author: HUDOCK, Judge:

text:
    645 A.2d 257
    COMMONWEALTH of Pennsylvania, Appellee, v. Martin STIVALA, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1994.
    Filed July 26, 1994.

      Gary B. Zimmerman, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before WIEAND, DEL SOLE and HUDOCK, JJ.
   HUDOCK, Judge:

This appeal is from the judgment of sentence imposed upon Appellant following a jury trial in which he was convicted of various crimes involving the burning of a building. Appellant was charged with three counts of arson, criminal conspiracy, and second degree murder (felony murder). Appellant was convicted of two of the three counts of arson, but was acquitted of the charge of arson with intent to collect insurance money. The jury was unable to reach a verdict on the second degree murder charge and a mistrial was granted. Post-trial motions were filed and denied by the court. Appellant was sentenced to imprisonment for four to twelve years. This appeal followed. We affirm.

The facts as summarized by the trial court are as follows:
Judy Johnson testified that she was in the bedroom of her Braddock home during the early morning hours of May 16, 1985, when she heard someone screaming. She went outside and observed that the house next to hers was on fire. She immediately alerted the fire department (N.T. 10/10/91, pp. 75-79).
Michele Smith, another neighbor, stated that she also heard someone screaming. When she looked outside, she saw a man engulfed in flames running down the street. Someone covered the man with a blanket and placed him in the back of a white car (N.T. 10/10/91, pp. 87-90).
David Peterson testified that the property in question (119 Seventh Street, Braddock) was acquired by him in 1979 or 1980 as a partial payment for work that he had performed. The house was run-down and needed extensive repair work. After discussions about the property with John Stivala, who was a general contractor, on May 5, 1983, Peterson deeded the property from himself to him and John Stivala (Commonwealth Exhibit 11). The men planned to renovate and rent the property. John Stivala and Peterson then applied for a loan, the proceeds of which were deposited into a joint checking account to be used to undertake the renovations. The renovations began and were about 70-80% complete when Peterson left town in February, 1984. Peterson testified that John Stivala never told him that he had purchased insurance on the property and that he (Peterson) heard about the fire from someone other than John Stivala within a week after it happened (N.T. 10/10/91, pp. 192-228).
Robert DeSantis, a detective with the Allegheny County Police Department, testified that based upon his experience and his investigation of the fire scene, the fire was incendiary in nature. Detective DeSantis defined incendiary as “[s]tarted with an accelerant or some other type of object.” (N.T. 10/10/91, pp. 402, 412).
John Lopez, testifying in exchange for the Commonwealth’s agreement not to charge him with any offenses arising out of the incident, stated that he, [Appellant], and Donald Dailey were fraternity brothers at California State University. A few days prior to the incident, Lopez observed Dailey on the porch of the fraternity house. Dailey was pouring gasoline on a cement block and lighting it. He started a small fire with a lit cigarette, newspaper and a small amount of gunpowder. Dailey told Lopez that he might burn down a house for [Appellant]. He then offered Lopez $100 to drive the car for him. Dailey told Lopez that after he burned the house down, [Appellant] would get the insurance money and pay $3,000 (N.T. 10/10/91, pp. 624-641).
Lopez’s next contact with Dailey was on Wednesday, May 15, 1985, when Dailey pulled into the parking lot of the fraternity house in a white Chevette. Dailey exited the vehicle and asked Lopez if he was ready to go. Lopez stated he was ready and Dailey threw some items, including a gas can, into the trunk of the car. The men left the fraternity house with Dailey driving. Dailey told Lopez that they had to stop at Stivala Construction to pick up the keys and directions to the house. When they stopped at the construction company, [Appellant] took Dailey into a back room where they had a discussion. As they were leaving, [Appellant] told Dailey to be careful. When they got back in the car, Dailey pulled a key and a piece of paper with writing on it out of his pocket and set them on the console. They then proceeded to the house in Braddock, following the directions on the piece of paper. Upon arriving at the house, the two men went inside where they found empty beer bottles, wine bottles, mattresses, burned candles, and other debris. After walking around for a short time, they left and went to Dailey’s home in the Baldwin section of Allegheny County (N.T. 10/10/91, pp. 651-657).
After eating dinner and taking a nap at the Dailey family home, the two men left and headed toward the house in Braddock. On the way, they stopped at an AM/PM Mini-mart and filled up the gas can. When they arrived at the house, Dailey exited the vehicle and retrieved the gas can from the back seat. Lopez parked the vehicle around the corner. About 10 to 15 minutes later, Lopez heard an explosion. He heard Dailey call his name. He ran to the corner where he saw Dailey engulfed in flames. He ran toward him and told him to roll on the ground. As this procedure did not douse the flames, someone wrapped Dailey in a blanket and put him in the back of a car and proceeded to Braddock General Hospital (N.T. 10/10/91, pp. 667-673).
Lopez proceeded to the hospital. While there, he was interviewed by a Braddock police officer. He told the police officer, “... that Don Dailey got out of the car and went to the side of the building to urinate and the explosion happened.” Lopez then called the fraternity house to tell his “brothers” what had happened. Initially, he called the pay phone at the fraternity house and told the student who answered to tell Al Neis to go to the telephone in Michael Varga’s room and accept a collect call. When Lopez called Varga’s telephone, Neis answered and Lopez told him that Don had been in an accident and had been injured severely when he went next to a building to urinate and the building exploded. [Appellant] then got on the other end of the phone and asked Lopez “what really happened?” Lopez stated that he told him, “... I left Don, Don went in the house and I pulled around the corner and that’s when the explosion happened, the glass, that’s when Don came out of the house on fire.” Shortly thereafter, Lopez left the hospital and returned to the fraternity house, where he arrived about 3:00-3:30 a.m. (N.T. 10/10/91, pp. 667-682). Upon his arrival, he was greeted by [Appellant] and his brother, Mark. After a discussion about what had happened, [Appellant] told him to tell the police that he had “no comment.” (N.T. 10/10/91, pp. 682-683).
Albert Neis testified that he answered Michael Varga’s phone on the night of the fire. Lopez told him that Don had been badly burned in an explosion. He testified that [Appellant] then grabbed the phone from him and said, “Lopez, what really happened.” After a short conversation, [Appellant] hung up the phone and placed another call. The first thing he said to the person on the other end was “Don got burned”; then after arguing with that person, he said, “what do you want me to do about it now?”; then after more arguing, he said, “we’re leaving right now.” (N.T. 10/10/91, pp. 869-873).
The Commonwealth offered the testimony of several fraternity brothers who corroborated the testimony of Mr. Neis. They testified that [Appellant] had complained about a piece of property located in Braddock that was a problem.

Trial Court Opinion, 4/12/93, at pp. 2-6. Dailey subsequently died from his injuries sustained in the fire. The procedural history of this case was also summarized by the trial court as follows:

The matter was originally assigned to the Honorable Patrick McFalls, who denied a defense motion to dismiss the murder charges on the grounds that the allegata, even if proven, did not constitute a sufficient basis for a finding of Second Degree Murder. With Judge McFalls’ permission, the defense appealed his order to the Superior Court, which denied the motion for an interlocutory appeal and remanded the matter to the trial court.

As Judge McFalls had been transferred to the civil division, the matter was reassigned to [Judge Raymond A. Novak]. Thereafter, the defense filed a Motion to Reconsider the decision of Judge McFalls. After reviewing the applicable case law, this court determined that as there were no compelling circumstances present in this case, it should not reverse the decision of a court of co-equal jurisdiction. Moreover, the court determined that Judge McFalls’ decision was correct and therefore, a denial of the request for reconsideration was proper.

After hearings on several pre-trial motions, which were taken under advisement pending the filing of briefs, the parties contacted the court and requested a conference. At the conference, the District Attorney stated that he intended to nolle prosse all charges against John Stivala and the homicide charges against [Appellant]; in exchange, [Appellant] would plead guilty to one count of Arson and receive a sentence of ten years probation. After hearings, arguments and the filing of briefs ..., the motions of nolle prosequi were disapproved. Subsequently, the defendants filed motions requesting that the court recuse itself. These motions were denied, as were defense Motions for Administrative Review of the Trial Judge’s Denial of the Defendant’s Recusal Motion....

The trial was then postponed by the Commonwealth due to the unavailability of several witnesses who were stationed in the Middle East during Operation Desert Storm. In the fall of 1991, the defense filed a Motion to Reconsider the denial of the Motion to Recuse. On September 24, 1991, this court denied the request for reconsideration. The defense filed a Notice of Appeal with the Superior Court. After response by the Commonwealth, the appeal was quashed.

Finally, on October 10, 1991, the trial in this matter began.

Trial Court Opinion at pp. 7-8.

