author: WIEAND, Judge:

text:
    650 A.2d 452
    COMMONWEALTH of Pennsylvania v. George DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 30, 1994.
    Filed Nov. 23, 1994.

      Louis B. Priluker, Langhorne, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia for Com., appellee.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

George Davis was tried non-jury and was found guilty of involuntary deviate sexual intercourse, corruption of a minor and endangering the welfare of a child. Post-trial motions were denied, and Davis was sentenced for involuntary deviate sexual intercourse to serve a term of imprisonment for not less than five (5) years nor more than ten (10) years, to be followed consecutively by a five (5) year period of probation imposed for corruption of a minor. On direct appeal from the judgment of sentence, Davis contends that (1) there was insufficient evidence to sustain his convictions; (2) the trial court abused its discretion by improperly limiting cross-examination of the victim’s mother; and (3) defense counsel was constitutionally ineffective. Davis’s principal argument, however, is that the trial court erred by refusing to permit the defense to review and introduce into evidence therapy session records made by the victim’s family counselor.

In challenging the sufficiency of the evidence to sustain his convictions, appellant argues that absent various abuses of discretion by the trial court in its evidentiary rulings, the Commonwealth’s remaining evidence would have been rendered so clearly inadequate that no reasonable trier of fact would have convicted him. Specifically, appellant argues that if his counsel had been permitted to examine and introduce into evidence the records of the victim’s family counseling therapy sessions, the victim’s testimony “would have been rendered so contradictory and biased as to render it meaningless.”

In Commonwealth v. Smith, 523 Pa. 577, 568 A.2d 600 (1989), the Supreme Court observed:

The test to be applied is whether, viewing all of the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987); Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987); Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978); Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976).
In assessing the sufficiency of the evidence to establish that a [crime] was committed and that the person or persons charged were those responsible, we are called upon to consider all of the testimony that was presented to the [trier of fact] during the trial, without consideration as to the admissibility of that evidence. The question of sufficiency is not assessed upon a diminished record. Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983); Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983); Common wealth v. Cohen, 489 Pa. 167, 413 A.2d 1066, cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980); Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979); Commonwealth v. Hoskins, 485 Pa. 542, 403 A.2d 521 (1979); Commonwealth v. Firth, 479 Pa. 333, 388 A.2d 683 (1978); Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976). Where improperly admitted evidence has been allowed to be considered by the [fact finder], its subsequent deletion does not justify a finding of insufficient evidence. The remedy in such a case is the grant of a new trial. Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975); Commonwealth v. Poteet, 434 Pa. 230, 253 A.2d 246 (1969); Commonwealth v. Gist, 433 Pa. 101, 249 A.2d 351 (1969); Commonwealth v. Pearson, 427 Pa. 45, 233 A.2d 552 (1967).

Id. at 581-582, 568 A.2d at 602-603. See also: Commonwealth v. Lewis, 424 Pa.Super. 531, 539, 623 A.2d 355, 359 (1993); Commonwealth v. DiSabatino, 399 Pa.Super. 1, 4, 581 A.2d 645, 646 (1990).

It logically follows that the sufficiency of the evidence to sustain a criminal conviction also should not be assessed upon an enhanced record, as appellant has requested. Thus, where a trial court has erroneously excluded evidence proffered by the defense, such evidence may not be added to the record on appeal. Rather, review of the sufficiency of the evidence is limited to the evidence which was admitted at trial, and upon which the fact finder’s verdict was actually based. The remedy for the erroneous exclusion of relevant defense evidence, as it is for the improper admission of evidence, is the award of a new trial.

Viewing the evidence in the light most favorable to the Commonwealth, the following facts may be discerned from the record in this case. Appellant married the victim’s mother, Barbara Davis, in 1981. Thereafter, he, his wife and the victim, P.P., resided in a one bedroom apartment located at 1147 South 47th Street, Philadelphia. According to the victim, who was fourteen years of age at the time of trial, appellant had begun sexually abusing him when he was six years old. The sexual assaults would occur on alternate Fridays, when appellant received his pay. On these occasions, appellant would go out drinking after work and usually would return home after midnight. When appellant did return home, he would be drunk, and the victim’s mother would be asleep in the bedroom. Appellant then would approach the victim, who slept on the living room sofa, and instruct him to perform oral sex. Thereafter, according to the victim, appellant “would put his dick up my butt.” These assaults ceased in July, 1986, when the family moved into a two bedroom house located at 1225 South Peach Street in Philadelphia. In May, 1989, appellant and his wife separated, and thereafter the victim disclosed the abuse. He did so for the first time in 1991 during a family therapy counseling session at the Family Institute of Philadelphia.

After careful review, we are satisfied that the testimony of the victim was sufficient to permit the trier of fact to conclude beyond a reasonable doubt that appellant had committed the offenses of involuntary deviate sexual intercourse, corruption of a minor and endangering the welfare of a child. The law in this Commonwealth is clear that the uncorroborated testimony of a sexual assault victim, if believed by the trier of fact, is sufficient to convict a defendant, despite contrary evidence from defense-witnesses. See: Commonwealth v. Poindexter, 435 Pa.Super. 509, 516-17, 646 A.2d 1211, 1214 (1994); Commonwealth v. Kunkle, 424 Pa.Super. 499, 503, 623 A.2d 336, 338 (1993); Commonwealth v. Trimble, 419 Pa.Super. 108, 113, 615 A.2d 48, 50 (1992); Commonwealth v. Ziegler, 379 Pa.Super. 515, 519-520, 550 A.2d 567, 569 (1988); Commonwealth v. Stoner, 284 Pa.Super. 364, 369, 425 A.2d 1145, 1148 (1981). Instantly, the trial court found the victim’s testimony to be credible; and our review of the record discloses that such testimony, if believed, was sufficient to establish each element of the offenses charged beyond a reasonable doubt. Appellant’s challenge to the sufficiency of the evidence, therefore, must be rejected.

At trial, the victim’s mother and appellant’s wife, Barbara Davis, corroborated in some respects testimony which had been given by the victim. On cross-examination of this witness, the following occurred:

Q. Now, during the time that you lived in the apartment there were periods of separation; right?
A. Yes.
Q. Okay. So you recall that the separation in 1984 was a brief separation?
A. Yes.
Q. And likewise with the one in 1985?
A. No, I don’t remember being separated in ’85. I remember being separated briefly when I moved into the house July 17th, 1986. He joined me, we were separated for about three months while I was pregnant in 1986. Now, you wouldn’t forget something like that, a man leaves you while you’re pregnant.
Q. And he came back in 1986; right?
A. Yes. When I moved in the house in June, he moved in with me.
Q. Okay. And that was after having been away for a while?
A Couple months.
Q. And you remember that specifically; right?
A. Yes.
Q. Because it was hard on you him being away while you were pregnant; right?
A. I never thought that I would be a woman — I thought that when I got married I would never have my daughter alone. I had my son alone.
Q. In fact, when he came back, you again joined together, you had your marriage intact again; isn’t that right?
A. We were back together.
Q. Okay. And at that time isn’t it true that you contracted venereal disease?
MR. WAGNER: Objection, Your Honor. Relevance.
THE COURT: Sustained.
You don’t have to answer.
MR. WAGNER: I ask that the question be stricken.
MS. WEIZENBAUM: Your Honor, if I may.
THE COURT: Don’t argue with me please. When I make a ruling it’s firm, do you understand me? You are going to enlighten me on the law? Move on with your next question.
MS. WEIZENBAUM: Your Honor, I—
THE COURT: Move on with your next question, ma’am,

(emphasis added).

Appellant contends that the trial court abused its discretion by refusing to permit his counsel to cross-examine Barbara Davis regarding her contraction of a venereal disease as a result of engaging in marital relations with appellant. Such questioning, appellant suggests, would have tended to refute the victim’s allegations of sexual abuse by appellant. This is so, appellant argues, because the victim would probably have been infected also with a venereal disease if, as alleged, appellant had engaged in acts of anal intercourse with him. The absence of such infection, therefore, would tend to rebut the averments of anal intercourse.

It is well settled that “ ‘[t]he scope and limits of cross-examination are largely within the discretion of the trial court and its actions pertaining thereto will not be reversed in the absence of a clear abuse of its discretion or error of law.’ ” Commonwealth v. Mobley, 424 Pa.Super. 385, 390, 622 A.2d 972, 975 (1993), quoting Commonwealth v. Buehl, 510 Pa. 363, 388, 508 A.2d 1167, 1179 (1986), cert. denied, 488 U.S. 871, 109 S.Ct. 187, 102 L.Ed.2d 156 (1988). See also: Commonwealth v. Nolen, 535 Pa. 77, 82, 634 A.2d 192, 195 (1993); Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992). However, the Supreme Court has also observed:

As a general rule, it is elementary that a party is entitled on cross-examination to bring out every circumstance relating to a fact which an adverse witness is called to prove. Peters v. Shear, 351 Pa. 521, 41 A.2d 556 (1945). In criminal cases, the right of cross-examination extends beyond the subjects testified to in direct testimony and includes the right to examine a witness on any facts tending to refute inferences or deductions arising from matters testified to on direct examination Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967), vacated on other grounds, 392 U.S. 647, 88 S.Ct. 2277, 20 L.Ed.2d 1344 (1968).

Commonwealth v. Green, 525 Pa. 424, 454, 581 A.2d 544, 558-559 (1990). See also: Commonwealth v. Snoke, 525 Pa. 295, 305, 580 A.2d 295, 300 (1990); Commonwealth v. Jubilee, 403 Pa.Super. 589, 603-604, 589 A.2d 1112, 1118-1119 (1991).

Instantly, the proposed cross-examination of Barbara Davis, regarding her contracting venereal disease from appellant, was directed to the time period after the family had moved into a new house in July, 1986, and following a period of three months during which appellant had been separated from the family. According to the Commonwealth’s evidence, however, appellant’s sexual assaults on his stepson had ceased by the time the family had moved into the new home. It seems clear, therefore, that appellant’s alleged infection of Barbara Davis occurred subsequent to the relevant time period during which he was charged with sexually abusing the victim. Under these circumstances, the trial court cannot be deemed to have abused its discretion by sustaining an objection on grounds that the question posed to Barbara Davis was irrelevant. That appellant may have had venereal disease and passed it onto his wife at sometime after his sexual abuse of the victim had stopped would not have refuted in any way the allegations made by the victim against him.

