author: CIRILLO, Judge: WIEAND, Judge,

text:
    485 A.2d 63
    COMMONWEALTH of Pennsylvania, Appellant, v. Enrique TORREZ.
    Superior Court of Pennsylvania.
    Argued March 14, 1984.
    Filed Nov. 30, 1984.

      Wieand, J., concurred and filed opinion.
    Cavanaugh, J., concurred in the result.
    Marianne E. Cox, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Karl Baker, Assistant Public Defender, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   CIRILLO, Judge:

The Commonwealth appeals from an order granting ap-pellee’s post-trial motion in arrest of judgment and discharging him. We are called upon to determine whether discharge was the proper remedy for the Commonwealth’s failure to conduct a court-ordered pre-trial lineup. We conclude that such a remedy was not appropriate, and accordingly reverse the order of the trial court.

Appellee Torrez was charged with robbery and related offenses stemming from an incident that occurred in Philadelphia on August 22, 1980. At about 2:00 p.m. on that date, Confesor Rodriguez, a bill collector for a furniture store, observed Torrez and another man sitting on a stoop on Stella Street. Rodriguez went into a building to make a collection; when he came out Torrez and the other man had moved to another step closer to Rodriguez. As Rodriguez walked by, the two men accosted him and Torrez held a knife to his back and demanded money. Rodriguez was taken into a nearby abandoned house, bound and gagged, and $1300 taken from his pockets. The robbers then escaped in Rodriguez’s car.

Torrez was not apprehended immediately. Some months later, Rodriguez spotted Torrez at least half a dozen times on the streets of the city, and alerted a Philadelphia police detective. On October 17, 1980, Rodriguez was shown a photographic array at the Detective Division. Rodriguez identified a photograph of Torrez as that of his attacker. Torrez was arrested and charged with the robbery.

At a preliminary hearing on May 27, 1981, Rodriguez told the court that he had heard that one of his assailants was dead. Based on this representation, Torrez’s counsel requested a lineup. Judge Francis P. Cosgrove of the Philadelphia Municipal Court thereupon continued the preliminary hearing and ordered that a lineup be held.

On the date scheduled for the lineup, Lieutenant Margolis of the Philadelphia Police Department refused to conduct a lineup with the defendant. On June 16, 1981, Municipal Court Judge Thomas J. McCormack convened a hearing on a second defense request for a lineup. At that hearing, the prosecutor told Judge McCormack that the scheduled lineup had not been held because Torrez had substantially altered his appearance by shaving his head and mustache. Judge McCormack denied the request for a lineup.

The continued preliminary hearing was held on July 27, 1981. At the hearing Rodriguez identified Torrez, and Torrez was bound over to stand trial on charges arising from the robbery.

Torrez filed pre-trial motions to suppress the photographic and preliminary hearing identifications and to dismiss the charges, on the ground that the Commonwealth had disobeyed Judge Cosgrove’s order to conduct a lineup. The Honorable Michael E. Wallace of the Philadelphia Court of Common Pleas heard the defense motions on October 23, 1981. Judge Wallace specifically found the following:

Based upon the facts presented by the Commonwealth, the Court concludes there was a sufficient opportunity on the part of the victim to observe the defendant during the commission of this crime.
There was a subsequent opportunity on at least half a dozen occasions for the victim to actually physically observe the defendant.
The photo identification as presented by the Commonwealth, in conjunction with the stipulation, does not appear to this Court to have been presented in any suggestive manner.
As to the identification at the preliminary hearing, while all in-court identifications are somewhat suggestive and require a test as to whether or not there is a substantial likelihood of misidentification — in this case, with the victim’s prior opportunities to observe the defendant during the crime, as well as the opportunity to observe the defendant on the street on a number of occasions, there was an unlikelihood that this particular identification at the preliminary hearing was substantially suggestive.

N.T. 10/23/81 at 49-50.

The defendant’s pre-trial motions were denied, and the case proceeded directly to a waived jury trial before Judge Wallace, who found Torrez guilty of robbery, theft, simple assault, conspiracy, unauthorized use of an automobile, and possession of instruments of crime (two counts).

The defendant filed post-trial motions, again raising the Commonwealth’s failure to provide the court-ordered lineup. Upon reconsideration of his earlier ruling, Judge Wallace held that the Commonwealth’s failure to conduct the lineup warranted dismissal of the charges against the defendant. Consequently, Judge Wallace granted the defendant’s motion in arrest of judgment. This appeal followed.

Our appellate courts have not before addressed the consequences of a Commonwealth failure to conduct a court-ordered pre-trial lineup. Nevertheless, we believe the decision of the trial court to grant the extraordinary remedy of discharge in this case was clearly erroneous.

Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979), provides the primary support for our holding. There the trial court had denied a defense request for a pre-certifi-cation hearing lineup. At the certification hearing, the victim encountered the defendant for the first time since the happening of the crime, and positively identified him in court as the man who had robbed the victim’s store. The Supreme Court held that under the circumstances the trial court’s failure to grant the requested lineup was an abuse of discretion.

The Court next had to decide the appropriate remedy for the court’s erroneous denial of the lineup request.

Where it is shown that his decision is without justification and that the accused has been substantially harmed thereby, it is incumbent upon the reviewing court to provide a remedy commensurate to the harm sustained by the party receiving the adverse ruling.
... Although we agree ... that ... exclusion of the identification evidence was inappropriate, it does not follow that this determination forces the conclusion that no other remedy is available. Since we have concluded that the identification was admissible, to exclude it because of the court’s abuse of discretion in denying the request for a lineup would be punitive rather than remedial. It is, therefore, necessary first to examine the nature of the injury occasioned by the improper ruling before attempting to fashion an appropriate remedy.
The purpose of permitting a lineup identification under circumstances such as those presented here is to provide a setting which is less suggestive than the one-on-one confrontation provided by an in-court identification. By denying this request, appellee was prevented from having the witness attempt to identify him in a more objective setting and, consequently, appellee lost the possibility that under such circumstances either an identification could not have been made, or that it might have been made with apparent uncertainty or hesitancy. Even if the results of such procedure had been favorable to the accused, the Commonwealth would not have been prevented from introducing a subsequent in-court identification. At best, the evidence concerning the lineup could have been used to challenge the weight to be given the subsequent in-court identification ____ We, therefore, are of the view that the harm in this case would be cured if the finder of fact hearing the cause is advised that appellee had been denied the opportunity for a more objective identification and for that reason the subsequent less reliable identification could be viewed with caution.
... In our instant decision, we are merely utilizing this ... procedure to make the jury aware that the appell[ee] sought and was denied an opportunity for an identification procedure in a more objective setting than the one from which the identification introduced at trial emanated.
In short, the complained of injury is the denial to the accused of the possibility of evidence which could have been used to challenge the credibility of the subsequent in-court identifications. To exclude either or both of the in-court identifications, as suggested by the majority of the Superior Court, would be unduly harsh and out of proportion to the injury sustained. The doctrine of exclusion, wherein evidence which is otherwise relevant and competent is not admitted, is premised upon the impropriety of governmental action in obtaining that evidence. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Here, there was no governmental impropriety in securing this identification testimony, thus, there is no justification for the application of an exclusionary rule. We are satisfied that the remedy we have suggested adequately redresses the harm that was occasioned by the improper ruling.
The Order of the Superior Court is reversed; the judgment of sentence is reversed and a new trial is awarded.