Appellant raises the following issues:

I. Whether the trial court violated the United States Constitution and the Pennsylvania Constitution mandating separation of powers principles by refusing to sign a nolle prosequi presented by the District Attorney’s office which was based on the grounds that there was insufficient evidence to justify continued prosecution for murder in the second degree.

A. Whether the trial court’s unconstitutional and unlawful order required Appellant to be tried for murder joined with his trial for arson thereby denying him due process of law and a fair trial.

II. Whether the court erred in denying Appellant’s motion for recusal.

III. Whether the trial court erred in admitting hearsay statements into evidence at trial.

IV. Whether the prosecutor’s request for a stipulation so that the physical evidence need not be produced and failure to inform Appellant that the physical evidence had been lost is prosecutorial misconduct, which requires a reversal and a new trial.

V. Whether the prosecutor’s attempt to prejudice Appellant before the jury by attributing to him a pejorative and irrelevant reference to race comprises prosecutorial misconduct.

VI. Whether there was sufficient evidence to submit the charge of second degree murder for the'jury’s consideration.

A. Whether the submission of the charge of second degree murder for the jury’s consideration prejudiced the Appellant’s right to a fair trial on the charge of arson.

VII. Whether remarks by the trial court in supplemental instructions to the jury comprised an impermissible reference to Appellant’s silence.

VIII. Whether the Appellant was denied due process of law where the District Attorney’s office proceeded to trial on the charge of murder in the second degree (felony murder) after announcing in a motion to nol pros, that there was not a basis in law or fact that supported the charge of felony murder.

Appellant’s Brief at p. 3.

We first address the issue raised regarding the proceedings which took place pre-trial. Appellant claims that the court erred in denying the Commonwealth’s motion for a nolle prosequi and has devoted extensive argument to his claim. Appellant contends that the trial court was without power to deny the Commonwealth’s motion for nolle prosequi because the Commonwealth has discretion whether to prosecute a matter, and for a court to interfere with that decision is a violation of the constitutional guarantee of the separation of powers. In effect, Appellant claims that the judicial branch may not intervene here to usurp the discretion of the executive branch.

We begin our discussion by citing Pa.R.Crim.P. 313, 42 Pa.C.S. It reads in pertinent part:

(a) Upon motion of the attorney for the Commonwealth, the court may, in open court, order a nolle prosequi notwithstanding the objection of any person. (Emphasis added).

Historically, at common law, a prosecutor had the authority to enter a nolle prosequi on his own motion. See Commonwealth ex rel. Thor v. Ashe, 138 Pa.Super. 222, 11 A.2d 173 (1939). This unfettered power was modified by the Acts of May 3, 1850, P.L. 654, and the Criminal Procedure Act of 1860, which required that before a nolle prosequi could be entered, the assent of the proper court must be obtained. Id.

More recently, our Supreme Court stated in Commonwealth v. DiPasquale, 431 Pa. 536, 541, 246 A.2d 430, 432 (1968):

The grant or refusal of a petition for nolle pros and for a continuance lies within the sound discretion of the lower Court, and its action will not be reversed in the absence of an abuse of discretion. (Citations omitted).

In DiPasquale, the Supreme Court held that the rights of the defendant required that a nolle prosequi be denied, thereby compelling the Commonwealth to go to trial. The facts in DiPasquale showed that the Commonwealth had been granted numerous continuances, and, when the case was finally called for trial, the Commonwealth indicated that it would not be able to make out a prima facie case against the defendant and was therefore requesting a nolle prosequi. The trial court held that the defendant’s right to a speedy trial would be violated if the nolle prosequi were granted and it, therefore, denied the petition. On appeal, the Commonwealth contended that:

it is the District Attorney’s province and power to prosecute an indicted defendant at such time and in such a manner as he deems appropriate and wise, and consequently the lower Court had no power to order the trial to be held without the District Attorney having moved for trial, and that the trial was therefore a nullity and the verdicts of not guilty are null and void.

Id. at 540, 246 A.2d at 432. Our Supreme Court disagreed with the Commonwealth, and reinforced the principle that the district attorney’s discretion is not unfettered. Clearly, the court’s ruling is aimed at protecting the rights of defendants.

Appellant, in our case, argues that although the court could protect the rights of defendants, there is nothing to permit the court to protect the public good in denying a nolle prosequi, and thus forcing a defendant to go to trial. We disagree.

A recent Supreme Court decision, Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989), involved the decision by a district attorney not to prosecute a defendant police officer who shot an individual during an altercation at a hospital in Pittsburgh. Although the coroner recommended charges be filed for voluntary manslaughter, the district attorney refused. Subsequently, the mother of the victim filed a private complaint. This private complaint was denied by the district attorney on the grounds that there was insufficient evidence to make out a prima facie case. The trial court accepted a petition by the victim’s mother for review, but denied relief. She sought review in the Superior Court which determined that there was sufficient evidence to make out a prima facie case. The Commonwealth appealed to the Supreme Court. The Supreme Court held that the determination of the sufficiency of evidence is a judicial function, and does not implicate the prosecutorial discretion of the district attorney. The Supreme Court held:

The prosecutor in this instance never purported to predicate his decision not to prosecute upon the exercise of his prosecutorial discretion to make policy. He expressly stated that the decision to decline prosecution resulted from his determination that the evidence would not sustain a prima facie case. Thus the issue before both lower courts required an assessment of that legal judgment and not an intrusion upon prosecutorial discretion. Had the district attorney utilized policy discretion to refuse prosecution and had the lower courts reviewed that decision, the question of separation of powers would have been appropriately raised.

Id. at 209-10, 565 A.2d at 768.

We note, however, that Benz involved the rule of criminal procedure dealing with private complaints. That rule, Pa. R.Crim.P. 133, 42 Pa.C.S., gives the prosecuting attorney discretion over whether they approve or disapprove a private complaint. Rule 133 states in pertinent part:

(b) If the attorney for the Commonwealth ******
(2) Disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter the affiant may file the complaint with a judge of a Court of Common Pleas for approval or disapproval[.] (Emphasis added).

The clear language of this rule indicates that although the prosecuting attorney has discretion over whether to prosecute based upon the filing of a private complaint, that discretion is not unfettered, and necessarily involves review by the trial court.

The plain language of the rule involved in our present case, Pa.R.Crim.P. 313, 42 Pa.C.S., affords prosecutorial discretion to the Commonwealth’s attorney, but that discretion is not unfettered and is subject to review by the trial court. As we stated previously, the rule states that the trial court may order a nolle prosequi upon motion of the Commonwealth’s attorney. It is the nature of that review that is at question here.

The Commonwealth stated, in its motion for nolle prosequi, that it did not believe there was sufficient evidence to make out a prima facie case against Appellant. It was based on this rationale that the motion was made. From the Supreme Court’s decision in Benz, supra, it is apparent that the determination of whether there was sufficient evidence to sustain a prima facie case is ultimately a judicial one and subject to the trial court’s determination. That is precisely what the trial court did. It heard argument and had the record before it. Based on that pretrial state of the evidence, it determined that there was sufficient evidence to make out a prima facie case and, therefore, denied the Commonwealth’s motion for nolle prosequi We cannot say that the trial court abused its discretion in ruling as it did.

Appellant cites two decisions which we address here as distinguishable from the facts of our present case. First, Appellant relies heavily on our decision in Commonwealth v. Buonopane, 410 Pa.Super. 215, 599 A.2d 681 (1991), alloc. den., 530 Pa. 651, 608 A.2d 27 (1992). Appellant contends that Buonopane is directly on point with his argument that the district attorney’s discretion can only be overruled upon a finding of “bad faith, fraud, capricious action or abuse of power[.]” Id. at 221, 599 A.2d at 684. Buonopane involved the prosecutor’s decision to seek the death penalty in a murder case. The defendant filed a pretrial petition to review that decision, and the trial court granted the defendant’s motion after it heard testimony and found no aggravating circumstances existed to warrant treating the case as a death penalty case. On appeal, the Commonwealth argued that the trial court abused its discretion in conducting a hearing into the prosecutor’s discretionary decision. We reversed, stating that the trial court did not have the power to inquire into the nature of the case as capital or noncapital pretrial. We relied on the reasoning in Commonwealth v. Bullock, 471 Pa. 292, 370 A.2d 309 (1977), which stated that absent a pertinent statute empowering the court to review the pretrial procedure involved here, there was no authority for its action.

Buonopane is clearly distinguishable from our present case because it involved a situation where the prosecutor’s discretion was not modified by the legislature in such a way as to give power of review at that stage to the trial court. In our present case, Rule 313 does give that power in the discretionary language of the rule itself.

Finally, Appellant relies on the Supreme Court’s decision in Commonwealth v. Johnson, 507 Pa. 27, 487 A.2d 1320 (1985), in support of his position that the district attorney’s discretion should not be overruled by the trial court, which merely acts in a ministerial capacity in approving requests for immunity protection. Appellant claims that the order of nolle prosequi is similarly a ministerial act. We disagree.

