author: ROWLEY, Judge:

text:
    491 A.2d 851
    In re Search Warrant B-21778 Robert GARTLEY, Sr. Appeal of COMMONWEALTH of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued Aug. 29, 1984.
    Filed April 4, 1985.
    Petition for Allowance of Appeal Granted Sept. 16, 1985.

      Richard A. Linzer, Pittsburgh, for Commonwealth, appellant.
    John F. Hooper, III, Pittsburgh, for appellee.
    Before ROWLEY, JOHNSON and HESTER, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

In this case of first impression, we address the propriety of the use of a search warrant by agents of the Attorney General’s Office to obtain business records transferred to an attorney’s possession by a client suspected of criminal wrongdoing. After affording careful consideration to the arguments presented here, we hold that the office of an attorney not suspected of criminal activity is not immune from a search authorized by a particularized warrant supported by probable cause.

In February of 1982, an investigation by the Medicaid Fraud Control Section of the Attorney General’s Office into an unlawful diversion by hospital employees of funds received from the sale of silver “flake” and x-ray film was commenced. Shortly thereafter, investigators interviewed appellee, Robert J. Gartley, Sr., in connection with this scheme. Gartley indicated that he was in the business of buying and selling old x-ray film for its silver content, and provided the names of hospitals with which he did business. Gartley named five Western Pennsylvania hospitals to which he issued checks in payment of the film to persons other than the hospital administrators. Subsequently, Attorney James Victor Voss, of the law firm of Meyer, Unkovic and Scott in Pittsburgh, notified the investigators that he was counsel for Gartley.

On July 19, 1982, the investigators obtained a search warrant from a Westmoreland County District Justice for Gartley’s home/office. At the time execution of the warrant was attempted, Gartley was not home. However, Mabel Gartley, Mr. Gartley’s wife, told the investigators that the records referred to in the warrant had been removed from the home, and taken to Attorney Voss’ law office.

Attorney Voss confirmed that the records were in his possession. However, when asked to produce his client’s records, Voss refused. Consequently, on July 21, 1982, the investigators obtained a search warrant for Voss’ office and the offices of Meyer, Unkovic and Scott. The warrant authorized the seizure of enumerated business records of Gartley related to his purchase of x-ray films from the hospitals involved in the investigation. In describing the premises to be searched, the warrant stated:

The office of Meyer, Unkovic and Scott, and James Victor VOSS, and their files, located at 1400 Frick Building, Grant Street, Pittsburgh, Pennsylvania 15219. The Frick Building being a 20-story office building.

Prior to execution of the warrant, Attorney John F. Hooper of Meyer, Unkovic and Scott orally requested injunctive relief from the Honorable Thomas A. Harper, Court of Common Pleas of Allegheny County. Thus, at some point during the search, the investigators received first a telephone message, and then a written order, from Judge Harper, temporarily enjoining further execution of the warrant. Judge Harper’s written order also scheduled a hearing for the following morning, addressed to the propriety of the search.

Although no evidence was presented, Judge McGregor, by order dated August 5, 1982, granted appellee’s motion to quash the warrant. In so doing, Judge McGregor held that (1) the warrant failed to specify the area to be searched with reasonable particularity; (2) the search of an attorney’s office is unreasonable absent a showing of the attorney’s own wrongdoing, in light of the attorney-client privilege, and (3) the issuance of a search warrant here was not the proper procedure for obtaining the documents sought; less intrusive means were available. This appeal by the Commonwealth, challenging each of the conclusions reached by Judge McGregor in granting the motion to quash, followed. We address each of these conclusions seriatim.

I. THE WARRANT

In concluding that the warrant was not sufficiently particular, the trial judge focused on the quality of the description of the premises to be searched.

The Fourth Amendment of the United States Constitution requires that "... no warrants shall issue, but upon probable cause ... and particularly describing the place to be searched ...” Similarly, Article I, Section 8 of the Pennsylvania Constitution provides that “... no warrant to search any place ... shall issue without describing [it] as nearly as may be ...” This requirement of particularity necessarily achieves definition according to the circumstances and nature of the items to be seized; a common sense approach must be utilized. As the Comment to Pa.R.Crim.P. 2005(c), which incorporates the constitutional particularity requirement, states in pertinent part,

Paragraph [ ] ... (c) [is] intended to proscribe general or exploratory searches by requiring that searches be directed only toward the specific ... places set forth in the warrant. Such warrants should, however, be read in a common sense fashion and should not be invalidated by hypertechnical interpretations....

See also, Commonwealth v. Crawford, 320 Pa.Super. 95, 466 A.2d 1079 (1983); Commonwealth v. Barba, 314 Pa.Super. 210, 460 A.2d 1103 (1983); In Interest of Eckert, 260 Pa.Super. 161, 393 A.2d 1201 (1978). Thus, challenges to the specificity of the warrant have been rejected in cases where only a street address was supplied, or where a general description of the building to be searched was provided. See e.g., Commonwealth v. Menginie, 312 Pa.Super. 293, 458 A.2d 966 (1983) (Warrant authorizing search of “214 North Linden and its garage” upheld); Commonwealth v. Chamberlain, 277 Pa.Super. 503, 419 A.2d 1261 (1980) (Warrant permitting search of “Conrad Store In Conrad, of the East fork district in Eulalia Township, R.D. 1, Austin, Pa., said building is a two-story structure painted white, located on the north side of Leg. route 52001” sufficiently specific); Commonwealth v. Mayfield, 262 Pa. Super. 96, 396 A.2d 662 (1978) (Description of premises as “549 West 10th Street, Erie, Pennsylvania. A 21k white aluminum sided multi-unit dwelling, the front door is on the east side of the residence facing north, the downstairs apartment. Has grey steps leading to the porch” sufficiently particular.) In each of these cases, this Court found that probable cause to believe that the premises as described were the scenes of criminal activity, or that evidence of a crime could be found therein, existed. Cf., United States v. Busk, 693 F.2d 28 (3d Cir.1982) (Warrant authorizing entry into all apartments in multi-dwelling house does not satisfy the Fourth Amendment’s particularity requirement when probable cause has been shown for search of only one of them.) Where, then, the description provided is precise enough to enable the executing officer to ascertain and identify, with reasonable effort, the place intended, and where probable cause exists to support the search of the area so designated, a warrant will not fail for lack of particularity.

In the instant case, neither Attorney Voss nor appellee contested the magistrate’s finding of probable cause to search Voss’ office, and the offices of the law firm with which he is associated, nor would such a contention have had merit. As averred in the affidavit in support of the warrant, both appellee and his wife informed the Commonwealth’s investigators that all of the items listed in the search warrant had been transferred to the attorney’s possession; the affiant further alleged that Attorney Voss himself confirmed these statements. The mere fact that the search was directed only toward seizure of the records of one of Voss’ clients is not dispositive. The investigators could reasonably assume that, as a member of the law firm, Voss would have access to many areas within the firm’s office; an individual attorney would not be confined to his or her own office. Furthermore, apart from conversations with the Gartleys and Voss, the investigators had no legitimate means of gathering information relevant to limiting the scope of the warrant, prior to its execution. In light of the confidential nature of the firm’s activities, the investigators could not browse through the firm, observing Voss’ movements, particularly since he was not the target of the investigation. Since the Commonwealth’s agents were provided with no additional information reasonably suggesting a narrower drafting of this aspect of the warrant, and had no means at their disposal for acquiring such information, the futility of greater specification is clear. Thus, we conclude that the description of the area to be searched here was not overbroad. See United States v. Lebovitz, 506 F.Supp. 249 (W.D.Pa.1980), aff'd on other grounds, 669 F.2d 894 (3d Cir.1982), cert. den., 456 U.S. 929, 102 S.Ct. 1979, 72 L.Ed.2d 446 (1982) (Warrant specifying only street address and city in which attorney’s office was located did not violate Fourth Amendment’s particularity requirement.)

The manner in which a search is conducted is, of course, as vital a part of the inquiry as whether it was warranted at all. The Fourth Amendment proceeds as much by limitation upon the scope of governmental action as by imposing preconditions upon its initiation. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 899 (1968). See also Commonwealth v. Eliff, 300 Pa.Super. 423, 446 A.2d 927 (1982). Thus, the Commonwealth urges our consideration of “the record below” with respect to the attempted execution of the warrant, in ascertaining whether the description of the premises falls within constitutionally permissible limits. The scope of the warrant was restricted in practical effect, the Commonwealth argues, in that (1) initially, several requests that the materials be voluntarily surrendered were made, and (2) before it was interrupted, the search was limited to Attorney Voss’ office and to a file, distinguishable in appearance from other visible files and bearing no name or other identifying mark. We may not, however, rely on these representations, given that no factual record was made in the trial court. Rather, the record contains only allegations made during the course of argument on the propriety of the warrant. Nonetheless, because the warrant is not impermissibly broad on its face, and there has been no finding that its aborted execution encompassed an unnecessarily broad area, we conclude that the trial court erred in characterizing the search thereby authorized as unconstitutionally overbroad.

II. SEARCH OF AN ATTORNEY’S OFFICE

We turn, then, to the pivotal issue here: is the use of a search warrant a constitutionally permissible means by which to secure the business records of a client suspected of criminal wrongdoing from the office of a non-suspect attorney?