485 Pa. at 24-26, 400 A.2d at 1292-94 (emphasis added).

We are aviare, of course, that Sexton dealt with trial court error in refusing to order a lineup, whereas here the prosecution failed to comply with a court order to afford Torrez a lineup. However, we see no reason why the remedy for the denial of a lineup should vary depending on whether it was court error or prosecutorial misconduct that led to the denial. In both instances, the injury to the defendant is the same: he is irrevocably denied an opportunity to test the reliability of witness identification in an objective pre-trial setting.

However, we must further take note of the fact that the denial of a lineup to Mr. Torrez could not have caused him the type of prejudice shown in Sexton. There the trial court’s failure to order a lineup completely deprived Sexton of any opportunity for an objective, out-of-court confrontation with his accuser. In fact, the first post-incident encounter between accused and accuser took place in the suggestive setting of a pre-trial certification hearing. In contrast, here Rodriguez identified Torrez in the relatively unsuggestive context of a pre-trial photographic array, and in the totally unsuggestive circumstances of seeing Torrez numerous times on the streets of Philadelphia. Given the number and reliability of the pre-trial out-of-court identifications, we undoubtedly would have found no abuse of discretion had Judge Cosgrove originally denied appellee’s request for a lineup rather than granting it. See and compare Commonwealth v. Brown, 302 Pa.Super. 391, 448 A.2d 1097 (1982); Commonwealth v. Davis, 293 Pa.Super. 447, 439 A.2d 195 (1981); Commonwealth v. Walker, 275 Pa.Super. 311, 418 A.2d 737 (1980); Commonwealth v. Guess, 266 Pa.Super. 359, 404 A.2d 1330 (1979). Additionally, Judge Wallace later specifically found that the one-on-one confrontation at the preliminary hearing was not substantially suggestive. Torrez therefore had the benefit of fair identification procedures which were totally absent in the Sexton case.

We find that the remedy prescribed in Sexton, a new trial with cautionary jury instructions to the effect that the defendant was denied a pre-trial lineup, is inapplicable to this case. The case was tried non-jury. The fact-finder, Judge Wallace, was fully aware that the Commonwealth had failed to conduct a court-ordered pre-trial lineup. Nevertheless, he had found the proposed identification testimony reliable and admissible, and his conclusion is amply supported in the record. See Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982). After hearing the evidence at trial, including the properly received identification testimony of the victim, the court was convinced beyond a reasonable doubt that Torrez was the perpetrator of the robbery. In these circumstances, we hold that the verdict need not be disturbed notwithstanding the Commonwealth’s failure to afford the pre-trial lineup.

The trial court, in finding that discharge was the appropriate relief for the Commonwealth’s failure to comply with the court’s order to conduct a lineup, relied on the opinion of two justices of the Pennsylvania Supreme Court in Commonwealth v. Wilder, 461 Pa. 597, 337 A.2d 564 (1974) (Roberts, J., concurring and dissenting), and on the case of United States v. Caldwell, 156 U.S.App.D.C. 312, 481 F.2d 487 (D.C.Cir.1973). To the extent these cases conflict with the Sexton holding, we decline to consider them as controlling our disposition of this appeal. See also Commonwealth v. Lark, 316 Pa.Super. 240, 462 A.2d 1329 (1983) (release not appropriate remedy for failure to afford a lineup) (dictum).

Order in arrest of judgment of the Court of Common Pleas of Philadelphia County reversed; case remanded for disposition of the remaining issues raised by appellee’s post-verdict motions. Jurisdiction relinguished.

WIEAND, J., files a concurring opinion.

CAVANAUGH, J., concurs in the result.

WIEAND, Judge,

concurring:

I agree with the majority that the trial court erred in arresting judgment and discharging the defendant in this criminal case. I write separately only because I reach this conclusion by reasoning which does not rely upon or expand the holding of the Supreme Court in Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979).

Enrique Torrez was tried non-jury; he was found guilty of robbery and related offenses. The trial court thereafter granted a motion in arrest of judgment and discharged Torrez because the police had refused to comply with a post arrest order directing a lineup. Although the victim had independently identified Torrez from persons walking on the street and also from a photographic array exhibited to him by police, the police refused to subject him to a lineup after they learned that Torrez had materially altered his appearance by shaving his head and removing a mustache. Mistakenly, the police did not seek judicial relief from the earlier court order. The Commonwealth’s failure to obtain judicial reconsideration was rendered immaterial, however, because defense counsel then went before the court with a renewed request for a lineup. This second request was denied by the court after it learned of the defendant’s attempt to change his appearance.

The defendant next filed a petition requesting the court to suppress the victim’s identification testimony because the police had failed to provide Torrez with a lineup “as ordered.” After considering evidence of the victim’s opportunity to observe the robber and also his prior identifications of Torrez, the hearing court concluded that there was not a substantial likelihood of misidentification because of the failure to hold a lineup. Consequently, the petition to suppress was denied.

