author: PER CURIAM. CIRILLO, President Judge,

text:
    562 A.2d 858
    COMMONWEALTH of Pennsylvania, v. Baxter J. HAWK, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 20, 1988.
    Filed July 26, 1989.

      Stanley E. Gever, Philadelphia, for appellant.
    Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and BROSKY, McEWEN, DEL SOLE, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   ORDER OF COURT

PER CURIAM.

AND NOW, to wit, this 26th day of July it is hereby ORDERED that the prior Order of this Court denying the Commonwealth’s petition to supplement the record and file the notes of testimony of the hearing held on July 8, 1985 before the Honorable Eugene H. Clarke is vacated. The Commonwealth is hereby granted leave to file the transcript of the hearing of July 8, 1985, within twenty (20) days of the date hereof.

CIRILLO, President Judge, files a dissenting opinion.

BROSKY and TAMILIA, JJ., dissent.

CIRILLO, President Judge,

dissenting.

I respectfully dissent from the majority’s order because I do not believe that, in this case, the Commonwealth has the burden to ensure that the record on appeal is complete. Moreover, I submit that once the Commonwealth has been granted an extension of time in which to bring the defendant to trial, its responsibility to show that it acted with due diligence is complete; this responsibility to act with due diligence does not follow the Commonwealth so as to nullify the rules of appellate procedure governing preparation and transmission of the record. See Pa.R.A.P. 1911-35.

This case is before us pursuant to the per curiam order dated April 15, 1988, wherein this court granted en banc reargument of a panel decision dated February 1, 1988. Hawk was arrested on March 18, 1984, and charged with numerous offenses. Accordingly, the mechanical run date under Pa.R.Crim.P. 1100(a)(2) was September 14,1984. On August 28, 1984, the Commonwealth filed a petition for extension under Pa.R.Crim.P. 1100(c) or (d). Prior to September 14, 1984, the run date, no hearing had been held. On October 10, 1984, Hawk filed a motion to dismiss under Pa.R.Crim.P. 1100(f). According to a handwritten notation on the record, made by the trial court, a hearing was held on July 8, 1985, at which time the trial court granted the Commonwealth’s petition, extended the time in which the Commonwealth had to bring Hawk to trial until November 21,. 1985, and denied Hawk’s motion to dismiss. On June 12, 1986, Hawk was tried and convicted of robbery, theft by unlawful taking, theft by receiving stolen papers, simple assault, possession of instruments of crime, and unlawful restraint. Post-trial motions were filed, denied by the court, and Hawk was sentenced. Hawk then filed a direct appeal.

Hawk appealed from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County, sentencing him to concurrent terms of imprisonment of five to ten years for robbery, five to twenty-five months for simple assault, and eight to sixty months for unlawful restraint. A panel of this court addressed Hawk's claim that the Commonwealth failed to use due diligence in bringing him to trial and, as a result, he was denied his right to a speedy trial. Specifically, Hawk stated that the hearing on the Commonwealth’s petition to extend and on his motion to dismiss was not held until 298 days following the mechanical run date and thus the provisions of Rule 1100 were violated. The panel noted that this court has consistently disapproved of delays in the holding of hearings on petitions for extensions. See e.g. Commonwealth v. Yant, 314 Pa. Super. 442, 461 A.2d 239 (1983). A delay, however, will not be grounds for discharging a defendant absent a showing of prejudice. See Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111 (1983). The panel found that Hawk did not suffer any prejudice, notwithstanding Hawk’s allegations that if his trial had been held earlier and if his motion to dismiss had been acted upon more expeditiously, he might have been acquitted.

Hawk also claimed that the Commonwealth did not establish a record showing that it acted with due diligence and that the trial was scheduled for the earliest date consistent with the court’s business. The panel noted that the Commonwealth has the burden of proving it met the aforementioned requirements, by a preponderance of the evidence. After reference to applicable case law, the panel concluded that because the notes of testimony from the July 8, 1985 hearing were not included in the original record and because the Pa.R.A.P. 1925 opinion filed by the Honorable Eugene H. Clarke could not constitute record judicial notice of the testimony presented at that hearing, the Commonwealth had not sustained its burden of proof and the petition for extension had been improperly granted.

As evidenced by its order, the majority, like the panel, has misconstrued the Commonwealth’s burden of proof required to demonstrate compliance with Rule 1100(c), and has incorrectly applied it to matters relating to the preparation and transmission of the record, thereby supplanting Pa.R.A.P. 1911-35. Prior to my review of the applicable rules, however, I note that the standard of review of a trial court’s grant of an extension of time pursuant to Pa.R.Crim.P. 1100 has been set forth in Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983). In Lohr, our supreme court stated that “This determination is within the realm of discretion of the trial court and absent an abuse of discretion, a grant of extension of time will not be overruled on appeal”. Id., 503 Pa. at 139-40, 468 A.2d at 1380.

A review of the rules governing the preparation and transmission of the original record for appellate review and an application of those rules to the present case illustrates that Hawk, and not the Commonwealth, was responsible for ensuring the record was complete. Rule 1911 states in pertinent part:

(a) General rule. The appellant shall order any transcript required under this chapter in the manner and make any necessary payment or deposit therefor in the amount and within the time prescribed by Rules 5000.1 et seq., of the Pennsylvania Rules of Judicial Administration (court reporters).
******
(d) Effect of failure to comply. If the appellant fails to take the action required by these rules and the Pennsylvania Rules of Judicial Administration for the preparation of the transcript, the appellate court may take such action as it deems appropriate, which may include dismissal of the appeal.

Pa.R.A.P. 1911(a), (d).