Johnson was decided based upon 42 Pa.C.S. § 5947, which reads in pertinent part:

(b) Request and issuance. — The Attorney General or a district attorney may request an immunity order from any judge of a designated court, and that judge shall issue such an order, when in the judgment of the Attorney General or district attorney.... (Emphasis added)

Clearly, the language of the immunity statute requires the court to grant the immunity request based entirely upon the decision to seek it by the Attorney General or district attorney. There is no discretion given to the trial court, and clearly, therefore, the grant of an order of immunity is a ministerial act. This is unlike our present case, which involves language both in Pa.R.Crim.P. 313 and 42 Pa.C.S. § 8932, giving power to the trial court to review the Commonwealth’s attorney’s decision. We are not persuaded by Appellant’s argument.

Before we leave the discussion of this issue, we note that Appellant claims that there was error pretrial concerning the sufficiency of the evidence. After trial, Appellant seeks to attack that pretrial ruling on sufficiency. We surmise that Appellant is arguing that the error by the trial court was in permitting the case to go forward after the Commonwealth conceded that it had insufficient evidence to prove guilt beyond a reasonable doubt. This assessment by the Commonwealth came pretrial but after the grand jury investigation and coroner’s inquest. Although Appellant’s motion was for reconsideration of the trial court’s denial of the nolle prosequi, in reality it was in the nature of a habeas corpus petition claiming that he was being improperly, detained on insufficient evidence. Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980). We must not lose sight of the fact that Appellant is asking us to review a pretrial determination of the sufficiency of the evidence (by the finding of a prima facie case at the preliminary hearing) after he has been tried and found guilty of some of the charges. Although we have reviewed the trial court’s decision to deny the nolle prosequi, we have not reviewed whether there was sufficient evidence itself pretrial to determine its sufficiency. To do so would be improper since there has now been a subsequent independent judicial judgment that there was sufficient evidence. Commonwealth v. Ballard, 501 Pa. 230, 460 A.2d 1091 (1983). It is the sufficiency of the proof at trial that is relevant, once the trial is concluded.

Appellant claims in his sixth issüe that there was insufficient evidence to submit the charge of second degree murder to the jury. Appellant argues that the court should not have placed the charge of second degree murder before the jury, along with the other charges, when he claims the case law as applied to the facts would not support such a conviction. Appellant has asserted no bad faith on the part of the Commonwealth in charging Appellant with second degree murder, and he has likewise failed to support his argument that under these circumstances the mere submission of the offenses creates impermissible prejudice. Having failed to convict Appellant of the offense of second degree murder, the jury obviously was able to assess the facts and law, but was unable to render a verdict. Moreover, after trial, the Commonwealth agreed to nol pros the second degree murder charge. We perceive no prejudice and find that Appellant’s argument lacks merit.

Next we address Appellant’s second issue, that the trial judge abused his discretion in failing to recuse himself after defense motions pretrial. The trial court denied Appellant’s motion to recuse and also denied a motion to convene a court en banc to consider the recusal issue. Appellant presented a motion to President Judge Zavarella to remove the trial judge, and the motion was denied. Approximately two years later, Appellant moved the court to reconsider the motion to recuse, which was denied. As our Supreme Court stated in Reilly by Reilly v. Southeastern Pa. Tramp., 507 Pa. 204, 221-22, 489 A.2d 1291, 1300 (1985):

It is incumbent upon the proponent of a disqualification motion to allege facts tending to show bias, interest or other disqualifying events, and it is the duty of the judge to decide whether he feels he can hear and dispose of the case fairly and without prejudice because we recognize that our judges are honorable, fair and competent. Once this decision is made, it is final and the cause must proceed. The propriety of this decision is grounded in abuse of discretion and is preserved as any other assignment of error, should the objecting party find it necessary to appeal following the conclusion of the cause.
If the cause is appealed, the record is before the appellate court which can determine whether a fair and impartial trial were had. If so, the alleged disqualifying factors of the trial judge become moot. (Emphasis in original)

Our task, then, is to determine whether Appellant received a fair trial. We note, however, that Appellant has failed to cite to any pertinent portions of the voluminous trial record in support of a claim that he did not receive a fair trial. Although we may consider this an undeveloped argument, pursuant to Pa.R.A.P. 2119, 42 Pa.C.S., and Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982), we nevertheless reviewed the trial transcript in order to evaluate Appellant’s co-defendant John Stivala’s sufficiency claim and will, therefore, address Appellant’s recusal claim. After having reviewed the entire transcript of the trial, we are convinced that Appellant received a fair trial. Several witnesses were called by the Commonwealth with extensive cross-examination by counsel for both Appellant and John. Several objections were lodged by all counsel and extensive side-bar conferences on and off the record were held. Taken in its entirety, there is nothing to indicate that Appellant’s trial was anything less than fair. Therefore, Appellant’s claim fails.

Next, Appellant claims that the trial court improperly admitted hearsay statements into evidence. Appellant claims that Michael Juliano, John Lopez, Patrick Ferrell, Hubert Ramsey, Richard Rhodes, and Albert Neis all gave improper testimony implicating Donald Dailey. It is hornbook law that hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is inadmissible unless there is a recognized exception under which the statement may be admitted. One such exception is the co-conspirator exception which states that:

statements by a co-conspirator [may be] admitted against an accused if the statements are made during the conspiracy, in furtherance thereof, and where there is other evidence of the existence of a conspiracy.

Commonwealth v. Moyers, 391 Pa.Super. 262, 267, 570 A.2d 1323, 1326 (1990). This definition necessarily involves the determination of three elements: (1) other evidence of conspiracy; (2) during the conspiracy; and (3) in furtherance of the conspiracy.

Appellant complains that nine (9) statements were improperly admitted at trial: (1) Dailey told Juliano that he would burn down a house for $2,000, and Dailey asked Juliano to give him a ride to the property; (2) Dailey told Lopez he might burn a house down and asked Lopez to drive him. Dailey also said that he would get $3,000 for- burning the house and Dailey would give Lopez $100 for helping him; (3) Dailey asked Ramsey how to burn a house and told Ramsey that he was going to do it for Appellant; (4) Dailey told Rhodes that he would not attend a softball game because Dailey was going to burn a house down for $3,000; (5) Lopez told Neis that Appellant told Lopez not to talk to the police; (6) Appellant told Juliano that the house was a bad investment and would pay several thousand dollars to burn it; (7) Appellant told Ferrell that he did not know whether Dailey would go through with burning the house down; (8) Appellant told Dailey to be careful, when Dailey and Lopez came to pick up the keys and directions to the house; (9) Appellant asked Lopez “what really happened?” when Lopez called the fraternity house from the hospital on the night of the fire, and Appellant told someone who answered the phone registered to John Stivala, “Don got burned.” (Appellant’s Brief at pp. 27-28, 30-31).

Of the statements listed above, numbers 6 through 9 are statements made by Appellant to persons who testified at trial. They are statements by a party and are, therefore, admissions. See Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982). The court properly admitted these statements as an exception to the hearsay rule. The remaining statements are made by either Dailey or Lopez, who are not parties. These statements are clearly out-of-court statements offered to prove the truth of the matters asserted, that is, whether Dailey conspired with Appellant to burn a house down for money. To be admissible under the co-conspirator exception to the hearsay rule, there must be sufficient independent evidence of the conspiracy. The alleged conspiracy in this case involves burning a house down to collect insurance proceeds. Our courts require that the existence of a conspiracy be established by a preponderance of the evidence. See Commonwealth v. Cherpes, 360 Pa.Super. 246, 520 A.2d 439 (1987), alloc. den., 515 Pa. 612, 530 A.2d 866.

In our present case, the other evidence at trial which establishes the existence of a conspiracy for purposes of the co-conspirator exception was that John Stivala and Appellant were overheard by Fazekas, one of John Stivala’s employees, complaining about the property as a bad investment. John Stivala took out an insurance policy on the property in February, 1985. Appellant mentioned to Juliano that he owned the house and that the renters were not paying enough to keep up the mortgage payments. In March 1985, in a conversation at the fraternity house, Appellant said he would be willing to pay someone to burn the house down so that the insurance could be collected. On the night of the fire, Appellant spoke to John Lopez, who was calling from the hospital to say that Dailey had been burned in the fire. Appellant asked, “What really happened?” Lopez told Appellant that the house was burned in a big fire. Lopez and Dailey drove to Stivala Construction on the night of the fire. Dailey went into the back room, and when he came out Appellant told him to be careful. After Appellant had learned of the fire and Dailey’s injury, Appellant placed a phone call at 1:50 a.m. to a number registered to John Stivala, and the first words upon connection of the call were, “Don got burned.” This evidence is sufficient independent evidence of a conspiracy to satisfy the first prong of the test for the co-conspirator exception. Appellant does not challenge either of the other two requirements of the co-conspirator exception. Taken as a whole, we agree, therefore, with the trial court that there was sufficient independent proof of the conspiracy, and we need not address the other requirements of this exception. The trial court properly admitted statements 1 through 5 above as statements by a co-conspirator.