The law presumes that counsel has been constitutionally effective; and, therefore, appellant bears the burden of proving the contrary. Commonwealth v. Baker, 531 Pa. 541, 562, 614 A.2d 663, 673 (1992). See also: Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988) . Therefore, it is necessary that a defendant asserting a claim of ineffective assistance of counsel make an offer of proof “alleging sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective.” Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d 504, 505 (1989) . See also: Commonwealth v. Stanley, 534 Pa. 297, 299-300, 632 A.2d 871, 872 (1993); Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). In order to prevail on a claim of ineffectiveness, a defendant must demonstrate that: “(1) the underlying claim is of arguable merit; (2) the particular course chosen by counsel did not have some reasonable basis designed to effectuate his interests; and (3) counsel’s ineffectiveness prejudiced him.” Commonwealth v. Williams, 532 Pa. 265, 274, 615 A.2d 716, 720 (1992). See also: Commonwealth v. Carpenter, 533 Pa. 40, 45, 617 A.2d 1263, 1265 (1992); Commonwealth v. Rollins, 525 Pa. 335, 344, 580 A.2d 744, 748 (1990).

Appellant asserts that his trial counsel was ineffective for failing to make an offer of proof concerning the relevance of her proposed cross-examination of Barbara Davis as to whether the witness had contracted venereal disease from appellant. This claim is lacking in arguable merit. We have already determined that the trial court properly sustained a prosecution objection on grounds that the proposed question was irrelevant to the issues being tried. When the objection was sustained, moreover, appellant’s trial counsel attempted to argue the matter further, but was instructed by the trial judge not to argue with the court and to move on to her next question. Trial counsel was not ineffective.

Appellant also asserts that trial counsel was ineffective because she failed to request that the victim be subjected to a physical examination to determine whether his anus had ever been penetrated. In rejecting this assertion of ineffectiveness, the trial court reasoned as follows:

First, the Court knows of no rule or authority that would enable it to order a complainant to succumb to a physical examination that by its very nature would subject him or her to embarrassment or trepidation. In addition, the complainant first reported that he was a victim of sexual assault some five years after the defendant last assaulted him. While professing to possess no specialized medical skill,' it is the Court’s belief that it is highly unlikely that any injuries caused during the assaults would still be detectible [sic] some five years after the assaults ceased. Therefore, even had defense counsel requested that an examination be conducted, the request would have been denied simply because the absence of any physical sign that the complainant had been assaulted would not have been probative on the issue whether the assaults were committed. This claim is thus denied.

Trial Court Opinion at pp. 6-7. A similar claim of ineffectiveness was rejected in Commonwealth v. Perry, 403 Pa.Super. 212, 588 A.2d 917 (1991), where the Superior Court held that counsel was not ineffective for failing to petition the trial court to compel a child rape victim to undergo a medical examination in order to support the defendant’s contention that, because of the relative size of his and the victim’s sex organs, it was unlikely that the rape could have occurred without physical injury to the child. In rejecting this claim, the Superior Court reasoned that the rape statute required evidence of only slight penetration and, hence, defendant’s proposed use of medical testimony regarding the size of his and the victim’s sex organs was irrelevant. The Court, therefore, found no arguable merit in the defendant’s claim that counsel should have petitioned the trial court for a medical examination of the victim. Id. at 220-222, 588 A.2d at 921-922.

Instantly, given the time lapse of approximately five years between the sexual abuse and the victim’s disclosure thereof, we agree with the trial court that any probative value of the results of a physical examination of the victim would have been minimal. Appellant, moreover, has cited no authority that a victim of a sexual assault may be compelled, upon motion of the defendant, to undergo an invasive medical examination. Appellant’s trial counsel, therefore, will not be deemed ineffective for failing to perform a useless act. See: Commonwealth v. Mescall, 405 Pa.Super. 326, 330, 592 A.2d 687, 689 (1991); Commonwealth v. Thomas, 372 Pa.Super. 349, 353, 539 A.2d 829, 831 (1988).

Prior to trial, appellant caused a subpoena duces tecum to be issued, directed to the Family Institute of Philadelphia and seeking the records of the victim’s family therapy counseling sessions. The victim, along with his mother, sister and biological father, had undergone family counseling at the Family Institute beginning in February, 1991. It was during one of these therapy sessions that the victim revealed, for the first time, that he had been sexually abused by appellant. Counsel for the Family Institute filed a motion to quash the subpoena on grounds that its records were privileged. Following a pretrial hearing, on May 11, 1992, the trial court found that such records were absolutely privileged under the statutory sexual assault counselor privilege set forth at 42 Pa.C.S. § 5945.1. The trial court held that, even though the victim himself had consented to release of the records, other members of the family had refused to waive the privilege. The privacy interests of the victim’s family members, the court concluded, outweighed appellant’s need to have access to the records.

On appeal, appellant contends that the trial court erred by concluding that family members other than the victim could assert the statutory sexual assault counselor privilege. Once the court found that the victim had waived the privilege, appellant argues, it should have granted the defense access to the victim’s family therapy records. Access to these records was essential, appellant argues, because the records were believed to contain the clinical observation of the victim’s counselor that the victim was a “pathological liar.” Such information, according to appellant, would have corroborated defense assertions that the victim was biased, untruthful and predisposed toward fabricating allegations of sexual abuse. The records, therefore, would have been relevant for the purpose of impeaching the testimony of the victim. Accordingly, appellant urges that the trial court’s denial of defense access to these records violated his rights under the United States and Pennsylvania Constitutions to confront his accusers, to have compulsory process for obtaining witnesses, and to due process of law.

The statutory sexual assault counselor privilege provides as follows:

§ 5945.1. Confidential communications to sexual assault counselors
. (a) Definitions. — As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
“Coparticipant.” A victim participating in group counseling.
“Rape crisis center.” Any office, institution or center offering assistance to victims of sexual assault and their families through crisis intervention, medical and legal accompaniment and follow-up counseling.
“Sexual assault counselor.” A person who is engaged in any office, institution or center defined as a rape crisis center under this section, who has undergone 40 hours of sexual assault training and is under the control' of a direct services supervisor of a rape crisis center, whose primary purpose is the rendering of advice, counseling or assistance to victims of sexual assault.
“Victim.” A person who consults a sexual assault counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused or reasonably believed to be caused by a sexual assault. The term shall also include those persons who have a significant relationship with a victim of sexual assault and who seek advice, counseling or assistance from a sexual assault counselor concerning a mental, physical or emotional condition caused or reasonably believed to be caused by a sexual assault of a victim.
“Confidential communication.” All information, oral or written, transmitted between a victim of sexual assault and a sexual assault counselor in the course of their relationship, including, but not limited to, any advice, reports, statistical data, memoranda, working papers, records or the like, given or made during that relationship.
(b) Privilege.—
(1) No sexual assault counselor may, without the written consent of the victim, disclose the victim’s confidential oral or written communications to the counselor nor consent to be examined in any court or criminal proceeding.
(2) No coparticipant who is present during counseling may disclose a victim’s confidential communication made during the counseling session nor consent to be examined in any civil or criminal proceeding without the written consent of the victim.

42 Pa.C.S. § 5945.1. This privilege “prevents sexual assault counselors from disclosing confidential communications made to them by the victims of sex-related crimes. The privilege, which is the equivalent of one involving private psychotherapeutic treatment, is absolute and applies both to oral communications and to records created during the course of the confidential relationship.” Commonwealth v. Gibbs, 434 Pa.Super. 280, 283, 642 A.2d 1132, 1134 (1994). See: Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290 (1992), cert. denied, - U.S. -, 112 S.Ct. 2952, 119 L.Ed.2d 574 (1992); Commonwealth v. Eck, 413 Pa.Super. 538, 544-545, 605 A.2d 1248, 1252 (1992); Commonwealth v. Kennedy, 413 Pa.Super. 95, 109-116, 604 A.2d 1036, 1043-1047 (1992) (en banc). “[T]he general powers of the courts do not include the power to order disclosure of materials that the legislature has explicitly directed be kept confidential.” Commonwealth v. Moore, 526 Pa. 152, 159, 584 A.2d 936, 940 (1991).

Pursuant to the express terms of section 5945.1, the sexual assault counselor privilege may be waived only with “the written consent of the victim.” 42 Pa.C.S. § 5945.1(b). See: Commonwealth v. Kunkle, supra at 508-509, 623 A.2d at 341. The privilege, however, applies to the Commonwealth, as well as the defense. See: Commonwealth v. Kennedy, supra at 115, 604 A.2d at 1046; Commonwealth v. Kyle, 367 Pa.Super. 484, 503, 533 A.2d 120, 130 (1987). Therefore, “[i]n light of the absolute nature of the privilege, it necessarily precludes the revelation of protected information both to the Commonwealth and to the defense.” Commonwealth v. Gibbs, supra at 286, 642 A.2d at 1135. It has been held that where information pertaining to the victim’s sexual assault counseling is in the possession of the Commonwealth, the privilege is inapplicable. See: Commonwealth v. Miller, 399 Pa.Super. 180, 185 n. 4, 582 A.2d 4, 7 n. 4 (1990), allocatur granted, 530 Pa. 641, 607 A.2d 251 (1992); Commonwealth v. Higby, 384 Pa.Super. 619, 621-622, 559 A.2d 939, 940 (1989); Commonwealth v. Cacek, 358 Pa.Super. 381, 383-384, 517 A.2d 992, 993-994 (1986). Similarly, where the Commonwealth calls the sexual assault counselor as a witness at trial, in breach of the privilege, the defendant’s rights to confrontation and compulsory process will have been violated by denial of access to the victim’s sexual assault counseling records. See: Commonwealth v. Gibbs, supra.

Review of the record in the instant case discloses that neither the victim nor any member of his family gave consent for the disclosure of the family therapy counseling records to the defense. However, during the pre-trial hearing on the motion to quash the subpoena, it was also disclosed that consent had been given for the victim’s therapist to testify as a Commonwealth witness at appellant’s trial and that the prosecuting attorney had obtained a release from the victim’s mother granting him access to the statements of the victim contained in the family counseling records. In fact, at appellant’s trial, the family therapy counselor was called as a witness by the Commonwealth for the purpose of explaining the circumstances surrounding the victim’s disclosure of the sexual abuse and to show prior consistent statements of the victim. The trial court, however, sustained a defense objection to this testimony and ruled it inadmissible.

After careful review, we conclude that any privilege protecting the victim’s family therapy counseling records was waived by the victim and his family when they permitted the Commonwealth to have access to the same records which they sought to shield from the defense. Under these circumstances,

the rationale for affording the confidentiality interest the impregnable protection unquestionably intended by the legislature is diminished substantially. This diminishment removes the confidentiality interest embodied in the statute from its position of absolute privacy, thus rendering the privilege more akin to one extant at common law, which our Supreme Court has held must yield to a defendant’s rights of confrontation and compulsory process. See Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989) (dealing with right of access to psychiatric records under common law privilege).

