author:
WIEAND, Judge:
      POPOVICH, Judge,

text:
    456 A.2d 1037
    COMMONWEALTH of Pennsylvania v. Rudolph BARNES, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 31, 1982.
    Filed Feb. 18, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Deborah Fox, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   WIEAND, Judge:

Rudolph Barnes was tried by a judge sitting without a jury and found guilty of robbery, theft by unlawful taking and simple assault. Motions in arrest of judgment and for a new trial were denied, and Barnes was sentenced to a two year term of probation. On direct appeal, appellant challenges (1) the sufficiency of the evidence to sustain the convictions and (2) an evidentiary ruling admitting an extra-judicial statement under the res gestae or excited utterance exception to the hearsay rule. Our review discloses sufficient evidence to sustain the conviction. However, the evidentiary ruling was erroneous; and the conviction, therefore, is reversed and the case remanded for new trial.

The test to be applied in determining the sufficiency of evidence to sustain a conviction is whether, accepting as true all the evidence and all reasonable inferences arising therefrom upon which, if believed, the trier of fact could properly have based its verdict, it is sufficient to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes with which he has been charged. As with all challenges to the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict winner, in this case the Commonwealth. Commonwealth v. Waller, 498 Pa. 33, 42, 444 A.2d 653, 658 (1982); Commonwealth v. Bellis, 497 Pa. 323, 330 n. 9, 440 A.2d 1179, 1182 n. 9 (1981); Commonwealth v. Payne, 299 Pa.Super. 378, 379, 445 A.2d 804, 804 (1982); Commonwealth v. Johnson, 273 Pa.Super. 14, 17, 416 A.2d 1065, 1067 (1979). Moreover, the entire trial record must be evaluated, and all evidence actually received must be considered, whether or not the trial court’s rulings thereon were correct. Commonwealth v. Waldman, 484 Pa. 217, 222-23, 398 A.2d 1022, 1025 (1979); Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965); Commonwealth v. Plusquellic, 303 Pa.Super. 1, 4, 449 A.2d 47, 49 (1982); Commonwealth v. Bentley, 276 Pa.Super. 41, 44, 419 A.2d 85, 86 (1980); Commonwealth v. Williams, 273 Pa.Super. 578, 582, 417 A.2d 1200, 1201 (1980).

So viewed, the evidence in this case establishes that appellant entered the apartment of Lemuel Rock in Philadelphia during the early morning hours of June 24, 1980. There, he struck Rock, pushed him to the floor, and threw a sheet over his head before removing $300 from a bureau drawer in Rock’s bedroom. Rock died of unrelated causes prior to appellant’s trial; and, therefore, the only evidence of these facts was received in the form of an extra-judicial statement made by Rock to Officer Thomas Palmer of the Philadelphia Police Department. On June 24, 1980, pursuant to a call on his police radio, Palmer had proceeded to Rock’s apartment at 1926 North 18th Street, where a somewhat agitated Rock told him that appellant had entered his apartment, attacked him and stolen $300.

This evidence was sufficient to sustain a finding that appellant had committed the crimes of robbery, theft by unlawful taking and simple assault. Appellant’s motion in arrest of judgment, therefore, was properly denied.

The evidentiary ruling by the trial judge that Rock’s extra-judicial statement, although hearsay, was admissible under the res gestae exception to the hearsay exclusion presents a more difficult question and requires a closer examination of the res gestae exception and the evidence received in the instant case.

The res gestae exception to the hearsay exclusion has been said to be a dangerous rule which ought not be extended beyond the limits of reasonably immediate spontaneous declarations made in connection with a startling event by one laboring under the stress of nervous excitement caused by it. Commonwealth v. Noble, 371 Pa. 138, 144-45, 88 A.2d 760, 763 (1952), citing Athas v. Fort Pitt Brewing Co., 324 Pa. 313, 318, 188 A. 113, 115 (1936) and Commonwealth v. Gardner, 282 Pa. 458, 465, 128 A. 87, 90 (1925). Actually, “res gestae” is “a generic term encompassing four discrete exceptions to the hearsay rule: (1) declarations as to present bodily conditions; (2) declarations of present mental states and emotions; (3) excited utterances; and (4) declarations of present sense impressions.” Commonwealth v. Pronkoskie, 477 Pa. 132, 136-37, 383 A.2d 858, 860 (1978). The statement made by Rock in the instant case was alleged to be an excited utterance.

To come within the excited utterance exception, a statement must be:

“ ‘a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence in both time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.’ ”

Commonwealth v. Penn, 497 Pa. 232, 241, 439 A.2d 1154, 1159, cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982), quoting Commonwealth v. Pronkoskie, supra 477 Pa. at 137-38, 383 A.2d at 860 and Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942). See also: Commonwealth v. Little, 469 Pa. 83, 87, 364 A.2d 915, 916-17 (1976); Commonwealth v. Robinson, 273 Pa.Super. 337, 341, 417 A.2d 677, 679 (1979); Commonwealth v. Hess, 270 Pa.Super. 501, 507, 411 A.2d 830, 833 (1979); Commonwealth v. Summers, 269 Pa.Super. 437, 442, 410 A.2d 336, 338 (1979); Commonwealth v. Gore, 262 Pa.Super. 540, 546-47, 396 A.2d 1302, 1305 (1978).

In the instant case, the only evidence that a startling event had in fact occurred was contained in the statement sought to be admitted as a spontaneous reaction thereto. The extra-judicial statement was the only evidence in the case that Rock had been beaten or that any crime had been committed. There was no independent evidence that a forced entry of Rock’s apartment had been made, no independent evidence that Rock had been physically bruised or otherwise injured, no independent evidence that he had $300 in his possession prior to the alleged robbery, and no independent evidence that money in any amount had been stolen. Finally, a search of appellant’s apartment, conducted within twenty minutes of the alleged robbery, failed to produce any part of the money alleged to have been stolen.

We are thus presented with the troublesome situation in which the excited utterance itself is being used to prove that an exciting event did, in fact, occur. This circuitous reasoning is unacceptable. Where there is no independent evidence that a startling event has occurred, an alleged excited utterance cannot be admitted as an exception to the hearsay rule.

This approach has been adopted by appellate courts in other jurisdictions. In People v. Leonard, 83 Ill.2d 411, 47 Ill.Dec. 353, 415 N.E.2d 358, aff'g. 80 Ill.App.3d 741, 36 Ill.Dec. 148, 400 N.E.2d 568 (1980), the defendant in a murder case challenged admissibility under the excited utterance exception to the hearsay exclusion of a telephone conversation in which the decedent stated “He’s [the defendant] got a gun.” It was contended by the defendant that there was absolutely no evidence to corroborate the existence of an event sufficiently startling to prompt the statement. The Supreme Court of Illinois agreed that “absent some evidence of the existence of an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, the testimony relating the out-of-court statement should be excluded.” Id. at 418, 47 Ill.Dec. at 357, 415 N.E.2d at 362. However, the Court found that there had been evidence of a contemporaneous struggle which rendered the statement spontaneous.

A similar principle was announced and followed in Truck Insurance Exchange v. Michling, 364 S.W.2d 172 (Tex.1963), an action to recover workmen’s compensation death benefits. The only evidence there offered in support of the claim that the deceased had sustained an accidental injury during employment was an extra-judicial statement made by the decedent to his wife. She testified that her husband had told her that he hit his head on a bulldozer. In discussing the general rules governing the admissibility of hearsay statements as res gestae, the Texas Supreme Court stated:

. The very unusual circumstance in this case is that the hearsay statement of Mrs. Michling is the only evidence of the event which gives rise to the statement. A hearsay statement, as res gestae, is admitted as an exception to'the hearsay rule because it is made under circumstances which raise a reasonable presumption that it is the spontaneous utterance of thought created by or springing out of the occurrence itself and, so to speak, becomes a part of the occurrence. But in this case the only evidence of the occurrence is the hearsay statement. Thus the [lower court] is conceding credit to a narrative to prove the very circumstances from which it is said to derive its credit. Its trustworthiness, as to the happening of an accident, is presumed from the influence of the accident which its trustworthiness is taken to prove. Thus, this proof, to use a trite expression, is attempting to lift itself by its own bootstraps. There is not any independent proof that Hugo Michling suffered any injury at approximately the time and place alleged.
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For declarations to be admissible in evidence as part of the res gestae they must be made in connection with an act proven. In other words there must be evidence of an act itself admissible in the case independently of the declaration that accompanies it.

364 S.W.2d at 174-75. See also: Hartford Accident and Indemnity Co. v. Hale, 400 S.W.2d 310 (Tex.1966).

The requirement of independent proof of the exciting occurrence has been noted approvingly by most legal scholars and writers. See: McCormick on Evidence, § 297 (2nd ed.1972); Binder, The Hearsay Handbook, Exception 2 p. 43; 29 Am.Jur.2d, Evidence § 711 (“the principal act must first be established before res gestae statements can be admitted”); 31A C.J.S. Evidence § 404 (“[i]t is proceeding in a circle to use the declarations as proof of facts necessary to constitute the declarations part of the res gestae”).

In the case sub judice, there was no independent evidence of a startling event to demonstrate that excitement and stress which were necessary to make Rock’s extra-judicial statement admissible as a spontaneous reaction thereto. Consequently, the decedent’s extra-judicial statement that he had been robbed and that appellant was the robber should not have been received.