In Appellant’s fourth issue he claims that there was prosecutorial misconduct committed when the Commonwealth stipulated to physical evidence collected at the fire scene without informing Appellant that the evidence had been lost. The record reflects that during the cross-examination of Robert DeSantis, county police officer acting as fire marshal at the time of this fire, Officer DeSantis admitted that, after having seized a gas can and other physical items from the scene, he placed them in containers or bags and placed them in the trunk of his car. These items remained there for several hours while he conducted further investigation on the fire. At some point, those items were transferred to the police department who then sent them to the crime lab for evaluation. Officer DeSantis testified that the items were then placed in an evidence locker. Appellant’s counsel questioned Officer DeSantis extensively on the procedures he used to secure the items, as well as the significance of gas fumes found on those items tested by the crime lab. Officer DeSantis testified that it would be possible to contaminate an item with fumes if the containers were not air tight. Officer DeSantis then testified that he was not able to locate the gas can or other items sent to the crime lab. An extensive sidebar took place during which Appellant asked for a mistrial.

The record shows that before trial the Commonwealth and defense counsel agreed not to require the physical presence of the gas can and other physical items obtained at the scene or from Dailey himself. When it became known that the physical items were missing, Appellant moved for a mistrial stating that the Commonwealth should have informed him that the items were missing.

Essentially, Appellant argues that the Commonwealth had a duty to disclose evidence under Pa.R.Crim.P. 305, 42 Pa.C.S. All parties agreed that, at the time they agreed not to require the physical presence of these items, the Commonwealth did not know they were missing. The Commonwealth admitted that, at the point when the jury was selected, someone went to locate these items and it was at that point they were discovered to be missing. The Commonwealth stated that it did not inform the defense because it did not consider it important. The trial court ruled that, although the Commonwealth probably should have mentioned it, this was not a serious enough discovery violation to warrant a mistrial. The parties agreed to stipulate that all the physical evidence was missing. The court so informed the jury. Likewise, the court permitted the defense to cross-examine witnesses as they felt necessary concerning the evidence as having been missing. This was done most effectively. Officer DeSantis had conceded that it was possible that gas fumes could have been found on the items as a result of their having been in his trunk for several hours. He was unable to remember whether the gas can had a lid.

If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

Pa.R.Crim.P. 305(E), 42 Pa.C.S. After having reviewed the testimony concerning the physical evidence, it is apparent that Appellant effectively cross-examined the witness concerning the missing items. This was to the benefit of Appellant. We do not perceive any abuse of discretion by the trial court in denying Appellant’s motion for a mistrial.

Next, Appellant claims that the Commonwealth committed prosecutorial misconduct because of a reference in testimony, by a Commonwealth witness, to the tenants of Appellant’s house as “black”. Appellant contends that the racial reference improperly prejudiced him. During questioning of Michael Juliano, the Commonwealth asked him:

[THE COMMONWEALTH]: Did he [Appellant] characterize any of his potential renters in any particular way? A. He mentioned the fact that they were black and—

N.T., 10/31/91, p. 497. At this point the defense objected and an extensive sidebar conference took place during which both sides argued concerning this testimony. The Commonwealth had expected the witness to say that Appellant had referred to these tenants as “niggers”.

It is central to our concept of a fair trial that the jury must decide the case on the basis of properly presented factual issues, and that extraneous and irrelevant matters should be avoided. Appeals to racial or religious prejudice are especially incompatible with the concept of a fair trial because of the likelihood that reason will be dethroned and that bias and emotion will reign.

Commonwealth v. Tirado, 473 Pa. 468, 472-73, 375 A.2d 336, 338 (1977). Although Appellant would have us find that the reference to “black” tenants was sufficient to warrant a mistrial, we disagree and find that the trial court’s disposition of the matters adequately addressed the situation, and adopt that portion of the trial court’s opinion as follows:

Testimony that [Appellant] referred to the tenants of 119 Seventh Street as “niggers” would have been relevant and probative of whether his state of mind was reckless, specifically whether he disregarded a risk of damage to Mrs. Johnson’s immediately adjacent frame home such that considering the circumstances known to him, his disregard involved a gross deviation from the standard of conduct that a reasonable person would observe in the [Appellant’s] situation. The prosecutor violated no discovery rule as he was unaware of this information until immediately prior to calling the witness. Nevertheless, because some of the jurors were black, the court found that fairness required that he should have appraised the defendants of this fact before eliciting the testimony from the witness. The witness, however, did not used [sic] the word “nigger” as the prosecutor expected him to do. The witness used the word “black”. Given the timely objection and the court’s ruling, the expletive was never elicited.
The court’s instruction to the jury occurred the next morning after the trial was recessed upon this objection. The court was careful not to repeat any reference to race. Moreover, the court took the extraordinary measure of having an extensive offer of proof with regard to the remaining witnesses placed on the record before the witnesses were called in order to fully appraise the defendants to any facts which the prosecutor learned immediately prior to calling the witness.

Trial Court Opinion at pp. 25-26.

In Appellant’s seventh issue, he claims that the trial court improperly instructed the jury by referring to his silence. More specifically, Appellant complains of a supplemental instruction given by the court in response to the following jury question: “How much common sense and circumstantial evidence should be used in the jury’s decision. Possibly redefine circumstantial evidence, jurors duty as judges of the facts and what is proof?”. N.T., 10/30/91, p. 199. We note that when evaluating a jury charge, we must read it in its entirety and not look at isolated excerpts. Commonwealth v. Prosdocimo, 525 Pa. 147, 578 A.2d 1273 (1990). “The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration.” Id. at 150, 578 A.2d at 1274.

Appellant claims that the following portion of the supplemental instruction improperly referred to his silence:

How do you know what a person’s intention was? One way you know is when they tell you what their intention is. But often times you have no idea what a person’s intention is based upon his words because you don’t have his words to consider. So in order to determine what was on a person’s mind you consider circumstantial evidence, such as what the person did to indicate to you what was in the person’s mind.

N.T., 10/30/91, p. 201. We have reviewed the entire supplementary instruction which covered redefining direct and circumstantial evidence and reasonable doubt. We find that in context as a whole, this instruction accurately reflects the law and does not improperly implicate Appellant’s silence.

Finally, Appellant argues that his due process rights were violated when the Commonwealth proceeded to trial on the second degree murder charge, despite its statement that neither the law nor the facts supported such a charge. While similar to Appellant’s first issue, the difference we perceive here is that Appellant would have us find after trial that the conduct of the Commonwealth in pursuing charges was so egregious as to deprive Appellant of due process of law in just facing those charges.

This is not a case in which charges were filed that had no basis in fact or law relative to the case. The charge of felony-murder was filed to charge Appellant with responsibility for the death of a co-actor who died during the commission of the underlying crime of arson. Appellant bases his claim on the reasoning that the Commonwealth moved for a nolle prosequi, stating there was insufficient evidence to sustain a conviction. The trial court extensively examined the facts and law and determined that there was sufficient evidence to hold Appellant for trial on the charge of second degree murder. We agree. There is no showing of bad faith on the part of the Commonwealth, and the law is not so clear as to state unequivocally that no responsibility lies for a co-actor not present at the scene of the felony. To that end, we adopt the following portion of the trial court opinion which discusses the law of felony murder and holds that Appellant’s due process rights were not violated:

In Commonwealth v. Bolish, 391 Pa. 550, 138 A.2d 447 (1958), the Supreme Court of Pennsylvania held that an accomplice to an arson who actively participated in an arson and was present at the scene, was responsible for the death of his co-actor under the felony-murder doctrine, even though the co-actor’s death resulted from his own act in perpetration of the arson. While the fact of the co-arsonist’s presence at the scene was an important factor in the Bolish decision, Bolish leaves unanswered the question of the responsibility of an accomplice if he is not present at the scene. The Commonwealth had heretofore argued, and we believe correctly, that Bolish should not be interpreted to preclude the application of the [felony-murder] doctrine to an accomplice who was not at the scene. Judge McFalls ruled that a co-felon not present at the scene is also culpable under the felony-murder rule.
Despite the fact of Judge McFalls’ decision and the Superior Court’s refusal to review that decision, the District Attorney took it upon himself to re-study the matter and engage in a nationwide search of the law of other states. To that end, the Commonwealth cites two cases: Woodruff v. California, 47 Cal.Reporter 291, 237 Cal.App.2d 749 (1965), and Missouri v. Light, [577] S.W.2d 134 (1979). It is our understanding that when there are no binding precedents in the case law of Pennsylvania, it is proper to look to other jurisdictions for guidance. Though these decisions are not binding, their reasoning is often helpful.