Prior to the promulgation of Rule 1911 there was uncertainty about who had the duty to order the transcript from the court reporter as well as who was responsible for payment of the costs of transcription. See Revocation of Restaurant Liquor License v. Commonwealth, Pennsylvania Liquor Control Bd., 64 Pa.Commw. 566, 570, 441 A.2d 491, 493 (1982) (where court held that the “trial judge must compel the court reporter to transcribe the notes of testimony ... without prejudice to his right to recover his fee”); see also 1 Pennsylvania Appellate Practice § 1911:2 (1986). The language of the rule unequivocally places the burden of ordering any transcript required for appellate review upon the appellant:

Rule 1911 now makes clear that it is the duty of the appellant to take all steps necessary to secure preparation of the transcript on appeal. Subsection (d) of the rule reinforces the gravity of this duty, in that it allows the appellate court to take such action as it deems appropriate, including dismissal of the appeal, “[i]f the appellant fails to take the action required by these rules and the Pennsylvania Rules of Judicial Administration for the preparation of the transcript.”

1 Pennsylvania Appellate Practice § 1911:2 n. 7 (1986); see also Commonwealth v. Williams, 857 Pa.Super. 462, 516 A.2d 352 (1986).

Thus, I believe that it is clear that Hawk, as the appellant in this case was responsible for ordering the transcription of the July 8, 1985 hearing from the court reporter. His failure to do so would permit “the appellate court ... [to] take such action as it deems appropriate, ... includpng] dismissal of the appeal.” Pa.R.A.P. 1911(d). A review of the parties’ briefs indicates that there was a transcription of the hearing conducted on July 8, 1985; both the Commonwealth and Hawk have made reference to specific pages of this transcript in their briefs.

Rule 1921 embraces the fundamental principle that an appellate court may consider only the facts that appear in the official record. See Official Note, Pa.R.A.P. 1921; see also Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974); 1 Pennsylvania Appellate Practice § 1921:1 (1986). The rule states the following:

Rule 1921. Composition of Record on Appeal.

The original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases.

Pa.R.A.P. 1921.

As an added precaution it has been recommended that appellant’s counsel request the trial court clerk to review the record before it is transmitted to the appellate court. Further, counsel for appellant may request the original record on appeal as certified by the trial court pursuant to Rule 3114. If the appellate court grants such a request, appellant’s counsel will be certain the record is complete. See 1 Pennsylvania Appellate Practice § 1921:3 (1986).

Further, the official record is comprised only of those documents which were “filed” in the trial court; that is, filed with the clerk of the court of common pleas or the office of the prothonotary. See Pa.R.A.P. 1921; see also 42 Pa.C.S. § 2736; Commonwealth v. Stanton, 294 Pa.Super. 516, 440 A.2d 585 (1982) (reviewing court cannot consider facts set forth in a party’s brief since the matters contained therein are not a part of the record); Wiegand v. Wiegand, 363 Pa.Super. 169, 525 A.2d 772 (1987) alloc. denied, 517 Pa. 624, 538 A.2d 877 (1987) (same). Consequently, only those documents filed can be considered a part of the record and reviewed on appeal. In order to ascertain which documents compose the official record, courts frequently review the certified copy of the docket entries prepared by the clerk of the trial court. 1 Pennsylvania Appellate Practice 1921:9 (1986); see also Commonwealth v. Santana, 321 Pa.Super. 299, 468 A.2d 488 (1983) (court reviewed the docket entries to determine what documents were “filed” and thus a part of the official record). Anselmino v. Staranko, 318 Pa.Super. 54, 464 A.2d 514 (1983) (court stated that the record was incomplete and remanded the case to the trial court for the purpose of transcribing and certifying all the notes of testimony pursuant to Pa.R.A.P. 1922). A review of the record in this case reveals handwritten notations made by the trial court indicating that a hearing was held on July 8, 1985, at which time the Commonwealth’s petition to extend under Rule 1100 was granted, extending the run date until November 21, 1985. Thus the record demonstrates there was a hearing and the parties’ briefs indicate that the notes of testimony were transcribed.

With respect to transcription of notes of testimony to be included in the official record, ‘Ta.R.A.P. 1922 sets forth the procedure for ordering, transcribing, lodging, objecting to, and certifying the transcript of proceedings in the trial court and prescribing the responsibilities of the various participants in the judicial process in providing a transcript that becomes part of the record on appeal.” 1 Pennsylvania Appellate Practice § 1922:1 (1986). As noted above, the appellant is responsible for ordering the transcript from the official court reporter. Pa.R.A.P. 1911(e). After the transcript is lodged, the court reporter gives the required notice, and the parties to the proceeding are required to make any objections within five days following the notice. The court reporter certifies the transcript after the five day period has elapsed or, if objections were made, after the trial judge has resolved them. Further, the trial judge is required, in a criminal case, to review the portion of the transcript containing the jury charge and make any necessary corrections. Id. at § 1922:2; Pa.R.A.P. 1922(c). In the present case the record is silent with respect to the circumstances surrounding the transcription of the July 8, 1985 hearing.

By way of summation I note that appellant Hawk was required by Rule 1911(a) to order the transcription of the July 8, 1985 hearing. A review of the record reveals that such a hearing took place and the notes of testimony were at some point transcribed. According to Rule 1921 an appellate court will only consider facts appearing in the official record. Moreover, only those documents “filed” in the trial court will be considered a part of the original record.

Thus, it appears that we are confronted with a situation where there is a transcript of the hearing which should be a part of the official record, but is not. This situation is addressed by Pa.R.A.P. 1926. Rule 1926 allows the appellate court to direct that omissions from the record be corrected and that a supplemental record be certified and transmitted. See Pa.R.A.P. 1926.

Rule 1926 states:

Rule 1926. Correction or Modification of the Record.

If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the lower court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate court.

Id.

If the transcript was omitted from the record by error or accident, we, as an appellate court may, of our own initiative, direct that omission be corrected and a supplemental record be certified and transmitted. Under these circumstances, I would propose that the following order be entered pursuant to Pa.R.A.P. 1926:

AND NOW, this-- day of-, 1989, we find that the certified record on appeal does not contain a transcription of the hearing held on July 8, 1985, at which time the Honorable Eugene H. Clarke granted the Commonwealth’s petition to extend under Pa.R.Crim.P. 1100 and denied appellant Baxter Hawk’s motion to dismiss. In order to properly evaluate Hawk’s arguments on appeal, it is necessary that the official record contain this transcript. Therefore, we direct the Court of Common Pleas to supplement the record with this transcript within twenty days. See Pa.R.A.P. 1921, 1926.