The judgment of sentence is reversed, and the case is remanded for a new trial.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I dissent. The Majority holds that an alleged excited utterance cannot be admitted as an exception to the hearsay rule without independent evidence that a startling event has occurred. Although such a rule exists in a minority of jurisdictions, it is in conflict with my understanding of the law of this Commonwealth.

McCormick On Evidence, § 297 (2d ed.1972) merely reflects the majority and minority positions on this issue:

“Under generally prevailing practice, the declaration itself is taken as sufficient proof of the exciting event and therefore the declaration is admissible despite absence of other proof that an exciting event occurred. The Texas courts, however, have recently taken a position that an excited utterance is admissible only if other proof is presented which supports a finding of fact that the exciting event did occur.” (Footnotes omitted).

The Majority has decided to follow the leading Texas decision cited by Professor McCormick, Truck Insurance Exchange v. Michling, 364 S.W.2d 172 (Tex.1963) while ignoring the generally prevailing practice. In Truck Insurance Exchange, a case involving death benefits under Texas workmen’s compensation law, the deceased’s statement to his wife that he had injured himself at work was the only evidence of the event. The Supreme Court of Texas held that “[Tjhere must be evidence of an act itself admissible in the case independently of the declaration that accompanies it.” 364 S.W.2d at 175. Contra to this holding is Cody v. S.K.F. Industries, Inc., 447 Pa. 558, 291 A.2d 772 (1972) where the Pennsylvania Supreme Court held that a physician can testify to statements relating the cause of an injury even though such statements are not part of the res gestae and are the only evidence available to explain the cause of injury. The Court justified this holding because of the circumstantial guarantees of trustworthiness and necessity. The necessity requirement was met since the only witness able to relate the cause of the injury had died, and since the evidence was not available from any other source. The declaration was considered trustworthy because the statements were made to a physician in order to get treatment under circumstances that cast no suspicion on the genuiness of the utterance. Id. at 291 A.2d at 776, 777. The Court carved out this new exception to the hearsay rule since the statements could not be admitted as an excited utterance due to the three day time lapse between the event and the medical examination. In other words, the spontaneity that insures the trustworthiness of a res gestae statement was missing.

In the case at hand, Officer Palmer, testified that when he answered Mr. Rock’s call to the police, Mr. Rock’s demeanor was “upset, loud” (TT p. 14) and “he was cursing” (TT p. 15) Palmer quoted Rock as stating, “That son-of-a-bitch stole some money from me.” (TT p. 15) He further testified that the actor lived on the second floor where Palmer, the victim and Palmer’s partner immediately proceeded. Palmer testified that Rock told him that the incident occurred about ten or fifteen minutes prior to Palmer’s arrival. Rock told Palmer, according to Palmer, that the actor went to Rock’s apartment on the third floor, threw a sheet over Rock’s head, hit him and threw him to the floor. The actor then took $300 from Rock’s bedroom bureau.

Arriving at the second floor apartment, Palmer knocked on the door which was answered by appellant. Thereupon, Palmer said that Rock stated, “There’s the son-of-a-bitch right there that took my money.” (TT p. 17) Palmer described Rock’s demeanor at that time—some two or three minutes after first arriving at the scene—as “mad.” (TT p. 19) The litmus test of the admissability of the res gestae declaration is whether the impression of truth is borne by it, and the declaration is to be foreclosed from evidence if it is merely a recitation of a past event. Commonwealth v. Cupps, 157 Pa.Super. 341, 43 A.2d 545 (1945). On the other hand, it is not rendered inadmissible merely because it was not ejaculatory (Commonwealth v. Logan, 361 Pa. 186, 63 A.2d 28 (1949)) or because it was elicited by a question (Commonwealth v. Noble, 371 Pa. 138, 88 A.2d 760 (1952)). An otherwise admissible statement is not disqualified because it contains a conclusion of law. Commonwealth v. Rogozinski, 387 Pa. 399, 128 A.2d 28 (1956). Further, a victim’s declaration may be used to identify the defendant as the guilty party (Commonwealth v. Fugmann, 330 Pa. 4, 198 A. 99 (1938)) a half hour after the event and on the telephone. Commonwealth v. Goetz, 129 Pa.Super. 22, 195 A. 144 (1937). The case of Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966), with the cases cited therein is instructive:

“The rule permitting res gestae declarations to be introduced in evidence is an exception to the hearsay rule. The principle is based upon the rationale that a spontaneous declaration of an individual who has recently suffered an overpowering emotional and shocking experience is likely to be truthful. See, 1 Henry, Penna. Evidence, § 466 (1953). Such evidence is limited to declarations supporting the conclusion that the statements were spontaneous utterances of thought created by, or emanating from, the litigated act, and so near in time thereto as to exclude the possibility that they were the product of premeditation or design. See, Commonwealth v. Noble, 371 Pa. 138, 88 A.2d 760 (1952); Commonwealth v. Rumage, 359 Pa. 483, 59 A.2d 65 (1948); and, Commonwealth v. Cupps, 157 Pa.Super. 341, 43 A.2d 545 (1945). No definite time limit, or distance from the site of the crime, has been fixed by the courts in determining what spontaneous utterances are admissible as part of the res gestae. Each case has been judged on its own facts and circumstances: Commonwealth v. Stokes, 409 Pa. 268, 186 A.2d 5 (1962), and cases cited therein. The length of time which has elapsed between when the declarations were uttered and when the occurrence took place is only one element to be considered in determining their spontaneity. See Commonwealth v. Noble, supra, and Commonwealth v. Harris, 351 Pa. 325, 41 A.2d 688 (1945).
In the instant case, the precise time sequence of events is not ascertainable from the record. However, it is clear that the entire series of events took place within forty-five minutes or, at the most, one hour. The attack occurred after eleven p.m. o’clock. The decedent arrived at his sister’s home no later than 11:30 p.m. o’clock. Reconstructing the picture, as disclosed by the testimony, the conclusion is inevitable that the statements were spontaneously uttered, were directly related to the event and were not the result of reflection or design. Under these circumstances, their admission in evidence was not error. The fact that the statements were not made immediately after the assault is not, in itself, controlling. See, Commonwealth v. Stokes, supra, and Commonwealth v. Harris, supra. This Court has previously approved the admission in evidence of such declarations when the time period involved was as long or longer than that herein. See, Commonwealth v. Soudani, 190 Pa.Super. 628, 155 A.2d 227 (1959), aff’d 398 Pa. 546, 159 A.2d 687 (1960), cert. denied 364 U.S. 886, 81 S.Ct. 177, 5 L.Ed.2d 107 (1960); Commonwealth v. Stallone, 281 Pa. 41, 126 A. 56 (1924); and, Commonwealth v. Werntz, 161 Pa. 591, 29 A. 272 (1894). See also, Commonwealth v. Calderbank, 161 Pa.Super. 492, 55 A.2d 422 (1947).” See also Commonwealth v. Edwards, 431 Pa. 44, 244 A.2d 683 (1968).

Applying the foregoing precepts and comparing the facts unique to each of the cited cases with the instant case, it is clear that the trial court did not abuse its discretion in admitting the police officer’s testimony as to the victim’s declarations. Commonwealth v. Dessus, 214 Pa.Super. 347, 257 A.2d 867 (1969).

•The Majority relies on People v. Leonard, 83 Ill.2d 411, 47 Ill.Dec. 353, 415 N.E.2d 358, aff'g. 80 Ill.App.3d 741, 36 Ill.Dec. 148, 400 N.E.2d 568 (1980), where the victim’s statement over the phone that, “He’s got a gun,” was admitted as a spontaneous declaration although made prior to a struggle and shooting. The Illinois Supreme Court reversed the appellate court which had relied on Truck Insurance Exchange v. Michling, supra, distinguishing that case on the facts, but noting agreement with the Texas rule that evidence of the exciting event is necessary before a spontaneous statement can be admitted.

In a case whose facts are strikingly similar to Leonard, a plurality of the Pennsylvania Supreme Court in Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d 387 (1974), held that the present sense impression exception to the hearsay rule applied to a statement made over the phone by the victim just prior to being stabbed to death. In direct contrast to the dictim in Leonard that noted agreement with the rule in Truck Insurance Exchange, Coleman cites Cody v. S.K.F. Industries, Inc., supra., in explaining that:

“The rationale underlying the exclusion of res gestae declarations from the hearsay rule is that the startling event speaks through the verbal acts of the declarant and vests reliability in an out-of-court statement whose accuracy would otherwise be suspect.” (Emphasis added) Id. 458 Pa. at 116, 326 A.2d at 389.

“The hearsay rule forbids evidence of out-of-court assertions to prove the facts asserted in them.” McCormick § 249. (2d Ed.1972). In Pennsylvania, when the requirements. of trustworthiness and necessity are met, as discussed in Cody, and, therefore, an exception to the hearsay rule is applicable, the event can be proven by the statement itself.

Nevertheless, the Cody court specifically left open the question of whether its holding would apply outside the workmen’s compensation area. Id. 447 Pa. at 569 n. 4, 291 A.2d at 777 n. 4. It is my opinion that a distinction should be drawn between workmen’s compensation cases and criminal cases, and that such a distinction goes to the standard of proof. Namely, the second issue raised by appellant; whether a res gestae statement alone without corroborating evidence of any kind, constitutes sufficient evidence—albeit competent evidence—to convict beyond a reasonable doubt.