[In Missouri v. Light], the Missouri Court of Appeals reversed a manslaughter conviction under a junior grade version of the felony-murder doctrine known loosely as the misdemeanor-manslaughter doctrine for the death of a co-participant in a misdemeanor who was electrocuted while climbing a telephone pole for the purpose of ^stealing wire. The Court found that the defendant had been killed by an intervening agency which had the effect of thwarting rather than furthering the commission of the felony, a result similar to our Supreme Court’s decision in the famous case of Commonwealth v. Redline, [391 Pa. 486] 137 A.2d 472 (1958). The Court’s decision does not hinge on the fact that the co-participant was present at the scene of the crime. In fact, Light has an extensive discussion of the factor of a co-participant’s presénce at the scene in the application of the misdemeanor-manslaughter doctrine. What is even more interesting is that in considering' the effect of presence at the-scene of the crime on the application of the doctrine, the Missouri Court of Appeals discusses at length the decision of our own Supreme Court in Bolish. After reviewing Bolish, the Missouri Court of Appeals concludes:

... it is doubtful, however, that defendant’s criminal responsibility for the death of his accomplice should depend upon whether or not the defendant was present. Any [causal] connection with the death, and any culpability therefore, would seem to be the same whether the defendant was or was not a witness to the unintended demise of his co-perpetrator if ... the defendant had sent two arsonists to the scene, could it be plausibly maintained that the defendant was blameless for the death but that the companion of the decedent was culpable? It seems unlikely. Missouri v. Light, supra, 577 S.W.2d at 138.

The only case submitted to us by the Commonwealth which discusses the factor of “presence at the scene,” concludes that criminal culpability for the death of a co-actor should not depend on the presence of the actor at the scene. This reasoning supports Judge McFalls’ decision, and it does so by analyzing and interpreting the very case which is at issue, Commonwealth v. Bolish. As the Missouri Court of Appeals points out, the recent trend in the application of the felony-murder doctrine has been to bar application of the doctrine in cases where the decedent was a willing participant in the underlying felony and the death was caused by an outside agency, whether human or natural, which had the effect of thwarting rather than furthering the underlying felony. In the case at bar, the death of Donald Dailey was allegedly caused by the fire, a product of the alleged felony.

Finally, consider the following hypothetical case. A businessman hires two vagrants to burn down the factory of his competitor. During the course of the arson, one of the vagrants dies by his own hand. Under the interpretation of Bolish urged upon us by the parties, the second vagrant would be culpable for the murder of the first, but the businessman who had solicited the vagrants to commit the arson would not unless he was foolish enough to be present at the scene of the crime. Can this possibly be just? Such an interpretation of Bolish is not only wrong, it’s absurd.

Trial Court Opinion, 7/13/89, pp. 19-22.

Judgment of sentence affirmed.

      . Under 18 Pa.C.S. §§ 3301(a)(l)(i), 3301(c)(2) and 3301(c)(3).

      . 18 Pa.C.S. § 903.

      . 18 Pa.C.S. § 2502(b).

      . After trial, the court granted a nolle prosequi to this charge on motion of the prosecution.

      . We note that this is hearsay within hearsay. To be admissible, each part of the statement must be admissible under a recognized exception. See Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982). Appellant’s statement to Lopez not to talk to the police is an admission by Appellant. Lopez agreed to help Dailey set the fire by driving him to the house. Dailey is clearly a co-conspirator with Lopez. Lopez’s statement, then, is admissible as a statement of a co-conspirator.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    645 A.2d 269
    In re A.J. ADAMS. Appeal of A.J. ADAMS.
    Superior Court of Pennsylvania.
    Argued May 26, 1994.
    Filed July 28, 1994.
    Petition for Allowance of Appeal Denied Dec. 19, 1994.

      Chris R. Eyster, Pittsburgh, for appellant.
    Kenneth A. Zak, Asst. Dist. Atty., Erie, for Commonwealth, participating party.
    Before BECK, HUDOCK and CERCONE, JJ.
   BECK, Judge:

This is an appeal from a judgment of sentence imposed for two counts of criminal contempt.

The trial court held appellant, A.J. Adams, in direct criminal contempt of court on two separate occasions during a trial in which appellant was acting as defense counsel. Following the trial, the court imposed two $300 fines and two consecutive 90 day probationary sentences with the condition that appellant undergo a drug and alcohol assessment as well as a psychological evaluation. The superior court granted a stay of sentence. The trial court granted appellant’s request for modification to the extent that it made the two probationary sentences concurrent and deferred the psychological evaluation. Appellant filed a timely appeal.

Appellant is a first assistant public defender who represents indigent defendants in Erie County. In this case, appellant was representing Ruben Garcia who was charged with possession of cocaine and possession with intent to deliver cocaine. Appellant argued that a police informant planted the cocaine in his client’s pants and vehicle. Appellant also argued that the beeper found on Garcia belonged to someone else and was being used for legitimate purposes.

An initial problem developed on the first day of trial after appellant began to develop the theory that Garcia was using the beeper for legitimate purposes. The trial judge observed that Garcia’s interpreter had a beeper that she had placed on the defense table in view of the jury. The trial court properly admonished the interpreter and appellant and directed them to remove the beeper. In light of the defendant’s position, the otherwise harmless presence of the beeper took on symbolic significance.

On the second day of trial, the trial judge admonished appellant at sidebar for starting to “carry on.” Shortly thereafter, the court was conducting an in-chambers discussion and an examination of a prosecution witness at which appellant became agitated. In chambers, the court warned him to calm down. A few minutes later, the court again warned him to be careful. The court indicated that while still in chambers appellant became extremely agitated and started shaking his head in an exaggerated fashion, raising his voice, and making gestures indicating his unhappiness with the witness’ testimony. At that point, the trial judge asked everyone to leave his chambers in order to talk privately to appellant about his conduct.

Later in front of the jury, appellant portrayed exaggerated expressions of “extreme surprise” and disagreement in response to certain testimony. Appellant had just heard this same testimony at the in camera hearing. At one point, appellant flung his hands up and shook his head in order to convey his disbelief with the witness’ testimony. The prosecution objected. At sidebar, the court expressed its shock at the inappropriateness of appellant’s conduct and indicated that it would address the issue with appellant after the trial.

Appellant then refused to stop addressing a question to a witness when the trial judge interrupted to clarify what was becoming a confusing examination. Appellant raised his voice to speak above the court. He refused to stop speaking a second time as well. The court was forced to remove the jury from the courtroom and once again admonish appellant for his increasingly inappropriate conduct. The court warned appellant that the next time he failed to perform his role properly, the court would hold him in contempt.

On the morning of the third day of trial, appellant continued with the histrionics by making faces in front of the jury displaying his displeasure with a line of questioning that the court allowed the prosecution to follow. At this point, the court called for another sidebar discussion where it held appellant in contempt.

Later that same day, appellant made a statement in his closing argument indicating his personal belief about Garcia’s knowledge of the drugs in his possession. The prosecution objected and the court appropriately warned appellant and instructed the jury. A few minutes later appellant made another statement of personal opinion. The prosecution once again objected. The court then held appellant in contempt for a second time.

Appellant raises three issues on appeal: 1) whether the trial court erred in holding appellant in direct criminal contempt of court; 2) whether appellant’s counsel was ineffective for failing to request at sentencing that the trial judge recuse himself; and 3) whether the trial court abused its discretion in sentencing appellant. For the reasons stated herein, we affirm.

First, appellant argues that the trial court erred in holding him in criminal contempt of court. In order to sustain a direct criminal contempt citation, there must be proof of four elements beyond a reasonable doubt: 1) misconduct; 2) in the presence of the court; 3) committed with the intent to obstruct the proceedings; 4) which obstructs the administration of justice. Commonwealth v. Martorano, 387 Pa.Super. 79, 86-87, 563 A.2d 1193, 1197 (1989), allocatur denied, 529 Pa. 630 and 632, 600 A.2d 950 and 952 (1991). When reviewing the propriety of a contempt conviction, we place great reliance upon the discretion of the trial judge; therefore, we are confined to a determination of whether the facts support the trial court’s decision. Id.