In the event the transcript is unavailable, I would opine that the appeal be dismissed because Hawk, as appellant, should have taken advantage of the procedure set forth in Pa.R.A.P. 1923. Rule 1923 provides a mechanism whereby an appellate court can review proceedings that were unrecorded, recorded but not capable of transcription, or transcribed but unavailable. 1 Pennsylvania Appellate Practice, § 1923. Rule 1923 states:

Rule 1923. Statement in Absence of Transcript.

If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal.

Pa.R.A.P. 1923.

The purpose behind Rule 1923 is to provide reviewing courts with an ‘equivalent picture’ of the proceedings when there is not a transcription. See Smith v. Mason, 328 Pa.Super. 314, 316, n. 1, 476 A.2d 1347, 1348 (1984) (court had “equivalent picture” of proceedings occurring in the trial court even though there was no transcript and Pa.R. A.P. 1923 had not been strictly complied with); Nemeth v. Nemeth, 306 Pa.Super. 47, 56, 451 A.2d 1384, 1389 (1982) (where court stated “the actual word for word transcript is not an absolute necessity for an appeal, if an ‘equivalent picture’ is available”); See also 1 Pennsylvania Appellate Practice § 1923.1. (1986).

If the transcript was unavailable, Hawk, as appellant, should have prepared a summary of the hearing held on July 8, 1985 from the best available means, including his recollection. Hawk should then have served this statement on the Commonwealth and allowed the Commonwealth to review it and make objections. The statement and objections should then have been submitted to the trial court for settlement, approval, and inclusion in the official record. Pa.R.A.P. 1923.

      . Rule 1100(a)(2) provides:
      Trial in a court case in which a written complaint is filed against the defendant, where the defendant is incarcerated, shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
      Pa.R.Crim.P. 1100(a).
      As the panel noted the record reveals that Hawk was incarcerated pretrial and not free on bail.

      . Rules 1100(c) and (d) provide:
      In determining the period for commencement of trial, there shall be excluded therefrom:
      (1) the period of time between the filing of the written complaint and the defendant’s arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence;
      (2) any period of time for which the defendant expressly waives Rule 1100;
      (3) such period of delay at any stage of the proceedings as results from:
      (1) the unavailability of the defendant or his attorney;
      (ii) any continuance granted at the request of the defendant or his attorney.
      (d)(1) When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial, unless the defendant has been released on bail, in which instance trial shall commence in accordance with the provision of subsection (a)(3).
      (2) When an appellate court has granted a new trial, or has affirmed an order of a trial court granting a new trial, the new trial shall commence within one hundred and twenty (120) days after the appellate court remands the record to the trial court, unless the defendant has been released on bail, in which instance trial shall commence in accordance with the provisions of subsection (a)(3). The date of remand shall be the date as it appears in the appellate court docket.
      Pa.R.Crim.P. 1100(c), (d).

      . As a result of the 1987 amendments, Rule 1100(f) has been redesignated as Rule 1100(g) and provides:
      (g) For defendants on bail after the expiration of three hundred sixty-five (365) days, at any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon. Any order granting such motion shall dismiss the charges with prejudice and discharge the defendant.
      Pa.R.Crim.P. 1100(g).

      . After the appellant has ordered and paid for the transcription, both the lower court judge and the court reporter are responsible for ensuring that it is prepared and filed. See Pa.R.A.P. 1931, 1922; see also 1 Pennsylvania Appellate Practice 1911.8 (1986).

      . We note that the Commonwealth filed a motion on February 17, 1988 in which it requested that this court modify the record pursuant to Pa.R.A.P. 1926 to include the July 8, 1985 transcript. This motion was denied on February 23, 1988.

      . Rule 3114. Original Papers
      No original record or paper shall be taken from its appropriate place among the records or files of an appellate court, without a written order from a judge of the court, or from the prothonotary or other authorized officer, and the giving of a written receipt therefore. If such order is given, the officer permitting the record or paper to be removed shall see that it is returned immediately on the expiration of the time specified in the order, or within one day after it is taken out, if no time is specified therein.
      Pa.R.A.P. 3114.

      . Pa.R.A.P. 1922 states in pertinent part:
      Rule 1922. Transcription of Notes of Testimony.
      (a) General rule. Upon receipt of the order for transcript and any required deposit to secure the payment of transcript fees the official court reporter shall proceed to have his notes transcribed, and not later than 14 days after receipt of such order and any required deposit shall lodge the transcript (with proof of service of notice of such lodgment on all parties to the matter) with the clerk of the trial court. Such notice by the court reporter shall state that if no objections are made to the text of the transcript within five days after such notice, the transcript will become a part of the record. If objections are made the difference shall be submitted to and settled by the trial court. The trial court or the appellate court may on application or upon its own motion shorten the time prescribed in this subdivision.
      ******
      (c) Certification and filing. The trial judge shall examine any part of the transcript as to which an objection is made pursuant to subdivision (a) of this rule or which contains the charge to the jury in a criminal proceeding, and may examine any other part of the transcript, and after such examination and notice to parties and opportunity for objection (unless previously given) shall correct such transcript. If the trial judge examines any portion of the transcript, he shall certify thereon, by reference to the page and line numbers or the equivalent, which portion thereof he has read and corrected. If no objections are filed to the transcript as lodged, or after any differences have been settled or other corrections have been made by the court, the official court reporter shall certify the transcript, and cause it to be filed with the clerk of the lower court.

        Id.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    562 A.2d 864
    COMMONWEALTH of Pennsylvania v. Maxwell Harry BURDGE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 19, 1989.
    Filed July 27, 1989.