The essence of the Fourth Amendment to the federal constitution, and Article I, § 8 of the Pennsylvania Constitution, is reasonableness; these provisions provide protection against unreasonable searches and seizures. Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978); Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322 (1983); Commonwealth v. Grabowski, 306 Pa.Super. 483, 452 A.2d 827 (1982). Hence, all Fourth Amendment requirements must be tempered by considerations of reasonableness under the circumstances. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982). The determination of reasonableness of a search frequently involves balancing the intrusion on the individual’s privacy interests against the government’s need to conduct the intrusion. Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983), rev’d on other grounds, Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

As noted earlier, there is no question that the warrant issued here is supported by probable cause. Moreover, we have concluded that a sufficiently specific description of the premises to be searched is found therein. We must decide, then, whether the search proposed was reasonable in light of the privacy interests asserted here — the attorney-client privilege, the work-product doctrine, client confidentiality, and the criminal defendant’s constitutional right to counsel.

The attorney-client privilege, codified at 42 Pa. Cons.Stat. §§ 5916 and 5928, embodies the common-law privilege universally accepted as indispensable to an attorney’s professional relationship with his client. Fundamentally, the privilege is designed to foster full communication between the attorney and client. Commonwealth v. Hutchinson, 290 Pa.Super. 254, 434 A.2d 740 (1981). The attorney can effectively fulfill his roles as counsellor, intermediary and advocate only if, assured of confidentiality, the client is wholly free to completely and candidly disclose all the facts, favorable or unfavorable, to him. In most jurisdictions, including Pennsylvania, the incorporation of the common-law rule into statute has not changed the essentials of the privilege. Thus, several prerequisites to assertion of the privilege remain. As Professor Wigmore summarizes the privilege,

Where legal advice of any kind is ... sought from a professional legal adviser in his capacity as such ... the communications relating to the purpose ... made in confidence ... by the client ... are at his instance permanently protected ... from disclosure by himself or by the legal adviser ... except the protection may be waived.

8 Wigmore, Evidence §§ 2292 at 554 (McNaughton rev. 1961), quoted in Commonwealth v. Maguigan, 323 Pa.Super. 317, 470 A.2d 611 (1983). See also 79 Dick.L.Rev. 650 (1974-75). The attorney-client privilege is, then, somewhat limited in scope; it does not apply to pre-existing documents. Documents that could be subpoenaed from the client or made the subject of a validly drawn search warrant for the client’s home or office are likewise not enveloped by the privilege’s protection merely by virtue of their transfer to an attorney. Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); Mehrens v. State, 138 Ariz. 458, 675 P.2d 718 (App.1983), cert. denied, — U.S. —, 105 S.Ct. 219, 83 L.Ed.2d 149 (1984). See also, McCormick On Evidence, § 89 (3d ed. 1984).

Similarly, the Code of Professional Responsibility prohibits an attorney’s disclosure of his client’s confidences and secrets. Disciplinary Rule 4-101 provides, in part,

(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client, including his identity.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
(C) a lawyer may reveal:
(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.
(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.
(3) The intention of his client to commit a crime and the information necessary to prevent the crime.
(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.

CODE OF PROFESSIONAL RESPONSIBILITY, DR 4-101(B) and (C) (1974). As the Code defines “confidence” and “secret”,

‘Confidence’ refers to information protected by the attorney-client privilege under applicable law, and ‘secret’ refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

CODE OF PROFESSIONAL RESPONSIBILITY, DR 4-101(A) (1974). Ethical Consideration 4-4 points out that the attorney-client privilege and the duty imposed by the Code are not identical.

The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his client. This ethical precept unlike the evidentiary privilege exists without regard to the nature or source of information or the fact that others share the knowledge.

CODE OF PROFESSIONAL RESPONSIBILITY, EC 4-4 (1974). Nonetheless, “in any analysis of the attorney-client privilege, we must recognize that our Code of Professional Responsibility provides strong support for the concept of a legally protected confidentiality for client attorney discourse.” Brennan v. Brennan, 281 Pa.Super. 362, 370, 422 A.2d 510, 514 (1980). See also Commonwealth v. Maguigan, supra.

Additional safeguards for the communications between attorney and client are provided by the work-product doctrine, enunciated by the Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). At its core, this doctrine

shelters the mental processes of an attorney, providing a privileged area within which he can analyze and prepare his client’s case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system.

United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975), quoted with approval in Lepley v. Lycoming Cty. Ct of Com.Pl., 481 Pa. 565, 573, 393 A.2d 306, 310 (1978). Indeed, even in announcing the work-product rule, the Hickman Court recognized that work-product principles may not preclude discovery of evidentiary material.

We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had.

Hickman v. Taylor, supra, 329 U.S. at 511, 67 S.Ct. at 394, 91 L.Ed. at 462.

As is thus evident, the work-product doctrine is distinct from and broader than the attorney-client privilege, and is especially important in criminal cases. The interests of society and the criminally suspect in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each aspect of a case. As a result, Pa.R.Crim.P. 305 excludes “legal research ... records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the attorney for the Commonwealth or the attorney for the defense ...” from its mandatory discovery requirements. Pa.R.Crim.P. 305(G).

A criminal defendant’s right to counsel, in all critical stages of the proceeding, guaranteed by the Sixth Amendment to the United States Constitution, and Article I, § 9 of the Pennsylvania Constitution, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Commonwealth ex rel. Santiago v. Myers, 419 Pa. 326, 214 A.2d 206 (1965); Commonwealth v. Brocco, 263 Pa.Super. 51, 396 A.2d 1371 (1979), must also be weighed in determining the reasonableness of proceeding by a warrant in this context. Not only is effective assistance of counsel a constitutional mandate, it is also necessary to an adversary system of justice. Assuredly, counsel’s assistance can be made safely and readily available only when the client is free from the apprehension of disclosure.

In balancing the competing interests in the instant case, it is essential to note exactly what the Commonwealth sought. As “Attachment A” to the search warrant indicates, the Commonwealth was interested in records of appellee’s business transactions with five named hospitals. Mr. and Mrs. Gartley informed the investigating agents on July 19, 1982 that “all of the items sought on the search warrant were taken to the office of Attorney James Voss” following the agents’ interview with Mr. Gartley on February 12, 1982. The Commonwealth was not, then, seeking any of the attorney’s personal memoranda or notes regarding conversations with his client but, rather, pre-existing documents. Thus, appellee may not invoke the protection afforded by the attorney-client privilege and the work-product doctrine.

Similarly, the search of his attorney’s office would not have compromised appellee’s constitutional right to counsel. The investigatory process is not a “critical stage” for Sixth Amendment purposes. Commonwealth v. Brocco, supra. In fact, in rejecting this contention, this Court, sitting en banc, noted,

[W]ere we to adopt [the] contention that the right to counsel attaches whenever a party retains counsel to render legal advice regarding potential legal problems, the use of informants or other means of investigation would be significantly curtailed. In essence, it would permit a suspect to hide behind the sixth amendment cloak by the mere payment of a token retainer to a legal adviser. Accordingly, [this] contention is without merit.

Id., 263 Pa.Super. at 68, 396 A.2d at 1379-1380.

We recognize that in the course of execution of the warrant issued here, truly confidential communications may be inadvertently examined by the inquisitive investigator. Yet we hold that appellee’s interest in confidentiality may not be utilized to impede a legitimate, carefully circumscribed, criminal investigation. Although the Fourth Amendment places limits on the kinds of intrusions the government may make upon individuals and their property in gathering evidence, these limitations are not intended to encourage the concealment of evidence; they are designed to promote privacy and autonomy. Any intrusion into the private communications between Mr. Gartley and Attorney Voss during the execution of the warrant would be attributable to Mr. Gartley’s own conduct, resulting directly from the transfer of the records and other documents to his attorney’s care. Consequently, the use of Attorney Voss’ office as a haven for evidence material to an ongoing criminal investigation does not place it beyond the reach of a proper search pursuant to a warrant issued on probable cause; we will not restrain the Commonwealth’s efforts to obtain otherwise seizable evidence merely because it has been placed in the hands of an attorney. To hold otherwise would mean that a criminal suspect could shield evidence from discovery by the simple expedient of delivery to an attorney, a result we deem patently unreasonable.

We are mindful of the need to protect the rights of “innocent” parties — the other clients of an attorney whose office is made the subject of a search warrant. Although, as here, a warrant may describe the items to be seized and the location of the office in which they may be found with constitutionally sufficient particularity, such searches remain extremely sensitive, in that the executing officers may unwittingly be exposed to other individuals’ confidences and secrets. Nonetheless, we remain unpersuaded that the acquisition of a search warrant for a non-suspect attorney’s office is per se unreasonable.

Courts have consistently upheld searches of law offices where the attorney at issue was the target of a criminal investigation. See, e.g., Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976); Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955 (3d Cir.1984); In re Application of the United States for an Order, 723 F.2d 1022 (1st Cir.1983); National City Trading Corp. v. United States, 635 F.2d 1020 (2d Cir.1980). Moreover, language from the United States Supreme Court suggests that a search of a non-suspect attorney’s office may be constitutionally permissible. In Zurcher v. Stanford Daily, supra, the Court, per Mr. Justice White, upheld the validity of a search pursuant to a warrant, of the offices of a newspaper. The warrant authorized the seizure of negatives, film, and photographs of an assault by demonstrators on nine police officers several days earlier. The Court initially framed the issue as the construction and application of the Fourth Amendment to the

‘third party’ search, the recurring situation where state authorities have probable cause to believe that fruits, instrumentalities or other evidence of crime is located on identified property but do not have probable cause to believe that the owner or possessor of the property is himself implicated in the crime that has occurred or is occurring.