Commonwealth v. Gibbs, supra at 286-287, 642 A.2d at 1135-1136 (footnote omitted). We hold, therefore, that the trial court erred by quashing the subpoena issued by the defense to the Family Institute to obtain the victim’s therapy records.

The Commonwealth argues, however, that the trial court properly denied appellant access to the victim’s therapy records because he sought those records for an improper purpose. The Commonwealth argues that even if appellant is correct in his belief that the records contain a clinical observation that the victim was a “pathological liar,” such observation would not have been admissible into evidence because expert opinion evidence on witness credibility is prohibited. In any event, the Commonwealth’s argument continues, if the trial court erred by denying appellant access to the victim’s family counseling records, he is not entitled to a new trial. Rather, the Commonwealth suggests, the most relief to which appellant is entitled is a remand to determine whether or not the error was harmless.

“The law is clear that the determination of the veracity of a witness is reserved exclusively for the jury.” Commonwealth v. Loner, 415 Pa.Super. 580, 583, 609 A.2d 1376, 1377 (1992). See also: Commonwealth v. Gallagher, 519 Pa. 291, 294, 547 A.2d 355, 357 (1988); Commonwealth v. Davis, 518 Pa. 77, 82, 541 A.2d 315, 317 (1988). In this regard, the Supreme Court has declared:

The question of whether a particular witness is testifying in a truthful manner is one that must be answered in reliance upon inferences drawn from the ordinary experiences of life and common knowledge as to the natural tendencies of human nature, as well as upon observations of the demeanor and character of the witness. See Danovitz v. Portnoy, 399 Pa. 599, 604-605, 161 A.2d 146, 149 (1960). The phenomenon of lying, and situations in which prevarications might be expected to occur, have traditionally been regarded as within the ordinary facility of jurors to assess. For this reason, the question of a witness’ credibility has routinely been regarded as a decision reserved exclusively for the jury. Commonwealth v. Shaver, 501 Pa. 167, 173, 460 A.2d 742, 745 (1983) (“It is solely the province of the trier of fact to pass upon the credibility of witnesses____”); Commonwealth v. Brockington, 500 Pa. 216, 219, 455 A.2d 627, 628 (1983); Commonwealth v. O’Searo, 466 Pa. 224, 229, 352 A.2d 30, 32 (1976) (“Traditionally, we have recognized not only the jury’s ability to determine the credibility of the witnesses but also we have placed this determination within their sole province.”).
It is an encroachment upon the province of the jury to permit admission of expert testimony on the issue of a witness’ credibility. Commonwealth v. O’Searo, 466 Pa. at 228-229, 352 A.2d at 32. Indeed, to permit expert testimony for the purpose of determining the credibility of a witness “would be an invitation for the trier of fact to abdicate its responsibility to ascertain the facts relying upon the questionable premise that the expert is in a better position to make such a judgment.” Id.

Commonwealth v. Seese, 512 Pa. 439, 443-444, 517 A.2d 920, 922 (1986). See: Commonwealth v. Purcell, 403 Pa.Super. 342, 365, 589 A.2d 217, 229 (1991) (“Today, the law is clear that an expert witness may not offer an opinion on the issue of a witness’ credibility.”) See also: Commonwealth v. Spence, 534 Pa. 233, 245, 627 A.2d 1176, 1182 (1993); Commonwealth v. O’Searo, 466 Pa. 224, 228-230, 352 A.2d 30, 32 (1976); Commonwealth v. Evans, 412 Pa.Super. 332, 335, 603 A.2d 608, 610 (1992).

“Manifestly, however, the fact of mental ‘abnormality’ [of a witness] either at the time of observing the facts or at the time of testifying will be provable, on cross or by extrinsic evidence, as bearing on credibility, often ... in the discretion of the court.” McCormick, Evidence, Vol. 1, § 44, at p. 161 (4th ed. 1992) (footnotes omitted). “Evidence of mental illness or a disability which impairs a witness’ ability to perceive, remember and narrate perceptions accurately is invariably admissible to impeach credibility, even if not adequate to demonstrate incompetency.” Cohen v. Albert Einstein Medical Center, 405 Pa.Super. 392, 405, 592 A.2d 720, 726 (1991), citing Packel and Poulin, Pennsylvania Evidence, Ch. VI, § 608.4 (1987) (collecting cases). Accordingly,

[t]he crucial determination that a trial judge must make in ruling on the admissibility of evidence of a witness’s mental instability is whether it is related to the subject of the litigation or whether it affects the testimonial ability of the witness so as to impeach him. The evidence can be said to affect the credibility of a witness when it shows that his mental disorganization in some way impaired his capacity to observe the event at the time of its occurrence, to communicate his observations accurately and truthfully at trial, or to maintain a clear recollection in the meantime. See Commonwealth v. Repyneck, 181 Pa.Super. 630, 124 A.2d 693, allocatur refused, 181 Pa.Super. xxiv (1956).

Commonwealth v. Butler, 232 Pa.Super. 283, 287-288, 331 A.2d 678, 680 (1974) (footnote omitted). See also: Commonwealth v. Mason, 358 Pa.Super. 562, 569-570, 518 A.2d 282, 285-286 (1986); Commonwealth v. Dudley, 353 Pa.Super. 615, 619-620, 510 A.2d 1235, 1237-1238 (1986); Commonwealth v. Tacker, 300 Pa.Super. 305, 307-309, 446 A.2d 627, 628-629 (1982); Commonwealth v. Duffy, 238 Pa.Super. 161, 173, 353 A.2d 50, 57 (1975).

Our review is hampered by the fact that the records of the victim’s family counseling therapy sessions are not a part of the record on appeal. We, therefore, do not know the contents of those records. However, if those records do, in fact, contain the clinical observation of the therapist that the victim was a “pathological liar,” as appellant has suggested, this diagnosis would have been relevant and admissible to impeach the victim’s credibility at trial. Webster’s Third New International Dictionary defines a “pathological liar” as “a person who habitually tells lies so exaggerated or bizarre that they are suggestive of mental disorder.” Id. at 1655. Such a diagnosis would have impacted upon the victim’s ability to perceive events and to truthfully relate the facts to which he testified at trial.

Because we do not know the contents of the victim’s counseling records, however, we are unable to determine whether any information contained therein would have been helpful and relevant to appellant’s defense at trial. As such, we cannot reach a conclusion as to whether appellant has been prejudiced by the trial court’s ruling to deny defense counsel access to these records. Under these circumstances, we deem it necessary to remand this case for an evidentiary hearing, at which appellant’s counsel, after being permitted to review the victim’s family counseling records, will be permitted to argue the prejudicial impact of the denial of access to this information prior to trial. Thereafter, the trial court must determine whether or not the error was harmless. See: Commonwealth v. French, 396 Pa.Super. 436, 454-457, 578 A.2d 1292, 1301-1302 (1990), aff'd, 531 Pa. 42, 611 A.2d 175 (1992); Commonwealth v. Meo, 362 Pa.Super. 328, 335-336, 524 A.2d 902, 905-906 (1987); Commonwealth v. Cacek, supra at 384-385, 517 A.2d at 994. If the trial court concludes, beyond a reasonable doubt, that the error could not have contributed to the verdict, and was, therefore, harmless, then the judgment of sentence may be reimposed. If, however, the trial court determines that the error was not harmless, then appellant must be granted a new trial.

The judgment of sentence is vacated, at least for the time being, and the case is remanded for an evidentiary hearing consistent with the foregoing opinion. Jurisdiction is not retained.

      . No further penalty was imposed on Davis’s conviction of endangering the welfare of a child.

      . "A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person ... who is less than 16 years of age." 18 Pa.C.S. § 3123(5). "Deviate sexual intercourse" is defined as "Sexual intercourse per os or per anus between human beings who are not husband and wife....” 18 Pa.C.S. § 3101.

      . “Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age ... is guilty of a misdemeanor of the first degree.” 18 Pa.C.S. § 6301(a).

      . “A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the first degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.” 18 Pa.C.S. § 4304.

      . Appellant has not argued that the family counseling in which the victim participated was not within the scope of the sexual assault counselor privilege, and, with respect thereto, we express no opinion.


source: Caselaw Access Project

license: Public Domain

text:
    650 A.2d 462
    COMMONWEALTH of Pennsylvania v. Randy Lee KILGORE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 11, 1994.
    Filed Nov. 23, 1994.

      Allen H. Smith, York, for appellant.
    Glenn S. Coffey, Asst. Dist. Atty., York, for Com., appellee.
    Before WIEAND, SAYLOR and CERCONE, JJ.
   WIEAND, Judge:

Randy Lee Kilgore was tried by jury and was found guilty of delivery of cocaine and possession of cocaine with intent to deliver. Post-trial motions were denied, and Kilgore was sentenced to serve concurrent terms of imprisonment for not less than four years nor more than eight years. On direct appeal from the judgment of sentence, Kilgore challenges trial and pre-trial rulings made by the trial court.

With the aid of Scott Winter, a suspect in another criminal matter, arrangements were made by state police to purchase from Kelly Jo Kilgore, the former wife of the defendant, Randy Lee Kilgore, an “eighth kilo” (approximately four and one-half ounces) of cocaine in the parking lot of the Brogue General Store in Chanceford Township, York County, on July 6, 1991. At or about 7:00 p.m. on that date, Winter and Kelly met in the parking lot, where Winter informed Kelly that he had a buyer waiting “up the road” and wanted an ounce of cocaine. The “buyer” wanted to examine this cocaine, he said and, if he were satisfied, Winter would buy an additional three and one-half ounces on his behalf. Winter then paid Kelly the sum of $1,300.00 from funds which had been supplied by the police, and Kelly got back in her car and drove away to get the cocaine.

While under surveillance by police in an unmarked car, Kelly drove to the home of her father, approximately a mile away. There, she exited her car and met her husband, Randy Kilgore. Both were observed as they walked toward a pickup truck which had been parked in the driveway. The surveilling policeman then lost sight of the Kilgores as he passed the home and turned his vehicle around out of sight of the home. When he returned, he saw the Kilgores walking away from the truck. Kelly then got into her car and returned to the Brogue General Store, where she delivered approximately an ounce of cocaine to Winter. He signalled the waiting police, who then moved in and placed Kelly under arrest. A search of her person produced a small quantity of cocaine and drug paraphernalia, but she did not have the $1,300.00 dollars which Winter had paid to her or the additional cocaine which Winter had expressed a desire to purchase.