If the Commonwealth’s conduct in refusing to hold a lineup was initially improper, that impropriety was corrected by the court’s later orders. The lineup requirement was removed by the subsequent order denying a renewed defense request for a lineup. Moreover, as a result of a pre-trial motion to suppress the victim’s in-court identification testimony, the court found an independent basis for the identification and held that the Commonwealth’s refusal to hold a lineup was not an adequate basis on which to suppress the victim’s identification testimony.

The trial court, after hearing all the evidence including the victim’s identification testimony, found Torrez guilty of robbery. This verdict was based on evidence properly received. There was no need for jury instructions regarding the absence of a pre-trial lineup because the case was tried non-jury. The record, moreover, demonstrates clearly that the trial judge was aware of the circumstances surrounding the failure to hold a post arrest lineup. Compare: Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979).

Under these circumstances, the granting of a post-trial motion in arrest of judgment was erroneous. The evidence presented by the Commonwealth was sufficient to sustain the verdict of guilty. If the suppression court erred in refusing to suppress the victim’s identification testimony and the verdict, therefore, was based on improper evidence, the remedy was a new trial. It was not appropriate to arrest judgment and discharge the defendant. See: Commonwealth v. Nelson, 320 Pa.Super. 488, 494, 467 A.2d 638, 641 (1983)(proper remedy where the erroneous introduction of evidence constitutes prejudicial error is “the grant of a new trial at which the evidence will be excluded”).

For these reasons, I agree with the majority that appel-lee’s discharge was improper and must be reversed. The motion for new trial averred various trial errors which, in appellee’s judgment, required a new trial. These averments of error have not been decided by the trial court. Therefore, I agree that there must be a remand to determine the remaining issues raised by appellee’s post-trial motions.

      . Although this was the holding of only three of the five justices who heard the case, Justice Roberts, in dissent, also accepted the view that a new trial was an appropriate remedy in the case. Justice Roberts, however, found that the identification of the defendant at the certification hearing was unduly suggestive, and would have remanded for a hearing, with the grant of a new trial conditioned on a finding that the victim's identification of the defendant at trial was "tainted’’ by the suggestive pre-trial encounter.

      . An issue in this case which we find we need not address is whether the Commonwealth was justified in refusing to go through with the lineup. It will be remembered that the asserted reason for the refusal was the defendant’s behavior in shaving his head and mustache. Appellee argues that the Commonwealth has waived the right to rely on this behavior to justify its failure to obey Judge Cosgrove’s order, since the claim was abandoned at the hearing on the motion to arrest judgment. The waiver issue is irrelevant, since our holding stands regardless whether the Commonwealth, instead of unilaterally cancelling the lineup, should have sought an order from Judge Cosgrove or a judge of superior jurisdiction to reverse the lineup order in light of changed conditions.
      Although we find the Commonwealth's motive for calling off the lineup to be immaterial to our holding that discharge was not an appropriate remedy, we do not mean to suggest that Commonwealth officers may with impunity refuse to follow court orders to conduct lineups whenever they feel that the defendant is trying to take unfair advantage of the procedure. For, on the one hand, officers who violate court orders risk being held in contempt. On the other hand, faced with a Commonwealth refusal to conduct á court-ordered lineup, a defendant may always vindicate his personal right to the lineup by asking the court to directly order the responsible Commonwealth officer to proceed with the lineup on pain of having identification testimony excluded at trial should the officer fail to comply. (We note that the defendant in this case did not seek immediate relief from the court for the Commonwealth’s refusal to proceed). We therefore have no reservations that our decision today will in any manner encourage prosecu-torial officials to disobey court orders to conduct lineups. .....

      . The court also denied a pre-trial motion to quash which Torrez filed because of the Commonwealth’s failure to hold a lineup.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    485 A.2d 68
    Terri Ann FRIEDENBERGER v. Frank Samuel FRIEDENBERGER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 15, 1984.
    Filed Nov. 30, 1984.

      Phillip D. Johns, Altoona, for appellant.
    Gregory S. Olsavick, Altoona, for appellee.
    Before McEWEN, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Blair County enforcing the custody decree of the District Court of Hennepin County, Minnesota. We affirm.

Appellant, Frank Samuel Friedenberger, Jr., and appellee, Terri Ann Friedenberger, were married on October 28, 1979, in Blair County, Pennsylvania. Their daughter, Angela, the subject of the instant custody dispute, was born on December 15, 1979. The three of them moved to Minnesota on January 4, 1981, and established residence there. Appellant moved back to Pennsylvania in July, 1982. Appellee still resides in Minnesota.

Appellee commenced an action for dissolution of marriage and a custody proceeding on September 27, 1982, in Henne-pin County, Minnesota. On October 30, 1982, appellant forcibly and unilaterally removed Angela from her preschool class and brought her to Pennsylvania. Appellee immediately sought and received a temporary custody order in Minnesota. Appellant did not comply but instead filed a separate custody action in Blair County, Pennsylvania, on November 15, 1982.

Meanwhile, appellee proceeded with her Minnesota custody action. A hearing was held on December 6, 1982. The Minnesota court found that although appellant did not appear personally or through counsel, he had been properly served. Prior to making its findings of fact, the Minnesota court took the matter under advisement in order to communicate with the Pennsylvania court as to the issue of jurisdiction. The Minnesota court found, inter alia, Minnesota is the “home state” of the child within the meaning of the Uniform Child Custody Jurisdiction Act and it was the proper forum to determine custody. Thereupon the Minnesota court found appellee “a fit and proper person for the care, custody, and control” of Angela and ordered appellant to give over temporary physical custody of the child to appellee.

Appellee then filed a petition in Blair County, Pennsylvania, to enforce this order. This petition for enforcement was granted and appellant now appeals to this court. Appellant’s sole argument rests on his contention that the Blair County Court erred in enforcing the Minnesota order prior to holding a hearing on the merits of appellant’s allegations that Angela would be subjected to physically and emotionally harmful conditions if she were returned to Minnesota.

Appellant bottoms this argument on Commonwealth ex rel. Zaubi v. Zaubi, 492 Pa. 183, 423 A.2d 333 (1980) and on 42 Pa.C.S.A. § 5349 which states:

§ 5349. Jurisdiction declined by reason of conduct
(a) General rule. — If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in conduct intending to benefit his position in a custody hearing, the court may decline to exercise jurisdiction if this is just and proper under the circumstances.
(b) Restriction on modification of foreign decree. —Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction unless the petitioner can show that conditions in the custodial household are physically or emotionally harmful to the child, the burden of proof being on the petitioner requesting the court to take jurisdiction. (Emphasis added)

Appellant contends that he is entitled to a hearing in Pennsylvania to establish harmful physical or emotional conditions in the custodial household. We disagree.