The first element is misconduct. Misconduct is behavior that is “inappropriate to the role of the actor.” Commonwealth v. Garrison, 478 Pa. 356, 372, 386 A.2d 971, 979 (1978). “An attorney engages in misconduct if his behavior is calculated to hinder the search for the truth.” Id. Appellant’s behavior which the trial court characterized as “histrionics” was inappropriate for an attorney in court because it distracted from the issues at trial. Appellant’s behavior forced the court to delay the proceedings a number of times in order to attempt to have appellant behave properly. Appellants conduct also hindered the search for the truth. Appellant’s behavior during closing arguments was also inappropriate because it violated an order from the court as well as the rule that counsel is not permitted to argue alleged personal belief concerning credibility of witnesses or the merits of the case. Appellant’s insertion of his opinion also hindered the search for the truth because it served to focus the jury’s attention on his personal opinion rather than on the facts in question.

The second element requires the behavior to occur in the presence of the court. Appellant’s behavior occurred during trial in the presence of the jury and the trial judge.

The third element requires that the misconduct occur with the intent to obstruct the proceedings. There is wrongful intent if the contemnor “ ‘knows or should reasonably be aware that his conduct is wrongful’ ” Id. (citations omitted). It does not matter that appellant was acting in good faith by zealously defending his client. Commonwealth v. Falkenhan, 306 Pa.Super. 330, 339-40, 452 A.2d 750, 755 (1982), cert. denied, 464 U.S. 803, 104 S.Ct. 49, 78 L.Ed.2d 69 (1983). After repeated warnings from the trial court as to the inappropriateness of his behavior during trial and closing argument, appellant knew that his conduct was wrongful. The court also points out that appellant is an experienced defense attorney. As an attorney with great trial experience, he should reasonably have been aware that his conduct was wrongful because it resulted in objections from the prosecutor and serious warnings from the court. An experienced trial attorney, such as appellant, should reasonably be aware that when the court warns that certain conduct is contemptuous, the conduct is wrongful.

The fourth element requires that the misconduct result in an obstruction of the administration of justice. In order to find such an obstruction, it is sufficient that the conduct in question interfere with or otherwise disrupt the orderly conduct of a court proceeding. Id. Appellant’s conduct obstructed the administration of justice because it disrupted the proceedings by forcing the jury and the trial judge to focus on his histrionics rather than on the issues of the case. The trial court points out that appellant’s conduct in front of the jury was an attempt to make it “A.J. Adams’ trial” rather than an adversarial proceeding. As such, he was subverting the truth-seeking process. His behavior leading up to the contempt charges also resulted in delays during the trial. His theatrics caused numerous interruptions including sidebar discussions and the removal of the jury from the courtroom. Similarly, the first contempt charge resulted in a sidebar discussion that delayed the trial. Appellant’s conduct during closing argument required two objections by the prosecution, two instructions to the jury, and a sidebar discussion. Appellant’s conduct caused constant delays and interfered with and disrupted the orderly conduct of the proceedings; therefore, his conduct obstructed the administration of justice.

Appellant’s behavior which the court held contemptuous was misconduct in the presence of the court that was committed with the intent to obstruct proceedings and it obstructed the administration of justice; therefore, the trial court did not err in holding appellant in direct criminal contempt of court.

Second, appellant argues that his counsel was ineffective for failing to request that the trial judge recuse himself from sentencing. In general, a judge before whom contemptuous conduct occurs has the power to impose punishment for such conduct and appropriate sanctions-without recusing himself. Commonwealth v. Reid, 494 Pa. 201, 209-210, 431 A.2d 218, 223 (1981); Falkenhan, 452 A.2d at 756. However, recusal' is required if there is a running, bitter controversy between the judge and offender. Falkenhan, 452 A.2d at 756. The record shows that appellant had previously appeared in the trial judge’s courtroom and that prior to this trial the trial judge had warned appellant about the inappropriateness of his behavior.

Although the controversy was a running one, it was not bitter. During trial, the judge went out of his way to warn appellant about the consequences of his behavior until he finally had no choice but to hold appellant in contempt. Under the circumstances, the judge showed great patience with appellant. The record also shows that although the court did not find this particular aspect of appellant’s behavior to be proper, it recognized and respected appellant’s skill as an attorney.

It would have been frivolous for appellant’s counsel to ask the trial judge to recuse himself from sentencing because the controversy was not bitter. Counsel cannot be ineffective for failing to file a frivolous claim; therefore, appellant’s counsel was not ineffective for failing to request at sentencing that the trial judge recuse himself. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).

Third, appellant argues that the trial court abused its discretion by imposing two $300 fines and two concurrent 90 day probationary periods with the condition that appellant undergo a drug, alcohol, and psychological evaluation.

Sentencing is a matter vested in the sound discretion of the trial court and we will not disturb the judgment of sentence absent an abuse of discretion. Commonwealth v. Lott, 398 Pa.Super. 573, 586-87, 581 A.2d 612, 619 (1990), allocatur denied, 527 Pa. 663, 593 A.2d 839 (1991) (citations omitted). When reviewing sentencing matters, we must accord the sentencing court great weight as it is in the best position to view the defendant’s character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. Id.

Generally, direct criminal contempt is punishable by fine or imprisonment. 42 Pa.C.S.A. § 4133. However, the trial court may, in imposing sentence for contempt, choose among the sentencing alternatives authorized by the Code. Commonwealth v, Rubright, 489 Pa. 356, 361, 414 A.2d 106, 108 (1980). An order of probation is among these sentencing alternatives. 42 Pa.C.S.A. § 9721. The sentence of a fíne and probation imposed by the trial court is supported by the record, and, we conclude that the trial judge did not abuse his discretion.

The court realized that there must be some underlying reason for appellant’s inability to control himself. However, appellant was unable to offer an explanation. As a result, the trial court required appellant to undergo a drug, alcohol and psychological evaluation as a condition of probation. Such a condition of probation is not patently excessive even though it may cause appellant embarrassment because the purpose of the condition is to assess the reason for appellant’s misconduct and to prevent similar future conduct. The trial court did not abuse its discretion in issuing appellant’s sentence.

Appellant argues that the court abused its discretion because the sentence will have a “chilling effect” on the type of conduct engaged in by appellant. Appellant argues that the United States Supreme Court condemns sentences that would hinder counsel’s ability fearlessly to defend a client. However, appellant misconstrues the trial court’s intent. As advocates in an adversary system, counsel must be afforded significant latitude vigorously to pursue their client’s cause. Such obligation, however, in no way lessens the lawyer’s absolute duty to respect and uphold the dignity of the judicial process. Rubright, 489 Pa. 364, 414 A.2d at 110. The court stated that appellant’s behavior had nothing to do with advocacy and that his conduct could have jeopardized his client’s interests. As a result, the court’s decision does not hinder counsel’s ability fearlessly to defend his client.

For these reasons we affirm the judgment of sentence imposing two $300 fines and two concurrent 90 day probationary periods with the condition that appellant undergo a drug, alcohol, and psychological evaluation.

Judgment of sentence affirmed.


author: HESTER, Judge:

text:
    645 A.2d 274
    COMMONWEALTH of Pennsylvania, v. Grady BISHOP, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 20, 1994.
    Filed July 27, 1994.

      Grady Bishop, appellant, pro se.

      Ramy I. Djerassi, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before JOHNSON, FORD ELLIOTT, and HESTER, JJ.
   HESTER, Judge:

Grady Bishop appeals from the order entered in the Court of Common Pleas of Philadelphia County on December 23, 1992, which denied him relief under the now-superseded Post-Conviction Hearing Act (PCHA). Asserting that the appeal is frivolous, appellate counsel requests permission to withdraw. For the reasons set forth below, we grant counsel’s request and affirm the order denying PCHA relief.

The facts may be summarized as follows. On the evening of January 24, 1977, appellant and Gerald Rawls forcibly entered a Philadelphia apartment and after ransacking it, stole a color television set. During the commission of this crime, Mr. Rawls beat Anderson Witcher, one of the apartment’s elderly residents. Mr. Witcher later died as a result of that beating.

On March 2, 1977, five weeks after the incident, officers of the Philadelphia Police Department arrested appellant. He subsequently was charged with murder, burglary, robbery, conspiracy, and involuntary manslaughter. Appellant later moved to suppress all physical evidence, certain statements he made to the police, and an identification. On April 27, 1977, following an evidentiary hearing, the trial court refused to suppress either appellant’s statements or the physical evidence. Appellant eventually abandoned his remaining suppression claim.

On July 18,1977, appellant was convicted at a bench trial of second degree murder, burglary, robbery, and conspiracy, the only charges presented for resolution. Later, after appellant filed unsuccessful post-verdict motions, the trial court sentenced him to life imprisonment. On direct appeal, we affirmed the judgment of sentence. Commonwealth v. Bishop, 271 Pa.Super. 100, 412 A.2d 594 (1979).