Police then went to the home of Kelly’s father, Otis Brown, where Trooper Kurt Voggenreiter went to the back door. The back door was open, and through a screen door he could see the interior of the kitchen. When he saw someone run from the kitchen, he announced the presence of police and entered. He found Randy Kilgore in the living room and placed him in the custody of other police personnel who had entered the kitchen. With the consent of Otis Brown, the owner, the premises were then searched, but neither cocaine nor the money paid to Kelly Kilgore during the prior cocaine transaction was discovered.

Without a warrant or consent of the owner, other police conducted a search of Randy Kilgore’s truck, which was parked at the rear of the residence. They found several small bags of cocaine in a beverage cup on the front floor of the truck. The cocaine was later determined to weigh approximately three and one-half ounces. Randy Kilgore was then arrested and placed in the back of a police vehicle. He later told police that the money they were seeking was under the living room carpet. There they found $2,100.00, which included $1,300.00 in pre-recorded bills which had been paid to Kelly Kilgore.

The trial court refused to suppress the cocaine found in Randy Kilgore’s truck, and this, it is argued on appeal, was error. Our standard of review of this issue was stated in Commonwealth v. Govens, 429 Pa.Super. 464, 632 A.2d 1316 (1993), as follows:

In conducting appellate review of the ruling of the suppression court, this Court:

‘must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.’

Commonwealth v. Whitney, 511 Pa. 232, 239-240, 512 A.2d 1152, 1156 (1986), quoting Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985). See also: Commonwealth v. O’Shea, 523 Pa. 384, 395, 567 A.2d 1023, 1028 (1989), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 180 (1990); Commonwealth v. Hughes, 521 Pa. 423, 438-439, 555 A.2d 1264, 1271-1272 (1989).

Id. at 473, 632 A.2d at 1320.

With respect to searches of motor vehicles, the Pennsylvania Supreme Court has said, in Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985), the following:

While searches and seizures conducted outside the judicial process, without prior approval by a magistrate, are generally unreasonable under the Fourth Amendment, Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967); Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978), there is an established departure from the warrant requirement for certain automobile searches based on the inherent mobility of vehicles, with the consequent practical problems in obtaining a warrant prior to infringing a legitimate expectation of privacy, and on the “diminished expectation of privacy which is accorded automobiles because of their open construction, their function, and their subjection to a myriad of state regulations.” Commonwealth v. Timko, 491 Pa. 32, 38, 417 A.2d 620, 623 (1980) citing United States v. Chad wick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); see also, South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976); Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1979). Accordingly, as stated by this Court in Commonwealth v. Lewis, 442 Pa. 98, 275 A.2d 51 (1971):
To justify ... a [warrantless] search ..., an officer must have independent probable cause to believe that a felony has been committed by the occupants of the vehicle, or that it has been used in the furtherance of the commission of a felony, or the officer must have a basis for believing that evidence of a crime is concealed within the vehicle, or that there are weapons therein which are accessible to the occupants.
Id. at 101, 275 A.2d at 52; see also, Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972) citing Chambers v. Maroney, [399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) ] supra; Commonwealth v. Smith, 443 Pa. 151, 277 A.2d 807 (1971); Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970) citing Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968). Thus, where there exists probable cause related to the vehicle or its occupants, a search of the vehicle is permissible.

Id. at 7-8, 493 A.2d at 1349. See also: United States v. McGlory, 968 F.2d 309, 343 (3d Cir.1992); United States v. Salmon, 944 F.2d 1106, 1123 (3d Cir.1991), cert. denied, Washington v. United States, 502 U.S. 1110, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992); Commonwealth v. Germann, 423 Pa.Super. 393, 398-399, 621 A.2d 589, 592 (1993).

“The level of probable cause necessary for a warrant-less search of an automobile is the same as that needed to obtain a [search] warrant.” Commonwealth v. Talley, 430 Pa.Super. 351, 357, 634 A.2d 640, 643 (1993); Commonwealth v. Pleummer, 421 Pa.Super. 51, 56, 617 A.2d 718, 721 (1993), allocatur denied, 536 Pa. 622, 637 A.2d 282 (1993). In Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991), the Pennsylvania Supreme Court explained:

In this Commonwealth, the standard for evaluating whether probable cause exists is the “totality of the circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See Commonwealth v. Baker, 513 Pa. 23, 518 A.2d 802 (1986), Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The bench mark of a warrantless arrest is the existence of probable cause, namely, whether the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime. Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979). Applying that test to the within case, the veracity and basis of knowledge of those persons supplying hearsay information must be examined to determine whether there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” Commonwealth v. Baker, supra, 513 Pa. at 26, 518 A.2d at 803.

Id. at 272-273, 585 A.2d at 990. “Once the requirement of probable cause is satisfied, the exigencies regarding the inherent mobility of a vehicle and inadequate time to obtain a search warrant render a warrantless vehicle search proper even when the accused is in police custody.” Commonwealth v. Elliot, 416 Pa.Super. 499, 504, 611 A.2d 727, 729 (1992), allocatur denied, 534 Pa. 646, 627 A.2d 177 (1993). After probable cause exists, the police are not required to watch over or immobilize a vehicle while a search warrant is obtained. See: Commonwealth v. Baker, 518 Pa. 145, 149, 541 A.2d 1381, 1383-184 (1988); Commonwealth v. Camacho, 425 Pa.Super. 567, 578-580, 625 A.2d 1242, 1248-1249 (1993).

The suppression court found that police had probable cause to search appellant’s truck. The evidence showed that Kelly Kilgore had left the parking lot of the Brogue General Store to obtain cocaine and had been followed. She entered her car and drove directly to her father’s home where, without entering the home, she met her husband. The two of them then walked toward the truck. The following police car passed the home and for a few minutes was out of sight of the truck. After the police car was turned around and returned, however, Kelly and Randy Kilgore were observed walking back from the truck. Kelly then got into her car and drove directly to the parking lot of the store, where she delivered an ounce of cocaine to Scott Winter. _ Subsequently, when police searched the Brown home, they did not find any cocaine, even though Kelly had assured Scott Winter that she had an additional three and one-half ounces of cocaine to sell.

Under these circumstances, we find no error in the trial court’s finding that the police had probable cause for believing that cocaine was present in the truck. See and compare: Commonwealth v. Elliot, supra; Commonwealth v. Jenkins, 401 Pa.Super. 580, 585 A.2d 1078 (1991), allocatur denied, 528 Pa. 621, 597 A.2d 1151 (1991). Moreover, once police had probable cause to search the vehicle, a search of closed containers in that vehicle was also permissible. See: California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991); Commonwealth v. Elliot, supra; Commonwealth v. Hoffman, 403 Pa.Super. 530, 589 A.2d 737 (1991), allocatur denied, 530 Pa. 652, 608 A.2d 28 (1992).

During direct examination, the Commonwealth showed that its witness, Scott Winter, had previously been convicted of forgery, of several burglaries and of several thefts. Appellant also sought to show that Winter had been convicted of arson, but the prosecution asserted and the trial court found that Winter’s arson conviction was not crimen falsi. Therefore, the trial court excluded evidence that the witness had been convicted of arson. Appellant argues in this Court, as he did in the trial court, that because arson is a felony, a conviction thereof is admissible to attack the credibility of a witness.

In Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987), the Supreme Court adopted the following rule:

[EJvidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of confinement is within ten years of the trial date. If a period greater than ten years has expired the presiding judge must determine whether the value of the evidence substantially outweighs its prejudicial effect.

Id. at 415, 528 A.2d at 1329. See: Commonwealth v. Jackson, 526 Pa. 294, 585 A.2d 1001 (1991); Commonwealth v. Walker, 384 Pa.Super. 562, 559 A.2d 579 (1989); Commonwealth v. Flis, 369 Pa.Super. 275, 535 A.2d 157 (1987), allocatur denied, 519 Pa. 659, 546 A.2d 620 (1988). See also: Packel and Poulin, Pennsylvania Evidence, Ch. VI, § 609 (1987). Thus, it is now established that a witness may be impeached on the basis of a prior conviction only if the crime involves dishonesty or false statement. Commonwealth v. Mehalic, 382 Pa.Super. 264, 285, 555 A.2d 173, 183 (1989). “[A] witness may not be impeached on the basis of convictions for crimes not involving dishonesty or false statement.” Commonwealth v. Williams, 524 Pa. 404, 407, 573 A.2d 536, 538 (1990). See also: Commonwealth v. Penn, 497 Pa. 232, 244, 439 A.2d 1154, 1160 (1982), cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982); Commonwealth v. Corley, 432 Pa.Super. 371, 379, 638 A.2d 985, 989 (1994). Indeed, the Supreme Court has said that “the law regarding impeachment of a witness and impeachment of a defendant is consistent in prohibiting impeachment regarding prior arrests and prior convictions for crimes not involving crimen falsi.” Commonwealth v. Stokes, 532 Pa. 242, 256, 615 A.2d 704, 711 (1992).

It follows that appellant’s argument must fail. Even a felony conviction is admissible to impeach the credibility of a witness only if the crime involved dishonesty or false statement. Because the record does not enable us to determine whether the witness’s arson conviction was based on a reckless act or a dishonest act, we cannot say that the trial court erred when it excluded evidence thereof to impeach the witness’s credibility.

Appellant’s argument that the prosecution failed to establish a chain of custody sufficient to permit the cocaine to be received in evidence must also be rejected. “Physical evidence may be. admitted at trial without demonstrating to an absolute certainty the precise chain of custody.” Commonwealth v. Culmer, 413 Pa.Super. 203, 217, 604 A.2d 1090, 1097 (1992) . “Real evidence is sufficiently authenticated if ‘evidence, direct or circumstantial, establishes a reasonable inference that the identity and condition of the exhibit remained unimpaired until it was surrendered to the trial court.’ ” Commonwealth v. Schwartz, 419 Pa.Super. 251, 269, 615 A.2d 350, 359 (1992), allocatur denied, 535 Pa. 617, 629 A.2d 1379 (1993) , quoting Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980).

In the instant case, there was no evidence suggesting a break in the chain of custody of the cocaine seized from appellant’s truck. Moreover and in any event, “gaps in the chain of custody go to the weight to be given to the testimony, not its admissibility.” Commonwealth v. Bolden, 486 Pa. 383, 388-389, 406 A.2d 333, 335-336 (1979). Here, the jury could find that the cocaine received at trial was the contraband removed from appellant’s truck. The trial court did not err when it allowed this evidence to be admitted.