436 U.S. at 553, 98 S.Ct. at 1975, 56 L.Ed.2d at 534. As the Court concluded,

the critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific items to be searched for and seized are located on the property to which entry is sought.

Id., 436 U.S. at 556, 98 S.Ct. at 1976-1977, 56 L.Ed.2d at 535.

In Zurcher, the Stanford Daily contended that additional factors, derived from the First Amendment, justified a nearly per se rule forbidding the use of a search warrant and permitting only the issuance of a subpoena duces tecum, where the third party involved is a newspaper. Here, the newspaper voiced a concern that the press’ ability to gather, analyze and disseminate news would be seriously threatened by searches of newspaper offices for evidence of crime. In response, Mr. Justice White observed that the interests of the press were already safeguarded, by the terms of the Fourth Amendment itself.

[T]he Framers took the enormously important step of subjecting searches to the test of reasonableness and to the general rule requiring search warrants issued by neutral magistrates. They nevertheless did not forbid warrants where the press was involved, did not require special showings that subpoenas would be impracticable, and did not insist that the owner of the place to be searched, if connected with the press, must be shown to be implicated in the offense being investigated. Furthermore, the prior cases do no more than insist that the courts apply the warrant requirements with particular exactitude when First Amendment interests will be endangered by the search ... Properly administered, the preconditions for a warrant — probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness — should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices.

Id., 436 U.S. at 565, 98 S.Ct. at 1981-1982, 56 L.Ed.2d at 541.

Both aspects of the Zurcher holding provide analogies to the search of a non-suspect attorney’s office. Since documents of purely evidentiary value — in this context, those not encompassed within the attorney-client privilege or the work-product doctrine — can be seized, the fact that the attorney himself is not suspected of crime is not dispositive. Rather, it is enough that probable cause exists to believe that the attorney’s office houses materials that can be helpful in a criminal investigation, as long as the warrant is sufficiently specific and the search avoids undue abusiveness. Furthermore, the attorney-client privilege is no more expressly mandated by the United States or Pennsylvania Constitutions than is the press privilege relied upon in Zurcher. On the contrary, given the “preferred place” assigned to First Amendment freedoms, Wm. Goldman Theatres v. Dana, 405 Pa. 83, 173 A.2d 59 (1961), privileges asserted thereunder are accorded greater consideration than those statutorily prescribed. See Search of the Lawyer’s Office — Court Sanctioned Threat to Confidential Communications, 32 Ala.L.Rev. 92 (Fall 1980). The attorney-client relationship, although entitled to considerable deference, is neither sacrosanct nor inviolate. Thus, in light of Zurcher, we conclude that the use of a search warrant in the instant context is not per se unreasonable.

III. THE USE OF A SUBPOENA DUCES TECUM

The trial court concluded, however, that the issuance of a search warrant for an attorney’s office was inappropriate, regardless of the degree of care used in its execution. Instead, the trial court referred to “less intrusive” means by which the same information could be acquired, specifically a subpoena duces tecum pursuant to 42 Pa.Cons.Stat. § 5905, or as issued by an investigating grand jury. 42 Pa.Cons.Stat. § 4541 et seq. Section 5905, however, is directed to the authority of the judiciary, and, in any event, is not applicable to the early stages of an investigation, the time, as Mr. Justice White observed, that search warrants are most often employed. Zurcher, supra, 436 U.S. at 561, 98 S.Ct. at 1978, 56 L.Ed.2d at 538. In relevant part, Section 5905 provides,

Every court of record shall have power in any civil or criminal matter to issue subpoenas to testify, with or without a clause of duces tecum, into any county of this Commonwealth to witnesses to appear before the court

42 Pa.Cons.Stat. § 5905. As is evident from the statutory language, the court lacks authority to compel the production of documents absent a pending proceeding. “The essence of a subpoena’s function is to aid the court in the resolution of litigation, so that if there is no formal proceeding before the court there can be no legitimate reason to issue a subpoena.” Commonwealth v. Polak, 438 Pa. 67, 69, 263 A.2d 354, 356 (1970). See also Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980) (Subpoena concededly unlawful where, at time of issuance, there were no ongoing legal proceedings against appellant.)

Characterizing the impanelment of an investigating grand jury with its subpoena powers as a less intrusive means by which to proceed, the trial judge quashed the search warrant. Similarly, appellee and amici curiae, the Pennsylvania Trial Lawyers’ Association and the Allegheny County Bar Association, contend that requiring law enforcement personnel to proceed by subpoena duces tecum when seeking documents in a non-suspect attorney’s possession will not unreasonably burden law enforcement efforts. Although the Commonwealth’s information-gathering capabilities would thereby be somewhat restricted in the early stages of an investigation, appellee and amici view this measure as essential to preservation of attorney-client confidentiality. While several states have adopted such a proposal, we do not view this as the appropriate rule for Pennsylvania.

Initially, we note that the Zurcher Court, faced with the search of a newspaper office, explicitly rejected a claim that such a standard was constitutionally mandated:

The Fourth Amendment has itself struck the balance between privacy and public need, and there is no occasion or justification for a court to revise the Amendment and strike a new balance by denying the search warrant in the circumstances present here and by insisting that the investigation proceed by subpoena duces tecum, whether on the theory that the latter is a less intrusive alternative or otherwise.

Zurcher v. Stanford Daily, 436 U.S. at 559-560, 98 S.Ct. at 1978, 56 L.Ed.2d at 537-38. States have, of course, the constitutional power to guard individual rights, including the right to be free from unreasonable searches and seizures, more zealously then the federal government does under the United States Constitution. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983). Thus, Pennsylvania courts have often extended more privacy protection under Article I, § 8 than required by the federal constitution. See, e.g., Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984) (Neither a pen register nor a dialed number recorder may be installed without a judicial order based on probable cause); Commonwealth v. DeJohn, supra (Bank customers have legitimate expectation of privacy in bank records pertaining to their affairs.) Yet our research has discovered no case wherein our Supreme Court or this Court foreclosed the use of a search warrant as a means by which to secure from a third party, “things” in which an individual has a recognized privacy interest. After acknowledging that the subpoena issued were invalid, the Supreme Court stated in DeJohn, supra,

A bank could always be compelled to turn over customer’s records when served with a valid search warrant or some other type of valid legal process ...

Id., 486 Pa. at 48, 403 A.2d at 1291. See also Commonwealth v. Duden, 326 Pa.Super. 73, 473 A.2d 614 (1984); Commonwealth v. Gannon, 308 Pa.Super. 330, 454 A.2d 561 (1982). Moreover, in Commonwealth v. Santner, 308 Pa.Super. 67, 454 A.2d 24 (1982), cert. denied, — U.S. —, 104 S.Ct. 3585, 82 L.Ed.2d 883 (1984), this Court noted the impact of a search of a physician’s office upon the privacy interests of patients uninvolved in the criminal scheme under investigation. Id., 308 Pa.Super. at 82, 454 A.2d at 30-31. While Santner is distinguishable from the instant case, in that there the physician himself was the target of the investigation, the privacy interests of the uninvolved “clients” remains the same. Furthermore, although the warrant in Santner was insufficiently particular, no suggestion was made that a constitutionally precise warrant would nonetheless fail, and that alternate investigatory methods would be required.

The public has a fundamental interest in implementation of the criminal law. No evidence demonstrating that application of the Fourth Amendment’s reasonableness requirement will not adequately safeguard the interests of these other clients has been presented. Thus, we will not reject the search warrant, a heretofore effective and constitutionally acceptable enforcement tool.

IV. CONCLUSION

The use of a search warrant, then, is not unreasonable in this context. Given the significant interest we perceive in preservation of the confidences of “innocent” fourth parties, however, we conclude that the execution of a carefully tailored warrant, supported by probable cause, should be circumscribed with “particular exactitude.” This is especially necessary, since vindication of the rights of these individuals cannot be effected by the limited protection provided by the post-seizure remedy of suppression. Therefore, Pennsylvania courts, and in the first instance, the Courts of Common Pleas, should, when the issue is timely presented, establish procedures to assure that these searches are conducted in a manner that minimizes intrusions on the legitimate privacy interests of attorneys and their clients. Guidance here can be found in the well-reasoned analysis of the Court of Appeals for the Third Circuit in Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955 (3d Cir.1984). See also Bloom, The Law Office Search: An Emerging Problem and Some Suggested Solutions, 69 Geo.LJ. 1, 54-97 (1980); Cal.Penal Code § 1524; Justice Department Guidelines promulgated pursuant to the Privacy Protection Act, 42 U.S.C. § 2000aa-11.

Accordingly, the order quashing the search warrant in the instant case is vacated, and the case is remanded to the trial court.

Jurisdiction is relinquished.

      . No written petition requesting injunctive relief was presented to Judge Harper; the controversy was initiated by oral request. This request resulted, ultimately, in a written order, issued ex parte and based solely on the representations of counsel for appellee and Attorney Voss. Moreover, although a hearing on the request for permanent injunctive relief was subsequently scheduled, appellee at that time filed a “Motion to Quash Search Warrant,” which the Commonwealth was not given an opportunity to answer. See Commonwealth v. Loesel, 155 Pa.Super. 461, 38 A.2d 523 (1944) (Commonwealth entitled to a reasonable time to file an answer to a motion to quash a search warrant.) However, as the Commonwealth has not objected to the procedural course taken here, we do not pass on its propriety.