      Arthur Goldberg, Harrisburg, for appellant.
    Ralph A. Germak, Dist. Atty., McAlisterville, for Com., appellee.
    Before ROWLEY, POPOVICH and JOHNSON, JJ.
   JOHNSON, Judge:

Maxwell Burdge appeals from the discretionary aspects of a judgment of sentence imposed following his convictions for involuntary manslaughter, aggravated assault, two counts of reckless endangerment, possession of an instrument of crime and attempted criminal homicide. Burdge was sentenced to two and one-half to five years imprisonment for involuntary manslaughter, ten to twenty years imprisonment for aggravated assault, and one to two years imprisonment for reckless endangerment. These sentences were to run consecutively. We determine that Burdge presented us with a substantial question in claiming that the trial court sentenced him significantly in excess of prior and pending sentencing guidelines, and so we reach the merits of his appeal. However, we find that the trial court committed no abuse of discretion and therefore affirm.

This case arose out of a domestic dispute which occurred on March 10, 1988 between appellant Maxwell Burdge and his girlfriend, Kimbra Powley. Burdge discharged a twelve gauge, double barrel shotgun into a motor vehicle occupied by Powley, her two year old brother, Joshua Mefford and her five year old daughter, Cassandra Paden. As a result of the shooting, Cassandra Paden died, Kimbra Powley lost the sight of her right eye and Joshua Mefford received injuries to his hand and forearm. A jury convicted Burdge of involuntary manslaughter in the death of Cassandra Paden, aggravated assault of Kimbra Powley, reckless endangerment of Kimbra Powley and Joshua Mefford and possession of an instrument of crime. The trial court merged the crime of reckless endangerment against Kimbra Powley with the offense of aggravated assault against her for sentencing purposes. In addition, the trial court placed Burdge on five years probation to follow the completion of this sentence for the offense of possession of an instrument of crime. Burdge filed a timely motion to modify sentence which was denied.

Burdge argues that the trial court abused its discretion by: 1) imposing an excessive sentence in light of the underlying crimes; 2) failing to follow the merger doctrine enunciated in Commonwealth v. Williams, 514 Pa. 124, 522 A.2d 1095 (1987), cert. denied, — U.S. —, 108 S.Ct. 2852, 101 L.Ed.2d 889 (1988); and, 3) improperly applying the mandatory minimum sentence for use of a firearm during the commission of a crime, § 42 Pa.C.S. § 9712.

Burdge does not challenge the legality of his sentence. Thus, an appeal in this case is not taken as a matter of right. See 42 Pa.C.S. § 9781(a). Rather, Burdge challenges the discretionary aspects of the sentence. As such this appeal must be considered as a petition for permission to appeal. 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 511, 522 A.2d 17, 18 (1987). We, as an appellate court, may allow such an appeal “where it appears that there is a substantial question that the sentence imposed is not appropriate____” 42 Pa.C.S. § 9781(b).

Burdge has complied with the mandate of Tuladziecki by setting forth a statement of the reasons relied upon for the allowance of appeal pursuant to Pa.R.A.P. 2119(f). Thus, we proceed to consider whether Burdge has demonstrated the existence of a substantial question. “It is only where a party can articulate reasons why a particular sentence raises doubts that [the sentencing] scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.” Id., 513 Pa. at 515, 522 A.2d at 20.

Burdge argues that the length of his sentence is much greater than that suggested by the sentencing guidelines previously in effect. In Commonwealth v. Sanchez, 372 Pa.Super. 369, 372-73, 539 A.2d 840, 841 (1988) this Court, sitting en banc, found that a substantial question existed when the sentence imposed was almost twice as long as that recommended by the sentencing guidelines. While we recognize that no sentencing guidelines were in effect in the present case, the sentence imposed considerably exceeded the recommendations of both the prior and pending sentencing guidelines. Therefore, we find that the propriety of the sentence presents a substantial question and we will review the merits of Burdge’s claim.

Initially Burdge argues that the trial court abused its discretion by imposing a sentence based solely on the nature of the crime without considering the protection of the public or his rehabilitative needs. The imposition of a proper sentence is a matter which is vested in the sound discretion of the trial court, and will not be disturbed unless the sentence exceeds the statutory maximum or is so excessive as to constitute a manifest abuse of discretion. Commonwealth v. Sanders, 339 Pa.Super. 373, 489 A.2d 207 (1985). In the exercise of this discretion the trial court must consider the history, character, and the condition of the defendant, his rehabilitative needs, and the need for protection of the public as well as the gravity of the offense. Id., Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984), 42 Pa.C.S. § 9725.

Burdge argues that the trial court violated these principles when it failed to consider his background and rehabilitative needs, focusing solely on the nature of the crime. This argument, however is not supported by the record. Initially, we note that Burdge’s sentence for each crime was within the statutory limits. Furthermore, a review of the record indicates that Judge Quigley utilized the findings of a comprehensive presentence report in imposing his sentence. Recently, in Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), our supreme court held that where a presentence report exists it will be presumed that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating factors. When the sentencing court has been informed by such a pre-sentence report, its discretion should not be disturbed, particularly where it can be shown that the judge had any degree of awareness of the sentencing considerations. Id. The pre-sentence report ordered by Judge Quigley included background information concerning Burdge’s family, work experience, criminal record, education, intelligence, mental, emotional and physical health, his version of the incident and statements of some of the victims and family members. In light of this report, Judge Quigley was well informed and did make a balanced judgment in arriving at Burdge’s sentence. Thus, we find this issue to be without merit.

Next, Burdge argues that the crime of aggravated assault with respect to Kimbra Powley merges with the crime of reckless endangerment with respect to Joshua Mefford. Burdge contends that the offense of aggravated assault against one person includes the lesser offense of reckless endangerment of another person who is a victim of the same crime. A review of current case law relative to the merger doctrine compels us to disagree. The merger doctrine cited by Burdge, was enunciated by our supreme court in Commonwealth v. Michael Williams, 514 Pa. 124, 522 A.2d 1095 (1987), cert. denied, — U.S. —, 108 S.Ct. 2852, 101 L.Ed.2d 889 (1988). In Michael Williams, our supreme court set forth a test for determining when merger of several crimes was appropriate. This test focused on whether the crimes necessarily involved one another and whether they caused more than one injury to the Commonwealth. In determining whether merger was appropriate the Michael Williams court utilized a two-pronged test articulated by this Court in Commonwealth v. Leon Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985) (firearms) as follows:

In order to find that separate statutory offenses merge, we must therefore determine not only that the crimes arose out of the same criminal act, ... but also that the statutes defining the crimes charged were directed to substantially the same harm or evil. If we do not take both of these steps, we fail in our duty to effectuate the legislative mandate in carrying out statutory punishments.