Finally, appellant contends that the trial court erred when it permitted Kimberly Souder to testify as an expert in analyzing and identifying the alleged contraband as cocaine. In' Commonwealth v. McCloy, 393 Pa.Super. 217, 574 A.2d 86 (1990), allocatur denied, 527 Pa. 585, 588 A.2d 508 (1991), the Superior Court reviewed the applicable law as follows:

To qualify as an expert witness, a witness need only have a “reasonable pretension to specialized knowledge,” on a subject for which expert testimony is admissible. Commonwealth v. Washington, 235 Pa.Super. 339, 340 A.2d 896 (1975). An expert’s pretension to specialized knowledge may be based upon practical, occupational, or other experiential training; the expert need not have gained expertise through academic training. Commonwealth v. Ellis, 354 Pa.Super. 11, 510 A.2d 1253 (1986); Commonwealth v. Daniels, 280 Pa.Super. 278, 421 A.2d 721 (1980). The determination of whether a witness is qualified to offer an expert opinion on a particular subject is a matter addressed to the sound discretion of the trial court, and its discretion will not be reversed absent a clear abuse of discretion. Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221 (1986); Commonwealth v. Ellis, supra; Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984).

Id. 393 Pa.Super. at 220-221, 574 A.2d at 88, quoting Commonwealth v. Pearsall, 368 Pa.Super. 327, 332, 534 A.2d 106, 109 (1987), allocatur denied, 524 Pa. 596, 568 A.2d 1246 (1989). See also: Commonwealth v. Snowdy, 412 Pa.Super. 493, 502-503, 603 A.2d 1044, 1048 (1992), allocatur denied, 533 Pa. 633, 621 A.2d 580 (1993).

In the instant case, Souder testified that she had been graduated from Pennsylvania State University with a B.S. in chemistry. Thereafter, she had undergone five weeks of on-the-job training before she began working for the Pennsylvania State Police. During this time period, she had performed between fifty and one hundred chemical analyses while under the direct supervision of another chemist. At the time of trial, Souder had been employed by the State Police for approximately six months, during which time she had performed approximately nine hundred additional chemical analyses. Although she was still on probationary status, all of her work performance reviews had been satisfactory. She had previously qualified to testify as an expert witness in both York and Dauphin Counties. Although it is true that Souder did not possess a vast wealth of forensic experience, it was sufficiently established that she possessed a reasonable pretension to specific knowledge with regard to chemical testing of suspected illicit drugs. We conclude, therefore, that the trial court did not commit an abuse of discretion when it determined that Souder was qualified to give expert testimony. See: Com monwealth v. Echevarria, 394 Pa.Super. 261, 266-267, 575 A.2d 620, 623 (1990).

Finding no error in appellant’s trial, the judgment of sentence must be affirmed.

Affirmed.

      . The record forwarded to this Court does not permit us to make a determination of the circumstances which led to Winter’s conviction for arson.

      . See: 18 Pa.C.S. § 3301.


author: OLSZEWSKI, Judge:

text:
    650 A.2d 468
    COMMONWEALTH of Pennsylvania v. Jeffrey Dale BYERS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1994.
    Filed Nov. 23, 1994.

      Nancy D. Vernon, Uniontown, for appellant.
    Mark D. Brooks, Asst. Dist. Atty., Connellsville, for Com., appellee.

      Before WIEAND, OLSZEWSKI and KELLY, JJ.
   OLSZEWSKI, Judge:

Jeffrey Dale Byers appeals from judgment of sentence after a jury found him guilty of operating a motor vehicle while under the influence of alcohol. Byers claims that there was insufficient evidence to support the guilty verdict and that the sentence imposed was excessive. We do not address the sentencing issue because we agree that the evidence was insufficient to support the guilty verdict on the driving under the influence charge.

At approximately 3:00 a.m. on Sunday, August 9, 1992, Trooper Royce Capehart of the Pennsylvania State Police spotted a car sitting in the parking lot of the Twin Rocks Lounge. The motor was running and the headlights were on, but the car was not moving. After approaching the car, Capehart noticed Byers sleeping in the driver’s seat. Since the car doors were locked, Capehart knocked on the window until Byers awoke. Capehart noticed that Byers appeared intoxicated, so he administered a field sobriety test, which Byers failed. Byers was arrested and charged with operating a motor vehicle while under the influence of alcohol. After a two-day jury trial, Byers was found guilty and sentenced to a minimum of sixty (60) days incarceration.

Byers claims that the evidence was insufficient to prove him guilty of operating a vehicle while under the influence of alcohol. In reviewing a sufficiency of the evidence claim, we view the evidence in the light most favorable to the verdict winner and determine whether there is sufficient evidence to prove every element of the crime beyond a reasonable doubt. The Commonwealth may sustain its burden of proving each element beyond a reasonable doubt using wholly circumstantial evidence. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986); Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 538-39 (1979); Commonwealth v. Price, 416 Pa.Super. 23, 26, 610 A.2d 488, 489 (1992).

The crime of operating a vehicle while under the influence of alcohol requires that the Commonwealth prove two elements beyond a reasonable doubt: (1) defendant was driving, operating, or in actual physical control of the automobile, (2) while under the influence of alcohol to a degree which rendered him incapable of safe driving. 75 Pa.C.S.A. § 3731(a)(1); Commonwealth v. Proctor, 425 Pa.Super. 527, 531, 625 A.2d 1221, 1223 (1993); Price, 416 Pa.Super. at 26, 610 A.2d at 489. The second element, that defendant was under the influence of alcohol and incapable of safe driving, is not contested in this case. Byers contends, however, that the Commonwealth failed to introduce sufficient evidence to prove the first element: that Byers was driving, operating, or in actual physical control of the vehicle. Based on our review of the record and the case law, we agree.

The current language of section 3731 states that, “[a] person shall not drive, operate, or be in actual physical control of the movement of any vehicle” while intoxicated. 75 Pa.C.S.A. § 3731(a)(1). In interpreting the phrase “actual physical control,” this Court has made it clear that actual movement of the vehicle is not required. Commonwealth v. Bobotas, 403 Pa.Super. 136, 141-142, 588 A.2d 518, 521 (1991); Commonwealth v. Crum, 362 Pa.Super. 110, 115-117, 523 A.2d 799, 802 (1987). We have also stated, however, that it is not enough to be merely sitting in the car while intoxicated. “A brief review of the cases which considered the concepts of actual physical control reveals that, at a very minimum, a parked car should be started and running before a finding of actual physical control can be made.” Price, 416 Pa.Super. at 28, 610 A.2d at 490 (emphasis in original). This case requires us to examine that minimum and determine whether the act of starting a parked car, by itself, is enough to prove actual physical control.

A review of the case law indicates that the key factor in these cases is not the mere starting of the engine; rather, it is a combination of the motor running, the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle. In a majority of cases, the suspect location of the vehicle, which supports an inference that it was driven, is a key factor in a finding of actual control. See Bobotas, 403 Pa.Super. at 141-143, 588 A.2d at 521 (finding actual physical control when the defendant was found parked in an alley, where he had pulled over on the way home, with the motor running); Crum, 362 Pa.Super. at 111-112, 523 A.2d at 800 (finding actual physical control when defendant was found sleeping in his parked car, along the side of the road, with the headlights on and the motor running); Commonwealth v. Kloch, 230 Pa.Super. 563, 575-579, 327 A.2d 375, 383-384 (1974) (finding actual physical control when defendant was found sleeping on the side of the highway, with three-quarters of his vehicle protruding out onto the highway, the headlights on, and the motor running); Commonwealth v. Farner, 90 Pa.Cmwlth. 201, 206, 494 A.2d 513, 516 (1985) (finding actual physical control when defendant was found behind the wheel, in a traffic lane, with the engine running and the brake lights activated); see also Commonwealth v. Leib, 403 Pa.Super. 223, 231-232, 588 A.2d 922, 926 (1991) (finding actual physical control when defendant was found sleeping in his car, which was not running, but was parked in the middle of the road). In other cases, the location is not a factor, but there is additional evidence showing that defendant had driven the vehicle. See Proctor, 425 Pa.Super. at 531, 625 A.2d at 1223 (finding actual physical control, even though defendant was legally parked with motor running, when a witness testified that he saw defendant driving recklessly one half-hour prior to being found). Therefore, the cases do not rely solely on the starting of the car’s engine.

Instead of focusing mechanically on whether the car’s motor is running or not running, the case law applies a common-sense approach to achieving the Legislature’s goal: public safety. This point is further illustrated in the Pennsylvania Suggested Standard jury instructions, quoted approvingly in a number of cases. E.g., Crum, 362 Pa.Super. at 115-117, 523 A.2d at 802. The instruction reads:

The crime of driving under the influence can be committed not only by a person who drives, but also by one who “operates” or is “in actual physical control of the movement” of a vehicle. A person does not drive unless he actually has the vehicle in motion, however, a person may operate or be in actual physical control of the movement of a standing vehicle. These terms are more comprehensive than the term drive. (They cover certain situations where a person under the influence is a threat to public safety even though he is not driving at the time.) Thus a person operates a vehicle if he is in actual physical control of either the machinery of the motor vehicle or the movement of the vehicle itself.

Pa.SSJI (Crim.) 173731 (emphasis added). Our courts, therefore, have properly focused on the danger that defendant poses to society in determining what constitutes actual physical control. This danger or threat to society is not shown merely by proving that defendant started the engine of a car. It is shown through a combination of the factors discussed above. The cases support the conclusion that a showing that an intoxicated defendant started a parked car, without more, is not enough to prove actual physical control. The Commonwealth must show some additional facts to illustrate that defendant was a danger to public safety.

In the present case, Byers’ guilt or innocence turns on whether he was in actual physical control of the vehicle at the time that he was arrested. The Commonwealth has proven that the engine of Byers’ car was running when Trooper Capehart found it. This fact by itself, however, is not enough to prove actual physical control beyond a reasonable doubt. Unlike defendants in Crum, Kloch, Farner, and Bobotas, Byers had not moved his car from the parking lot of the bar where he had been drinking. Byers’ case is also distinguishable from Proctor, as there is no witness in the present case who testified that Byers had moved the vehicle prior to being arrested. The only evidence that the Commonwealth has offered, in addition to the running motor, is that the headlights were on. We find that this is insufficient to raise this case to the level of cases like Crum, where the danger to society was clear. There are simply insufficient facts to prove that the defendant was a danger to public safety. In such a case, we must hold that the Commonwealth failed to meet its burden of proving beyond a reasonable doubt that Byers was in actual physical control of his vehicle.