      . The trial court found no error in the warrant’s description of the specific items to be seized.

      . We note that the federal and state constitutions' particularity requirements have been deemed co-extensive. Commonwealth v. Barba, 314 Pa.Super. 210, 460 A.2d 103 (1983).

      . Nor were any "facts" subsequently presented which would alter this conclusion, given that no evidentiary hearing was held.

      . In Lebovitz, the attorney himself was under indictment. This fact was not, however, dispositive to the determination of the sufficiency of the warrant’s description, but rather, was relevant to a determination of probable cause.

      . This assumes the existence of no Fifth Amendment self-incrimination problems.

      . This statement was taken from the affidavit in support of the warrant.

      . California and Minnesota have accepted this standard. See Deukmejian v. Superior Court, 103 Cal.App.3d 253, 162 Cal.Rptr. 857 (1980) and O’Connor v. Johnson, 287 N.W.2d 400 (Minn.1979).

      . The fact that the Pennsylvania General Assembly has not followed the lead of the California legislature does not preclude the judiciary in this Commonwealth from establishing procedures to be used in this situation.


source: Caselaw Access Project

author: OLSZEWSKI, Judge: SPAETH, President Judge,

license: Public Domain

text:
    491 A.2d 864
    COMMONWEALTH of Pennsylvania v. Gordon Lavern KAUTZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1984.
    Filed April 4, 1985.

      J. Richard Gray, Lancaster, for appellant.
    Charles A. Achey, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before SPAETH, President Judge, and OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

Appellant challenges the constitutionality of Section 3525(a) of the Vehicle Code (hereinafter referred to as the “helmet law”). The statute, in pertinent part, provides: “No person shall operate or ride upon a motorcycle or a motor-driven cycle (other than a motorized pedalcycle) unless he is wearing protective headgear which complies with standards established by the department.” Appellant, in his challenge, renews the arguments rejected by this Court in Commonwealth v. Arnold, 215 Pa.Super. 444, 258 A.2d 885 (1969). We affirm on the basis of Arnold, but question the continuing vitality of that case.

The thrust of appellant’s arguments goes to the question of how far the state may extend its police power to save a citizen from himself. It is axiomatic that the power can be rightfully exercised over a member of a civilized community, against that person’s will, only to prevent harm to other members of the community.

The only part of the conduct of any one, for which he is amendable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
(T)he principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow creatures, so long as what we do does not harm them, even though they think our conduct foolish, perverse or wrong.

John Stuart Mill, On Liberty (1859), cited with approval in Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980).

Adherence to this principle has proven difficult for a court faced with challenges to the helmet laws. In Arnold, this Court followed the lead of other jurisdictions finding, however attenuated, a basis for public benefit.

(T)he requirement of protective headgear for the exposed operator bears a reasonable relationship to highway safety generally. It does not tax the intellect to comprehend that loose stones on the highway kicked up by passing vehicles, or fallen objects such as windblown tree branches, against which the operator of a closed vehicle has some protection, could so affect the operator of a motorcycle as to cause him momentarily to lose control and thus become a menace to other vehicles on the highway.

Commonwealth v. Arnold, 215 Pa.Super. at 448, 258 A.2d at 880, quoting State ex rel. Colvin v. Lombardi, 104 R.I. 28, 30, 241 A.2d 625, 627 (1968). See Bogue v. Faircloth, 316 F.Supp. 486 (S.D.Fla.1971) (applying state law); Kingery v. Chapple, 504 P.2d 831 (Alaska 1972); State v. Also, 11 Ariz.App. 227, 463 P.2d 122 (1969); State v. Beeman, 25 Ariz.App. 83, 541 P.2d 409 (1975); Penney v. North Little Rock, 248 Ark. 1158, 455 S.W.2d 132 (1970); Love v. Bell, 171 Colo. 27, 465 P.2d 118 (1970); State v. Brady, 290 A.2d 322 (Del.Super.1972); State v. Cotton, 55 Hawaii 138, 516 P.2d 709 (1973); State v. Albertson, 93 Idaho 640, 470 P.2d 300 (1970); Wichita v. White, 205 Kan. 408, 469 P.2d 287 (1970); State v. Quinnam, 367 A.2d 1032 (Me.1977); People of Adrian v. Poucher, 398 Mich. 316, 247 N.W.2d 798 (1976); State v. Edwards, 287 Minn. 83, 177 N.W.2d 40 (1970); State v. Darrah, 446 S.W.2d 745 (Mo. 1969); State v. Cushman, 451 S.W.2d 17 (Mo.1970); Albuquerque v. Jones, 87 N.M. 486, 535 P.2d 1337 (1975); People v. Bennett, 89 Misc.2d 382, 391 N.Y.S.2d 506 (1977); State v. Stouffer, 28 Ohio App.2d 229, 276 N.E.2d 651 (1971); Elliott v. Oklahoma City, 471 P.2d 944 (Okla.Crim.1970); State v. Fetterly, 254 Or. 47, 456 P.2d 996 (1969); State v. Lombardi, 110 R.I. 776, 298 A.2d 141 (1972); Ex Parte Smith, 441 S.W.2d 544 (Tex.Crim.1969); State v. Acker, 26 Utah 2d 104, 485 P.2d 1038 (1971); State v. Solomon, 128 Vt. 196, 260 A.2d 377 (1969); State v. Zektzer, 13 Wash.App. 24, 533 P.2d 399 (1975) (all reciting, with variations, the “loose stones” rationale); see generally Annot., 32 A.L.R.3d 1270 and supplement.

Other courts, admitting that the “public safety” fiction masks a real concern for the individual’s well-being, go on to find a societal interest in minimizing the economic costs of a motorcycle accident.

In view of the evidence warranting a finding that motorcyclists are especially prone to serious head injuries, see Statistical Division, National Safety Council, 1971 Motorcycle Facts, the public has an interest in minimizing the resources directly involved.
From the moment of the injury, society picks the person up off the highway; delivers him to a municipal hospital and municipal doctors; provides him with unemployment compensation if, after recovery, he cannot replace his lost job, and, if the injury causes permanent disability, may assume the responsibility for his and his family’s continued subsistence. We do not understand a state of mind that permits plaintiff to think that only he himself is concerned.

Simon v. Sargent, 346 F.Supp. 277 (D.Mass.), affirmed 409 U.S. 1020, 93 S.Ct. 463, 34 L.Ed.2d 312 (1972). See State v. Beeman, 25 Ariz.App. 83, 541 P.2d 409 (1975); Love v. Bell, 171 Colo. 27, 465 P.2d 118 (1970); People v. Bennett, 89 Misc.2d 382, 391 N.Y.S.2d 506 (1977); State v. Stouffer, 28 Ohio App.2d 229, 276 N.E.2d 651 (1971); State v. Acker, 26 Utah 2d 104, 485 P.2d 1038 (1971); State v. Laitinen, 77 Wash.2d 130, 459 P.2d 789 (1969), cert. denied Laitinen v. State, 397 U.S. 1055, 90 S.Ct. 1397, 25 L.Ed.2d 671 (1970); see also Annot., 32 A.L.R.3d 1270 Sec. 5. Taken to its logical extreme, this argument would preclude a pedestrian’s crossing the street.

Courts hesitate before the stated purpose of the statutes. “(T)he act’s only realistic purpose is the prevention of head injuries incurred in motorcycle mishaps.” Simon v. Sargent, 346 F.Supp. at 278 (the court proceeded to decide the case on an “economic cost” rationale); cf. People v. Fries, 42 Ill.2d 446, 250 N.E.2d 149 (1969) (“The manifest function of the headgear requirement ... is to safeguard the person wearing it ... from head injuries. Such a laudable purpose, however, cannot justify the regulation of what is essentially a matter of personal safety.”). This reluctance to endorse the state’s interest in the welfare of its citizenry reflects, perhaps, a fear of “Big Brother” and the concomitant potential for abuse.

Our Court, in rebuffing challenges to the helmet law, has relied upon the presumption of validity accorded any duly enacted statute. See, e.g., Commonwealth v. Arnold, 215 Pa.Super. at 448, 258 A.2d at 887-888, citing Commonwealth v. Bristow, 185 Pa.Super. 448, 458, 138 A.2d 156, 161 (1958). With statute, the legislature gives voice to the will of the people.

Two conditions are essential to the realization of justice according to the law. The law must have an authority supreme over the' will of the individual, and such an authority can arise only from a background of social acquiescence, which gives it the voice of infinitely greater numbers than these of its expositors.

L. Hand, The Speech of Justice, 29 Harv.L.Rev. 618 (1916). A clash between the will of the people as embodied in law and the will of the individual may be inevitable. The two must necessarily compromise to accommodate the realities of day-to-day life. A decision that the government may intervene to protect a person from himself would furnish a potentially powerful tool for governmental invasion of privacy. For that reason, we would decide this case without reaching the broad question of personal liberties.

