce the testimony of a fellow inmate, Daniel Wilson. Wilson was to testify that he had been threatened with physical violence if he refused to participate in the instant escape. Appellant does not allege, nor is there any record evidence, that appellant was aware of the threats against Wilson at the time of the escape. Hence, we fail to see how this testimony was relevant to the issue of appellant’s defense — it does not follow that appellant was threatened simply because another inmate, unbeknownst to appellant, also was threatened. Accordingly, the trial court did not abuse its discretion in excluding Wilson’s testimony.

B.

Finally, appellant contends that the jury was improperly charged on the issue of duress. Appellant specifically objects to the court’s instruction that “for duress to be a defense to the charge of escape ... [tjhere either must be no time to complain to authorities or a history of futile complaints ... [a]nd the escapee must return to official detention as soon as possible after leaving the prison.” N.T. August 24, 1989 at 56-57. We note initially that there can be no question that this charge is an accurate reflection of the law in Pennsylvania. In Commonwealth v. Kaminski, 349 Pa.Super. 78, 502 A.2d 1281 (1985), we held that defendant’s claim of duress can be sustained only if four requirements are met:

the escapee must be confronted with a specific threat of death or serious bodily injury; there must either be no time to complain to authorities, or a history of futile complaints; there must be no evidence of force by the escapee against prison personnel or others in the escape; and the escapee must return to official detention as soon as possible after leaving the prison.

Id., 349 Pa.Superior Ct. at 87, 502 A.2d at 1285 (quoting Commonwealth v. Brown, 314 Pa.Super. 311, 460 A.2d 1155, (1983)) (emphasis added). See also Commonwealth v. Slavik, 297 Pa.Super. 135, 137, 443 A.2d 336, 337 (1982) (prisoner who was beaten and threatened by fellow inmate could not assert duress as defense to escape because he made no complaint to prison authorities or effort to return to custody as soon as possible). See generally 1 W. LaFave & A. Scott, Jr., Substantive Criminal Law, § 5.3, at 617 n. 25 (1986).

Appellant attempts to distinguish this line of cases on the ground that they involve “what is more properly regarded as the defense of necessity, rather than literal duress.” Appellant’s Brief at 5. Taken on its face, appellant’s claim is meritless, because these cases clearly involved claims of duress, not necessity. It appears that appellant is attempting to draw a factual distinction between those cases in which inmates escaped voluntarily, to get away from intolerable conditions, and appellant’s own situation, where he maintains that he involuntarily escaped because he was threatened. We cannot agree that this distinction should change the result.

With respect to whether appellant must have first complained or have a history of futile complaints, there is some indication that if the threat is so imminent that one has no time to complain, the first requirement need not be met. Thus, in Commonwealth v. Clark, 287 Pa.Super. 13, 429 A.2d 695 (1981), we rejected a defense based on intolerable conditions, and observed that the defense of duress has been limited to the most extreme situations such as where:

a prisoner [is] confronted with a choice between accompanying an escaping cell mate, or being seriously injured if he [chooses] to remain behind____ In such a case, the usual sources of aid [ie., resort to prison officials or to the courts via habeas corpus or the Federal Civil Rights Act] would not be immediately available, and confronted with the choice between serious injury or escape, the defendant would properly be excused for choosing the latter course of action.

Id., 287 Pa.Superior Ct. at 16-17, 429 A.2d at 697 (emphasis added). From this language it could be inferred that an inmate faced with an immediate threat that he must accompany the escapee or be seriously injured need not comply with the complaint requirement. However, this suggestion in Clark is of little help to appellant herein, for we do not have enough information to decide whether such an instruction was warranted in the instant case. Appellant does not allege in his brief that the threat was so immediate that he did not have time to complain to prison officials. Likewise, there is no evidence of imminence in the portion of the official record that appellant has provided on appeal. We note that it is the appellant’s duty to provide a complete record that is sufficient to allow for an effective appellate review. Commonwealth v. Williams, 357 Pa.Super. 462, 466, 516 A.2d 352, 354 (1986). Accordingly, we must conclude that appellant’s claim is meritless, because there is no evidence in the certified record to indicate that appellant was entitled to an instruction that immediacy of threat could excuse him from having to comply with the complaint requirement.