Commonwealth v. Leon Williams, 344 Pa.Super 108, 126-128, 496 A.2d 81, 41-42 (1985) (firearms).

Most recently, our supreme court has overruled Michael Williams, in part, holding that “except for lesser included offenses, the doctrine of merger based on whether the Commonwealth has an interest in prosecuting a criminal defendant for more than one crime is hereby abrogated and abolished.” Commonwealth v. Leon Williams, 521 Pa. 556, 564, 559 A.2d 25, 29 (1989) (attempted robbery). In the companion case of Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989), decided the same day as Leon Williams (attempted robbery), the supreme court held that if a person commits one act of criminal violence and that act is the only basis upon which he may be convicted of another crime, the act will merge into the other crime for sentencing purposes. Both Weakland and Leon Williams (attempted robbery), however, addressed only the necessity of merger when a defendant commits multiple criminal acts against a single victim. These cases did not hold that a lesser offense against one victim must be merged with the greater offense committed against another victim. Where there are multiple victims of a defendant’s criminal conduct, separate punishments are not barred by the merger doctrine. This is true even where there is only a single criminal transaction. Commonwealth v. Gray, 339 Pa.Super. 385, 489 A.2d 213 (1985). In Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984), when reviewing a sentence for multiple injuries resulting from a single act, our supreme court interpreted 18 Pa.C.S. § 2705, Recklessly Endangering Another Person, as protecting each individual person being placed in danger of death or serious bodily injury, and held that a separate offense is committed for each person placed in such danger. Thus, the supreme court affirmed the sentencing court’s imposition of nine separate sentences for recklessly endangering another person as a result of the single action of propelling an automobile through an intersection and injuring nine people. We do not read Weakland and Leon Williams (attempted robbery) as overruling the supreme court’s holding in Frisbie. Thus, the sentencing court in the present case appropriately merged the crimes of aggravated assault and reckless endangerment as to Kimbra Powley and separately sentenced Burdge for recklessly endangering Joshua Mefford.

Last, Burdge argues that the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712 is inapplicable because the firearm used in the crime “constituted the crime itself”. We disagree. The Act provides that:

Sentences for offenses committed with firearms.
(a) Mandatory sentence. Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commis sion of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.

42 Pa.C.S. § 9712(a) [Emphasis added]. Burdge was convicted of aggravated assault, which is one of the crimes included under Section 9712. Burdge was found to have visibly possessed a double barrel shotgun during the commission of the aggravated assault. Thus, the trial court properly utilized 42 Pa.C.S. § 9712 in imposing a sentence for this offense.

Judgment of sentence affirmed.


author: WIEAND, Judge:

text:
    562 A.2d 868
    COMMONWEALTH of Pennsylvania v. Mervin D. SCHNEIDER, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1989.
    Filed July 24, 1989.

      Allen H. Smith, York, for appellant.
    Mark A. Bellavia, Asst. Dist. Atty., York, for Com., appellee!
    Before WIEAND, POPOVICH and HESTER, JJ.
   WIEAND, Judge:

The principal issue in this direct appeal from a judgment of sentence imposed following a conviction for aggravated assault is the effect of a polygraph test, if any, on the voluntariness of appellant’s incriminatory statement to the police. We do not perceive therein or in other issues raised by appellant any basis for setting aside the jury’s finding of guilt; and, therefore, we affirm the judgment of sentence.

On the morning of December 30, 1986, nine month old Brandon Ray Silar was left in the custody of Mervin D. Schneider while the child’s mother and Schneider’s girlfriend, Jennifer Silar, went to work. The child, while in Schneider’s custody, suffered a fractured skull and other head injuries and was taken by ambulance to York Hospital. The incident was investigated by State Trooper Robert DeWire, who was told by Schneider that the child had fallen from a bed while Schneider was lifting weights in another room. When the treating physician suggested that the child’s injuries were not consistent with a fall from a bed, DeWire advised Schneider of the physician’s opinion and asked him to take a polygraph test to aid the investigation. He told Schneider that there was no requirement that he submit to a polygraph and suggested that he consult a lawyer before submitting to the test. Schneider agreed to submit to the test.

DeWire provided transportation for Schneider, and during the trip to Harrisburg for the polygraph he told Schneider that the test would indicate whether he was lying. He did not tell Schneider, however, the use, if any, which could be made of the results of the test. Upon arrival in Harrisburg, Trooper Matthew Brennan, the polygraph examiner, advised Schneider of his constitutional right to remain silent and that he would waive any civil liability in connection with the polygraph test. He also told Schneider that his taking the polygraph test was entirely voluntary and that he could stop the test and would be free to leave at anytime. The results of the test, he said, were admissible evidence in twenty-six states but could not be used in Pennsylvania, although any statements made during the test could be used against him. Brennan also said that if the test showed that Schneider was lying, the results would be given to the investigating officer and to the district attorney. If he was telling the truth, Brennan said, he would stand by Schneider, but if he lied, “he was caught.” Schneider agreed to submit to the test and signed a written “waiver” of his rights.

At the conclusion of the test, Brennan concluded that Schneider was lying about the circumstances surrounding the trauma to the child. Brennan confronted Schneider with the results of the polygraph and, according to his subsequent testimony, coaxed Schneider to tell the truth by stressing the importance of the truth and rationalizing the ease with which one could lose patience with children. Schneider ultimately admitted that he had lost patience with the child while changing his diaper and had struck the child, causing him to fall and sustain injury. While DeWire was transporting Schneider back to his home, Schneider gave a similar statement in which he again admitted having struck the child, causing him to fall, whereupon the child hit his head and became unconscious. Schneider was subsequently arrested, charged and ultimately found guilty of aggravated assault.