In the case before us, there is no basis for Pennsylvania to assume jurisdiction. Appellant “snatched” his child and brought her to Pennsylvania just 15 days prior to commencing a custody action. Appellant was aware custody proceedings were already underway in the child’s home state of Minnesota. He does not argue that Minnesota was an improper forum. Rather, he would attempt to relitigate the entire custody question in a forum of his choosing.

The express purposes of the Uniform Child Custody Jurisdiction Act would be violated if we were to adopt appellant’s argument. These are to assure litigation takes place in the proper forum; to deter abductions undertaken to obtain custody awards; and to avoid relitigation of the custody decisions of other states. 42 Pa.C.S.A. § 5342(a)(3), (5) and (6).

Given the very close time frame of all the legal actions in both Minnesota and Pennsylvania, it is clear appellant is not alleging changed circumstances but rather attempting to introduce evidence on the very same issues which were before the Minnesota court. We are not persuaded that appellant is entitled to a hearing because he would now introduce evidence not before the Minnesota court. If the evidence was not before that court, the only reason is because appellant refused to submit to that court’s jurisdiction.

Order affirmed.


author: HESTER, Judge:

text:
    485 A.2d 70
    COMMONWEALTH ex rel. Kathie D. SHOEMAKER v. Barry N. COULSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 18, 1984.
    Filed Nov. 30, 1984.
    Petition for Allowance of Appeal Denied June 26, 1985.

      George F. Douglas, Jr., Carlisle, for appellant.
    Michael R. Rundle, Carlisle, for appellee.
    Before WICKERSHAM, WATKINS and HESTER, JJ.
   HESTER, Judge:

The issue presented for our review herein is whether the entry and satisfaction of a judgment in lieu of child support precludes future support actions on behalf of the child. We hold that it does not and affirm the Order of the court below permitting the continuance of the instant support action against appellant.

Appellant is the father of Diana Lea, born to appellee on November 12, 1977. The parties were never married. In 1979, appellee instituted an action for support of her child, and therein alleged the paternity of appellant. A directed verdict and lump sum settlement of $4,800.00 were negotiated by counsel for the parties. In February of 1983, appellee filed the current action for support for her daughter. Appellant sought a declaratory judgment as to whether appellee was precluded from commanding child support following the entry and satisfaction of the monetary settlement. The lower court, following a hearing on the matter, held that appellee was not estopped from maintaining her support action. This appeal ensued.

Appellant argues that the satisfaction of a judgment forever discharges that judgment, and that his payment of the lump sum settlement must likewise forever release him from his future obligation of child support. Appellant relies upon Commonwealth v. Cameron, 197 Pa.Super. 403, 406, 179 A.2d 270 (1962), wherein we observed:

where an agreement is made under which one parent agrees to release the other from the duty of support, the bargain will be enforced so long as it is fair and reasonable, made without fraud and coercion, and without prejudice to the welfare of the child.

Averring that the execution of the satisfied judgment comported with the above-cited language, appellant urges us to enforce the settlement as a final judgment in this matter.

This Commonwealth has always attributed the utmost importance to the duty and responsibility of parents to financially support their children to the extent of their resources. Although a parent’s circumstances may vary, the obligation of child support is an unwavering one. As such, this Court has repeatedly held that one parent cannot contract away the right of his or her child to seek adequate support from the other parent. Oman v. Oman, 333 Pa.Super. 356, —, 482 A.2d 606, 608 (1984), quoting Brown v. Hall, 495 Pa.Super. 635, 643 n. 11, 435 A.2d 859, 863 n. 11 (1981); Mallinger v. Mallinger, 197 Pa.Super. 34, 175 A.2d 890 (1961). In fact, we once observed that “agreements or disputes are almost irrelevant when balanced against the overwhelming concern of the law with the welfare of children.” Commonwealth ex rel. McCartney v. McCartney, 217 Pa.Super. 417, 420, 274 A.2d 206, 207 (1970).

That is not to say that this Court does not recognize settlement agreements entered into between parents for the support of their children. On the contrary, private child support agreements executed by parties following separation or divorce and embodied within court orders are enforceable. Guerin v. Guerin, 296 Pa.Super. 400, 442 A.2d 1112 (1982); Commonwealth ex rel. Durso v. Durso, 292 Pa.Super. 94, 436 A.2d 1021 (1981). In fact, a court will not permit a parent to decrease his or her child support obligation from the amount provided in the agreement, Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983), unless, of course, that parent can establish a change of circumstances warranting a reduction. Commonwealth ex rel. Morgan v. Carlton, 261 Pa.Super. 77, 395 A.2d 950 (1978). However, a separation or support agreement will not preclude a court from increasing a parent’s support payment beyond that amount provided in the agreement. Our overriding concern in these matters must be the welfare of the child. To that end, the courts may always reconsider what an appropriate amount of support should be.

The courts will also reconsider the terms of support agreement when the maintenance of the child becomes a burden upon the public. In fact, in the case upon which appellant relies, Commonwealth v. Cameron, supra, we agreed to enforce an agreement releasing the father from all future support for his daughter only because the stepfather assumed primary support of the child. If her support became a responsibility of the state, we clearly stated that the natural father would be held liable for her support.

Such is the case before us. Appellee has applied for public assistance in the support of her child. We fail to see why the Commonwealth should bear the burden of supporting this child when her father may be so able. A one-time payment toward her support will not serve to relieve appellant of his parental obligation to the detriment of the public. Thus, we affirm the order of the lower court granting appellee the right to continue her action.

Order affirmed.

      . In February, 1983, appellee applied for public assistance for her daughter at the Cumberland County Board of Assistance. In doing so, she assigned her right to support to the Pennsylvania Department of Public Welfare pursuant to the terms of the Social Security Act, and agreed to institute proceedings against appellant for support.


author: HESTER, Judge: BROSKY, Judge,

text:
    485 A.2d 397
    COMMONWEALTH of Pennsylvania v. Ronald JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1984.
    Filed Oct. 26, 1984.
    Reargument Denied Jan. 7, 1985.