The instant statement, bereft of corroboration, is basically nothing more than what would appear in a criminal information—the allegata without the probata. Hearsay, even though competent, cannot stand alone unfortified in a criminal law setting. Fairness and justice demand that it be buttressed by additional and corroborative evidence. The Majority holds that the hearsay statement is sufficient and that appellant’s motion in arrest of judgment, therefore, was properly denied. Then, of course, the appellant is awarded a new trial since the evidence, although sufficient, should not have been admitted. Rather than derogate a well-settled rule of evidence, I would hold that a res gestae statement per se as a matter of law is not sufficient evidence on which to convict beyond a reasonable doubt. Judgment of sentence should be vacated and appellant discharged.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. § 3921.

      . 18 Pa.C.S. § 2701.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    456 A.2d 1044
    COMMONWEALTH of Pennsylvania v. Cassel NEWMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 26, 1982.
    Filed Feb. 18, 1983.
    Petition for Allowance of Appeal Denied June 8, 1983.

      William F. Fox, Jr., Norristown, for appellant.
    John J. Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

Cassel Newman was tried by jury and convicted of voluntary manslaughter and possession of an instrument of crime. These convictions were for two of several charges which had been brought against him as a result of the shotgun killing of his neighbor, Henry Major Basketville, a/k/a Henry Major. Post verdict motions were dismissed, and Newman was sentenced to prison for voluntary manslaughter. On direct appeal, he contends that the evidence was insufficient to sustain the conviction for voluntary manslaughter and that the trial court erred in refusing a requested jury instruction that the Commonwealth had the burden of proving a killing which was not the result of accidental misadventure. We find no merit in appellant’s contentions and, accordingly, affirm the judgment of sentence.

On July 30, 1980, Major visited appellant, who was his neighbor. When Major, who had been drinking, became loud, appellant managed to maneuver him from the house. However, Major continued to pound on appellant’s door until appellant retrieved his shotgun from the bedroom, loaded it, and fired it into the ground. Major then left. However, he returned a short time later with a handgun and started again to pound on appellant’s door. Newman once again picked up his shotgun and went to the door. A physical struggle ensued outside the home during which Major was shot in the head and killed by a blast from Newman’s shotgun.

When we view this evidence in the light most favorable to the Commonwealth, as we are required to do, Commonwealth v. Waller, 498 Pa. 33, 42, 444 A.2d 653, 658 (1982); Commonwealth v. Young, 494 Pa. 224, 228, 431 A.2d 230, 232 (1981), it is clear that it was sufficient to sustain the conviction for voluntary manslaughter. Appellant contended and testified that the shooting had been accidental, i.e., that the shotgun had gone off accidentally during the struggle. However, the jury was free to accept some, all or none of his explanation. Commonwealth v. Stockard, 489 Pa. 209, 213, 413 A.2d 1088, 1090 (1980); Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 539 (1979); Commonwealth v. Rose, 463 Pa. 264, 267-268, 344 A.2d 824, 826 (1975); Commonwealth v. Murray, 460 Pa. 605, 609, 334 A.2d 255, 257 (1975); Commonwealth v. Glasco, 298 Pa.Super. 189, 192, 444 A.2d 724, 726 (1982); Commonwealth v. Hankerson, 298 Pa.Super. 194, 196, 444 A.2d 727, 728 (1982).

Appellant contends on appeal that the testimony of Marion Johnson, the decedent’s girlfriend, was so contradictory as to be unworthy of belief. She testified that appellant had pointed the gun at Major, had pushed him off the porch with the gun, and had threatened to kill him. She also said that she heard appellant repeatedly say “I got him” after the shooting had occurred. The credibility of her testimony was for the jury to determine. It was not for the trial court, or this court on appeal, to determine the weight to be given her testimony. See: Commonwealth v. Hudson, 489 Pa. 620, 628, 414 A.2d 1381, 1385 (1980); Commonwealth v. Preston, 488 Pa. 311, 315, 412 A.2d 524, 526 (1980); Commonwealth v. Martin, 481 Pa. 515, 519, 393 A.2d 23, 25 (1978); Commonwealth v. Glasco, supra 298 Pa.Super. at 192, 444 A.2d at 726; Commonwealth v. Battle, 289 Pa.Super. 369, 375, 433 A.2d 496, 498-499 (1981); Commonwealth v. Daniels, 281 Pa.Super. 334, 339, 422 A.2d 196, 198 (1980).

Moreover, the verdict in this case was supported by competent evidence other than that given by the decedent’s girlfriend. The fact that there, had been no other eyewitnesses did not require the jury to accept appellant’s version that he had not pulled the trigger and that the gun had been discharged accidentally during the struggle. The Commonwealth produced a weapons expert who described the shotgun’s firing mechanism and demonstrated the unlikelihood of an accidental firing. The accidental nature of the shooting tended to be refuted also by appellant’s attitude and statements as testified to by police who had arrived on the scene immediately following the shooting. The evidence, therefore, was adequate to support the jury’s finding.

Homicide by accidental misadventure is an excusable killing. It comprehends an unintentional and accidental killing while the actor is performing a lawful act unaccompanied by criminal negligence. “Three elements enter into the defense of excusable homicide by misadventure: (1) The act resulting in death must be a lawful one. (2) It must be done with reasonable care and due regard for the lives and persons of others. (3) The killing must be accidental and not intentional, or without unlawful intent, or without evil design or intention on the part of the slayer. All these elements must concur and the absence of any one of them will involve guilt. Even though the homicide is unintentional, it is not excusable where it is the result or incident of an unlawful act, such as pointing or presenting a gun, pistol or other firearm at another person in such a manner as to constitute an offense under the laws of the state, or unlawfully striking another with an intent to hurt, although not with an intent to kill, or driving an automobile at an unlawful rate of speed.” Commonwealth v. Pavillard, 421 Pa. 571, 574, 220 A.2d 807, 809 (1966), quoting 30 C.J. § 269, p. 88. See: Commonwealth v. Hobson, 484 Pa. 250, 258-259, 398 A.2d 1364, 1368 (1979); Commonwealth v. Flax, 331 Pa. 145, 156-157, 200 A. 632, 637-638 (1938). See also: Commonwealth v. Musi, 486 Pa. 102, 108-109, 404 A.2d 378, 380-381 (1979); Commonwealth v. Jackson, 464 Pa. 292, 295-296, 346 A.2d 746, 747 (1975); Commonwealth v. Johnson, 460 Pa. 169, 176, 331 A.2d 473, 476 (1975); Commonwealth v. Chruscial, 447 Pa. 17, 19-20, 288 A.2d 521, 523 (1972); Commonwealth v. Beach, 438 Pa. 37, 40, 264 A.2d 712, 714 (1971); Commonwealth v. Chermansky, 430 Pa. 170, 175-176, 242 A.2d 237, 241 (1968); Commonwealth v. Lockett, 291 Pa. 319, 324, 139 A. 836, 838-839 (1927).

The trial court instructed the jury consistently with the foregoing principle of law. Appellant contends that the trial court erred, however, by refusing a requested instruction as follows:

“The Commonwealth has the burden of proving beyond a reasonable doubt that the death of Henry Major Basket-ville was not a homicide by misadventure. If the Commonwealth does not meet this burden you must find Cassel Newman not guilty.”

Although we can agree that the trial court could properly have instructed the jury as requested, it does not follow that it was reversible error to fail to do so. “The trial court is not required to accept the language of the point submitted by counsel but rather is free to select its own form of expression. The only issue is whether the area is adequately, accurately and clearly presented to the jury for [its] consideration.” Commonwealth v. Hobson, supra 484 Pa. at 259, 398 A.2d at 1369, quoting from Commonwealth v. McComb, 462 Pa. 504, 509, 341 A.2d 496, 498 (1975). See: Commonwealth v. Dozier, 294 Pa.Super. 249, 255, 439 A.2d 1185, 1188 (1982); Commonwealth v. Boone, 287 Pa.Super. 1, 11, 429 A.2d 689, 694 (1981); Commonwealth v. Rhem, 283 Pa.Super. 565, 576, 424 A.2d 1345, 1351 (1980); Commonwealth v. Parks, 281 Pa.Super. 38, 42, 421 A.2d 1135, 1137 (1980); Commonwealth v. Fodero, 273 Pa.Super. 278, 282, 417 A.2d 648, 650 (1979).

In addition to instructing the jury on accidental misadventure, the trial court instructed the jury fully regarding the Commonwealth’s burden of proving beyond a reasonable doubt each and every element of the crime charged. In apparent acknowledgement that the jury was properly instructed regarding the burden of proving guilt, appellant attempts to draw an analogy between the defense of self-defense and a killing by accidental misadventure. In this manner he seeks to take advantage of the decision of a panel of this Court in Commonwealth v. Flagg, 266 Pa.Super. 508, 405 A.2d 934 (1979), which held that a correct charge on the burden of proving guilt did not render harmless the trial court’s refusal of a requested instruction to the effect that where evidence of self-defense is offered, “the prosecution must then prove beyond a reasonable doubt that the accused did not act in self-defense.”