In reviewing an order denying a motion to suppress evidence, this Court must

determine whether the factual findings of the [suppression] court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).

Commonwealth v. Chamberlain, 332 Pa.Super. 108, 112, 480 A.2d 1209, 1211 (1984). See also: Commonwealth v. Kichline, 468 Pa. 265, 280-281, 361 A.2d 282, 290 (1976); Commonwealth v. Stark, 363 Pa.Super. 356, 365, 526 A.2d 383, 388 (1987); Commonwealth v. DiNicola, 348 Pa.Super. 405, 409, 502 A.2d 606, 608 (1985).

In determining the voluntariness of a defendant’s’ statements made while in police custody, the Supreme Court has established the following guidelines:

Although there is no single litmus-paper test for determining the voluntariness of a confession, it must be established that the decision to speak was a product of a free and unconstrained choice of its maker. See Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Commonwealth v. Ritter, 462 Pa. 202, 340 A.2d 433 (1975); Commonwealth v. Alston, 456 Pa. 128, 317 A.2d 241 (1974); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). All attending circumstances surrounding the confession must be considered in this determination. These include: the duration and methods of the interrogation; the length of delay between arrest and arraignment; the conditions of detainment; the attitudes of the police toward defendant; defendant’s physical and psychological state; and all other conditions present which may serve to drain one’s power of resistance to suggestion or to undermine one's self-determination. See Culombe v. Connecticut, supra 367 U.S. at 602, 81 S.Ct. at 1879; Commonwealth v. Boyd, 461 Pa. 17, 30-32, 334 A.2d 610, 617-18 (1975); Commonwealth v. Purvis, 458 Pa. 359, 364, 326 A.2d 369, 371 (1974); Commonwealth v. Simms, 455 Pa. 599, 602-03, 317 A.2d 265, 267 (1974).
Moreover, when ... the question of voluntariness involves degrees of psychological coercion, “the most careful attention will be afforded to any facts, circumstances, or events tending to overbear an accused’s will.” Commonwealth v. Simms, supra at 603, 317 A.2d at 267; see Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975); Commonwealth ex rel. Butler v. Rundle, supra 429 Pa. at 149, 239 A.2d at 430 (1968). Defendant may be so emotionally and psychologically distraught or unbalanced that this factor alone may make his confession involuntary. Commonwealth v. Ritter, supra.

Commonwealth v. Kichline, supra 468 Pa. at 279, 361 A.2d at 289-290 (1976). See also: Commonwealth v. Hughes, 521 Pa. 423, 442, 555 A.2d 1264, 1273 (1989); Commonwealth v. D’Amato, 514 Pa. 471, 481, 526 A.2d 300, 304-305 (1987); Commonwealth v. Carter, 377 Pa.Super. 93, 101-102, 546 A.2d 1173, 1177 (1988).

“It has long been the rule in this Commonwealth that a statement given after being advised that one has failed a lie detector may be admitted into evidence.” Commonwealth v. Watts, 319 Pa.Super. 179, 184, 465 A.2d 1288, 1291 (1983), aff'd, 507 Pa. 193, 489 A.2d 747 (1985). See: Commonwealth v. Jones, 341 Pa. 541, 19 A.2d 389 (1941); Commonwealth v. Hippie, 333 Pa. 33, 3 A.2d 353 (1939). See also: Commonwealth v. Hughes, supra 521 Pa. at 442 n. 8, 555 A.2d at 1274 n. 8 (1989). See generally: Annot, Admissibility in Evidence of Confession Made by Accused in Anticipation of, During, or Following Polygraph Examination, 89 A.L.R.3d 230 (1979). In Commonwealth v. Smith, 317 Pa.Super. 118, 463 A.2d 1113 (1983), the Superior Court said:

The polygraph has been acknowledged by the courts of this Commonwealth to be a valuable tool in the investigative process. See: Commonwealth v. Hernandez, 498 Pa. 405, 415, 446 A.2d 1268,1273 (1982); Commonwealth v. Smith, 487 Pa. 626, 631, 410 A.2d 787, 790 (1980); Commonwealth v. Blagman, 458 Pa. 431, 435-436, 326 A.2d 296, 298-299 (1974). Its use does not per se render a confession involuntary. Commonwealth v. Jones, 341 Pa. 541, 548, 19 A.2d 389, 393 (1941); Commonwealth v. Hipple, 333 Pa. 33, 39, 3 A.2d 353, 355-356 (1939). See: Thompson v. Cox, 352 F.2d 488 (10th Cir.1965); United States v. McDevitt, 328 F.2d 282 (6th Cir.1964). A confession is not involuntary merely because it was made in anticipation of, during, or following a polygraph examination. See: 89 ALR3d 236, and cases there gathered. In Pennsylvania, an inculpatory statement made during a pre-test interview was held admissible in Commonwealth v. Cain, 471 Pa. 140, 146, 369 A.2d 1234 (1974) (Opinion of Eagen, J., in support of affirmance). Other decisions have impliedly found Miranda warnings adequate, for they have permitted evidentiary use of confessions when they have been made voluntarily in polygraph settings. See also: Commonwealth v. Hernandez, supra; Commonwealth v. Hitson, 482 Pa. 404, 393 A.2d 1169 (1978); Commonwealth v. Dussinger, 478 Pa. 182, 386 A.2d 500 (1978) (plurality opinion); Commonwealth v. Cunningham, 471 Pa. 577, 370 A.2d 1172 (1977); Commonwealth v. Cain, supra; Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Blagman, supra; Commonwealth v. Marabel, 445 Pa. 435, 283 A.2d 285 (1971); Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971), cert. denied, 405 U.S. 1046, 92 S.Ct. 1320, 31 L.Ed.2d 589 (1972). In Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982), the defendant, a soldier accused of rape, gave an inculpatory statement to investigators after being confronted with the results of a polygraph test showing his answers to be untruthful. The Court of Appeals granted habeas corpus relief on grounds that appellant’s waiver of counsel had not been voluntary. The Supreme Court reversed. The defendant had been informed of his Miranda rights and had signed a written waiver thereof. This was sufficient to demonstrate a voluntary waiver. See also: Keiper v. Cupp, 509 F.2d 238 (9th Cir.1975); People v. Mason, 29 Ill.App.3d 121, 329 N.E.2d 794 (1975); Grey v. State [273] Ind. [439] 404 N.E.2d 1348 (1980); State v. Bowden, 342 A.2d 281 (Me.1975); Lee v. State, 338 So.2d 395 (Miss. 1976); State v. Clifton, 271 Or. 177, 531 P.2d 256 (1975); McAdoo v. State, 65 Wis.2d 596, 223 N.W.2d 521 (1974).
There are no Pennsylvania decisions which have held Miranda warnings inadequate to insure voluntariness of a confession given during a pre-polygraph interview. If a suspect freely agrees to submit to a polygraph examination, ... there would seem to be no reason for holding Miranda warnings inadequate. Not only do such warnings advise the suspect that he has a right to remain silent and answer no questions, but they also instruct him regarding his right to consult counsel. Where an accused voluntarily confesses despite such warnings, his confession will not be rendered more voluntary because a consent to take a polygraph examination was accompanied by warnings that the results of the test have no evidentiary value and that his immediate release will not depend thereon.