      Alan Ellis, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WIEAND and HESTER, JJ.
   HESTER, Judge:

Appellant, Ronald Johnson, perfected this appeal from the judgment of sentence entered November 12, 1980. He was convicted by jury of second-degree murder, criminal conspiracy and robbery. A life sentence was imposed on the murder bill; the criminal conspiracy bill brought a concurrent sentence of not less than five nor more than ten years’ imprisonment. Inasmuch as robbery merged with second-degree murder, no sentence was imposed on the robbery bill.

It is appellant’s first contention that the evidence was insufficient to sustain the verdict with respect to murder of the second degree. According to appellant, the victim was shot and killed by one Galin Tate following the departure of appellant and his accomplices from the scene of the robbery. The killing facilitated neither the robbery nor the escape. Since the murder was not in furtherance of the criminal plan to commit robbery,, appellant argues that his murder conviction through application of the felony murder rule was without evidentiary basis.

This argument necessitates a review of the facts. On July 12, 1979, shortly after midnight, Gloria Oree, a man known only as Jibreel, Donald Colefield and Bruce Porter were in the basement of Loretta Turner’s home at 1232 West College Avenue in Philadelphia. Ms. Turner’s eight-year-old daughter, Kadijra, was sleeping on the second floor.

Immediately after Jibreel left to purchase cigarettes, appellant, Galin Tate, Anthony Murray and a fourth man knocked on the front door. Porter opened the door, and the men abruptly entered with Tate wielding a single-barrel shotgun and Murray brandishing a double-barrel shotgun. Appellant and the fourth man were unarmed at that moment.

Colefield walked to the first floor upon hearing the intruders. As he arrived, Colefield was ordered by Murray to face the wall and submit to a search. Murray and appellant searched Colefield for valuables while Porter argued with Tate. Shortly thereafter, Murray searched the second floor while appellant and Tate detained Colefield and Porter.

When Murray returned to the first floor, having uncovered nothing of value, Tate inquired of Colefield where the amphetamine and money were kept. Realizing that Ms. Oree possessed cash, Colefield directed them to the basement. Murray retrieved $200.00 in cash from a table without knowing that Oree was hiding behind the furnace.

As Murray emerged from the basement, he continued out the front door with appellant and the fourth man. Tate remained behind to caution Porter not to obstruct their future visits. Porter reluctantly pledged his cooperation, making it apparent that he had no choice while Tate was armed with a deadly weapon. Tate departed. Apparently piqued by Porter’s earlier resistance, Tate returned within seconds and fired the single-barrel shotgun into Porter’s midriff. Porter died shortly thereafter.

Whether appellant was standing on the stoop or three blocks from the residence at the moment Porter was killed is of no consequence. Conversely, if there was evidence that appellant voluntarily abandoned the conspiratorial plan prior to Tate’s return to shoot Porter, or that Tate’s act was not in furtherance of the robbery, then there was insufficient evidence to convict appellant of murder.

Persons, other than the slayer, are criminally liable for a homicide committed in the perpetration of a felony, providing there is a conspiratorial plan formulated by them and the slayer to commit the underlying felony, and the homicide was in furtherance of the felony. Commonwealth v. Waters, 491 Pa. 85, 418 A.2d 312 (1980); Commonwealth v. Allen, 475 Pa. 165, 379 A.2d 1335 (1977). The Pennsylvania Supreme Court reflected upon the policy for holding a co-conspirator responsible for murder occurring during the commission of statutorily-designated felonies:

... the law, via the felony-murder rule, allows the finder of fact to infer the killing was malicious from the fact that the actor engaged in a felony of such a dangerous nature to human life because the actor, as held to a standard of a reasonable man, knew or should have known that death might result from the felony.

Commonwealth v. Legg, 491 Pa. 78, 82, 417 A.2d 1152, 1154 (1980).

Whether Porter’s death was in furtherance of the conspiracy was for the jury’s determination. Commonwealth v. McNeal, 456 Pa. 394, 319 A.2d 669 (1974). Additionally, it is immaterial whether appellant actually expected Porter’s death. He may be charged with knowing that death would result from the robbery. Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975). In this latter instance, he remains responsible for the murder.

Appellant’s contention is that disunity as to time and purpose made the robbery and homicide distinct. We disagree. There was evidence that less than one minute passed from the moment appellant departed the scene to the fatal shooting. We are of the opinion that this was a negligible passage of time during the furtherance of the conspiracy; it did not represent the termination of the robbery nor appellant’s abandonment of the scheme.

In Commonwealth v. Doris, 287 Pa. 547, 135 A. 313 (1926), one co-defendant had been detained by police officers shortly after he and his accomplices began their retreat from the robbery scene. Following the co-defendant’s capture, but during the chase of accomplices, a police officer was mortally wounded. In considering the co-defendant’s capture as having no effect on his culpability for murder, the Doris court opined:

[Doris’ arrest prior to the murder] overlooks the fact that he joined in the common design, and is responsible for the acts of each naturally to be expected to occur in carrying it out. It is true that he could have abandoned the enterprise, and given sufficient time to the others to do likewise, and thus have relieved himself from liability for subsequent acts of his fellows. But he cannot escape responsibility for an act which is the probable consequence of the criminal scheme which he has helped to devise and carry forward.

Id., 287 Pa. at 551-552, 135 A. at 315. Despite his capture, the Doris court held that the defendant did not withdraw from the scheme. No appreciable period of time passed between the conspired robbery and the resulting homicide. Consequently, the defendant was criminally liable while he remained in police custody and until the enterprise concluded.

Whether fleeing from the scene exonerates an accused from criminal acts committed by accomplices during the accused’s flight was addressed in Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 480 (1971):

The guilt of one engaging in an unlawful enterprise consists in part in the encouragement and support that he gives to those who commit the crime; and the influence and effect of such encouragement continue until he withdraws the encouragement by acts or words showing that he disapproves or opposes the contemplated crime. He cannot escape responsibility merely by the expedient of running away, (citation omitted).

Id., 445 Pa. at 564, 285 A.2d at 483; [quoting 40 Am.Jur.2d Homicide § 40 (1968) ].

Appellant may be correct in that the act of shooting Porter was not necessary to facilitate an escape. We agree that Porter was not attempting to impede flight. These facts, however, do not support appellant’s position.