However, the analogy is not valid. Accidental misadventure deals with unintentional incidents. Self-defense, on the other hand, is concerned with intentional acts that are not criminal in nature. Commonwealth v. Hobson, supra 484 Pa. at 259, 398 A.2d at 1368. The former is an excusable homicide; more correctly, it is not a homicide at all. A killing committed in self-defense, however, is a homicide that is justified. It is justified by the individual’s right to defend himself or herself. If the prosecution makes out a prima facie case by showing an intentional act resulting in death, the defense can then come forward with evidence to show that it was committed in self-defense. To the extent that the defense has the burden of coming forward with evidence of self-defense, it is an affirmative defense. When the defense does come forward with such evidence, the court is then required to instruct the jury that the Commonwealth has the burden of proving beyond a reasonable doubt that the killing did not occur in self-defense. An accidental misadventure, however, is inconsistent with a homicide. By definition, a homicide involves the intentional, knowing, reckless or criminally negligent death of another human being. 18 Pa.C.S. § 2501(a). A defense claim of accidental misadventure which seeks to negate the intentional, knowing and/or reckless character of a killing, places no burden on the Commonwealth that did not rest upon it from the outset. Evidence of accident tends to challenge the sufficiency of the Commonwealth’s evidence with regard to the necessary mens rea but does not obligate the Commonwealth to prove additional elements as is the case when self-defense is raised. Cf. Commonwealth v. Tran, 307 Pa.Super. 489, 453 A.2d 993 (1982). Thus, a jury instruction which declares that the Commonwealth has the burden of proving each and every element of a homicide necessarily imposes upon the Commonwealth the burden of proving that death was not caused by accidental misadventure.

In Commonwealth v. Cooney, 431 Pa. 153, 244 A.2d 651 (1968), the defense contended that the killing had been accidental. The court charged the jury on accidental misadventure in accordance with the language of the opinion in Commonwealth v. Pavillard, supra. On appeal, counsel contended that by so charging the trial judge had placed the burden of proving the accident on the defense. The Supreme Court rejected this argument, saying “Not only was the charge correct, but the trial Judge after charging on misadventure specifically charged the jury that ‘the burden [of proof] is with the Commonwealth throughout the trial of the case.’ ” Id., 431 Pa. at 160, 244 A.2d at 654. The instruction in the instant case was similar.

We conclude, therefore, that the trial court’s instructions were complete and accurate, and it was not error to refuse the additional point requested by appellant.

The judgment of sentence is affirmed.


author: CIRILLO, Judge:

text:
    456 A.2d 1047
    COMMONWEALTH of Pennsylvania v. Ronald Lee WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 20, 1982.
    Filed Feb. 18, 1983.
    Petition for Allowance of Appeal Denied June 8, 1983.

      Gary L. Snyder, York, for appellant.
    Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

This is an appeal from the denial of appellant’s petition for relief under the Post Conviction Hearing Act (P.C.H. ■A.).

On November 21, 1978, appellant Ronald Lee Williams was found guilty of Rape and Involuntary Deviate Sexual Intercourse by the Honorable James E. Buckingham, sitting without a jury. Appellant’s post-verdict motions were dismissed on December 27, 1978. New counsel having been appointed, appellant was sentenced on February 16, 1979 to not less than five (5) nor more than ten (10) years imprisonment on each charge, to run consecutively. Appellant’s new counsel failed to file a timely appeal to this court and we refused to accept an appeal nunc pro tunc. On March 19, 1980, appellant filed a petition pursuant to the P.C.H.A. and new counsel was again appointed. On June 26, 1980 a hearing on appellant’s P.C.H.A. petition was held before Judge Buckingham. Appellant was permitted to file supplemental post-verdict motions. Appellant’s supplemental post-verdict motions and P.C.H.A. petition were denied in all respects by Judge Buckingham on October 16, 1980 except that appellant was permitted to file an appeal nunc pro tunc with this court from the dismissal of his post-verdict motions. An appeal was filed with this court but quashed on-December 23, 1980 because it was not timely filed. Appellant filed a second P.C.H.A. petition on March 23, 1981 alleging ineffective assistance of counsel in failing to file a timely appeal. On April 1, 1981, Judge Buckingham granted the relief requested under this second P.C.H.A. and new counsel was again appointed to effectuate an appeal from the October 16, 1980 order. This appeal followed.

Appellant raises several claims on appeal. Appellant first contends that he was denied his rights under Pa.R.Crim.P. 1100, 42 Pa.C.S.A. The criminal complaint against appellant was filed on April 5, 1978 and the Rule 1100 trial run-date was October 2, 1978. On September 18, 1978, prior to the expiration of the 180th day, the Commonwealth filed an application to extend the time for commencement of trial due to the unavailability of Dr. Lynn Jensen, the physician who examined the victim after the rape. On October 2, 1978 the 180th day passed. On November 2, 1978, a hearing was held on the Commonwealth’s application to extend. At the conclusion of that hearing Judge Buckingham granted the Commonwealth’s application. Trial was scheduled to commence and did commence before Judge Buckingham on November 20, 1978.

Appellant concedes that the unavailability of a Commonwealth witness is a basis for an extension of time for commencement of trial, Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302 (1981); Commonwealth v. Brown, 252 Pa.Super. 365, 381 A.2d 961 (1977), but claims that the Commonwealth failed to exercise due diligence in setting up and disposing of its application for an extention of time for commencement of trial. Appellant argues that the Commonwealth was aware of the unavailability for trial of Dr. Jensen in August 1978 but did not file its application to extend until September 18, 1978. Appellant also argues that while the Commonwealth’s application to extend was filed before the 180th day the hearing and ruling on that application did not occur until after the expiration of the 180 day period and there is no reasonable explanation on the record for this delay. Appellant claims that these unexplained delays denied him his rights under Rule 1100. We disagree.

Rule 1100 provides, in pertinent part:

(c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.

The fact that the Commonwealth did not file its application to extend the time for commencement of trial immediately upon being informed that Dr. Jensen would be unavailable for trial does not afford appellant a basis for discharge under Rule 1100. Rule 1100 sets forth no time requirement as to the filing of an application to extend other than that it must be filed prior to the expiration of the period for commencement of trial. Rule 1100 specifically provides that the Commonwealth may file its petition to extend “[a]t any time prior to the period for commencement of trial____” In Commonwealth v. Harrison, 293 Pa.Super. 211, 438 A.2d 612 (1981) and Commonwealth v. Schmoyer, 280 Pa.Super. 406, 421 A.2d 786 (1980), this Court held that a Commonwealth application to extend which was filed on the last day prior to the expiration of the period for commencement of trial was timely. In the instant case the Commonwealth’s application to extend was filed two weeks prior to the expiration of the period for commencement of trial. Thus appellant was not denied his rights under Rule 1100 by the filing of the Commonwealth’s application to extend in this case.

Nor does an unexplained delay in holding a hearing and ruling on a timely filed application to extend the time for commencement of trial necessarily warrant discharge under Rule 1100 absent some prejudice resulting from the delay. Commonwealth v. Fairley, 298 Pa.Super. 236, 444 A.2d 748 (1982). Our Court has recognized that ruling on a timely filed application to extend the time for commencement of trial may occur after the run-date. Id. It is only when some prejudice is alleged to have resulted to the defendant from the delay that we must inquire into the reasons for the delay. Id. In Fairley, 298 Pa.Super. at 241-42, 444 A.2d at 751, we said:

To begin with, the rule does not delimit a time period in which the petition must be acted upon by the court. However, we have examined speedy trial claims under Rule 1100 where the court delayed a hearing until after the period had run and commented that “[W]e can ... imagine situations in which prejudice to the defendant would result from such a practice.” Commonwealth v. Metzger, 249 Pa.Super. [107] at 110 n. 2, 375 A.2d [781] at 783 n. 2. Thus, in order to prevent the risk of prejudice, “ ‘the lower court should make every effort to dispose of the Commonwealth’s petition prior to the expiration of the prescribed period. Any delay past this period must be limited and will possibly be subject to explanation. Such procedure is mandated by the necessity that all concerned be aware of the status of the case. To require otherwise is unfair to the court, the accused, and the people.’ ” Commonwealth v. Simon, 283 Pa.Super. 203, 206, 423 A.2d 1060, 1061 (1981) (quoting Commonwealth v. Ray, 240 Pa.Super. 33, 360 A.2d 925 (1976)).
While the record in the instant case does not disclose why the Commonwealth’s petition was scheduled to be heard seven weeks after the run date, appellant does not allege, nor does the record reveal that he was prejudiced by the court’s action. Therefore, under these circumstances, this Court need not inquire further into the reasons for the delay.

As in Fairley, while the record in the instant case does not disclose why the hearing on the Commonwealth’s application to extend was held after the run-date, appellant does not allege any prejudice, nor does the record reveal any prejudice to appellant as a result of this delay. Thus since appellant has suffered no prejudice from the unexplained delay in hearing and ruling on the Commonwealth’s timely filed application to extend the time for commencement of trial he has not been denied his rights under Rule 1100 in this regard.