Id. 317 Pa.Super. at 122-124, 463 A.2d at 1115-1116 (footnote omitted). If, however, the police mislead a suspect regarding the admissibility of the results of a polygraph examination, the courts of this Commonwealth have required the suppression of statements so induced. See: Commonwealth v. Starr, 486 Pa. 530, 406 A.2d 1017 (1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 782 (1980); Commonwealth v. Watts, supra. See also: Commonwealth v. Hughes, supra.

In Commonwealth v. Hippie, supra, the police had informed the defendant that “[y]ou can lie to us but you cannot lie to this machine.” The Supreme Court held that a confession induced thereby was not involuntary. The Court said:

The statement by the officers, “You can lie to us but you cannot lie to this machine,” in substance amounts to no more than the familiar phrase, “It would be better for you to tell the truth,” which this court has often sanctioned. Com. v. Weiss, 284 Pa. 105, 130 A. 403; Com. v. Spardute, supra [278 Pa. 37, 122 A. 161 (1923)]. Here no inducement of material reward nor fear of punishment, conducive to eliciting an untrue statement, was employed. A confession, procured by a trick or artifice, not calculated to produce an untruth, is never vitiated thereby. Com. v. Goodwin, supra; Com. v. Spardute, supra____ It is quite possible that [the defendant] was persuaded to [confess] by the use of the machine and what the officers told him concerning it. The record of the lie detector was not offered in evidence. Since the use of the device was for the purpose of inducing the defendant to tell the truth and not anything was done to influence him to do otherwise, an objection based solely on the fact that he was thus induced to confess cannot be sustained.

Id. 333 Pa. at 39, 3 A.2d at 356. See also: Commonwealth v. Hughes, supra 521 Pa. at 442 n. 8, 555 A.2d at 1274 n. 8. Cf. Commonwealth v. Jones, 457 Pa. 423, 433-435, 322 A.2d 119, 126-127 (1974) (where police allegedly made intentional misrepresentation to defendant regarding confession of co-defendant, confession of defendant was not invalidated as the misrepresentation was not likely to cause an untrustworthy confession nor was it so reprehensible as to offend basic notions of fairness). These decisions support the suppression court’s refusal to suppress as involuntary the incriminating statements made by appellant in this case.

Appellant argues, however, that a different result is mandated by a more recent decision of the Supreme Court in Commonwealth v. Starr, supra. In that case, the Supreme Court determined that the Commonwealth had failed to meet its burden of proving that a post-polygraph statement had constituted a voluntary waiver of the right to remain silent where a representation had been made to the defendant that his failure to pass the polygraph test would be shown to the judge and district attorney who would know that he was lying. Under these circumstances, the Court held, the Commonwealth had failed to meet “its burden of proving that representations made did not impinge with such force upon appellant’s understanding of his right to remain silent so as to render his decision to waive that right a knowing and voluntary one.” Id. 486 Pa. at 534, 406 A.2d at 1019. In the instant case, however, there was no representation that the results of the polygraph would be shown to the court or that it could in any way be used against appellant. Although told that the results would be shown to the investigating officer and district attorney, appellant was told that the test results could not be used against him in court. In this case, therefore, the evidence was sufficient to support the suppression court’s finding that appellant’s statement had been made voluntarily-

Appellant also contends that the state troopers failed to advise him fully of his Miranda rights before he was asked to make a statement. However, this issue was not raised pre-trial or at trial. It was raised for the first time in post-trial motions. Consequently, neither the suppression court nor the trial court was ever asked to make a factual determination regarding such warnings. The issue, therefore, has been waived. See: Commonwealth v. Scaine, 337 Pa.Super. 72, 75, 486 A.2d 486, 487 (1984) (failure to raise suppression issue prior to trial precludes litigation of that issue for the first time at trial, in post-trial motions, or on appeal); Commonwealth v. Throckmorton, 241 Pa.Super. 62, 66, 359 A.2d 444, 446 (1976) (same). See also: Commonwealth v. Johnson, 484 Pa. 545, 400 A.2d 583 (1979) (Opinion in Support of Affirmance); Commonwealth v. Wright, 354 Pa.Super. 120, 511 A.2d 217 (1986). Moreover and in any event, the trial court concluded in its post-trial opinion that appellant “was properly advised of his rights and that he knowingly and intelligently waived them.” On the record presented to this Court on appeal, we can find no basis for concluding otherwise.

Appellant again challenged at trial the voluntariness of his statements to Troopers Brennan and DeWire. See: Commonwealth v. Motley, 472 Pa. 421, 372 A.2d 764 (1977); Commonwealth v. Coach, 471 Pa. 389, 370 A.2d 358 (1977). He argues on appeal that the trial court erred by preventing him from testifying at trial that he had been coerced to make a statement by the polygraph test. Although this is an issue of first impression in this Commonwealth, see Commonwealth v. Cunningham, 471 Pa. 577, 605 et seq., 370 A.2d 1172, 1185 (1977) (Dissenting Opinion by Roberts, J.), it is not properly before us, because it was not argued or preserved at trial.