There was no evidence that appellant attempted to withdraw from the robbery. He was aware that Murray and Tate carried deadly weapons. He was also aware that Tate and Porter argued at the scene. Finally, appellant harshly instructed Colefield on several occasions to assume positions of restraint. This evidence provided the jury with sufficient basis to conclude that appellant should have known that someone could be shot during the robbery or flight. It is evident that appellant assumed the risk that a killing could occur during the crime to which he committed himself. Commonwealth v. Batley, 436 Pa. 377, 260 A.2d 793 (1970).

Next, appellant contends that the lower court erred in overruling his objections to the prosecutor’s closing statement and in denying his request for a mistrial. In explaining why Loretta Turner, the owner of the house on College Avenue, did not disclose in two statements to police officers that appellant confronted her on the street during his flight and gave her narcotics, the prosecutor inferred in closing argument:

She could have done that [informed police officers of her confrontation with appellant] anonymously. What was she afraid of? Afraid of Tate? Afraid of the defendant? Afraid of competing drug factions, perhaps?

(N.T., November 24, 1980, p. 32). Appellant’s objection to the last inquiry was sustained on grounds that the record was bereft of evidence regarding drug factions. Appellant’s motion for mistrial was denied due to the court’s belief that its instruction to the jury to disregard the prosecutor’s statement would prevent prejudice.

Upon resuming his closing, the prosecutor cautioned the jury as follows:

As I told you before, what I say is not evidence. It’s what you hear, and you’re to decide the case just on the evidence that you hear and whatever rational inferences you may draw from the evidence. Now, I say, don’t leave your common sense out here when you go in there.

(N.T., November 24, 1980, p. 36). It is appellant’s position that this statement was improper inasmuch as it drew the jurors’ attention to the prosecutor’s earlier inference that appellant was a member of a drug faction.

The ABA Standards Relating to the Prosecution Function control our review of a prosecutor’s closing argument. The following guidelines apply: “(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw, (d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.” ABA Standards Relating to the Prosecution Function, Section 5.8. Although the inference regarding drug factions may have been imprudent, it did not mandate a new trial. Commonwealth v. Jarvis, 482 Pa. 598, 394 A.2d 483 (1978); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). Only those remarks which replace objectivity with bias in the jurors’ minds necessitate a new trial. Commonwealth v. Baranyai, 296 Pa.Super. 342, 442 A.2d 800 (1982). The effect of imprudent remarks depends largely upon the atmosphere at trial. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). For that reason, whether prosecutorial misconduct warrants a new trial is left to the trial court which can assess the tone of the remarks and the nonverbal reactions of the jury. Commonwealth v. Ferguson, 270 Pa.Super. 184, 411 A.2d 241 (1979).

Nothing from the record persuades us that the lower court incorrectly evaluated the effect of the remarks in denying a motion for a mistrial. We view the inference as a suggested explanation for Loretta Turner’s failure to disclose her confrontation with appellant on the street. The prosecution was not interested in sullying appellant’s image with inferences of illicit drug activity; it was interested in preserving Ms. Turner’s credibility. Also, we are of the opinion that any. prejudice was neutralized by the curative jury instruction to disregard remarks regarding competing drug factions. Commonwealth v. Ferguson, supra.

Appellant also takes exception to the lower court’s granting of the Commonwealth’s motion to amend the Bill of Information. The robbery bill was amended prior to trial to add Donald Colefield as a robbery victim. Mr. Colefield was also added on the conspiracy bill as one person whom appellant threatened with a shotgun. Appellant complains that these amendments were prejudicial; he was prepared only to defend the charge of robbery of Bruce Porter.

Pennsylvania Rule of Criminal Procedure 229 permits amendment of the information following its issuance:

The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

Appellant complains that the amendments in effect brought a different offense. Additional or different offenses result where the original and amended informations involve different elements unfolding from separate factual situations. Commonwealth v. Womack, 307 Pa.Super. 396, 453 A.2d 642 (1982). The safeguards were placed within Rule 229 for the purpose of giving a defendant adequate preparation time for trial without risk of last-minute additions to the charges which materially alter his defense.

We conclude that appellant’s defense was unaltered by the amendments; he was fully informed prior to the amendments of the criminal episode underlying both the original and amended informations. Therefore, we are in accord with those cases which upheld an amendment to the information on grounds that the defendant was not prejudiced. Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979); Commonwealth v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1979).

From arrest through trial, the charges remained conspiracy, robbery and murder. Although appellant was not aware until shortly before trial that Donald Colefield was an alleged robbery victim, he heard preliminary hearing testimony regarding Mr.. Colefield’s presence at the scene and his coerced submission to a search by appellant and Murray. The elements of the alleged crimes and the underlying factual situation were identical in the original and amended informations. Moreover, appellant has not demonstrated how the amendments substantively altered his defense. See Commonwealth v. Womack, supra.

Appellant also alleges that the lower court erred in admitting a composite sketch purportedly of appellant’s face and certain testimony of Officer John Calabrese of the Graphic Arts Unit of the Philadelphia Police Department. Following his interview of Donald Colefield, Officer Calabrese sketched several facial composites of the assailant. Due to the fact that none of the sketches portrayed the assailant with a beard while appellant appeared clean-shaven for trial, Officer Calabrese added a beard to one composite. Insofar as the bearded figure on one composite did not convey the description given by Colefield during the interview, appellant argues that it was improperly admitted for trial.

In returning verdicts of guilty, the jury apparently believed that appellant grew a beard subsequent to the crime for the purpose of foiling the investigation. The composite was altered only by the addition of a beard; no changes were made to the features drawn at the time of the interview. The addition of the beard was simply an experiment, which was left to the broad discretion of the trial judge. Commonwealth v. Laniewski, 427 Pa. 455, 235 A.2d 136 (1967). The adding or deletion of facial hair to a composite sketch is not so alarming as modifications of facial lines. Facial hair can be freely removed or grown by a suspect. Where experiments such as that employed here are not permitted, an accused could easily thwart an otherwise accurate identification.