Secondly, appellant claims for a variety of reasons that his waiver of a jury trial was not knowing and intelligent. To be valid, the waiver of the right to trial by jury must be an intentional relinquishment or abandonment of a known right or privilege; it must be a knowing, intelligent and understanding waiver of a known right. Commonwealth v. Garrett, 439 Pa. 58, 266 A.2d 82 (1970). Appellant first attacks the legal sufficiency of the waiver colloquy by claiming that he was not advised of the “beyond a reasonable doubt” standard of proof. Appellant’s claim, however, is belied by the record. The Notes of Testimony of the waiver colloquy reveal that after explaining to appellant the elements of the crimes with which he was charged the following exchange occurred:

THE COURT: This is what the Commonwealth has the burden of proving beyond a reasonable doubt either to the jury or to the court sitting alone. Do you have any questions about that?
THE DEFENDANT: No, sir.

Thus the record establishes that the appellant was informed of the “beyond a reasonable doubt” standard of proof and no further explanation was necessary. Commonwealth v. Pollard, 288 Pa.Super. 20, 430 A.2d 1192 (1981).

Appellant also claims that his limited educational background, and his prior placement in a mental health center for observation combined with certain incongruous answers and bizarre statements by appellant during the waiver colloquy demonstrate that his waiver was not knowing and intelligent. We disagree. The relevant portion of the colloquy is as follows:

Q. Do you have any history of any mental instability, or anything like that? Have you ever been a patient in a mental health center or a mental hospital?
A. Yeah, just—I was just sent up for observation; that’s all.
Q. But you’ve never been a patient? Have you ever been a patient of a psychiatrist or mental doctor, or anything like that?
A. (No response.)
MR. MORAN: Were you in for observation, and then released?
THE DEFENDANT: Yeah.
MR. MORAN: Your Honor, he was in for observation, and then released.
THE COURT: Then released?
MR. MORAN: Yes, sir.

(By the Court:)

Q. So you were never a patient?
A. (No response.)
MR. MORAN: You were never a permanent patient? (The defendant did not respond.)

(By the Court:)

Q. You were never in a mental hospital or a mental health center?
A. No, sir.
Q. You were never a patient of a mental health doctor or a psychiatrist of a psychologist, as I understand it; is that correct?
A. Yes, sir.
Q. Now, are you quite certain that this is what you want to do, Mr. Williams?
A. Yes, sir.
Q. You realize that you’re giving up very valuable rights by waiving your right to a jury trial; there’s no question about that, you fully understand that?
A. Yes, sir.
Q. And are you certain you want to do that?
A. Yes, sir.
THE COURT: Do either counsel want to ask any questions?
MR. MORAN: Your Honor, I believe the defendant has a question.
THE COURT: Yes.
THE DEFENDANT: I just wanted to say this: regardless of whoever makes the decision, the devil’s decision is the devil’s decision, the lord’s is the lord’s. That’s what I want to say.
THE COURT: I couldn’t quite understand you.
THE DEFENDANT: Whatever decision the lord makes is made, whatever decision the devil makes is made; so I got nothing further to say.
THE COURT: I don’t know how that affects this. You’ve got to understand that the decision in the case, if you’re tried by a jury, is made by the jury; if you’re tried by a judge, the judge makes the decision, whether you’re guilty or innocent; not the lord, or anybody else. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Is there anything that you don’t understand, that was said here today by anybody?
THE DEFENDANT: I fully understand everything.

Appellant asserts that when first asked if he had ever been a patient in a mental health center he answered that he had been in for observation, but when later asked if he had ever been in a mental health center he replied “no”. Appellant argues that these answers demonstrate confusion on his part. We disagree. These answers are not inconsistent and do not demonstrate confusion. We agree with the P.C.H.A. Court that the colloquy clearly shows that what appellant meant by these answers was that he had not been in a mental health center as a patient but only for observation.

Furthermore, if there was any confusion on appellant’s part, that confusion did not relate to his understanding of his right to a jury trial, the essential elements of a jury trial, or his decision to waive a jury trial. Contra; Commonwealth v. Hooks, 450 Pa. 562, 301 A.2d 827 (1973); Commonwealth v. Stokes, 450 Pa. 167, 299 A.2d 272 (1973).

In Commonwealth v. Hooks, supra, Hooks stated during the jury trial waiver colloquy, “I don’t really understand some of the things. Some of the things are still not clear to me.” Our Supreme Court held in Hooks that since it was not ascertainable from the record of the colloquy in that cage whether the “unclear things” in that case involved his right to a jury trial or something else, the intelligence of the waiver was left in doubt. In Commonwealth v. Stokes, supra, Stokes, who was 20 years old and educated only to the 7th grade in a school for slow learners, vacillated in his decision between jury trial and non-jury trial. Our Supreme Court held in Stokes that the record indicated confusion and vacillation on Stokes’ part and was therefore inadequate to support a finding of a knowing and intelligent waiver. In the instant case however, the alleged confusion, if any, does not relate to the right to a jury trial, the essential elements of a jury trial, nor the decision to waive jury trial. Nor is there any vacillation on appellant’s part as to his decision to waive jury trial. Thus, these answers do not evidence confusion such as would render appellant’s waiver not knowing and intelligent.

Likewise, the appellant’s statements about the “devil’s decision” and the “lord’s decision” do not support a finding that his waiver was not knowing and intelligent. While in isolation these statements may appear bizarre, the record as a whole demonstrates that appellant’s waiver was knowingly and intelligently made. Immediately after these statements, the Trial Court informed appellant that the decision in this case would be made either by a jury or a judge and appellant replied that he understood.

Nor can we say that appellant’s educational background and the fact that he had been in a mental health center for observation necessitates a conclusion that his waiver was not knowing and intelligent. While appellant had only an 8th grade education, he spent two years in the Job Corps and while he had been in a mental health center it had been only for observation and he was then released. We have reviewed the colloquy and find it supports the P.C.H.A. Court’s determination that the appellant knowingly and intelligently waived his right to a jury trial.

Appellant also contends that his trial counsel discouraged him from a jury trial by over-emphasizing the possible prejudice of a white jury against appellant, who is black, accused of raping a 14 year old white child. Appellant further asserts that his trial counsel recommended that he waive his right to jury trial. Thus, appellant argues that his counsel contributed to his inability to make a knowing and intelligent waiver of his right to jury trial. We disagree. Trial counsel testified at the P.C.H.A. hearing that while he did advise appellant of the potential prejudice involved in a case of this type he said he specifically advised appellant against a non-jury trial. Trial counsel further testified that it was appellant who wanted a non-jury trial. The P.C.H.A. court resolved this issue of credibility against appellant and there being support for such a determination in the P.C.H.A. record we will not disturb it on appeal. Commonwealth v. Stokes, 294 Pa.Super. 529, 440 A.2d 591 (1982). The decision to waive a jury , trial is ultimately and solely that of the defendant. Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610 (1975); Commonwealth v. Stokes, 450 Pa. 167, 299 A.2d 272 (1973). The record in this case demonstrates that appellant himself freely made that decision in this case.

Appellant next challenges the effectiveness of his trial counsel. The standard of review for questions regarding the effectiveness of counsel was set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599 at 604-05, 235 A.2d 349 at 352-53 (1967) as follows:

Our task in cases of this nature therefore encompasses both an independent review of the record, see Commonwealth ex rel. Strangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967), and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives____
We cannot emphasize strongly enough,, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test in not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis, (footnote omitted) (emphasis in original)

Appellant contends that his trial counsel failed to spend adequate time in preparing the case. Specifically appellant contends that trial counsel visited him only once while he was in prison and spoke to him only briefly at the preliminary hearing and arraignment. Appellant argues that his lack of contact disenabled trial counsel from properly preparing a defense. However, mere shortness of time spent in conference with a client does not per se establish ineffectiveness of counsel. Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973); Commonwealth v. Jones, 298 Pa.Super. 199, 444 A.2d 729 (1982). Furthermore, the time actually spent by counsel with an accused is not necessarily related to, and affords no basis for inferring the extent of total trial preparation. Commonwealth v. Owens, supra. We have conducted an independent review of the record and find no evidence of inadequate preparation on the part of appellant’s trial counsel.

Finally, appellant contends that trial counsel failed to adequately prepare his alibi defense. Specifically appellant contends that trial counsel failed to adequately investigate and take measures necessary to ensure the presence of the alibi witnesses at trial. In Commonwealth v. Owens, 454 Pa. at 272, 312 A.2d at 381 our Supreme Court said,

[H]ad appellant clearly established that he had communicated to his attorney the existence of the two witnesses and his attorney, without investigation, had failed to call them as witnesses, then such conduct, if not explained, would be a relevant circumstance in determining whether appellant was denied effective assistance of counsel.

However the record in the instant case fails to establish any lack of diligence in this regard on the part of trial counsel. Trial counsel testified at the P.C.H.A. hearing that appellant informed him of the alleged alibi witness only shortly before trial, either on the day before trial or the day of trial. Trial counsel further testified that this information consisted only of nicknames and no addresses were given. Immediately upon receiving this information from appellant, trial counsel went to the Sheriffs office and attempted to have these witnesses subpoenaed. One witness who could be found and served, testified at trial. When those who could not be found and served, failed to appear at trial, counsel requested, but was denied, a continuance. Furthermore, appellant testified at the P.C.H.A. hearing that he did not then, nor did he ever know the full names of the persons appellant wanted called as witnesses. Thus the record in this case fails to establish any lack of diligence on the part of trial counsel in the investigation, preparation or presentation of appellant’s alibi defense.

Judgment of sentence affirmed.