With respect to the second challenged portion of the instruction — that appellant must have re-entered custody as soon as the threat was removed — we conclude that it was proper. Appellant’s attempt to distinguish his case from the cases on which the instruction is based is unpersuasive. Indeed, in Commonwealth v. Stanley, 265 Pa.Super. 194, 205-06, 401 A.2d 1166, 1172 (1979), aff'd, 498 Pa. 326, 446 A.2d 583 (1982), we cited with approval a case decided by the California District Court of Appeal that contained facts almost identical to those of the instant case. In People v. Wester, 237 Cal.App.2d 232, 46 Cal.Rptr. 699 (1965), the court held that a prisoner escaping against his will because of threats of physical violence by a fellow inmate must use reasonable efforts to re-enter custody as soon as possible. This conclusion is consistent with the policies underlying the requirement. Generally, the self-help remedy of escape is not favored, since the inmate is under lawful confinement and, thus, has no legal right to resort to self-help. Commonwealth v. Stanley, supra. Thus, where a defense to escape is allowed, the important interest in public safety must be properly balanced against the prisoner’s need to resort to self-help by requiring that the escapee return to custody as soon as he is no longer under duress. See People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110, 112 (1974) (duress defense permitted where inmates escaped to avoid forcible sexual attack by fellow inmates; all four requirements met). Accordingly, the trial court did not err by instructing the jury that appellant must have promptly returned to prison.

For the forgoing reasons, we affirm the judgment of sentence. Judgment of sentence affirmed.

      . The crime of escape is defined as follows:
      A person commits an offense if he unlawfully removes himself from official detention or fails to return following temporary leave granted for a specific purpose or limited period.
      18 Pa.C.S.A. § 5121(a).

      . Judge Salmon’s sentencing order did not specify whether appellant’s sentence is to be served concurrent with or consecutive to the sentence under which he is already incarcerated.

      . The common law defense of duress is recognized in the Crimes Code, which provides, “[i]t is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.” 18 Pa.C.S.A. § 309(a).

      . Appellant has failed to provide a complete record in that he only attached those portions that he deemed directly relevant to his appeal. For example, it appears from references that the trial judge made in the charge to the jury that appellant testified at trial. However, we do not have the transcript of his testimony because appellant did not include it.


text:
    597 A.2d 1169
    COMMONWEALTH of Pennsylvania, v. John W. BIRD, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted July 22, 1991.
    Filed Oct. 2, 1991.

      Gerald P. Deady, Wilkes-Barre, for appellant.
    Scott W. Naus, Dist. Atty., Bloomsburg, for the Com., appellee.
    Before ROWLEY, President Judge, and BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Columbia County after appellant was found guilty of involuntary manslaughter, recklessly endangering another person and endangering the welfare of children. Appellant contends that the trial court erred in (1) instructing the jury that the prior inconsistent statements of two Commonwealth witnesses could oiily be used for impeachment purposes and not as substantive evidence, (2) denying one of his points of charge to the jury, (3) excluding the testimony of defense witness, Linda Page, and (4) ruling that for sentencing purposes, the crimes of involuntary manslaughter and endangering the welfare of children do not merge. For the following reasons, we find merit in appellant’s fourth contention, and accordingly, we vacate the judgment of sentence and remand for resentencing.

On October 26, 1988, appellant was arrested and charged with criminal homicide, murder of the third degree, recklessly endangering another person, endangering the welfare of children and criminal conspiracy. The charges arose from the starvation death of appellant’s three-year-old sister, Beatrice Bird, who was in the custody of appellant. After a jury trial, appellant was found guilty of involuntary manslaughter, recklessly endangering another person, and endangering the welfare of children. Post-trial motions were filed and denied. Appellant was then sentenced to two-and-one-half-to-five years imprisonment for involuntary manslaughter and one-to-two years imprisonment for endangering the welfare of children, the terms to run consecutively. A motion to modify sentence was filed and denied. Appellant then made timely appeal to this court.