Officer Calabrese compared his sketch with a photograph of appellant. He explained that, but for the eyes, the sketch and photograph were strikingly similar. He downplayed the dissimilar eyes by explaining that it is not unusual for a police composite to portray tense or determined eyes. (Appellant’s eyes were relaxed in the photograph.) The eyewitness typically views his assailant under stressful conditions, and either his perception or the assailant himself is generally affected by the criminal episode.

It is appellant’s contention that Calabrese was qualified as an expert artist, not as an expert in detecting one’s mental condition. Therefore, he alleges that it was error to admit Calabrese’s testimony concerning the disparity in the eyes.

The first issue in qualifying a witness as an expert is whether the subject matter is “so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman.” Ragan v. Steen, 229 Pa.Super. 515, 538, 331 A.2d 724, 736 (1974) (concurring opinion). If the subject matter is of this nature, it must be determined whether the proffered witness has “sufficient skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.” McCormick on Evidence, supra, at 30 (footnote omitted).

The procedure in compiling a suspect’s composite sketch was a matter for expert testimony. Furthermore, the disparity between appellant’s photograph and the sketch called for an explanation by an expert. The disparity is not so simple as to require only exhibiting the photograph and sketch to the jury so that they could decide whether both portray the same man. A photograph is taken of the actual subject in one setting while a composite is drawn from the recollection of an eyewitness who observed the subject in another setting. The average layman would not understand the .impact that each setting would have on the final portrayal.

Also, Officer Calabrese possessed the requisite experience and knowledge to explain why a sketch and photograph of the same man would be dissimilar. Contrary to appellant’s position, Calabrese was not testifying as to mental condition. As an artist of five hundred portraits over the previous five years, Calabrese understood the effect a subject’s mood would have on facial expression. Calabrese was not used as an expert of the psyche; instead, he was utilized as an expert witness with sufficient knowledge of how emotion can contort one’s face.

Appellant argues that it was error to allow Calabrese’s opinion that the sketch was “an excellent likeness” of appellant’s photograph and of appellant himself. We disagree.

As an expert on facial components and the effect of emotion on those components, it remained within Calabrese’s expertise to determine whether a sketch and photograph were of the same person where both were composed in separate settings. To not have Calabrese render a final comparison of the sketch to the photograph and to appellant would leave the court and jury wondering why his earlier testimony on the effect of emotions was relevant. Emotions may affect a subject’s facial expression so severely that jurors, as average laymen, may be without the skill to realize that an emotionally-ladened person portrayed in a sketch is the same person portrayed calmly in a photograph or the same person sitting passively in the courtroom.

Appellant raises several illustrations of ineffectiveness of counsel. One warrants our attention, that is: appellant’s failure to object to an alleged inadequate alibi jury instruction.

In addition to his defense that the conspiratorial plan terminated following his departure from the scene and prior to Tate’s re-entry into the home, appellant raises the alternative defense that he was not within Turner’s residence at any moment during the commission of crimes for which he was charged. Instead, according to appellant, he was with his girlfriend, Sherry Crawford, at the residence of Sharon Jenkins.

Precipitated by appellant’s alibi defense, the trial court instructed the jury as follows:

Now, obviously the defendant cannot be found guilty unless he was at the scene of the alleged crime.
The defendant has offered evidence to show that he was not present at the scene, but rather he was at the home of Sharon Jenkins, and spent the night there with Sherry Crawford.
You should consider this evidence along with all other evidence in the case in determining whether the Commonwealth has met its burden of proof beyond a reasonable doubt, that a crime was committed.
And that the defendant himself committed or took part in committing.
The defendant’s evidence 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.
If you have a reasonable doubt of the defendant’s guilt, you must find him not guilty.

(N.T., November 26, 1980, pg. 162). According to appellant, this instruction was deficient inasmuch as it did not apprise the jury that it must acquit appellant if his alibi defense raised a reasonable doubt as to his guilt. Furthermore, according to appellant, the jury was not instructed that it need not believe appellant’s alibi in order to acquit. In other words, it was not explicitly charged that appellant had no burden to prove his alibi. Appellant cites Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), in support of this position.

We are of the opinion that Commonwealth v. Pounds, does not dictate a reversal and/or remand for new trial. In Pounds, the instructions omitted any reference to the defendant’s alibi. Only boiler plate instructions com cerning the presumption of innocence, the Commonwealth’s burden of proving each element of the offense charged beyond a reasonable doubt, the derivation of reasonable doubt from the evidence or lack thereof, the absence of a defense burden to prove innocence, and the jury’s duty to assess credibility were included. The Pounds court concluded that these general instructions did not guard against the possibility that the defendant’s failure to prove his alibi would be construed by the jury as evidence of guilt. In ordering a new trial, the Pounds court said:

The jury was not told it did not have to wholly credit Pounds’ alibi testimony in order for the testimony to create a reasonable doubt of his guilt. Hence, the jury may have convicted merely because it did not believe his alibi testimony. In the absence of an instruction that they did not have to wholly believe Pounds to acquit, the jury may have inferred guilt from his failure to clearly establish his alibi.

Id., 490 Pa. at 634, 417 A.2d at 603. First, we note that, unlike here, the trial court in Pounds included no instruction on the defendant’s alibi. Secondly, 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 defense is not tantamount to guilt, the Pounds safeguards are preserved.

The lower court reminded the jury of appellant’s alibi evidence. It instructed the jurors of their right to consider his alibi evidence as “sufficient to raise a reasonable doubt of his guilt,” and of their duty to find appellant not guilty should the alibi evidence raise a reasonable doubt. Granted, this instruction did not explicitly warn the jury that appellant’s failure to prove his alibi must not alone result in a guilty verdict. Such an instruction would undeniably be the better practice. Nevertheless, the references to an alibi raising a reasonable doubt and to the mandatory not guilty verdict should reasonable doubt exist, both within the context of an alibi instruction, adequately cautioned the jury that appellant’s failure to prove his alibi was insufficient alone to prove guilt. The instruction here not only covered appellant’s alleged alibi, but also, unlike Pounds, made it clear that any alibi evidence may be sufficient to create a reasonable doubt of guilt although insufficient to prove innocence. The instruction was proper; therefore, counsel was not ineffective for not objecting to it.

Judgment of sentence affirmed.

BROSKY, J., filed a dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent. I believe that a fair reading of Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), compels the conclusion that the trial court’s alibi instruction was deficient and, thus, that counsel’s failure to object to the instruction mandates a new trial.