      . Post Conviction Hearing Act, Act of January 25, 1966 P.L. 1580 (1965), § 1 et seq., 19 P.S. § 1180-1 et seq., repealed, Act of April 28, 1978, P.L. 202, No. 53, § 2(a) (1397) effective June 27, 1980, as amended by Act of June 26, 1980, P.L. 265, No. 77, § 2 delaying repeal until June 27, 1981, as further amended by the Act of June 27, 1981, P.L. 123, No. 41, § 1 delaying repeal until June 26, 1982, repealed by Act of May 13, 1982, P.L. 587, No. 1982-122, § 3, replaced by 42 Pa.C.S. 9541 et seq.

      . Act of December 6, 1972, P.L. 1482, No. 334, section 1, 18 Pa.C.S.A. section 3121.

      . Act of December 6, 1972, P.L. 1482, No. 334, section 1, 18 Pa.C.S.A. 3123.

      . The record also indicates that on September 11, 1978, at the request of the Commonwealth and after a hearing, Judge Buckingham continued the case to the term of court commencing November 20, 1978 due to the. unavailability of Dr. Jensen. Rule 1100 provides that at any time prior to the expiration of the period for commencement of trial, the Commonwealth may apply to the court for an order extending the time for commencement of trial and that a copy of the application shall be served upon the defendant through his attorney. In the instant case, the Commonwealth properly filed a timely application to extend. The September 11, 1978 continuance is immaterial to our disposition of the Rule 1100 claim and we note it only to provide a full procedural history of the case.

      . Appellant also recasts as a claim of ineffectiveness of counsel this claim that his trial counsel over-emphasized the potential racial prejudice of a jury in a case of this type and recommended appellant waive his right to jury trial. Appellant’s claim is no more compelling as a claim of ineffectiveness of counsel. In Commonwealth v. Boyd, 461 Pa. at 30, 334 A.2d at 617 our Supreme Court said,
      Counsel’s advice to waive a jury trial can be the source of a valid claim of ineffective assistance of counsel only when 1) counsel interferes with his client’s freedom to decide to waive a jury trial, cf. Commonwealth v. Stokes, supra, or 2) appellant can point to specific advice of counsel so unreasonable as to vitiate the knowing and intelligent waiver of the right. Where an appellant merely claims, as in the present case, that his decision was a strategic error, and can point to no specific incidents of counsel impropriety, he must bear the responsibility for that decision and cannot shift the blame to counsel.
      For the same reasons as stated above, appellant has failed to establish either of the factors set forth in Boyd and thus counsel cannot be found ineffective.


author: BECK, Judge:

text:
    456 A.2d 1055
    COMMONWEALTH of Pennsylvania, Appellant v. Christopher VAN JORDAN.
    Superior Court of Pennsylvania.
    Argued May 26, 1982.
    Filed Feb. 18, 1983.
    Petition for Allowance of Appeal Denied May 12, 1983.

      Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellant.
    Arthur L. Jenkins, Jr., Norristown, for appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   BECK, Judge:

In this case the Commonwealth is appealing the suppression of evidence against appellee Christopher Van Jordan. Since the effect of the lower court’s order to suppress is to preclude the Commonwealth from proceeding in its case against Van Jordan, our Court has jurisdiction. Com. v. McCabe, 303 Pa.Super. 245, 449 A.2d 670 (1982).

The facts are all concerned with events that occurred on September 5, 1980, in Towamencin Township, Montgomery County. The township police were responding to a request from Dr. Charles Rossow of New Brunswick, New Jersey, to attempt to locate his daughter, Kathy Rossow, who had been missing for several days. Dr. Rossow provided the police with a description of his daughter’s automobile to aid them in their search.

On September 5, police officer Stuart T. Newman received a report on a theft of a pillowcase from the night clerk of the Budget Valley Motor Lodge. Kathy Rossow was staying at the motel and had left a credit card belonging to her father as security. The night clerk also informed the police officer that there were numerous telephone calls being placed between the Rossow room and room # 328 of the local Holiday Inn, across the street from the Budget Valley Motor Lodge. Newman then spotted the Rossow automobile in the parking lot of the Holiday Inn.

When a man and a woman (not fitting Kathy Rossow’s description) left the Holiday Inn and entered the car, Newman followed them and stopped the car after it had gone a short way. The driver of the car was Van Jordan, who identified himself, acknowledged that he knew the police were looking for Kathy Rossow, and told Newman that she was in his room, #328, at the Holiday Inn. When Van Jordan was asked if anyone else was in room # 328 he answered “Yes, Sam” (R. 17a-19a).

Van Jordan drove on his way and Newman reached the clerk at the Holiday Inn and instructed him not to pass any calls through to room # 328, lest Van Jordan alert Kathy Rossow that the police were on the way. Newman and another police officer then returned to the Holiday Inn and went to room # 328, accompanied by the night clerk. They knocked, heard a male voice say “I’ll be there in a minute” and heard water running in the bathroom. About thirty seconds later the door was opened by a one-legged man on crutches, with a towel wrapped around his waist, later identified as Samuel T. Feldi, since deceased (R. 19a-20a). The officers announced that their purpose was to locate Kathy Rossow. Feldi told them that she was in bed, and admitted them to the room.

Upon entering the room, Newman observed an automatic weapon and drug paraphernalia in plain view. Miss Rossow was in bed, and another man, Douglas Sharp, was seated on the sofa. Newman instructed Rossow and Feldi to get dressed, and Rossow asked to use the bathroom. Before permitting her to enter, Newman searched the bathroom and found another automatic pistol, $540 in cash, and glassine bags of a substance which later analysis proved to be Methamphetamine (“speed”). The three occupants were then placed under arrest and ordered to sit on the sofa. The police then proceeded to search the entire room, including Van Jordan’s closed suitcase, which was found to contain leather used to make the holster in which one of the weapons was found, a portable scale, and a photo of Van Jordan holding a bag containing powder.

Van Jordan returned to the motel room and he, too, was placed under arrest. A search of his person incidental to the arrest produced a knife and a Quaalude tablet. Jordan was charged with Violation of the Controlled Substance, Drug, Device and Cosmetic Act , Violation of the Uniform Firearms Act, Possession of Instruments of Crime, and Criminal Conspiracy.

Van Jordan successfully challenged the warrantless entry of the motel room, which was rented in his name, as a violation of his rights under the Fourth Amendment. The lower court granted his Motion to Suppress all the evidence against him which was seized. The Commonwealth, on appeal, raises two issues: the validity of the entry of the police into the motel room on the basis of Feldi’s consent, and the constitutionality of the search of the suitcase as a search incident to arrest.

The issue of the validity of third party consent to entry of premises shared with another person was addressed by the United States Supreme Court in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). In an opinion expressing the views of six members of the Court, a consensual entry to Matlock’s room, given by a woman who shared his bedroom, was upheld. The Court looked back to other cases in which consensual searches were in issue. In Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), the Court permitted Cupp’s consent to a search of Frazier’s duffel bag, which Frazier had allowed Cupp to use. Frazier was held to have assumed the risk that the joint-user of the duffel bag would allow someone else to look inside. In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) the Court explored the nature of consent in general, which may be either voluntary or coerced, a factual determination to be made on the basis of the totality of the circumstances. After reviewing these landmark decisions, the Matlock Court concluded:

“These cases at least make clear that when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.”

In an important footnote, the concept of common authority was explored:

7. Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (night hotel clerk could not validly consent to search of customer’s room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the coinhabitants has the right to permit the-inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

The primary justification of third party consent is that there is a reduced expectation of privacy in premises or things shared with another, and when one leaves something with another person, one assumes the risk that it may find its way to the police. Matlock establishes the rule that third party consent is valid against an absent, non-assenting party when the party giving consent has “common authority” over the property.

We disagree with the lower court’s interpretation that the Matlock test excludes Feldi’s consent to entry because he did not have “co-equal dominion over the room rented by Van Jordan” (Opinion, p. 10). We believe that Feldi’s use of the room and bath to shower and change his clothes, and Van Jordan’s acknowledgement that Kathy Rossow was in his room “with Sam” confirm Feldi as a legitimate co-tenant of the motel room, constitutionally able to allow the police to enter.

Our understanding of Matlock is confirmed by other cases decided subsequent to it, particularly United States v. Gulma, 563 F.2d 386 (9th Cir.1977), upholding a consent to a hotel room search by one who had possession of the keys, although the person who gave the consent had never entered the room, and State v. Miller, 159 N.J.Super. 552, 388 A.2d 993 (1978), rejecting a defendant’s challenge to a consent given by a co-occupant of a room in a rooming-house. The Miller court held that it was unnecessary for the state to call as witness the woman who gave the consent, for the state’s attempts to locate her had been unsuccessful, a factual situation similar to the one at bar, where the consenting party has since died.

Our Court has quite recently held that a defendant’s mother could lawfully consent to the search of the defendant’s room by the police. In general, to have a reasonable expectation of privacy one must intend to exclude others and must exhibit that intent. Com. v. Lowery, 305 Pa.Super. 66, 451 A.2d 245 (1982). Van Jordan clearly made no attempt to exclude others from his room, and his expectation of privacy was thereby diminished. It is therefore irrelevant that Van Jordan did not explicitly consent to an entry during his conversation with Newman during the auto stop. We hold that the consent to entry which the police received from the co-occupant of the motel room did not violate Van Jordan’s Fourth Amendment rights.