Appellant’s first contention is that the trial court erred in instructing the jury that the prior inconsistent statements of two Commonwealth witnesses could only be used for impeachment purposes and not as substantive evidence. We agree. However, we conclude that the error was constitutionally harmless.

In Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), our Supreme Court held that otherwise admissible prior inconsistent statements of a declarant who is a witness in a judicial proceeding and who is available for cross-examination may be used as substantive evidence of the truth of the matter asserted therein. In Commonwealth v. Blount, 387 Pa.Super. 603, 564 A.2d 952 (1989), this Court held that Brady did not mandate a specific jury instruction that prior inconsistent statements could be used both for impeachment purposes and as substantive evidence — instead, it was enough that the trial court did not instruct the jury that the statements could only be considered for impeachment purposes. Here, unlike Blount, the trial court instructed the jury that the witnesses’ prior inconsistent statements could only be used to judge their credibility and not as substantive evidence of truth of the matter asserted therein. This instruction clearly violates Brady, and thus, we conclude that the lower court erred in refusing to give the instruction appellant requested.

The next question we must determine is whether this error is constitutionally harmless. In Blount, we opined, albeit in dicta, that even if a trial court errs by instructing the jury to consider a prior inconsistent statement only for impeachment purposes, the error can be harmless. Id., 387 Pa.Superior Ct. at 613, 564 A.2d at 957. For this proposition, we cited to Commonwealth v. McMillan, 376 Pa.Super. 25, 39, 545 A.2d 301 (1988), in which the trial court had specifically instructed the jury to consider prior inconsistent statements for credibility purposes only. Despite the error in the instruction, the panel in McMillan stated that the instruction did not prejudice the defendant because the witness admitted making the prior inconsistent statement, he explained that he made the statement because he feared the defendant, and the fact that the prior inconsistent statement was made was uncontested. Id. 376 Pa.Super. at 39, 545 A.2d at 308. Thus, the issue properly posed for the jury was whether the witness’s in-court explanation for the statement was credible, and not whether the out-of-court statement had been made. See also Commonwealth v. Gibson, 389 Pa.Super. 518, 567 A.2d 724 (1989); Commonwealth v. Willis, 380 Pa.Super. 555, 552 A.2d 682 (1988).

Here, two of the other children who had resided with appellant testified in court that appellant on numerous occasions refused to give or permit others to give food to his sister. Appellant then introduced into evidence the prior inconsistent statements of the children — specifically that the children had told state police officers and Children and Youth Service (CYS) caseworkers that appellant adequately fed his sister and that he did not abuse any of the children. The children admitted their inconsistent statements and explained that they had lied to the investigators because they feared appellant. Thus, as in Blount and McMillan, the children admitted and explained their prior inconsistent statements. Furthermore, the fact that such statements were made was not in dispute. Therefore, the issue for the jury was whether the witnesses’ in-court explanation was credible. The trial court adequately instructed the jury as to this issue. In light of the facts, Blount and McMillan are controlling, and we hold that appellant was not prejudiced by the erroneous instruction to the jury, and therefore, the error was harmless. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). We accordingly affirm.

Appellant’s second contention is that, because Commonwealth experts, Dr. Anthony Pileggi and Dr. Steven Ludwig, espoused contradictory conclusions as to the cause of Beatrice Bird’s death, the trial court should have instructed the jury that he was entitled to the conclusion most favorable to him. Appellant, however, has failed to provide this court with Dr. Pileggi’s testimony. As a result, the record only reveals one conclusion as to the victim’s cause of death. Thus, we cannot review appellant’s contention. Commonwealth v. Williams, 357 Pa.Super. 462, 466, 516 A.2d 352, 354 (1986) (“It is the appellant’s responsibility to provide a complete and comprehensive record to the reviewing court for the purpose of appeal. See Chapter 19— Preparation and Transmission of Record and Related Matters. Pa. Rules of Appellate Procedure.”) See Damiano v. Damiano, 378 Pa.Super. 106, 110, 548 A.2d 298, 300 (1988) (“We may consider only the facts that appear on the official record, and the responsibility for providing a record that is comprehensive and complete rests with the appellant.”) (citing Commonwealth v. Williams, 357 Pa.Super. 462, and Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974)).