The policy behind the drunk driving laws supports this result. The purpose of these laws is to keep intoxicated drivers off of the road and protect the public at large. See Commonwealth v. Kohl, 532 Pa. 152, 167-169, 615 A.2d 308, 316 (1992). The language of “actual physical control” was added in 1982 to broaden the reach of the statute to further protect public safety. Crum, 362 Pa.Super. at 113-115, 523 A.2d at 801. This addition made it easier to reach intoxicated drivers who were on the road and were a threat to public safety, but were not actually moving when the police found them. Id. In the present case, Byers never got onto the road and was not a threat to public safety. The Commonwealth is trying to encourage intoxicated people to “sleep it off’ before attempting to drive, yet it wants us to punish Byers for doing just that. This case is only one example of the illogical and inconsistent results we would see if this Court were to adopt a per se rule that found a defendant guilty of drunk driving for merely starting his car. Under such a mechanical application, if Byers had left the bar to call a cab using a cellular phone in his car, and needed to start the car to power the phone, the Commonwealth could charge him with drunk driving. This result would punish an individual for attempting to comply with the law. In light of the foregoing analysis, we hold that a defendant is not in actual physical control of a vehicle merely because the vehicle has been started. In the present case, the Commonwealth did not introduce enough evidence to show actual physical control. Therefore, the evidence is not sufficient to prove the first element of driving under the influence beyond a reasonable doubt.

Judgment of sentence reversed. Appellant discharged.

      . 75 Pa.C.S.A. § 3731(a)(1).

      . According to trial testimony, Byers’ blood alcohol level was 0.13%. N.T. 7/13/93, p. 39.

      . There was some dispute over whether Byers actually moved the car from its original parking spot within the lot. Byers testified that he did not move his car due to heavy rain. He sat in his vehicle and soon fell asleep. After waking up a short time later to find it still raining, he started the engine in order to turn on the air conditioning. He further testified that he turned on the lights to allow him to see the air conditioning knobs in the darkened parking lot. N.T. 7/13/93, p. 56. He then fell asleep again until Trooper Capehart knocked at his window. N.T. 7/13/93, p. 57. Notwithstanding Byers' testimony, Trooper Capehart believed that Byers had moved his vehicle. Capehart testified that the car was parked near pine trees and it did not look like a place where people would normally park. N.T. 7/13/93, p. 30. Capehart admitted, however, that the car was well within the parking lot area and he had no evidence that Byers moved the car. N.T. 7/13/93, p. 30. After the first day of deliberations, the jury foreperson asked the judge, "Is there anything written in the law that says if you put the key in the ignition of the car, that you are in control of the car?” N.T. 7/14/93, p. 84. This suggests that the jury believed that Byers had not moved the vehicle and that their disposition of the case turned on whether starting the car constituted actual physical control.


author: HUDOCK, Judge:

text:
    650 A.2d 471
    Bobbi BROTZMAN-SMITH, Appellee, v. Stephen SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 17, 1994.
    Filed Nov. 30, 1994.

      Ronnie L. Creazzo, Easton, for appellant.
    Jacqueline M. Taschner, Easton, for appellee.
    Before HUDOCK, SAYLOR and MONTGOMERY, JJ.
   HUDOCK, Judge:

Stephen Smith (hereinafter “Husband”) appeals from the February 3, 1994 order of court which dismissed his exceptions and affirmed his obligation to provide spousal and child support to Bobbi Brotzman-Smith (hereinafter “Wife”). We affirm.

Husband, age 20, and Wife, age 17, were married on January 15, 1993. Wife was pregnant at the time of the parties’ marriage. After their marriage, the couple lived with Husband’s parents. The parties separated on February 19, 1993, after only four weeks of marriage. Husband filed a complaint in annulment or divorce on April 22, 1993. Wife, who was receiving public assistance from the Department of Public Welfare (DPW), was directed by DPW to file a separate complaint for spousal support, which she did on May 14, 1993. DPW joined Wife’s complaint for spousal support as a party-plaintiff. In her answer to Husband’s complaint for annulment or divorce, which was filed May 19, 1993, and docketed on May 25, 1993, Wife requested alimony pendente lite. Due to complications with Wife’s pregnancy, scheduled conferences with the domestic relations division were delayed and rescheduled. Wife amended her complaint for support after her baby was born on July 20, 1993 to include a claim for child support. A conference was held on September 10, 1993, where Wife withdrew her complaint for spousal support and elected to proceed with her claims for child support and alimony pendente lite. On December 3,1993, the trial court ordered Husband to pay $162 per week ($55 for spousal support, $80 for child support, and $27 for arrears to DPW). The order was made retroactive to August 2, 1993. The trial court’s order also directed Husband to pay a total of $1,188 in spousal support for the period of May 14, 1993 through December 3, 1993. The order indicated that Husband’s obligations will be considered spousal support for the period from May 14, 1993 until December 3, 1993, which was the period when Wife received public assistance. As of December 3, 1993, Husband’s spousal support would be characterized as alimony pendente lite. Husband filed timely exceptions to the support order which were denied following a de novo hearing on February 3,1994. Husband then filed this appeal.

On appeal Husband raises two issues for our review:

1. WHETHER THE COURT ERRED IN HOLDING [HUSBAND] LIABLE FOR SPOUSAL SUPPORT?
2. WHETHER THE COURT ERRED IN ASSESSING [HUSBAND] AN EARNING CAPACITY FROM MAY 14, 1993, THROUGH SEPTEMBER 9, 1993, EQUAL TO HIS INCOME WITH THE UNITED STATES POST OFFICE?

Husband’s Brief, at p. 3.

Initially, we must address Wife’s claim that we should quash this appeal as interlocutory. Wife claims that since she withdrew her complaint for spousal support on the date of the domestic relations conference, September 10, 1993, the trial court’s award should be labeled alimony pendente lite, not spousal support.

We agree with Wife that orders imposing alimony pendente lite are interlocutory and hence, not appealable. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). Wife, however, overlooks the fact that DPW joined her complaint for spousal support as a party-plaintiff,' Wife was required to assign her rights under the support complaint to DPW as a condition of receiving public assistance. Recognizing that DPW was entitled to reimbursement from Husband’s support payments, the trial judge characterized Husband’s monthly obligation as “spousal support” for the period of time when Wife received public assistance. Once Wife stopped receiving public assistance, Husband’s monthly obligation was characterized as alimony pendente lite. We do not find error in this delineation between spousal support and alimony pendente lite.

Having concluded that this appeal should not be quashed, we will examine Husband’s claims on the merits. We will only examine the portion of the February 3, 1994 order which relates to Husband’s obligation to provide spousal support.

Our standard of review for support orders is a narrow one based on an abuse of discretion. Seman v. Seman, 419 Pa.Super. 20, 21-22, 614 A.2d 1189, 1190 (1992). An abuse of discretion requires more than mere error of judgment, it requires an overriding or misapplication of the law or a manifestly unreasonable exercise of judgment. Id. (citation omitted). “Where there is insufficient evidence to support the trial court’s order, the judgment is manifestly unreasonable and must be reversed.” Myers, 405 Pa.Super. 293, 592 A.2d at 341. Furthermore, the assessment of the credibility of witnesses is within the sole province of the trial court. Rock v. Rock, 385 Pa.Super. 126, 129-31, 560 A.2d 199, 201 (1989).

Husband first alleges that Wife failed to establish adequate legal cause for voluntarily leaving the marital home, thus defeating her petition for spousal support.

Wife has the burden of establishing that Husband’s conduct justified her in leaving the marital home. See, Rock v. Rock, supra. A spouse will be denied spousal support if he or she voluntarily withdrew from the marital home without “adequate legal cause.” Myers, 293, 592 A.2d at 341 (citing, Martin v. Martin, 282 Pa.Super. 484, 486, 423 A.2d 6, 7 (1980)). This Court has previously explained:

[T]he phrase adequate legal cause for leaving [the marital home] is not subject to exact definition. It must be interpreted based on the facts of each case. A spouse who over a period of time suffers psychological oppression may be harmed as much as a spouse who suffers physical injury. The law must recognize this harm and not force the oppressed spouse to remain in the unhappy environment in order to be entitled to support. On the other hand, the law should not impose on a spouse the duty of support where his or her mate departs the marital residence maliciously or casually on whim or caprice.

Clendenning v. Clendenning, 392 Pa.Super. 33, 38-39, 572 A.2d 18, 21 (1990). The party who voluntarily left the marital residence does not have to establish adequate grounds for divorce in order to sustain a right to spousal support. Myers, 592 A.2d at 341. However, a “mere allegation that cohabitation is unbearable, unsupported by facts or reasons, is not sufficient.” Martin, 282 Pa.Super. 486, 423 A.2d at 7 (quoting, Commonwealth ex rel. Lipschultz v. Lipschultz, 179 Pa.Super. 527, 529-30, 117 A.2d 793, 794 (1955)).

Applying these standards to the present case, we conclude that the trial court did not abuse its discretion when deciding that Wife demonstrated adequate legal reason to leave the marital residence. At the de novo hearing held on February 3, 1994, Wife described a fight that she and Husband had two weeks after their marriage. After this dispute, Husband and Wife did not speak to one another for one week. When the parties attempted to resolve the dispute, Husband threw a pair of shoes and a jacket at Wife and told her to “get the hell out of his house.” N.T., 2/3/94, at p. 16. Husband admitted that he told his Wife to leave the home and that he threw her jacket down the stairs at her. N.T., 2/3/94, at p. 34. Wife explained during direct examination why she left the marital home.

[WIFE’S COUNSEL]: Why did you leave the house? Why did you leave the Smith residence?
[WIFE]: Because he wanted me out.
Q. What did he say to you?
A. He told me to get out before he got home or there was going to be trouble____

N.T., 2/3/94, at p. 12. Wife later explained that she would have been afraid to stay in the marital home and wait until Husband returned from work for fear that he may harm either herself or her baby. N.T., 2/3/94, at p. 24.

. Based on Husband’s threats to “create trouble” if Wife did not leave the marital residence and the fear it generated in Wife; we believe Wife was justified in abandoning the marital home. Husband himself requested that Wife leave his parent’s house. Husband admitted that he called Wife’s mother and told her to get Wife out of his house. N.T., 2/3/94, at p. 39. We cannot conclude that Wife “maliciously or casually on whim or caprice” left the marital residence as Husband asserts. Clendenning, 132 Pa.Cmwlth. 74, 572 A.2d at 21. Furthermore, on appeal, we will not disturb the trial judge’s assessment of both Wife’s and Husband’s credibility. Rock, 385 Pa.Super. 129, 560 A.2d at 201. The trial judge, who personally observed the demeanor of the parties, was in a better position to weigh their version of what transpired on the day Wife left the marital residence.