We turn now to the second issue raised by the Commonwealth, the right to search Van Jordan’s suitcase and seize the contents. Van Jordan, who successfully maintained that the seizure of the suitcase was unconstitutional, challenges the right of the Commonwealth to raise this issue on appeal. He argues that the Commonwealth did not challenge the suppression order with regard to the suitcase, and therefore it is not in a posture to litigate the question now on appeal.

Pa.R.A.P. 1925 provides:

(b) Direction to file statement or matters complained of. If the lower court is uncertain as to the basis for the appeal, the lower court may direct the appellant forthwith to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

Appellant’s Statement of Matters Complained of on Appeal reads, “The trial court erred in suppressing the evidence in this case because, under the circumstances of the case, appellee’s guest, who permitted the police to enter the motel room, gave a valid third party consent so as to abrogate the necessity for the warrant requirement under the Fourth Amendment” (R: Concise Statement Of Matters Complained of).

Our Court held in Com. v. Crowley, 259 Pa.Super. 204, 393 A.2d 789 (1978) that Rule 1925(b) gives the appellate court discretion in deciding whether or not to hear an issue on appeal when it has not been specifically incorporated into the Statement of Matters Complained of. The policy, as explained in Crowley, is to exercise our discretion to allow the appeal in those instances in which the failure does not defeat or interfere with the ability to exercise appellate review. In several instances we have found that technical defects in the 1925(b) statement were not impediments to adequate appellate review. We have chosen to allow the appeal when the issue omitted is so closely related to a claim incorporated in the 1925(b) statement that our review could proceed without impairment, as in Com. v. Broomell, 254 Pa.Super. 574, 386 A.2d 99 (1978), or because there is adequate testimony on the issue, as in Com. v. Williams, 269 Pa.Super. 544, 410 A.2d 835 (1979), and in Com. v. Monroe, 281 Pa.Super. 328, 422 A.2d 193 (1980). See also Com. v. Yohn, 271 Pa.Super. 537, 414 A.2d 383 (1979).

We here exercise our discretion to review the issue of Van Jordan’s .suitcase for two reasons. First, there is considerable testimony on the suitcase seizure in the suppression hearing (R. 69a-75a). During this testimony the trial court asked several questions to sharpen the focus of the suppression inquiry. We therefore have, as in Williams and Monroe, a sufficient record to review. Second, appellant’s 1925(b) statement impliedly includes the issue of the suitcase in that it asserts that “The trial court erred in suppressing the evidence in this case____” The suitcase is part of the evidence. Since we have held that the entry to the motel room was lawful, we can now proceed to examine the issue that flows from that holding, namely, the validity of the seizure of the suitcase.

The Commonwealth argues that the suitcase was seized following the .lawful arrest of Rossow, Sharp, and Feldi, and that the seizure is justified because the suitcase was within the arrestees’ area of control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). At the time of the arrest, there were two officers in the room and three arrestees on the sofa. The outnumbered police feared that one of the arrestees might get hold of the suitcase either to obtain a weapon (for two had already been found on the premises) or to destroy evidence.

Appellee, who contests the appealability of the suitcase issue, nevertheless states that its seizure was unconstitutional on the basis of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). We do not agree. Chadwick concerned a footlocker seized from the trunk of an automobile which was. under the exclusive control of police for an hour and a half before it was opened and searched. Sanders was also concerned with a suitcase taken by authorities from the trunk of a taxi, in which the defendant was a passenger. Sanders ruled that absent exigent circumstances, a warrant is required for search of luggage taken from a stopped automobile into the exclusive custody of police.

Sanders left open the question of luggage searched incident to arrest, within the area of control of the arrestee at the time of the search. Footnote 11 of the opinion reads:

11. . There may be cases in which the special exigencies of the situation would justify the warrantless search of a suitcase. Cf. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (police had reason to suspect automobile trunk contained a weapon). Generally, however, such exigencies will depend upon the probable contents of the luggage and the suspect’s access to those contents—not upon whether the luggage is taken from an automobile. In the present case the State has conceded that there were no special exigencies.

In general, luggage taken incident to a lawful arrest has been held validly seized, so long as it is contemporaneous with the arrest and within the area of control of the arrestee. United States v. Garcia, 605 F.2d 349 (7th Cir.1979). When the search is immediate, several courts have upheld search of closed containers within the arrestee’s area of control: United States v. Eatherton, 519 F.2d 603 (1st Cir.1975), cert. denied 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975) (brief case), United States v. Pugh, 566 F.2d 626 (8th Cir.1977), cert. denied 435 U.S. 1010, 98 S.Ct. 1885, 56 L.Ed.2d 397 (1978) (brief case). In United States v. Mason, 523 F.2d 1122 (D.C.Cir.1975), a search of a suitcase in a closet, when the arrestee had already been handcuffed, was upheld.

Our Supreme Court has ruled that the test is whether the arresting officer reasonably believed the arrestee might obtain weapons or evidence in the container. Com. v. Bess, 476 Pa. 364, 382 A.2d 1212 (1978). In the facts of this case, given that the motel room and bath contained weapons and contraband, that the suitcase was on the floor of the motel room not far from where the three arrestees were being detained, and that the search and seizure followed immediately after the arrest, we hold that the suitcase was constitutionally searched, and its contents may therefore be introduced into evidence.

The order of the lower court is reversed.

      . 35 Pa.C.S.A. § 780-113 (a) (30).

      . 18 Pa.C.S.A. § 6106.

      . 18 Pa.C.S.A. § 907.

      . 18 Pa.C.S.A. § 903.

      . Hall, Search and Seizure (1982), §§ 4.26 et seq., Ringel, Search and Seizure, 2d ed. (1981), §§ 9.5 et seq.


author: JOHNSON, Judge:

text:
    456 A.2d 1060
    PHILADELPHIA CITY EMPLOYEES FEDERAL CREDIT UNION, a Corporation v. Ralph BRYANT and Geraldine Bryant, Individual and his Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1982.
    Filed Feb. 18, 1983.

      Elliott B. Platt, Philadelphia, for appellants.
    Robert Cherwony, Philadelphia, for appellee.

      Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   JOHNSON, Judge:

Appellants Ralph and Geraldine Bryant appeal from an Order denying their Petition to Strike or Open a default judgment. For the following reasons, we vacate the Order and remand.

Appellee corporation filed a complaint in assumpsit in May of 1980 alleging breach of the terms of two separate loan agreements. The first count of the complaint alleged breach of the terms of a promissory note in the amount of $5,633.42 executed by both Appellants. Count two alleged breach of the terms of a second note in the amount of $2,000.00 executed by Ralph Bryant only. The note executed by both Appellants noted collateral as “shares and real estate”. Preliminary objections were filed on behalf of Appellants and denied with Appellants granted leave to file an answer within twenty days.

Appellee praeciped for a default judgment on December 8, 1980, after Appellants failed to file an answer. Appellants’ Petition to Strike or Open was filed on December 24, 1980 and denied on May 14, 1981.

Appellants raise three issues on appeal: (1) did the trial court err in denying the Petition to Strike where Appellees failed to comply with the notice provisions of 41 P.S. § 101 et seq. involving residential mortgage obligations, (2) did the trial court err in refusing to open the default judgment where Appellants had adequately proved all elements necessary for the opening of a default judgment, including Appellee’s failure to give notice to Appellants pursuant to Pa.R. C.P. 237.1 and (3) did the trial court err in ruling on Appellants’ Petition when neither party had taken any action under Pa.R.C.P. 209.

Because of our determination that the Order denying Appellants’ Petition must be vacated on the grounds of Pa.R.C.P. 209, we need not address the remaining issues raised by Appellants.

As stated in Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 133-4, 403 A.2d 577, 579 (1979):

Our task on review is well settled. A petition to open a default judgment in assumpsit is an appeal to the equitable power of the court and is to be exercised only when three factors coalesce: 1) the petition has been promptly filed; 2) a meritorious defense can be shown; 3) there is a reasonable excuse for failure to file an answer. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Balk v. Ford Motor Company, 446 Pa. 137, 285 A.2d 128 (1971); St. Joe Paper Company v. Marc Box Company, Inc., 260 Pa.Super. 515, 394 A.2d 1045 (1978). This court will not reverse a lower court ruling, either opening or refusing to open a default judgment, unless an error of law or a clear, manifest abuse of discretion is shown. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Epstein v. Continental Bank & Trust Company, 260 Pa.Super. 522, 394 A.2d 1049 (1978); Nevils v. Chernitsky, 244 Pa.Super. 501, 368 A.2d 1297 (1976).

Appellants alleged in their Petition to Strike or Open that the note described in count one of the complaint was in fact a mortgage on Appellants’ residence. Appellee’s responsive pleading to Appellants’ Petition specifically denies that the note was in fact a residential mortgage.

When a respondent effectively denies material allegations in a petition to open a default judgment, the petitioner must support his position with clear and convincing proof. Bell v. Jefferson Republican Club, 304 Pa.Super. 157, 450 A.2d 149 (1982); Shainline v. Alberti Builders, Inc., su pra. Pa.R.C.P. 209 supplies the procedure for establishing such proof.

Rule 209 states:

RULE 209. Duty of Petitioner to Proceed After Answer Filed
If, after the filing and service of the answer, the moving party does not within fifteen days:
(a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
(b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.