Narrowly drawn, the helmet law will withstand constitutional scrutiny. Section 3525(a) operates to regulate access to public roads. The legislature has the power to regulate the manner and circumstances under which vehicles may be operated upon highways. See Maurer v. Boardman, 336 Pa. 17, 7 A.2d 466 (1939), cert. denied Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969 (1940). Access to these highways is a privilege, not a right. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Lemon, 31 Pa.Commw. 133, 375 A.2d 857 (1977). As such, that privilege is revocable. The proper test for determining the validity of Sec. 3525 becomes a question whether the helmet law is reasonably related to a rational state interest. See id. at 135, 375 A.2d at 858. Viewed in this manner, the statute survives on the strength of arguments too attenuated to withstand a more rigorous scrutiny. See pp. 865-867, supra; Commonwealth v. Arnold, 215 Pa.Super. at 258 A.2d at 880.

Appellant’s remaining arguments lack merit. Contending that the statute places upon a motorcyclist the unreasonable burden of obtaining a list of approved helmets and headgear, appellant argues that the statute is 'unconstitutionally vague and must be stricken as void. The case appellant cites, People v. Smallwood, 52 Misc.2d 1027, 277 N.Y.S.2d 429 (1967), has itself been overruled. See People v. Schmidt, 54 Misc.2d 702, 283 N.Y.S.2d 290 (1967). Further, promulgation of standards by the Department of Transportation represents a constitutional delegation of authority.

Finally, we see no merit to appellant’s claim that the statute denies him the equal protection of the laws. It is not difficult to discern a rational basis for the legislature’s distinction between motorcyclists and, for example, automobile drivers or pedalcyclists. Automobile drivers have the additional protection of enclosed vehicles; pedalcycle drivers, the reduced risk of a lower maximum speed. The distinction is a reasonable one.

Judgment of sentence affirmed.

SPAETH, President Judge, files a concurring opinion.

SPAETH, President Judge,

concurring:

I do not question the continuing vitality of Commonwealth v. Arnold, 215 Pa.Super. 444, 258 A.2d 885 (1969), and should affirm on the basis of the trial court’s opinion.

      . Vehicle Code, Act of June 17, 1976, P.L. 162; No. 81, Sec. 1, as amended; 75 Pa.C.S. Sec. 3525(a).

      . Arnold was decided under the predecessor to Sec. 3525(a). Vehicle Code, Act of April 29, 1959, P.L. 58, Sec. 625.1, as amended; 75 P.S. Sec. 625.1, repealed. The former Sec. 625.1 provided, inter alia: "Any person operating or riding on a motorcycle shall wear both protective headgear and ... an eye shield of a type approved by the secretary.” The statutes in substance the same, we will follow the case law enunciated under the former Sec. 625.1. Accord 42 P.S. Sec. 20003(c).

      . We note that three states, New York, New Jersey, and Illinois, have enacted legislation requiring drivers and passengers of most motor vehicles to use seatbelts. Similar legislation died in the last session of the General Assembly; a new bill, however, has been introduced.
      An assistant attorney general predicted that the New York law would withstand a court challenge. He based his prediction on the continued survival of the motorcycle helmet law. (Available on Lexis, Nexis Library, Proprietary to UPI, September 28, 1984.)
      Search and seizure problems may attend enforcement of the seat-belt laws. These problems would include justification for a stop and the extent of the search incident to that stop.


author:
HOFFMAN, Judge:
      POPOVICH, Judge,

text:
    491 A.2d 868
    COMMONWEALTH of Pennsylvania v. Robert EASLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1984.
    Filed April 4, 1985.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before POPOVICH, HOFFMAN and LIPEZ, JJ.
   HOFFMAN, Judge:

Appellant contends that (1) the evidence was insufficient to prove the elements of the offense charged; (2) trial counsel was ineffective for failing to challenge the defective jury trial waiver colloquy; (3) trial counsel was ineffective for failing to object to the testimony of appellant’s wife; and (4) the lower court erred in admitting into evidence a letter written by appellant’s wife. We reverse.

On February 11, 1981, appellant and his wife were charged with fraudulently receiving public assistance payments totalling $5,958.50 because they failed to report to the Allegheny County Board of Assistance the income received from the wife’s employment during the period of August 5, 1977 through June 27, 1979. Following a nonjury trial, both co-defendants were found guilty. Post-verdict motions were denied, and appellant was sentenced to a term of probation for one year plus restitution and costs. Subsequently, appellant, represented by new counsel, filed this appeal.

Appellant first challenges the sufficiency of the evidence to support his conviction. It is well-established that the evidence is sufficient if “viewing the evidence in the light most favorable to the Commonwealth, and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt.” Commonwealth v. Contakos, 492 Pa. 465, 468, 424 A.2d 1284, 1286 (1981), quoting Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825-26 (1975). The elements of the offense in question are statutorily outlined as follows:

§ 481. False statements; investigations; penalty
(a) Any person who, either prior to, or at the time of, or subsequent to the application for assistance, by means of a wilfully false statement or misrepresentation, or by impersonation or by wilfully failing to disclose a material fact regarding eligibility or other fraudulent means, secures, or attempts to secure, or aids or abets or attempts to aid or abet any person in securing assistance, or Federal food stamps, commits a crime which shall be graded as provided in subsection (b).
(b) any person violating subsection (2) commits the grade of crime determined from the following schedule:
Amount of Assistance or Pood Stamps Degree of Crime
$3,000 or more Felony of the third degree
$1,500 to $2,999 Misdemeanor of the first degree
$1,000 to $1,499 Misdemeanor of the second degree
$999 and under, or an attempt to commit any act prohibited in subsection (2) Misdemeanor of the third degree
Pursuant to 42 Pa.C.S. § 1515(a)(7) (relating to jurisdiction and venue), jurisdiction over cases graded a misdemeanor of the third degree under this section shall be vested in district justices.

62 P.S. § 481 (Supp.1984-85).

Here, the record reveals the following facts: Periodic interviews were conducted by the social workers from the Department of Public Welfare. At these interviews which were held on August 5, 1977, May 31, 1978, September 20, 1978, and March 14, 1979, appellant, in his wife’s presence, stated that neither of them was receiving any income. Additionally, both parties indicated that they had been living together during the applicable period. It is undisputed that, during this time, appellant’s wife was employed by Allegheny County. Because appellant failed to disclose the material fact that his wife was employed, we find that the evidence was sufficient to convict appellant.

Appellant next alleges that trial counsel was ineffective in failing to challenge his jury waiver colloquy. “[C]ounsel’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 interest.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967) (emphasis in original). However, we must first determine whether the issue underlying the charge of ineffectiveness possesses arguable merit before we inquire into the basis for counsel’s decision. Commonwealth v. Evans, 489 Pa. 85, 91, 413 A.2d 1025, 1028 (1980). “Counsel cannot be found ineffective for failing to assert a meritless claim.” Id., 489 Pa. at 91 n. 6, 413 A.2d at 1028 n. 6.

In the instant case, the lower court questioned appellant as to his understanding of (1) his right to be tried by a jury of twelve people, (2) his right to participate in the selection of the jury, (3) the area from which the jury pool would be chosen, and (4) his right to challenge peremptorily five of those jurors and any other jurors for cause. (N.T. July 23, 1981 at 5-7). The court also asked appellant whether he had discussed in advance with his attorney his right to waive a jury trial, whether anyone had pressured him into waiving, and whether he had consumed any alcoholic beverages or narcotics within the last 24 hours. {Id. at 8-10). In response to further questioning, appellant indicated that he wished to be tried without a jury and that his decision to waive a jury trial was made of his own free will. (Id. at 8-9). Appellant also signed, in the presence of counsel, a written waiver of his right to a jury trial. (Id. at 10-11). Upon completing the colloquy, the lower court accepted appellant’s waiver and commenced hearing the case as a nonjury case.

Appellant argues specifically that the above-described colloquy was defective because the court failed to inform him that he would be waiving his right to a unanimous verdict. In Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), our Supreme Court stated that the “essential ingredients, basic to the concept of a jury trial, are the requirements that the jury be chosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.” Id., 454 Pa. at 373, 312 A.2d at 600. Subsequently, in Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978), and Commonwealth v. Greene, 483 Pa. 195, 394 A.2d 978 (1978), because the trial court in those cases failed to inform the defendant that the verdict of the jury had to be unanimous in order to convict, the Supreme Court found that the defendant had not effectively waived his right to a jury trial. However, in Commonwealth v. Smith, 498 Pa. 661, 450 A.2d 973 (1982), although the judge conducting the colloquy did not explore the defendant’s understanding of either the fact that the jury’s verdict had to be unanimous or the fact that the defendant could participate in jury selection, our Supreme Court found that the defendant was fully aware of these requirements because he had signed a written waiver form which stated that he “ 'fully understand^]’ the ingredients of a jury trial, including the unanimity and defendant participation requirements which were not explained in the colloquy.” Id., 498 Pa. at 663, 450 A.2d at 974. Therefore, the Court concluded that trial counsel was not ineffective for failing to object to the defective colloquy.

We find Smith distinguishable from the instant case. Here, the waiver form signed by appellant stated only that he waived his right to a jury trial and elected to be tried by a judge without a jury. (N.T. July 23, 1981 at 10-11). There is no indication in the colloquy, waiver form, or anywhere in the record that appellant was ever informed of or understood his right to a unanimous verdict.