Next, we will address Husband’s contention that the trial court erred in assessing him an income of $8.00 per hour from May 14, 1993 until September 10, 1993. On September 13, 1993, Husband began working forty hours per week with the United States Post Office making $8.00 per hour. Prior to this time, Husband worked at Youell’s Oyster House. Husband alleges that he only made $5.00 per hour working at menial labor jobs during this time frame and that the trial court should have taken further steps to determine his actual earnings prior to September 13, 1993.

So long as the amount of support is “fair, non-confiscatory, and attendant to the circumstances of the parties,” the trial court’s order of support will be upheld. Myers, 405 Pa.Super. 296, 592 A.2d at 342. The trial court must consider the spouses’ income, potential earning capacity, and other property and financial resources when calculating a support obligation. Id. at 343 (citing Goodman v. Goodman, 375 Pa.Super. 504, 508, 544 A.2d 1033, 1035 (1988)). “Earning capacity” is defined as “that amount which the person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition and training.” Goodman, 507, 544 A.2d at 1035.

At the de novo hearing, the hearing officer explained how she arrived at Husband’s earning capacity for the period May 14, 1993 through September 13, 1993, which was used in the calculation of Husband’s monthly support obligation. Her testimony was as follows:

[HEARING OFFICER]: It was more or less an assessment. What he’s making now is $8 an hour, which is I think a fair assessment.
THE COURT: So he was — prior to him going on the books, you assessed him an income?
[HEARING OFFICER]: He was working at [Youell’s] Oyster House and different things under the table, so there was no verification of what his wages were. At the time of the conference, he had just started that job, so I assessed him that income.

N.T., 2/3/94, at p. 10.

We do not find that the hearing officer’s estimate, adopted by the trial court, of $8.00 per hour for Husband’s earning capacity from May 14, 1993 until September 10, 1993 was unfair or confiscatory. The hearing officer explained that Husband was receiving income from various odd jobs, possibly “under the table” without a deduction of taxes. Husband failed to provide the hearing officer or trial court with any additional evidence or verification to support his allegation that he only made $5.00 per hour. Husband could have introduced pay stubs and W-2 tax forms to verify his actual earnings. Even without evidence verifying Husband’s actual wages during the months prior to his employment with the post office, the hearing officer could properly estimate Husband’s earning capacity at $8.00 per hour, based on all pertinent factors such as age, health, education, and training.

Order affirmed.

      . As of December 3, 1993, Wife was no longer receiving public welfare.

      . We note that the trial court’s order of February 3, 1994 does not specifically reaffirm the temporary order of support entered on December 3, 1993. However, it is clear from the record that when the trial court dismissed Husband’s exceptions and found him liable for support, it was reaffirming the temporary support order.

      . Additionally, we note that Husband's appeal is proper since the order awarding spousal support was entered in a support proceeding instituted by Wife filing a separate complaint for spousal support. Myers v. Myers, 405 Pa.Super. 290, 293-94, 592 A.2d 339, 341 (1991); see also, Ritter v. Ritter, 359 Pa.Super. 12, 16 n. 2, 518 A.2d 319, 321 n. 2 (1986).


author: CERCONE, Judge:

text:
    650 A.2d 475
    COMMONWEALTH of Pennsylvania v. David Angel ALVARADO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 24, 1994.
    Filed Nov. 30, 1994.

      Emil Giordano, Coplay, for appellant.
    John M. Morganelli, Dist. Atty., Bethlehem, for Com., appellee.
    Before POPOVICH, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgment of sentence for indecent assault and criminal trespass. We quash the appeal.

Appellant assaulted a speech and hearing-impaired woman in her home throughout the night of August 20, 1992. Appellant pled guilty, on December 9, 1993, to indecent assault and criminal trespass. Other charges against him, including rape, burglary, theft, receiving stolen property, and false imprisonment, were withdrawn. The lower court sentenced appellant on April 29, 1994. On May 27, 1994, appellant filed a petition for reconsideration. The lower court did not render a decision on this motion. On June 16, 1994, appellant filed a notice of appeal in the lower court. In his brief on appeal, appellant raises one issue for this court’s consideration:

Whether the court below abused its discretion in departing from the sentencing guidelines, in that it improperly considered the defendant’s prior conviction record and "withdrawn felony charges as reasons for departing from the guidelines, in that it did not make a contemporaneous statement of the permissible range of sentences under the guidelines and appears not to have used the correct range, and in that it did not articulate a justifiable reason for departing from the sentencing guidelines with respect to criminal trespass.

Before considering the issue appellant has raised, we will first address the timeliness of the appeal.

For determinations of guilt which occur prior to January 1, 1994, an appeal must be filed within thirty days of the order from which appeal is taken. Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A. In a criminal case, appeal is taken from the judgment of sentence. Commonwealth v. Kittelberger, 420 Pa.Super. 104, 616 A.2d 1 (1992). For determinations of guilt occurring after January 1, 1994, any post-sentence motion shall be filed no later than ten days after imposition of sentence. Pa.R.Crim.P., Rule 1410A(1), 42 Pa.C.S.A. If the defendant files a timely post-sentence motion, the notice of appeal is to be filed within thirty days of the lower court’s entry of an order deciding that motion. Id., Rule 1410A(2). If the judge fails to decide a timely filed post-sentence motion, then the appeal should be filed “within 30 days of the entry of the order denying the motion by operation of law.” Id. If the defendant does not file a post-sentence motion, the notice of appeal is to be filed within thirty days of the imposition of sentence. Id., Rule 1410A(3).

Appellant pled guilty to the charges on December 9, 1993. Although sentencing took place after January 1, 1994, appellant’s plea of guilty would constitute the determination of guilt. Since this occurred prior to January 1, 1994, appellant was required to file his appeal within thirty days of the judgment of sentence. Judgment of sentence was rendered on April 29, 1994 and was entered on the docket on May 6, 1994. Appellant did not file his notice of appeal until June 16, 1994, more than thirty days after the judgment of sentence. Therefore, the appeal is untimely.

Appeal quashed.


author: HOFFMAN, Judge.

text:
    650 A.2d 876
    COMMONWEALTH of Pennsylvania v. Wayne LAWSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 11, 1994.
    Filed Oct. 7, 1994.
    Petition for Allowance of Appeal Denied Feb. 23, 1995.

      William C. Kaczynski, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellee.
    Before OLSZEWSKI, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from judgment of sentence entered November 4, 1993, for theft by deception, and criminal conspiracy. Appellant, Wayne Lawson, presents the following issues for our review:

1. Whether the trial court erred in finding Mr. Lawson guilty of theft by deception and criminal conspiracy and in refusing to arrest judgment thereon, where the prosecution failed to establish guilt beyond a reasonable doubt either that the alleged victim was in fact deceived or that Mr. Lawson was involved in any of the illegal acts charged. And whether the trial court erred in denying Mr. Lawson’s petition for writ of habeas corpus, which raised a substantially similar sufficiency issue.
2. Whether the trial court manifestly abused its discretion in imposing an aggravated and consecutive term of imprisonment upon Mr. Lawson, where the court effectively ignored the Sentencing Code requirement that it meaningfully consider the rehabilitative needs of the defendant, where the trial court in effect punished Mr. Lawson for his “intransigence” in contesting the charges, and where the trial court failed to articulate its reasons for selecting both the aggravated range of punishment and a consecutive term of imprisonment.

Appellant’s Brief at 3. For reasons stated below, we affirm.

On the morning of September 15, 1992, the victim, Grace Rizzo, was approached by one of appellant’s co-defendants, Cheryl Johnson, in a store located in the downtown section of Pittsburgh. Ms. Johnson had an envelope which she claimed she had found in front of the Pittsburgh National Bank. Ms. Johnson said she was nervous and asked Ms. Rizzo to watch her open the envelope. The envelope contained what appeared to be a large amount of cash. Ms. Johnson refused to let Ms. Rizzo touch the money, or to take it to the postmaster, but suggested that they call Ms. Johnson’s ‘boss’ (hereinafter ‘boss’) at Mellon Bank. After Ms. Johnson’s telephone call, the two went to Mellon Bank to deliver the envelope to the boss. Ms. Rizzo was told to wait outside, while Ms. Johnson went into the bank to find her boss. The two women then went to McDonald’s to have a cup of coffee while the boss inspected the money. Ms. Rizzo was subsequently informed that the envelope contained $60,000 which the women agreed to split evenly. Ms. Rizzo spoke to the boss, who questioned her about her financial holdings. Then, upon the advice of Ms. Johnson and her boss, Ms. Rizzo relinquished $16,000 in cash as security for her share of the $60,000. In addition, Ms. Rizzo agreed to return to the bank early the next morning to cash a certified check worth $9,500 as additional security. Later that evening, Ms. Rizzo called her daughter to share her good fortune. Ms. Rizzo’s daughter immediately contacted the police.

On the following morning, Ms. Johnson and another co-defendant, Michael Johnson were arrested, one block from Ms. Rizzo’s home, in a car registered to appellant. In the trunk of the car, the police found a packet of what appeared to be money with $100 dollar bills at either end and paper in the middle.

Following his arrest, Mr. Johnson revealed that Ms. Rizzo’s money was in a hotel room, where appellant was awaiting the Johnsons’ return. After verifying the information, an arrest warrant was obtained for appellant and a search warrant for the hotel room. In the room, the police found $15,000 of the stolen money. In appellant’s pocket, they found the remaining $1,000 and a slip of paper with Ms. Rizzo’s phone number.

Appellant was arrested and charged with one count of theft by deception and two counts of criminal conspiracy. The complaint was subsequently amended to one count of theft by deception, one count of criminal conspiracy and one count of criminal attempt. Following a preliminary hearing on September 22, 1992, appellant was held for court on all charges' On January 13, 1993, appellant petitioned the court for a writ of habeas corpus, asserting that the Commonwealth had failed to establish a prima facie case. A hearing was held and the petition was denied.

On September 22, 1993, following a bench trial, appellant was convicted of all charges. Appellant subsequently filed post-trial motions. The trial court denied appellant’s written post-verdict motions but granted appellant’s oral motion to arrest judgment on the count of criminal attempt. Appellant was then sentenced to two consecutive terms of three and a half (3.5) to seven (7) years imprisonment. A motion to vacate or modify sentence was filed and denied. This timely appeal followed.