Appellant’s third contention is that the trial court erred in excluding the expert testimony of defense witness, Linda Page, an employee of CYS. Appellant submits that Ms. Page would have testified as to the findings of the Multidisciplinary Team of CYS that Beatrice Bird was not abused. However, appellant has failed to include within the record, the findings of the Multidisciplinary Team, or the time frame upon which these findings are based. Furthermore, appellant did not include within the record the qualifications of Ms. Page. As a result, we cannot determine the relevancy of the findings or of Ms. Page’s testimony nor can we judge Ms. Page’s qualifications as an expert. Thus, once again, appellant has failed to provide us with a sufficient record and therefore, we are prohibited from reviewing appellant’s contention.

Appellant’s fourth and final contention is that the trial court erred in not merging the crimes of involuntary manslaughter and endangering the welfare of children when sentencing the appellant. We are constrained to agree.

The doctrine of merger is abolished in Pennsylvania except in regard to lesser included offenses. Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989). Thus, the question we must determine is whether the crime of endangering the welfare of children is a lesser included offense of involuntary manslaughter. Our holding in Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616 (1985) answered this in the affirmative.

In Barnhart, we analogized the crime of endangering the welfare of children to the felony element of felony-murder, which our Supreme Court in Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981), determined to be a lesser included offense of felony-murder. We concluded that under this analogy, the same facts are relevant to prove both endangering the welfare of children and involuntary manslaughter and therefore held that endangering the welfare of children was a lesser included offense of involuntary manslaughter.

As a result of our holding in Barnhart, endangering the welfare of children and involuntary manslaughter would necessarily merge for sentencing purposes. Because the trial court did not merge them, we must vacate the judgment of sentence and remand for resentencing.

Judgment of sentence vacated, remand for resentencing. Jurisdiction relinquished.

BECK, J. concurs in the result.

      . 18 Pa.C.S.A. § 2504(a).

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 4304.

      . For sentencing purposes, the trial court merged appellant's conviction for recklessly endangering another person with his conviction for involuntary manslaughter.

      . The trial court determined that appellant was not entitled to this instruction because appellant purportedly proffered the evidence only for impeachment purposes. We are satisfied that appellant preserved the Brady issue by making his timely request for the jury instruction.

      . The Commonwealth cites to Commonwealth v. Burkhardt, 526 Pa. 341, 586 A.2d 375, 377 (1991), in which the lead opinion stated that “in the context of simultaneous verdicts, the trial court may sentence separately for each distinct statutory crime of which the defendant is convicted, limited only by express legislative intent to the contrary.” Id. The lead opinion in Burkhardt, however, was joined by only one justice. Two other justices concurred in the result. The concurring opinion garnered three votes, and it reaffirmed that for sentencing purposes, the doctrine of merger is abolished except in regard to lesser included offenses. Thus, the holding in Williams is still controlling in this Commonwealth.

      . Section 2504(a) of the Crimes Code, 18 Pa.C.S.A., defines the crime of involuntary manslaughter as follows:
      A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

        Id. Section 4304 of the Crimes Code, 18 Pa.C.S.A., defines the crime of endangering the welfare of children as follows:
      A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

        Id.

      . The trial court, in denying appellant's request to merge the two crimes, cited to Commonwealth v. Tipton, 396 Pa.Super. 402, 578 A.2d 964 (1990). In Tipton, the panel held that the crimes of involuntary manslaughter and recklessly endangering another merge for sentencing purposes. Tipton, however, employed a different analysis than that utilized by Barnhart. The panel reviewed the individual elements of each crime and determined that recklessly endangering another was a lesser, included offense of involuntary manslaughter because it was comprised of all of the elements that are included in involuntary manslaughter. Here, the trial court noted that endangering the welfare of children requires the element of specific intent which involuntary manslaughter does not. We note that, even if the approach in Tipton would lead to a different result, we are bound by Barnhart.