The Commonwealth correctly points out that a “totality of the circumstances” approach has been adopted by our courts in reviewing an allegedly defective guilty plea colloquy. See Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Campbell, 309 Pa.Superior 214, 455 A.2d 126 (1983). In Commonwealth v. Anthony, 307 Pa.Superior 312, 453 A.2d 600 (1982), aff'd, 504 Pa. 551, 475 A.2d 1303 (1984), this Court found that, although the guilty plea colloquy between the trial court and the defendant did not include any mention of the need for a unanimous verdict in order to convict, the colloquy was not defective because the record revealed that the plea tendered was knowing, intelligent and voluntary. On appeal, the Supreme Court agreed.

Additionally, the totality of the circumstances test has apparently been extended to jury waiver colloquies as well. See Commonwealth v. DeGeorge, 506 Pa. 445, 485 A.2d 1089 (1984). In DeGeorge, there was no on-the-record colloquy, and the written waiver, signed by the defendant, only stated that the defendant “pleads not guilty and ... waives a jury trial and elects to be tried by a judge without a jury.” Id., 506 Pa. at 449, 485 A.2d at 1091. Therefore, our Supreme Court remanded the case to the trial court for evidentiary proceedings to determine whether the waiver of trial by jury was knowing and intelligent. The Court reasoned that:

In the absence of any assertion of record indicating that the waiver was knowing and intelligent, we are unable to determine whether DeGeorge has received effective assistance of counsel in waiving a jury trial. We have no indication of the extent to which counsel and client may have conferred on that which was waived, or what colloquy was conducted at the time the written waiver was executed.

Id., 506 Pa. at 449-450, 485 A.2d at 1091. We note that the Supreme Court rejected the Morin remedy of remanding for a new trial. See Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978). The DeGeorge Court noted that decisions subsequent to Morin “permitted] the consideration of circumstances outside the content of the of-record colloquy in determining the validity of a [jury trial] waiver.” 506 Pa. at 449-450, 485 A.2d at 1091, citing Commonwealth v. Anthony, supra; Commonwealth v. Carson, 503 Pa. 369, 469 A.2d 599 (1983); Commonwealth v. Smith, supra; Commonwealth v. Williams, supra.

In the instant case, even applying the totality of the circumstances test to look at the entire record, rather than just the on-the-record colloquy, we find that there is no evidence to indicate that appellant understood all of the essential ingredients of a jury trial, i.e. that the verdict must be unanimous in order to convict.

Accordingly, we remand the case to the lower court for evidentiary proceedings to determine whether the waiver of trial by jury was knowing and intelligent. Commonwealth v. DeGeorge, supra. If, on remand, the court finds that the waiver was knowing and intelligent, then appellant will have suffered no prejudice and therefore will not be entitled to a new trial on ineffectiveness grounds. See Commonwealth v. Garvin, 335 Pa.Superior 560, 485 A.2d 36 (1984) (en banc). However, if the court finds that the waiver was unknowing and unintelligent, then appellant will be entitled to a new trial.

Judgment of sentence reversed and case remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

POPOVICH, J., files a concurring and dissenting opinion.

POPOVICH, Judge,

concurring and dissenting:

This writer agrees with the majority’s decision to reverse the judgment. However, an evidentiary hearing need not be conducted at the trial level because the record shows that appellant is entitled to a new trial because the trial court erred in admitting into evidence a letter which was written by appellant’s wife which implicated appellant.

The record shows that at trial the following letter was mentioned and introduced into evidence during the testimony of Mary Salerno, an investigator and supervisor of the Department of Public Welfare:

“Dear Ms. Salerno, Supervisor, I’m writing this letter to inform you of my inability to keep the appointment scheduled for Monday, February 2, 1981, at nine. I have laryngitis. If I called you to explain, you probably would have thought it a prank call since I could hardly talk clearly. I can’t apologize enough for any inconvenience I may have caused. I understand your time is valuable and limited. I would like to explain or clarify my involvement in this case, whether it be directly or indirectly.
Yes, it was an overpayment made to the both of us during this period of May 14, 1976 to February, 1979. To my knowledge, we did not receive any additional funds from D.P.A. Our worker, Ms. Gay, called in February and talked to me regarding my status, that we would not receive any further assistance because her records indicated an employment record under my name. I have been employed since April 26, 1976, with Allegheny County Adult Services, Area Agency on Aging. I was wedded at the age of 17, July 20, 1974, and gave birth, November 18, ’74. I was also still in school. I graduated and furthered my education in business school and the secretarial school. We had been on D.P.A. since we were married in 1974. I didn’t like the fact we were on D.P.A., but we had no alternative because Robert didn’t complete high school, and I was in high school at that time and couldn’t get a job without a diploma or G.E.D. I went on to business school so I could qualify for a good paying job. I did just that.
Although, I was getting $175 bi-monthly, I felt it enough to take care of all three of us. During our four and a half years of marriage, because we were separated since June, 1979, we have encountered many marital problems which in turn created physical, mental, emotional, and sexual problems on my part since I was the target of his insecurity and frustrations.
After nine months of our marriage, Robert changed drastically. I could not [sic] longer talk to him.”
I don’t know if that is relevant. I will skip down. I’m going to delete certain portions of it when on the face, it indicates what has to do with their personal relationship unconnected with the funds. I see no purpose with reading it. There is no point in my reading it myself there. Page 3 and 4, we are omitting. I’m not interested in pages 5, 6, 7. I’m not going to incorporate some of the personal matters referred to in the letter. There is no point to that. Obviously, they refer to the fact they were aware of the fact she was working and performing satisfactorily with the County and didn’t need the extra money.
MR. MATLOCK [The Wife’s Attorney]: Also, your Honor, part of our defense is in there as far as the duress is concerned. (N.T. 7/23/81 at 111-114).

The prosecution contends that the admission of the letter was not an error because “the references to appellant in the letter cannot be considered prejudicial in light of the crime charged.” Brief for Appellee at 21. The prosecution also states that the “letter, as edited, was properly admitted.” Id. This writer must disagree.

In Pennsylvania, two rules govern the admission of testimony by one spouse against the other. See Commonwealth v. Borris, 247 Pa.Super. 260, 263-6, 372 A.2d 451, 453-4 (1977). The scope of these rules has been delineated in the following manner:

The first is an absolute prohibition of incompetence preventing one spouse from testifying against the other during the existence of a valid marriage. See Canole v. Allen, 222 Pa. 156, 70 A. 1053 (1908); Bell v. Throop, 140 Pa. 641, 21 A. 408 (1891); III Freedman, Law of Marriage and Divorce in Pennsylvania, § 749 (2d Ed. 1957). That principle has long been codified into the law of Pennsylvania. Act of May 23, 1887, P.L. 158, § 5, els. (b, c); 28 P.S. §§ 316-317; Act of May 23, 1887, supra, as amended, Act of April 27, 1909, P.L. 179, § 1; Act of May 11, 1911, P.L. 269, § 1; 19 P.S. § 683. See also, Commonwealth v. Moore, 453 Pa. 302, 309 A.2d 569 (1973). The second privilege governs confidential communications made during a marriage, subsequently terminated by death or divorce. The Act of 1887 does not contemplate those situations. See 2 Henry, Pennsylvania Evidence § 699 (4th Ed.1953). Our courts have followed the common law rule in those cases: “We have held that the reason for the rule of the common law, which forbade husband and wife to give testimony against each other, ceased on the death or divorce of one of the parties, except as to confidential communications. Hayes’s Est., 23 Pa.Super. 570. The disqualification that remains after the dissolution of the marriage is restricted to communications of a confidential nature. Stewart v. F.A. North Co., 65 Pa. Super. 195.” Commonwealth v. Beddick, 180 Pa.Super. 221, 227, 119 A.2d 590, 593 (1956). See generally, McCormick, Evidence, § 66 (Cleary Ed.1972).

Id. Accord 42 Pa.C.S.A. § 5913; Trammel v. United States, 445 U.S. 40, 48 n. 9, 100 S.Ct. 906, 911 n. 9, 63 L.Ed.2d 186, 193 n. 9 (1980).

The incompetency statute reads as follows:

§ 5913. Spouses as witnesses against each other
Except as otherwise provided in this subchapter, in a criminal proceeding husband and wife shall not be competent or permitted to testify against each other, except that in proceedings for desertion and maintenance, and in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them, each shall be a competent witness against the other, and except also that either of them shall be competent merely to prove the fact of marriage, in support of a criminal charge of bigamy alleged to have been committed by or with the other. (Emphasis added). 42 Pa.C. S.A. § 5913.

Our Supreme Court also has said that the rule prohibiting one spouse from testifying against the other “is a rule which is not waivable by the parties.” Commonwealth v. Moore, 453 Pa. 302, 307, 309 A.2d 569, 571 (1973). The genesis of the law in Pennsylvania was summarized in the following manner:

At common law husband and wife are incompetent to testify against each other. This rule has never been relaxed; on the contrary, it has been reinforced, and guarded from invasion by statutory enactment. Our Act of May 23, 1887 (P.L. 158), defining competency, is more than confirmatory of the common-law rule; it declares in express terms that neither shall be permitted to testify against the other, a prohibition of which both the parties to the suit and the trial judge as well are bound to take notice. Connivance by the parties cannot evade it, nor can indulgence by the court. The language of the act is: “Nor shall husband or wife be competent or permitted to testify against each other.”
Canole v. Allen, 222 Pa. 156, 159, 70 A. 1053, 1055 (1908). (Emphasis added)

Thus, the law is clear that the testimony of Sandra Easley could not be introduced against her husband, the appellant. In this case, it is immaterial that the testimony was in the form of an extrajudicial written statement because we recognize that

[wjhat is prohibited by the act is testimony in any form by the wife or husband against the other. Extrajudicial admissions are a sort of testimony; hence the prohibition of the act applies to them with the same force as though made by a spouse from the stand. Wigmore, Ev. 3rd Ed., §§ 1048, 2232.