On July 1, 1987, nearly ten years after his conviction, appellant filed a pro se petition for relief under the PCHA. Following the appointment of counsel, appellant filed an amended post-conviction petition in which he asserted several claims of ineffective assistance. Specifically, appellant averred that defense counsel coerced him into waiving his right to a jury trial, failed to ascertain his competency, and neglected to seek the suppression of both an identification and an inculpatory statement. Appellant also challenged counsel’s failure to present a, witness identified only as “Mr. Green.” See Appellant’s amended petition at 3. Later, pursuant to a court order, appellant set forth the basis of his claims with more specificity.

On April 16, 1991, the PCHA court apparently determined that only appellant’s claim regarding Mr. Green possessed arguable merit. Accordingly, the court limited evidentiary hearings to that issue. Several months thereafter, PCHA counsel informed the court that he had been unable to locate Mr. Green. Consequently, the court entered the contested order. This timely appeal followed.

Preliminarily, we note that it long has been clear that counsel for a criminal defendant may withdraw at any stage of collateral proceedings if he, in the exercise of his professional judgment, determines that the issues raised in those proceedings are meritless and the post-conviction court concurs with his assessment. See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). The post-conviction petitioner then may proceed pro se, by privately retained counsel, or not at all. Id. Before a request to withdraw may be granted, counsel must file a “no-merit” letter detailing the nature and extent of his review and listing each issue which the petitioner wished to raise. Id. In addition, the letter must include an explanation as to why those issues lack merit. Id. Finally, we note that there must be an independent judicial determination that the various issues support no grant of relief. Id.

In the present case, erroneously relying upon the stringent standard applicable to the withdrawal of counsel on direct appeal, see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), present counsel has filed a brief and a petition to withdraw. However, our review of those documents reveals that counsel substantially has complied with the requirements of the no-merit letter. Specifically, we note that counsel indicates in his petition that he examined both the record and the law relating to potential issues in the case. In addition, our examination of the brief filed by counsel indicates that it sets forth four of the claims contained in the amended PCHA petition and after discussing both the record and applicable law, indicates that those claims are devoid of merit. Accordingly, in order to determine the propriety of the withdrawal request, we must independently review the record and determine whether appellant raises any claims which entitle him to relief.

Appellant raises several challenges to the effectiveness of defense counsel. Our standard for reviewing the propriety of those challenges is well-established.

Claims of ineffectiveness of counsel are subject to a three-part analysis:

First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client.... The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. [Citations omitted.]

Commonwealth v. Nelson, 389 Pa.Super. 417, 420, 567 A.2d 673, 676 (1989). To prove prejudice from the ineffectiveness, Appellant must show that counsel’s errors had an adverse effect on the outcome of the trial. Commonwealth v. Boyles, 407 Pa. [Pa.Super.] 343, 358, 595 A.2d 1180, 1188 (1991), alloc. den., 531 Pa. 651, 613 A.2d 556 (1992). “An appellant must show that the error was ‘so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.’ ” Boyles, 407 Pa.Super. 358, 595 A.2d at 1188 (quoting Commonwealth v. Morocco, 375 Pa.Super. 367, 371, 544 A.2d 965, 967 (1988), alloc. den., 520 Pa. 615, 554 A.2d 508 (1989)). Furthermore, trial counsel cannot be found to have rendered ineffective assistance of counsel for failing to pursue a course of action that had no arguable merit. Commonwealth v. [Black] Block, 398 Pa.Super. 364, 365, 580 A.2d 1391, 1392 (1990), alloc. den., 527 Pa. 628, 592 A.2d 1296 (1991).

Commonwealth v. Roberts, 428 Pa.Super. 156, 159-60, 630 A.2d 869, 870-71 (1993). Accordingly, we consider the merits of appellant’s claims.

Appellant initially asserts that trial counsel ineffectively failed to seek the suppression of statements made by appellant. However, as appellant recognizes, see appellant’s brief at 7, and our review of the record demonstrates, trial counsel did file an unsuccessful motion to suppress appellant’s statements. Thus, appellant’s assertion of ineffectiveness must fail.

Next, appellant asserts that trial counsel ineffectively failed to ascertain his competence prior to trial. However, we have thoroughly examined the record and find that it contains no evidence of impairment due to mental illness, drugs, or other cause. Indeed, our review of the record reveals that when appellant waived his right to a jury trial, he admitted that he had never been committed to a mental institution, that he understood the significance of waiving his right to jury trial, and that his understanding was not affected by medication which he was taking for epilepsy. Notes of Testimony («N T.”), 7/13/77, at 5-12. Moreover, we note that appellant testified at trial. N.T., 7/15/77, at 159-76. At no time during his testimony did appellant demonstrate a lack of comprehension sufficient to demonstrate incompetence. Accordingly, we find that appellant is entitled to no relief.

Appellant also asserts that trial counsel ineffectively coerced him to waive his right to a jury trial. This assertion is contradicted by testimony elicited from appellant during his waiver colloquy. N.T., 7/13/77, at 9. Specifically, appellant testified that his jury trial waiver was not the product of threats, coercion, or promises. Id. As appellant’s claim is unsupported by the record, it must fail. Moreover, we note it is clear that appellant may not obtain post-conviction relief by claiming that he lied during his waiver colloquy. See Commonwealth v. Cappeli, 340 Pa.Super. 9, 489 A.2d 813 (1985) (relating to allegation of coerced guilty plea); see also Commonwealth v. Jones, 408 Pa.Super. 337, 596 A.2d 885 (1991) (same).

Finally, appellant asserts that trial counsel ineffectively failed to pursue his motion to suppress an identification. In support of this assertion, which apparently relates to the in-court identification made by Parker Harris, appellant implies that the identification was unreliable. In addition, he avers that counsel abandoned the matter after the parties agreed that it would be decided on the basis of the evidence presented at trial.

In McElrath v. Commonwealth, 405 Pa.Super. 431, 437, 592 A.2d 740, 742-43 (1991) (citations omitted), we considered the propriety of an identification and stated:

In reviewing the propriety of identification evidence, the central inquiry is whether, under the totality of the circumstances, the identification was reliable. Commonwealth v. Sample, 321 Pa.Super. 457, 461, 468 A.2d 799, 801 (1983), citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) and Commonwealth v. Sutton, 496 Pa. 91, 436 A.2d 167 (1981). Suggestiveness in the identification process is but one factor to be considered in determining the admissibility of such evidence and will not warrant exclusion absent other factors. Id. 321 Pa.Super. at 461-62, 468 A.2d at 801. As the Sample court explained, the following factors are to be considered in determining the propriety of admitting identification evidence: the opportunity of the witness to view the perpetrator at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the perpetrator, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Id., 321 Pa.Superior Ct. at 462, 468 A.2d at 801. The corrupting effect of the suggestive identification, if any, must be weighed against these factors. Id.

At trial, Mr. Harris, a resident of the building in which the murder occurred, testified that he saw two young men on the night of the murder, one in the Witcher apartment and one in the nearby hallway. Mr. Harris indicated that both men were armed and that he conversed with the latter man, whom he identified as appellant. Mr. Harris also stated that the door to the Witcher apartment had been kicked in, that he heard the victim request assistance, and that he later saw appellant carry a television set from the building. Finally, Mr. Harris stated that he had observed appellant for approximately twenty to twenty-five minutes on the night in question.

From Mr. Harris’s testimony, it is clear that he had ample opportunity to observe appellant both during and immediately after the commission of the crime. Due to the circumstances surrounding his conversation with appellant, Mr. Harris unquestionably was attentive when observing him. Moreover, we note that Mr. Harris exhibited no uncertainty in his identification of appellant. Accordingly, we find that the record demonstrates that Mr. Parker’s identification was reliable under the totality of the circumstances. Since counsel may not be considered ineffective for failing to perform merit-less tasks, see Commonwealth v. Roberts, supra, we conclude that defense counsel may not be faulted for abandoning the contested suppression claim. We also note that the PCHA court properly refused to consider the merits of appellant’s claims, which, as we have demonstrated, are unsubstantiated by the record. It is clear that the PCHA court need not grant a hearing on an issue if it is patently frivolous and without a trace of support in the record. See 42 Pa.C.S. § 9549(b).

The petition of counsel to withdraw is granted; order denying relief under the PCHA is affirmed.

      . The caption incorrectly indicates that the present appeal was taken from an order relating to the Post Conviction Relief Act, which became effective on April 13, 1988, nine months after appellant initiated post-conviction proceedings.

      . We note that appellant's trial counsel also represented him on appeal.

      . During the pendency of this appeal, the court permitted PCHA counsel to withdraw and appointed present counsel.


author: TAMILIA, Judge:

text:
    645 A.2d 278
    Salvatore MICCICHE, Appellant, v. EASTERN ELEVATOR COMPANY.
    Superior Court of Pennsylvania.
    Argued June 22, 1994.
    Filed July 28, 1994.