First, I believe it is necessary to clarify appellant’s contention. He does not contend that the instruction failed to inform the jury that it must acquit if his alibi defense raised a reasonable doubt as to his guilt. Clearly, the instruction apprised the jury of that fact. What he does argue is that the jury was not told that the alibi evidence could raise a reasonable doubt of appellant’s guilt even if that evidence were not wholly believed by the jury.

The majority notes that, unlike here, the trial court in Pounds included no instruction on the defendant’s alibi. The majority does not explain what difference this distinction makes and I find it to be a distinction without a difference. An inadequate instruction is no less error. Certainly, it would have been simple enough for Pounds to have held simply that the trial court erred in failing to charge that alibi evidence could raise a reasonable doubt of the defendant’s guilt. Instead, Pounds stated: “... the trial court failed to instruct the jury that it should acquit if Pounds’ alibi evidence, even if not wholly believed, raised a reasonable doubt of his presence at the scene of the crime at the time of its commission and, thus, of his guilt.” Id., 490 Pa. at 633, 417 A.2d at 603 (footnote omitted) (citations omitted) (emphasis added).

Furthermore, I find that the majority’s conclusion that while such an instruction would be the better practice, general references to an alibi raising a reasonable doubt and to the mandatory not guilty verdict should reasonable doubt exist are adequate, flies in the face of express language to the contrary in Pounds.

Where an alibi defense is presented, such an instruction is necessary due to the danger that the failure to prove the defense will be taken by the jury as a sign of the defendant’s guilt. See United States v. Ragghianti, 560 F.2d 1376 (9th Cir.1977); United States v. Burse, 531 F.2d 1151 (2d Cir.1976). See also, Commonwealth v. Bonomo, supra, [396 Pa. 222, 151 A.2d 441 (1959)], Commonwealth v. Van Wright, supra, [249 Pa.Super. 451, 378 A.2d 382 (1977)]; United States v. Booz, 451 F.2d 719 (3rd Cir.1971).
General instructions on the Commonwealth’s burden of proving each element of the offense beyond a reasonable doubt, the absence of a burden of proof on the defendant, and assessing the credibility of witnesses do not adequately protect against this danger. Commonwealth v. Van Wright, supra; United States v. Burse, supra; Cf. Commonwealth v. Bonomo, supra; United States v. Booz, supra; United States v. Alston, 551 F.2d 315 (D.C.Cir.1976).

Id. (emphasis added).

Instructing a jury only that an alibi defense can raise a reasonable doubt and that it must find a defendant not guilty should it find such reasonable doubt, still leaves open the possibility that the jury will not have that reasonable doubt because it did not wholly believe the alibi testimony and drew an improper inference of guilt from its partial disbelief. Thus, I must conclude that, as in Pounds, the jury in the instant case, in the absence of an instruction that it did not have to wholly believe appellant to acquit, may have inferred guilt from appellant’s failure to establish his alibi.

I find, therefore, that an objection to the trial court’s alibi instruction would have been of arguable merit. Moreover, I believe that counsel’s failure to object could have had no reasonable basis. Thus, trial counsel was ineffective and I would vacate the judgment of sentence and remand for a new trial.

      . Ms. Oree and Ms. Turner were sisters-in-law. Ms. Turner and her boyfriend departed earlier that evening to make repairs on another house.

      . Appellant also complains that the prosecutor incorrectly commented in closing that Gloria Oree called Loretta Turner immediately following Donald Colefield’s telephone call to police. According to appellant, there was no evidence of when Gloria Oree called Loretta Turner. Appellant correctly sets forth that the prosecutor was arguing that it was impossible for appellant to perform his attested-to activities during the period following the murder until confronting Loretta Turner on the street. Irrespective of when Ms. Oree telephoned Ms. Turner, there was additional evidence as to the shortage of time supporting the inference that appellant’s testimony was incredulous concerning his actions following the murder.

      . Appellant’s remaining illustrations of alleged ineffectiveness do not warrant further comment due to the fact that they are without merit. Also, they do not merit remand for an evidentiary hearing. These alleged illustrations are as follows:
      a) Counsel’s failure to object to an erroneous jury instruction regarding appellant’s credibility;
      b) Counsel’s failure to object to an incomplete charge on voluntary manslaughter;
      c) Counsel’s failure to object to an instruction that a person ordinarily intends the reasonable and probable consequences of his actions;
      d) Counsel’s failure to object to an instruction forbidding the jury to consider involuntary manslaughter as a possible verdict;
      e) Counsel’s failure to object to an improper opinion issued by an expert witness;
      f) Counsel's failure to cross-examine certain prosecution witnesses concerning their prior criminal records;
      g) Counsel’s failure to request a jury instruction on the credibility of a witness who was intoxicated during the criminal event.

      . I do not believe such an instruction is the equivalent of charging the jury that appellant had no burden to prove his alibi, although it is a consequence thereof. See Pounds, 490 Pa. at 633 n. 16, 417 A.2d at 603 n. 16. I believe it is necessary to charge the jury of this specific consequence rather than the general principle that a defendant bears no burden of proof on alibi. In any event, neither instruction was given to the jury.

       Such an inference contravenes the presumption of innocence and the Commonwealth’s burden of proving the offense beyond a reasonable doubt. See Commonwealth v. Bonomo, supra; United States v. Ragghianti, 560 F.2d 1376 (9th Cir.1977).

      . Even if appellant were not entitled to a new trial, I would find that he is entitled to an evidentiary hearing on the issue of the testimony of the Commonwealth’s expert artist. I find that the claim that counsel should have objected to the expert’s testimony that the sketch "bore an excellent likeness" to appellant is of arguable merit. Expert testimony is admissible "when it involves explanations and inferences not within the range of ordinary training, knowledge, intelligence and experience.” Commonwealth v. Nasuti, 385 Pa. 436, 443, 123 A.2d 435, 438 (1956). However, expert testimony is not admissible if the issue involves a matter of common knowledge. Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976). Instantly, once the expert had explained to the jury the effect that emotions can have on facial expressions, I believe that it was well within the jury's capability to determine whether the sketch resembled appellant. Therefore, I would remand this case for an evidentiary hearing to determine whether counsel had a reasonable basis for failing to object to this testimony.