Appellant first contends that the habeas corpus court erred in permitting the victim, who had previously testified at appellant’s preliminary hearing, to give additional testimony. We disagree.

A petition for habeas corpus relief must specifically allege facts, which if true would entitle the defendant to an award of writ of habeas corpus. Balsamo v. Mazurkiewicz, 417 Pa.Super. 36, 611 A.2d 1250 (1992). However, where a defendant requests a writ of habeas corpus on the grounds that the Commonwealth has failed to establish a prima facie case, the Commonwealth may present further evidence to ensure that it has established a prima facie case. Commonwealth v. Morman, 373 Pa.Super. 360, 541 A.2d 356 (1988) (the purpose of a habeas corpus proceeding is not merely to review the prior preliminary hearing but rather to determine the legality of the existing restraint on the petitioner’s liberty). The evidence may consist of evidence previously presented at the preliminary hearing as well as any additional evidence. Id. Therefore, the Commonwealth was entitled to have the victim testify at the habeas corpus proceeding.

Appellant further argues that the testimony presented at the habeas corpus proceeding was inconsistent with the victim’s prior testimony, it should have been stricken. Appellant notes that the victim’s preliminary hearing testimony had indicated that she had been cognizant of the scheme.

A witness’ testimony may be presented as substantive evidence although it is inconsistent with her prior testimony. Commonwealth v. Hayes, 408 Pa.Super. 314, 596 A.2d 874 (1991). On cross-examination, the opposing party may use the inconsistent testimony to impeach the witness’ credibility. Id. The hearing judge, as factfinder, then weighs all the evidence and judges the credibility of the witnesses. 17 Pa.Law Encyclopedia § 37.

Here, the victim testified at the habeas corpus hearing that she had been tricked into giving the conspirators $16,000. The trial court believed the victim’s habeas corpus testimony. Moreover, the court determined that the Commonwealth had presented a prima facie case against appellant. As the trial court’s finding, is adequately supported by the record, we must deny appellant his requested relief.

Appellant next contends that the evidence at trial was insufficient to prove that the victim was deceived by the scheme. We disagree.

A defendant may be convicted of theft by deception if he intentionally obtains property from another person by deception. 18 Pa.C.S. § 3922. The Commonwealth must demonstrate not only the presence of a false impression but that the victim relied upon that impression. Commonwealth v. Imes 424 Pa.Super. 633, 623 A.2d 859 (1993).

In the instant case, the victim testified that she had believed that she would receive the $30,000 promised to her. Cf. id. (theft by deception could not be established where the State failed to present evidence that there was any victim who had been deceived by the defendant). Again, appellant notes that the victim had previously testified that she had known that she would not receive any money from the conspirators. However, the trial court as fact-finder weighed the inconsistencies in the victim’s testimony and determined that she had indeed relied upon the false impression created by the scheme. Commonwealth v. Sullivan, 399 Pa.Super. 124, 130, 581 A.2d 956, 959 (1990) (the fact-finder may believe all, part or more of none of the evidence presented). The victim’s trust in the strangers is apparent from her actions. The victim had spent the entire day with Ms. Johnson and allowed Ms. Johnson into her home. In reliance upon the assurance that she was to receive $30,000, the victim revealed her financial status to the boss and relinquished a total of $16,000 to the conspirators. See, e.g., Commonwealth v. Morin, 237 Pa.Super. 533, 352 A.2d 189 (1975), reversed on other grounds 477 Pa. 80, 383 A.2d 832 (1978) (that elderly woman had been deceived was apparent where she had given a huge sum of money to a stranger). In addition, once the victim realized that she had been conned and the police informed of the scheme, the victim fully cooperated with them in an effort to apprehend the wrongdoers and retrieve her money. Any vague suspicion or amazed disbelief in her windfall which the victim may have entertained was clearly insufficient to displace her belief that she would receive the money. Accordingly, the evidence was sufficient to demonstrate that the victim had been deceived by the scheme.

Next, appellant also argues that the evidence was insufficient to demonstrate his complicity in the scheme. We disagree.

In order to prove criminal conspiracy, the Commonwealth must show an agreement between or among co-conspirators. Commonwealth v. Allen 425 Pa.Super. 615, 625 A.2d 1266 (1993). The existence of such an agreement need not be demonstrated by direct evidence, but may be “inferentially established by showing the relation, conduct or circumstances of the parties.” Commonwealth v. Rogers, 419 Pa.Super. 122, 139, 615 A.2d 55, 63 (1992) (citation omitted). Mere association or presence at the scene of the crime is insufficient to establish conspiracy. Commonwealth v. Carter, 329 Pa.Super. 490, 499, 478 A.2d 1286, 1290 (1984). However, these factors may, in combination with others, establish conspiracy. Commonwealth v. Smith, 414 Pa.Super. 208, 216, 606 A.2d 939, 943 (1992), alloc. denied 533 Pa. 624, 620 A.2d 490 (1993) (citing Commonwealth v. French, 396 Pa.Super. 436, 578 A.2d 1292 (1990), affirmed 531 Pa. 42, 611 A.2d 175 (1992)).

In the instant case, when appellant was arrested, he had $1,000 of the stolen money as well as the victim’s home phone number in his pocket. Further, the hotel room in which appellant was apprehended, contained the remainder of the victim’s money. Moreover, appellant’s car had been used to aid in the scheme and the wad of money and paper used to deceive the victim, was kept in the trunk of his car. These facts and all reasonable inferences are sufficient to indicate that appellant was involved in the conspiracy.

Appellant also raises several challenges to the discretionary aspects of his sentence.

In order to preserve an appeal from the discretionary aspects of sentencing, certain procedures, mandated by Pa.R.A.P. 2119(f) and Tuladziecki, must be followed. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Commonwealth v. Scullin, 414 Pa.Super. 442, 607 A.2d 750 (1992), alloc. denied 533 Pa. 633, 621 A.2d 579 (1992). An appellant must preserve the sentencing issues by filing a timely motion for reconsideration of sentence and file an appellate brief in which the issues are set forth in his statement of questions presented and which includes a concise statement of reasons for allowance of appeal. See Tuladziecki, 513 Pa. 508, 522 A.2d 17; Scullin, 414 Pa.Super. 442, 607 A.2d 750. Moreover, the sentencing issues must present a substantial question for our review. Commonwealth v. Krum, 367 Pa.Super. 511, 519, 533 A.2d 134, 138 (1987) (en banc).

Initially, appellant asserts that the trial court improperly punished him for his “intransigence” in proceeding to trial. However, as appellant failed to preserve this issue in his motion for reconsideration of sentence, it is waived. See Scullin, 414 Pa.Super. 442, 607 A.2d 750.

Appellant also argues that the trial court ignored his rehabilitative needs in imposing sentence.

Although appellant has properly preserved this issue, it does not constitute a substantial question for our review. Commonwealth v. Flemings, 421 Pa.Super. 110, 617 A.2d 749 (1992), appeal granted 533 Pa. 656, 625 A.2d 1191 (1993) (claim that the trial court did not give adequate consideration to a defendant’s rehabilitative needs does not present a substantial question). Accordingly, we decline to grant an appeal of this issue.

Finally, appellant contends that the trial court failed to properly articulate its reasons for imposing consecutive sentences for the offenses charged and for sentencing appellant within the aggravated range. As appellant has properly preserved these issues for appeal and as they constitute substantial questions, we will grant an allowance of appeal on these issues. See, e.g., Commonwealth v. Hlatky, 426 Pa.Super. 66, 626 A.2d 575 (1993).

A court may impose consecutive sentences for convictions arising out of the same transaction. 42 Pa.C.S. § 9721. A single transaction is defined as “a crime or crimes which were committed by a defendant at a single time or in temporally continuous actions that are part of the same episode, event or incident, or which are conspiracy and the object offense.” Commonwealth v. Kozarian, 388 Pa.Super. 627, 566 A.2d 304 (1989) (citation omitted).

In the instant case, appellant was convicted of theft by deception and criminal conspiracy. These charges arose from the same ploy to swindle money from the victim. The trial court imposed consecutive sentences of three and a half (3.5) to seven (7) years on the two charges. While the sentences do not exceed the' statutory maximum of seven years, they are greater than those recommended under the sentencing guidelines. 18 Pa.C.S. § 106(b)(4).

The sentencing code gives the trial court discretion to sentence a defendant outside of the sentencing guidelines. However, in imposing such a sentence, the court must consider the sentencing guidelines, the background and character of defendant and the circumstances surrounding the crime. Commonwealth v. Cruz Ortega, 372 Pa.Super. 389, 539 A.2d 849 (1988). The sentence imposed should be consistent •with the need to protect the public and the rehabilitative needs of the defendant. Id. The court must also adequately state its reasons for deviating from the guidelines in a contemporaneously written statement or on the record in the defendant’s presence. Commonwealth v. Bowen, 417 Pa.Super. 340, 612 A.2d 512 (1992), alloc. denied 533 Pa. 629, 621 A.2d 577 (1993); Commonwealth v. Dotter, 403 Pa.Super. 507, 589 A.2d 726 (1991), alloc. denied 530 Pa. 639, 607 A.2d 249 (1992).

In the instant case, the trial court reviewed the guideline ranges and the presentence report and determined that appellant should receive a sentence outside of the guidelines. The trial court noted at the sentencing hearing that the victim was an elderly lady. See Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987) (robbery of defenseless 70-year old victim is a substantial aggravating circumstance which should be considered at sentencing). Moreover, appellant had a history of committing similar crimes. See Commonwealth v. Johnson, 333 Pa.Super. 42, 481 A.2d 1212 (1984) (sentencing court may consider a defendant’s prior arrests). The trial court was convinced the society could best be protected from defendant if he was incarcerated. Id. The court indicated that appellant did not respond well to probation or parole and that there was little chance of his rehabilitation. Id. Moreover, the court noted that appellant had violated his bond in the instant case by leaving Philadelphia and travelling to Ohio where he was subsequently arrested and convicted for a similar crime against another elderly woman. Id. (convictions for crimes committed subsequent to the one at issue are pertinent to defendant’s character as a convicted repeat offender and his lack of contrition). As the trial court reviewed the sentencing guideline ranges and the presentence report and adequately stated its reasons for deviating from the sentencing guidelines, the trial court did not abuse its discretion in sentencing appellant outside of the guidelines. Accordingly, we affirm judgment of sentence.

Affirmed.

      . 18 Pa.C.S. § 3922.

      . 18 Pa.C.S. § 903.

      . We note that appellant was not sentenced within the aggravated range but outside of the recommended guidelines.