Kerr v. Clements, 148 Pa.Super. 378, 383, 25 A.2d 737, 740 (1942).

Therefore, because the trial court erred in admitting the letter over appellant’s objection, it is necessary to analyze whether this error was harmless.

The standard of review for determining harmless error has been set forth in the following manner:

an error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict. Whenever there is a “ ‘reasonable possibility’ ” that an error “ ‘might have contributed to the conviction,’ ” the error is not harmless. Commonwealth v. Davis, 452 Pa. [171] at 178, 305 A.2d [715] at 719 [1973], quoting Chapman v. California, 386 U.S. [18] at 24, 87 S.Ct. [824] at 828 [17 L.Ed.2d 705 (1967)].

Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155, 164 (1978).

Additionally, because the trial court and not the jury was the fact finder at appellant’s trial, a judge, as factfinder, is presumed to disregard inadmissible evidence and consider only competent evidence. Commonwealth v. Brown, 328 Pa.Super. 215, 219 n. 6, 476 A.2d 969, 971 n. 6 (1984). The reason for this rule is because

Judges, however, by virtue of their legal training and professional experience can be expected to sift through the evidence, critically analyze it, and discard that which is not properly presented. As a result, an appellate court can more readily presume proper decision making when the trier of fact is a judge.

Commonwealth v. Walls, 272 Pa.Super. 284, 289, 415 A.2d 890, 893 (1979).

In cases where potentially prejudicial evidence has been admitted during the course of a trial in which the trial court is the finder of fact, this Court has “deduced two factors which will be weighty considerations in determining whether a mistrial should be declared____” Id. These factors also are relevant to our examination of the issue presented in this case:

The first factor is whether the evidence is “so prejudicial” that the risk of improper adjudication cannot be ignored; such evidence is usually recognizable by its emotional impact rather than its misleading probative value. The second factor is whether the prejudicial evidence is important to the case; that is to say, when the other evidence of guilt is overwhelming, “we shall be less sensitive to the risk of harmful prejudice.... ” [Commonwealth v. Conti, 236 Pa.Super. 488, 501, 345 A.2d 238, 245 (1975) ].

Id.

Applying the harmless test to the facts of the instant case, this writer is unable to conclude that the error could not have contributed to the verdict. To begin with, the inadmissible testimony was an admission by the appellant’s wife, a co-defendant, that “it was an overpayment made to the both of us during this period of May 14, 1976, to February, 1979.” Notes of Testimony at 111 (emphasis added). Appellant was charged with illegally receiving public assistance “on or about August 5, 1977 thru June 27, 1979”, which was during the same period. See “Complaint”.

Additionally, appellant’s wife admitted that she had “been employed since April 26, 1976, with Allegheny County Adult Services, Area Agency on Aging.” Id. at 112. Sarah Easley also stated that she “was the target of [appellant’s] insecurity and frustrations”. Id. at 113.

Accordingly, because appellant’s wife’s statement was against appellant and also because the statement referred to appellant’s involvement in the crime, this evidence is the kind of evidence which is recognizable “by its emotional impact rather than its misleading probative value.” Commonwealth v. Walls, 272 Pa.Super. at 289, 415 A.2d at 893 (emphasis added); see Commonwealth v. Garrison, 398 Pa. 47, 51, 157 A.2d 75, 77 (1959) (no'error where the evidence proffered at trial “was not against her husband and did not refer to him).

In fact, the reason for the rule which disqualifies one spouse from testifying against the other presumes the existence of an emotional relationship.

The prosecution cites Federal authority for support regarding the admissibility of the letter. However, that authority is not persuasive because the rules are different. See Trammel v. United States, 445 U.S. at 480 n. 9, 100 S.Ct. at 911 n. 9, 63 L.Ed.2d at 193 n. 9 (Pennsylvania is one of “[e]ight states [which] provide that one spouse is incompetent to testify against the other in a criminal proceeding....”); Id. at 53, 100 S.Ct. at 914, 63 L.Ed.2d at 196 (Under the federal law, “the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying.”). See generally Cornelius, supra. Thus, we are persuaded that the error could have contributed to the verdict.

The second factor is whether the inadmissible evidence was important to the case. Although social workers testified that the Easleys had received public assistance and failed to report any income, this writer is unable to state that the letter was not an important part of the case.

Even the prosecutor conceded as much at the close of the trial when he said:

MR. TURNER [the Prosecutor]: Yes, your Honor, I think that the evidence clearly establishes that Saundra Easley with full knowledge was employed and receiving assistance through this period of time in question. Whether or not the Court will give any weight or significance to her other comments is certainly within the Court’s discretion. That with regard to Saundra Easley, I think we have well met our burden of establishing that she is guilty of making false statements beyond a reasonable doubt.
I think that the more difficult situation arises with regard to Robert Easley. I think the Court could accept during this period of time that the two parties resided together as husband and wife, and he had knowledge of the fact they were receiving assistance, first from the interviews conducted by the various witnesses that testified, from the fact that checks were made to him that he cashed, and he knew from these interviews and checks and statements contained therein as well as things explained to him that he had the duty and obligation to report to the Department of Welfare any change in their circumstances; most notably, any source of income they might be receiving. I would reiterate to the Court that I think common sense would leave the Court to believe that Robert Easley was well aware of the fact that his wife was working during this period of time.
I would ask the Court to consider the daily routine involved and it would be hard for him not to be aware of the fact she was working at this time. Yet no efforts were made by either party to inform Welfare of the other sources of income.
As to the question whether she was in fact under duress, there is unsubstantiated testimony that he beat her and she was under mental duress and pain and so forth. There is no supporting evidence to establish that she at any time went to the police officers about it or attempted to leave the home for the safety of herself or her child; nor, she at any time reported this information to the Department of Welfare. I think if either thing had been done, some solution could have been found that would have prevented this matter from going this far. I would go back to the charge presented here, that of making false statements; the charge brought against both parties and the facts relevant to that charge. With that, the Commonwealth would rest, your Honor. (Notes of Testimony at 138-141 (emphasis added).

In its opinion, the trial court referred to the inadmissible statement as “unflattering”; however, the court stated that the statement was “neither inculpatory, inflamatory [sic] or prejudicial.” Trial Court’s Opinion at 1.

While this writer is mindful of the trial court’s ability to sift through the evidence, this writer cannot overlook “the fact that judges are subject to the same emotions and human frailties as affect all persons, lay jurors or not.” Commonwealth v. Conti, 236 Pa.Super. at 501, 345 A.2d at 245 (1975). Moreover, “no matter which way the evidenced the letter,] was taken, it cast a shadow on the whole case.” Id.

The error in the instant case was compounded because appellant’s co-defendant testified on her own behalf as follows:

[The Wife’s Attorney]
Q You told Mr. Romano [a social worker] you were not working?
[The Wife]
A Yes.
Q Why did you tell him that?
A I can’t sit here and really explain the reason why I did or didn’t. First of all, everyone here has to understand the intensity of the fear that I had to live with with Robert Easley during my marriage. I had no family to turn to. I had nowhere else to go. Therefore, I had no alternative but to stay and listen to what he said and to take the abuse he gave me during those years of my marriage. I had no way out and I was getting sick and tired of being badgered and abused constantly by him. Until I found a way out, I submitted to everything he wanted me to do until I found a way out.
Q Are you saying things happened in September, ’78 and March, ’79 when you spoke to Miss Gay [a social worker], the same things happened?
A Yes.
Q Did this physical or mental abuse ever lead to you having to go to the hospital at all?
A Yes, I had a bruise on my arm. My head was busted open. I have bruises here. I have bruises on my back and my arm.
Q Did this only revolve around you getting this assistance from the Department of Public Welfare?
A Not only that, anything. He was totally unreasonable. No matter what I wanted to do, he had his own mind. I said curtly one day, “You’re going to get caught. ” He said, “I will take care of that. ” When he told them he was working, I said, “Why can’t I tell them I’m working?” Because the checks are coming in my name. They won’t worry about your employment. I said, “You told them you were working. ” It is total confusion.
Q You said that the checks were coming in his name. Did you ever cash any of the checks?
A No, I did not. The money I work for I took care of myself and my baby and paid the bills.
Q Which bills?
A Sometimes I would pay the rent. It depends on whether or not he paid it or not. He was always home at the time. Depending on whether or not he paid the receipt made up the difference as to whether or not I would pay it. If he didn’t pay it, I paid it.
Q You took care of your daughter totally?
A Totally except for food because we were receiving food stamps. Medically, under our checks, we also had medical coverage. That aspect I didn’t take care of her. As far as food and clothing, I took care of her and any other supports she needed, I provided her with that.
Q On a regular basis, would you say you had the use of the money that came from the checks?
A No, I didn’t even see the checks.
Q At any time did you accompany Mr. Easley to the bank with the checks?
A No, I was working at the time. He would cash the checks. He would do whatever he wanted to. One time Fon [the daughter] and I lived on cereal for a whole month because he wanted to get a car.
Q You stated you had been to the hospital on several occasions?
A Yes.
MR. MATLOCK [Appellant’s Attorney]: I have some hospital records, Your Honor.
THE COURT: What is this?
MR. MATLOCK: This is a hospital report.
BY MR. MATLOCK:
Q During this time how many times would you say you went to the hospital, Mrs. Easley, a rough estimate?
A For not only physical abuse, but for internal abuse, I was treated at Magee Hospital at least three times a year. Homestead Hospital at least three or four times at Homestead Hospital.
Q What about South Hills?
A That is Homestead Hospital.
Q Why were you at Homestead Hospital?
A For a cut on my arm. One day he had come in. He was going to school at the time to get his G.E.D. He was receiving all kinds of calls. I would question him because this one time this one girl called and said, “Is Curly there?” I said, “No, he isn’t.” “What time will he be home?” I said, “Who is this?” She wouldn’t give me an answer. I said, “I don’t know what time.”
When he came in, I said, “Some girl called for you. She was rude and ignorant over the telephone. What does she want? She wanted to speak to you.” I said, “How can you have girls call at the house?” He was drinking at the time. He had a whiskey glass, or whatever kind of bar glass he had. He was sitting on the couch. I must have said something to him about the phone call that really made him upset. He was on the couch and I was on the chair. I put my hand up like this (indicating) because he was going to throw something at me. I had a deep cut here because my bone was showing, and I was rushed to the hospital.
MR. NYCHIS: Your Honor, I move for a mistrial. I object to this. I ask for a mistrial. This is highly prejudicial and inflammatory. I don’t know how you can permit it.
THE COURT: The motion for a mistrial is denied. I mean you have gone far enough on this.
MR. MATLOCK: Your Honor, this stretched over two years. I’m trying to show a continuing set of circumstances between these two people.
Notes of Testimony at 127-131 (emphasis added).