At the time the trial court made its determination on Appellants’ Petition, no proof had been presented by either party in support of the allegations as to whether or not the instrument sued upon involved a residential mortgage. These allegations presented the trial court with a question of fact as to whether a residential mortgage was indeed involved.

A petitioner’s failure to take depositions does not automatically trigger Rule 209, to operate as an admission of all averments of fact in the answer to the petition. Bell v. Jefferson Republican Club, supra. Only when the petitioner himself orders the cause for argument on the pleadings or, when the petitioner ignores a rule absolute to move for depositions, can the factual averments of a responsive answer be taken as true against the petitioner. Id.

Here, appellee as the moving party did not proceed by rule or agreement of counsel to take depositions; neither did appellee order the cause for argument on petition and answer; neither did appellant as respondent take a rule on appellee to show cause why it should not either proceed to take depositions or order the cause for argument on petition and answer. Instead, with only the petition and the answer, the lower court granted the petition. That decision was premature. The dispositive issue is whether appellee’s counsel did or did not have a mistaken belief about the date by which an answer had to be filed, and on that issue the court had before it no evidence, only contradictory pleadings. Such being the case, the court had no proper basis for preferring one party’s version to the other party’s. White v. Alston, 231 Pa.Super. 438, 331 A.2d 765 (1974).

Instapak Corp. v. S. Weisbrod Lamp & Shade Co., 248 Pa.Super. 176, 181-2, 374 A.2d 1376, 1379 (1977) (footnotes omitted).

In the instant case, the trial court decided the petition on the petition and answer alone, instead of waiting for either party to take action under Rule 209. The Rule places no time limits on either party to take action and therefore, at the time the trial court made its rulings on the petition, either party had the option to take a rule on the other to proceed under Rule 209. Until either party took action, or until some other force spurred matters along, the court should not have acted. See Shainline v. Alberti Builders, Inc., supra; Maurice Goldstein Company, Inc. v. Margolin, 248 Pa.Super. 162, 374 A.2d 1369 (1977).

Therefore we vacate the Order of May 14, 1981 and remand for further proceedings consistent with this opinion.

It may well be that upon remand the trial court will reach the same result.

Jurisdiction is not retained.

      . Act of January 30, 1974, P.L. 13, No. 6, as amended. Section 403(a) states:
      § 403. Notice of intention to foreclose
      (a) Before any residential mortgage lender may accelerate the maturity of any residential mortgage obligation, commence any legal action including mortgage foreclosure to recover under such obligation, or take possession of any security of the residential mortgage debtor for such residential mortgage obligation, such person shall give the residential mortgage debtor notice of such intention at least thirty days in advance as provided in this section.

      . A determination as to whether this case involves a residential mortgage is crucial to the resolution of the issue of proper notice of the default judgment. If a residential mortgage is involved, then notice is required under 41 P.S. § 101 et seq. See also Pa.R.C.P. 237.1(b)(2). If a residential mortgage is not involved, then notice under Pa.R.C.P. 237.1(a) is required, unless the default judgment was entered pursuant to an order of court. See Pa.R.C.P. 237.1(b)(1).
      Therefore, before the primary issue of proper notice can be addressed in the instant case, it must be determined whether a residential mortgage is, in fact, involved. We expect the trial court to address itself to this issue on remand.


text:
    456 A.2d 1063
    COMMONWEALTH of Pennsylvania v. Alphonso GOLSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 18, 1982.
    Filed Feb. 18, 1983.

      Richard J. Hodgson, Norristown, for appellant.
    Joseph A. Smyth, District Attorney, Norristown, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   JOHNSON, Judge:

Appellant was found guilty of Robbery and Criminal Conspiracy on October 28, 1976. Following a denial of post-trial motions, he was sentenced to eight to twenty years incarceration. On direct appeal to this court, the case was remanded to the trial court for a hearing concerning Pa.R.Crim.P., Rule 1100. Following said hearing, the trial court reaffirmed judgment of sentence and on a second appeal, this court affirmed. A Post Conviction Hearing Act (PCHA) Petition was filed, and dismissed on June 16, 1981 by the trial court. This appeal follows.

Appellant urges on appeal that trial counsel was ineffective in failing to demand a mistrial: (1) following alleged prosecutorial misconduct during cross-examination of a defense witness, and (2) upon discovering that a juror had not heard some of the testimony presented. Because of our determination that counsel was indeed ineffective with respect to the latter issue, we need not discuss the former.

During the course of the appellant’s trial, it came to the attention of the trial judge that one of the jurors had not heard the testimony of all of the Commonwealth witnesses. At that time, the following exchange took place:

THE COURT: “Before we swear this witness, (To Juror Number One) Mrs. Creighton, you have followed that which has been going on in this case; have you not?
MRS. CREIGHTON: Not everything.
THE COURT: Of any of the witnesses?
MRS. CREIGHTON: Most of what the witnesses said, yes. This girl was very good; I understood everything' she said.
THE COURT: All right, keep your voice up, Mr. Miller.” (N.T. Page 84)

Subsequent to the above dialogue no motion for mistrial was made by defense counsel, and the direct testimony of the Commonwealth witnesses continued.

To examine a claim of ineffectiveness a two-step analysis is used:

The Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis aimed at promoting his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 91, 413 A.2d 1025, 1028 (1980); Commonwealth v. Sherard, supra:

Commonwealth v. Jennings, 285 Pa.Super. 295, 298-9, 427 A.2d 231, 232 (1981).

The first step in the analysis is whether the underlying issue is found to be of arguable merit.

Fundamental to the right of an “impartial” jury is the necessity that participating jurors be competent and qualified. Commonwealth v. Brown, 231 Pa.Super. 431, 332 A.2d 828 (1974).

Implicit in these requirements is that a juror should be free from such physical infirmities as will interfere with or preclude the proper discharge of his duties. See 47 AmJur. Jury § 108 (1969); A.B.A. Project on Standards for Criminal Justice, Standards Relating to Trial by Jury § 2.1(b)(ii) (Approved Draft 1968).

Commonwealth v. Brown, 231 Pa.Super. at 436, 332 A.2d at 831.

Clearly, appellant was entitled to a jury verdict arrived at by each and all jurors upon the evidence introduced. Commonwealth v. Fugmann, 330 Pa. 4, 198 A. 99 (1938); Commonwealth v. Brown, supra; see also Pa.R.Crim.P., Rule 1120(b) ([t]he verdict shall be unanimous...).

A juror is not disqualified per se because of deafness; however, where the deafness is of such degree as to indicate that the juror may not have heard material testimony, that juror must be disqualified. Commonwealth v. Brown, 231 Pa.Super. at 436, 332 A.2d at 831 (emphasis added); see also, Commonwealth v. Greiner, 309 Pa.Super. 291, 455 A.2d 164 (1983).

The opinion of the trial court and appellant in his brief have made reference to the Brown decision. The facts in Brown differ only to the extent to which the juror was questioned concerning his hearing impairment. In the instant case, the record is inconclusive as to the severity of the juror’s impairment. However, the juror clearly indicated that she had not followed everything.

[I]n order to insure fairness and to alleviate any possibility of prejudice caused by the deaf juror, we must-assume prejudice for the sake of insured fairness. Cf. Commonwealth v. Stewart, 449 Pa. 50, 56, 295 A.2d 303, 306 (1972) (even the possibility of jury prejudice requires reversal, because of the possibility of an infringement on the accused’s right to due process of law); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).

Commonwealth v. Brown, 231 Pa.Super. at 438, 332 A.2d at 832.

The second step of the analysis is whether there was a reasonable basis for counsel not moving for a mistrial. The record in the instant case does not include a PCHA hearing transcript. The only mention of such a hearing is made in the trial court’s opinion. Proper appellate review in the instant case requires a transcript of the PCHA hearing in order for full and adequate determination of the issues. If the record is insufficient to permit the superior court to discern the particular basis for counsel’s decision on any matters challenged as ineffective on later appeal by the defendant, the superior court must vacate the judgment of sentence and remand for an evidentiary hearing in the lower court. See Commonwealth v. Stoner, 284 Pa.Super. 364, 371, 425 A.2d 1145, 1149 (1981).

The issue underlying the charge of ineffective assistance is of arguable merit. We lack a proper record and are therefore unable to determine whether defense counsel had any reasonable basis for failing to make a motion for a mistrial.

Accordingly, the order is vacated and remanded for evidentiary hearing. Jurisdiction is not retained.

      . 18 Pa.C.S.A. § 3701.

      . Id. § 903.

      . Commonwealth v. Golson, 263 Pa.Super. 143, 397 A.2d 441 (1979).

      . Commonwealth v. Golson, 287 Pa.Super. 555, 427 A.2d 264 (1980).

      . 19 P.S. § 1180-1 et seq. (Purdon’s Pamphlet 1982).

      . The trial court correctly read the holding in Brown. However, it misperceived the applicability of the holding to the facts in the instant case. The trial court in its opinion stated that “there is no evidence on the record indicating that the juror was so physically impaired as to be unable to hear and understand the testimony presented.” Although the juror indicated that she heard most of the testimony of Commonwealth’s witnesses, she herself stated she did not hear everything. The appellant, in his brief, stated that Brown is controlling on the instant facts.