      James B. Crummett, Philadelphia, for appellant.
    Kevin Connors, Philadelphia, for appellee.
    Before ROWLEY, P.J., and CAVANAUGH and TAMILIA, JJ.
   TAMILIA, Judge:

Salvatore Micciche appeals from the judgment entered February 18, 1994 following a jury trial in which a verdict was entered in favor of appellee, Eastern Engineering and Elevator Company. Appellant’s post-trial motion seeking a new trial was subsequently denied on December 17, 1993 and he now appeals to this Court.

On December 26, 1986, appellant, a doorman at the Robert Morris Building, was in the midst of his daily floor inspection routine when, while exiting Elevator 1, he fell, allegedly as a result of the elevator’s failure to properly level on the third floor landing. Because six months prior to the incident appellee had completed the modernization of Elevator 1 based upon a series of contracts which included installation of a new control system and a maintenance agreement, appellant commenced a civil action against appellee for personal injury damages based on products liability and negligence theories. Prior to trial, however, Judge Murray C. Goldman dismissed appellant’s products liability claim, thereby barring appellant from presenting evidence on the count, and, at the conclusion of the trial, Judge Goldman refused appellant’s request to instruct the jury on the doctrine of res ipsa loquitur. On May 27, 1993, the jury returned a verdict for appellee as to the negligence count.

On appeal to this Court, appellant argues the trial court erred in dismissing his products liability claim and in barring the admission of evidence concerning the claim. Appellant claims he presented uncontroverted evidence which clearly established appellee engaged in the business of selling a product as contemplated by the Restatement (Second) of Torts § 402A. Specifically, appellant claims he provided evidence that appellee sold and delivered on-site, to his employer, defective products including a completely modernized elevator and an all new elevator control system. It is appellant’s position Pennsylvania case law has liberally imposed the strict liability requirements of section 402A in instances similar to the present case involving hybrid sales-service contracts as well as on-site construction of injury causing instrumentalities. Specifically, he argues the cases in this and other jurisdictions have recognized that equipment comprising a total system should come under the ambit of section 402A, which states:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

This section was adopted in Pennsylvania in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).

After a thorough review of the record, we find appellant has failed to provide sufficient evidence the trial court erred in denying his strict liability claim. To successfully litigate a products liability suit, section 402A(1) requires a party to assert a product or component was in a defective condition as sold. Appellant has failed to meet this requirement. While appellant relies exclusively on the testimony of an expert witness, the expert report, upon which appellant relied in his oral argument regarding the dismissal of the strict liability claim, repeatedly addresses negligent installation, adjustment and maintenance, and fails to allege a defective part as required by section 402A. Accordingly, appellant has failed to show that a particular product suffered from a particular defect which rendered the product unreasonably dangerous for its intended use. See Sherk v. Daisy-Heddon, etc., 498 Pa. 594, 450 A.2d 615 (1982). Appellant’s attempts to circumvent this lack of proof by arguing the entire elevator was defective is without merit. A review of the record reveals appellee was responsible for repair and modernization of an existing elevator utilizing components neither designed nor manufactured by appellee. Moreover, appellee neither designed, manufactured nor installed the original elevator. In addition, appellant has failed to prove appellee is a “seller” for purposes of section 402A. In fact, appellant has failed to show appellee did anything more than remove certain components of the existing elevator and install new components as part of its modernization contract. Accordingly, we find the trial court did not err in dismissing the strict liability claim.

Appellant next argues the trial court erred in refusing to permit the admission of appellee’s work slips and service records and expert testimony as to their content. At the request of appellee, the trial judge precluded appellant from admitting any work slips or service records unless they specifically referred to a “mis-leveling problem.” The trial court also precluded expert testimony concerning those service records which did not refer to “mis-leveling.” Appellant sought to admit the additional records to establish the operational history of the elevator in question in that, according to appellant, the records and work slips would have revealed a repeated pattern of error accumulation and occasional resetting which would have indicated the system was improperly assembled. Appellant contends this evidence would have been probative of the issue of notice to appellee and its failure to take reasonable measures to correct the problem. He claims this ruling was prejudicial and deprived him of a fair trial.

A trial judge has broad powers concerning the conduct of a trial, particularly with regard to the admission or exclusion of evidence. See Plowman v. Plowman, 409 Pa.Super. 143, 597 A.2d 701 (1991). Generally, questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court, and may be reversed by this Court only when a clear abuse of discretion is apparent. Soda v. Baird, 411 Pa.Super. 80, 600 A.2d 1274 (1991).

To be admissible, however, evidence must be relevant. Specifically, evidence of other incidents involving a certain instrumentality may be relevant to certain issues, but the evidence is admissible only “when the evidence concerns incidents sufficiently similar to the incident involving the plaintiff which occurred under sufficiently similar circumstances.” Lynch v. McStome & Lincoln Plaza Assoc., 378 Pa.Super. 430, 436, 548 A.2d 1276, 1279 (1988) (citations omitted). Presently, the burden is on appellant to show the records pertained to “similar accidents occurring at substantially the same place and under the same or similar circumstances.” Harkins v. Calumet Realty Co., 418 Pa.Super. 405, 414, 614 A.2d 699, 704 (1992) (citations omitted).

Appellant has failed to meet this burden of proof. The reports in question did not refer to a specific mis-leveling problem. In addition, the notations on the reports and work slips were not sufficiently self-explanatory so as to allow the jury to infer the elevator had mis-leveled. See Lynch, supra. Furthermore, the complaints relating to the work slips were inconclusive. They did not explain the circumstances under which the elevator allegedly malfunctioned and appellant did not produce any of the witnesses who allegedly made the complaints indicated in the work reports. Accordingly, the trial court had no basis upon which to determine the incidents described in the reports were sufficiently similar to appellant’s accident and, therefore, did not abuse its discretion by excluding the evidence.

Finally, appellant argues the trial court committed a fundamental error of law by refusing to instruct the jury in accordance with the doctrine of res ipsa loquitur, the embodiment of which can be found in the Restatement (Second) of Torts § 328D, and which has been held to apply in a variety of cases, almost identical to the present incident, in which elevator or escalator equipment has malfunctioned. As further support for his argument, appellant cites Williams v. Otis Elevator Co., 409 Pa.Super. 486, 598 A.2d 302 (1991), in which Judge Goldman, the presiding judge herein, gave a res ipsa loquitur jury instruction in a case involving an elevator maintenance company in which the elevator lurched as the passenger exited, yet refused to give the same instruction here.

In Gilbert v. Korvette, Inc., 457 Pa. 602, 613, 327 A.2d 94, 100 (1974), the Pennsylvania Supreme Court adopted section 328D which provides:

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.

Appellant must establish the three elements set forth in section 328D(1) before an inference of negligence can be drawn from an injurious event. Leone v. Thomas, 428 Pa.Super. 217, 630 A.2d 900 (1993). Appellant has failed to meet this burden of proof.

First, appellant has failed to prove the accident was the type which ordinarily does not occur absent negligence. To sustain this burden of proof, appellant must produce evidence which would permit the conclusion that it was more probable than not the injuries were caused by appellee’s negligence. Id. Although appellant makes various claims and assumptions the elevator in question had been mis-leveling, he provides no evidence to support these claims. In fact, appellant completed an accident report subsequent to the incident which did not mention the elevator had dropped down below floor level or that he had tripped while exiting (N.T., 5/24/93, pp. 83-84).

Second, appellant has failed to present sufficient evidence to demonstrate there were no other responsible causes for the accident. Although it is not necessary for appellant to exclude all other possible causes of the accident, he still must present a case from which a jury may reasonably conclude the negligence was, more probably than not, that of appellant. Carney v. Otis Elevator Co., 370 Pa.Super. 394, 536 A.2d 804 (1988). Here, there were various possible explanations for appellant’s injuries, which he fails to address in his brief to this Court. Specifically, he presented no rebuttal evidence to appellee’s contention construction dust could have caused the mis-leveling. Additionally, appellant’s own expert testified he did not consider other potential causes of the mis-leveling (N.T. at 324). More importantly, appellant has failed to exclude his own negligence as a possible cause of the accident. Appellant, who was responsible for checking the operation of the elevators, testified he rides the elevators on a daily basis and if and when an elevator oscillated, he would normally wait for it to level off and then exit (N.T. at 106). However, on the day of the accident, he testified he did not look down to see if the elevator car was level. Accordingly, it is at least as probable as any other explanation that appellant tripped or lost his balance when he exited the elevator car. Having failed to meet the first and second requirements of the doctrine of res ipsa loquitur, we find the trial court did not err in refusing appellant’s requested jury instruction.

Judgment affirmed.

      . According to appellant’s testimony, his employment responsibilities also included, among other duties, inspecting the elevators, which required riding one or, if possible, all elevators each day to check for proper speed and leveling as well as any other malfunctions (N.T., 5/24/93, pp. 50-51).