The totality of the circumstances in the instant case establishes that the prejudicial evidence which was emphasized at trial deprived appellant of a fair trial, and accordingly, a new trial should be granted.

      . We also find Commonwealth v. Ponder, 323 Pa.Superior 566, 471 A.2d 89 (1984), and Commonwealth v. Quarles, 310 Pa.Superior 74, 456 A.2d 188 (1983), distinguishable. In Ponder, the defendant alleged that the jury waiver colloquy was defective because it did not mention how he would participate in jury selection or his right to challenge jurors. However, the colloquy did inform appellant that he would be allowed to participate in jury selection and was complete in all other respects. This Court, in holding that there was a knowing and intelligent waiver of the right to trial by jury, stated: "There was no requirement that the trial court give appellant a play-by-play description of the procedure to be followed in selecting a jury.” 323 Pa.Superior at 571, 471 A.2d at 92. In Quarles, this Court held that the jury trial waiver was not defective even though appellant was not informed that the jury must find him guilty beyond a reasonable doubt. We reasoned that the defendant, in waiving his right to be tried by a jury, was not thereby waiving any rights regarding burden of proof because the judge would be bound by the same legal principles that would bind a jury in this respect. 310 Pa.Superior at 79, 456 A.2d at 191. We also reaffirmed that the on'v essential ingredients which a defendant must be advised of are that the jury would be chosen from his community, that the verdict must be unanimous, and that a defendant can participate in the selection of the jury panel. Id., citing Commonwealth v. Pollard, 288 Pa.Superior 20, 430 A.2d 1192 (1982).

      . In Commonwealth v. Carson, supra our Supreme Court held that counsel was not ineffective in failing to explain that the jury would be chosen from members of the community or from the defendant’s peers, and therefore affirmed the denial of post-conviction relief. The Court concurred with the lower courts’ determination, based on the record of the colloquy and testimony taken at the post-conviction hearing from the defendant and his trial counsel, that the defendant “fully understood the ingredients óf a jury trial and his rights thereto, and made a knowing and intelligent waiver of those rights." 503 Pa. at 372, 469 A.2d at 600.
      We find Carson distinguishable from the instant case because, here, it does not appear elsewhere in the record that appellant understood that he had a right to a unanimous verdict and therefore knowingly and intelligently waived that right.

      . Because of our disposition of this case, we need not address appellant’s remaining contentions.
      We add only that a new trial is not warranted just because a letter written by appellant’s wife, which implicated appellant, was admitted into evidence. Instead, we believe that 42 Pa.C.S.A. § 5913 is inapplicable to a defendant-spouse who is testifying on his or her own behalf even though such testimony has an adverse effect on the other spouse’s interests. Here, appellant and his wife were brought to trial as co-defendants on the criminal charge of fraudulently receiving public assistance payments and, during the course of the trial, the wife took the stand in her own defense. Regardless of whether such testimony implicated appellant, we think that she was so entitled to defend herself. See Ebner v. Ewiak, 335 Pa.Superior 372, 484 A.2d 180 (1984).

      . The origin of the privilege was summarized recently by the Supreme Court of the United States in the following manner:
      The privilege claimed by petitioner has ancient roots. Writing in 1628, Lord Coke observed that "it hath beene resolved by the Justices that a wife cannot be produced either against or for her husband.” 1 E. Coke, A Commentarie upon Littleton 6b (1628). See, generally, 8 J. Wigmore, Evidence § 2227 (McNaughton rev. 1961). This spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. From those two now long-abandoned doctrines, it followed that what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife.
      Despite its medieval origins, this rule of spousal disqualification remained intact in most common-law jurisdictions well into the 19th century. See id., § 2333. It was applied by this Court in Stein v. Bowman, 13 Pet. 209, 220-223, 10 L.Ed. 129 (1839), in Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021 (1893), and again in Jin Fuey Moy v. United States, 254 U.S. 189, 195, 41 S.Ct. 98, 101, 65 L.Ed. 214 (1920), where it was deemed so well established a proposition as to "hardly requir[e] mention.” Indeed, it was not until 1933, in Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369, that this Court abolished the testimonial disqualification in the federal courts, so as to permit the spouse of a defendant to testify in the defendant’s behalf. Funk, however, left undisturbed the rule that either spouse could prevent the other from giving adverse testimony. Id., at 373, 54 S.Ct., at 212. The rule thus evolved into one of privilege rather than one of absolute disqualification. See J. Maguire, Evidence, Common Sense and Common Law 78-92 (1947).

        Trammel v. United States, 445 U.S. at 44, 100 S.Ct. at 909, 63 L.Ed.2d at 190 (1980).

      . The exceptions to the incompetency rule also are inapplicable to the instant case because this proceeding is not a "criminal proceeding against either for bodily injury or violence attempted” or against the children or "in support of criminal charge of bigamy.” 42 Pa.C.S.A. § 5913. Additionally, this case does not involve "a crime committed against a third person when such crime occurs in the same criminal episode as an act of violence committed by the accused upon the spouse." Commonwealth v. Galloway, 271 Pa.Super. 305, 312, 413 A.2d 418, 421 (1979) (emphasis added). Similarly, this case does not present a situation where appellant attacked the character of his wife and where she rebutted the testimony for the Commonwealth. See 42 Pa.C.S.A. § 5915. See generally Cornelius, supra, at 498-502.

      . The Supreme Court of the United States has criticized the breadth of an incompetency rule which absolutely bars the admission of testimony by one spouse against the other when that Court said the following:
      Its protection is not limited to confidential communications; rather it permits an accused to exclude all adverse spousal testimony. As Jeremy Bentham observed more than a century and a half ago, such a privilege goes far beyond making "every man’s house his castle,” and permits a person to convert his house into "a den of thieves.” 5 Rationale of Judicial Evidence 340 (1827). It “secures, to every man, one safe and unquestionable and every ready accomplice for every imaginable crime.” Id., at 338.
      The ancient foundations for so sweeping a privilege have long since disappeared. Nowhere in the common-law world — indeed in any modern society — is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being. Chip by chip, over the years those archaic notions have been cast aside so that “[n]o longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.” Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 1377-1378, 43 L.Ed.2d 688 (1975).
      The contemporary justification for affording an accused such a privilege is also unpersuasive. When one spouse is willing to testify against the other in a criminal proceeding — whatever the motivation — their relationship is almost certainly in disrepair; there is probable little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace.[*] Indeed, there is reason to believe that vesting the privilege in the accused could actually undermine the marital relationship. For example, in a case such as this the Government is unlikely to offer a wife immunity and lenient treatment if it knows that her husband can prevent her from giving adverse testimony. If the Government is dissuaded from making such an offer, the privilege can have the untoward effect of permitting one spouse to escape justice at the expense of the other. It hardly seems conducive to the preservation of the marital relation to place a wife in jeopardy solely by virtue of her husband’s control over her testimony.
      Our consideration of the foundations for the privilege and its history satisfy us that "reason and experience” no longer justify so sweeping a rule as that found acceptable by the Court in Hawkins. Accordingly, we conclude that the existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. This modification — vesting the privilege in the witness-spouse — furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs.
      [*] It is argued that abolishing the privilege will permit the Government to come between husband and wife, pitting one against the other. That, too, misses the mark. Neither Hawkins, nor any other privilege, prevents the Government from enlisting one spouse to give information concerning the other or to aid in the other’s apprehension. It is only the spouse’s testimony in the courtroom that is prohibited.

        Trammel v. United States, 445 U.S. at 52, 100 S.Ct. at 913-914.