The trial court, in an effort to protect appellant from the prejudice flowing from an inadvertent reference to the polygraph test, sought to avoid any reference to the test. Appellant’s counsel agreed that such a reference should be avoided. Thus, when the Commonwealth called Trooper Brennan as a witness, the defense requested an offer of proof, and the following occurred:

MR. BELLA VIA [Deputy District Attorney]: I propose to just go through his basic qualifications, ask him if he had an occasion to interview the Defendant on January 8 of 1987, whether his rights were read to him, what rights were read to him, whether the Defendant knowingly and intelligently waived those rights, and what statement he gave to the trooper.
THE COURT: Is this the poligraph [sic] operator?
MR. BELLAVIA: Yes.
THE COURT: And we’re going to be sure that’s not coming out in any way; is that correct?
MR. SMITH [Defense Counsel]: I’m going to try at this point to prevent it.
THE COURT: Yes. I just want to make it very, very clear to both sides that is not to come out at all, at all, at all.

Thereafter, while testifying on his own behalf, appellant made a reference to having taken a test. Upon the Commonwealth’s objection, the following occurred during a sidebar conference:

MR. BELLAVIA [Deputy District Attorney]: I think he’s getting into—
THE COURT: What are you doing?
MR. BELLAVIA: Well, I want Mr. Smith to lay off on the — You told me you weren’t going to get into this, and you’ve been pressing and pressing him.
MR. SMITH [Defense Counsel]: No, that’s not it. He told me that when he was asked questions by Brennan, Brennan gave the answers. Brennan was the one who would say this is what happened, isn’t it. And that’s what happened, isn’t it. And that’s how Brennan got his answers.
THE COURT: He asked him leading questions?
MR. SMITH: Exactly. Well, he had asked him several.
THE COURT: What do you want me to do about this test?
MR. SMITH: Ignore it.
MR. BELLAVIA: I think so.
THE COURT: Ignore it.
MR. BELLAVIA: Yes.

The record does not disclose that appellant ever made an offer at trial to prove that his confession was coerced by the polygraph test or that the trial court refused such a request. Appellant’s attack on the voluntariness of his inculpatory statements was based, rather, on other grounds. His counsel, moreover, concurred in the trial court’s admonition that neither party should refer to the polygraph test. The first time he raised the present argument was in post-trial motions. This was too late. “It is fundamental that the parties in a trial are obligated to inform the court of alleged violations of evidence law or trial procedure, and that failure to so inform the court by a timely and specific objection, motion, exception, request, or offer of proof will constitute a waiver of that ground for relief.” Packel & Poulin, Pennsylvania Evidence, Ch. I, § 103 at p. 5 (1987). See: Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). See also: Commonwealth v. Johnson, 368 Pa.Super. 427, 435, 534 A.2d 511, 515 (1987) (“[T]he failure to raise an issue, objection, or argument in a timely manner during trial forecloses further review of an alleged error in post-trial motions or at the appellate level.”); Commonwealth v. Gordon, 364 Pa.Super. 521, 534-537, 528 A.2d 631, 638-639 (1987).

Appellant's final argument is that the trial court erred when it allowed Dr. Charles M. Reilly, the chief pediatrician at York Hospital and the child’s treating physician, and Dr. Edward F. Juskelis, a practitioner of family medicine at the same hospital, to diagnose the injuries sustained by Brandon Silar. It is argued that since neither doctor was qualified as a radiologist, he was incompetent to testify as to a diagnosis of the child’s injuries when such diagnosis was based in part on x-rays and CT scans which had been interpreted by others but not introduced into evidence at trial. We disagree.

Initially, we note that, although Dr. Reilly conceded that he was not a radiologist, his testimony demonstrated sufficient training and experience in interpreting x-rays so that the trial court could properly conclude that he was “qualified to describe any personal knowledge he may have about the x-rays in this case____” Furthermore, while expert testimony normally must be supported by evidence of record, the Supreme Court has carved out a narrow exception to this general rule. See generally: Packel & Poulin, Pennsylvania Evidence, Ch. VII, § 703 (1987). This exception allows “medical witnesses to express opinion testimony on medical matters based, in part, upon reports of others which are not in evidence, but which the expert customarily relies upon in the practice of his profession.” Commonwealth v. Thomas, 444 Pa. 436, 445, 282 A.2d 693, 698 (1971). See also: Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Commonwealth v. Karch, 349 Pa.Super. 227, 502 A.2d 1359 (1986); Commonwealth v. Gilliard, 300 Pa.Super. 469, 446 A.2d 951 (1982); Commonwealth v. Haddle, 271 Fa.Super. 418, 413 A.2d 735 (1979). Physicians, in the practice of their profession, normally rely upon x-ray and CT scan reports in diagnosing serious head injuries. We conclude, therefore, that the exception created in Commonwealth v. Thomas is applicable to the instant case. See: Commonwealth v. Wilson, 245 Pa.Super. 415, 369 A.2d 471 (1976) (physician properly permitted to testify as to type of wound that defendant sustained when his testimony was based in part on x-rays, even though person who took the x-rays did not testify that the x-rays in question were those of defendant). The trial court did not err in allowing Dr. Reilly and Dr. Juskelis to testify regarding their diagnoses of the child victim’s injuries.

The judgment of sentence is affirmed.

      . Appellant was sentenced to serve a term of imprisonment for not less than four (4) years nor more than ten (10) years.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Both Trooper Brennan and Trooper DeWire testified at the suppression hearing that they had advised appellant of his "constitutional safeguards" prior to his making inculpatory statements to them. Trooper Brennan also testified that appellant read and signed a standard form indicating that he was waiving his constitutional rights prior to taking the polygraph examination. This waiver of rights form was admitted into evidence at the suppression hearing, but has not been included in the record certified to this Court on appeal.