author: PER CURIAM: OLSZEWSKI, Judge,

text:
    552 A.2d 710
    COMMONWEALTH of Pennsylvania, Appellee, v. Derreck SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 1, 1988.
    Filed Jan. 13, 1989.
    Richard F. Maffett, Jr., Harrisburg, for appellant.

      Theodore B. Smith, III, Assistant District Attorney, Harrisburg, for Com., appellee.
    Before OLSZEWSKI, MONTGOMERY and HOFFMAN, JJ.
   PER CURIAM:

This is a direct appeal from the judgment of sentence imposed upon the appellant after he was found guilty by a jury of perjury. Timely filed post-verdict motions were denied by the trial court and the appellant was sentenced to a term of imprisonment of two to four years and fined one hundred dollars. This appeal followed. For the reasons which follow, we are constrained to vacate the judgment of sentence and remand the matter for a new trial.

Before reaching the appellant’s argument, a review of the pertinent facts is necessary. The appellant and Leslie Neely, together with a third individual named Leonard Miller, hired a taxi on November 12, 1985. After the driver had taken them to their desired location, the driver was assaulted and robbed. An investigation, which included the appellant’s statement to the police identifying Miller as the robber, ultimately led to Miller being charged, tried, and convicted of the robbery. At the Miller trial, the appellant testified as a Commonwealth witness. In contradiction to his earlier statement, the appellant testified that Leslie Neely had committed the robbery. Subsequently, the appellant was arrested and charged with one count of penury in connection with his testimony at the Miller trial. It is the conviction of that charge which gives rise to the instant appeal.

At the appellant’s trial, the Commonwealth produced the testimony of the victim of the original robbery, George Masterson. He testified that while driving his taxi, he was hired by two black males and one black female. He drove the fares to an alley in the City of Harrisburg. There, as he was bending over to remove a package from the hatchback of the cab, he was struck on the back of the head by one of the passengers and robbed. The victim also testified that both Leslie Neely and the appellant were considerably further away from him than was Miller at the time he was assaulted. Leslie Neely testified as to the commission of the robbery by Miller.

Also testifying at the appellant’s trial was the investigating officer. He testified that he interviewed the appellant in the course of his investigation and that the appellant stated that Miller had robbed the cab driver. The officer recounted the appellant’s testimony from the Miller trial, the basis for the perjury charge, by reading the pertinent portion of the transcript. On cross-examination, the officer read additional excerpts from the appellant’s testimony at the Miller trial. These excerpts included statements offered by the appellant to explain the difference between his testimony and the statement he had earlier provided to the police. The appellant maintained that his statement to the investigating officer was false because he did not want his child, then being carried by Leslie Neely, to be born in jail Thus, by implicating Leonard Miller, Neely was apparently able to retain her freedom and give birth. On redirect examination, and over defense counsel’s objection, the Commonwealth had the officer read those excerpts from the appellant’s testimony at the Miller trial wherein he acknowledged his prior criminal convictions of offenses in the nature of crimen falsi. This, he argues, was error.

The trial court reasoned that it approved the Commonwealth’s actions only after it had given permission for the appellant to have the officer read the excerpts wherein the appellant attempted to explain the contradiction. The trial court noted that before permitting the defense to introduce the excerpts of the appellant's attempted explanations, it cautioned the appellant that by doing so the Commonwealth would then have the right to introduce the excerpts of the transcript concerning the appellant’s prior convictions. The trial court wrote:

The Court decided to permit the [testimony concerning the] prior convictions only after it had decided, over the Commonwealth’s objection, to admit defendant’s self serving testimony from the Leonard Miller trial____ To have permitted the introduction of defendant’s prior testimony under the assumption that the Commonwealth had an ample opportunity to cross examine that , testimony at a prior proceeding, but foreclose introduction of the primary cross examination of that prior proceeding would have denied the Commonwealth its right of cross examination.
Defendant was advised that the Court would allow the evidence of [his] prior convictions if he chose to place his credibility directly in issue by introducing his prior testimony from the Miller trial. Thus, he had the opportunity to avoid the introduction of the prior crimes evidenced by not introducing his own prior testimony.

Trial court opinion, at 14-15.

The trial court concluded that when a defendant places his credibility directly in issue through the introduction of his prior testimony from a former trial, the reasons for allowing evidence of prior crimes involving dishonesty are identical to those present in the situation where the defendant actually takes the stand and testifies. The trial court relied on the recent Supreme Court decision in Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987) for support of its position.

There are two factors which negate the reasoning of the trial court and the applicability of Commonwealth v. Randall. First, the appellant was a witness, and not a criminal defendant, at the Miller trial; second, he did not testify at his own trial. In Commonwealth v. Randall, supra, the Supreme Court modified the rule governing the admissibility of a testifying defendant’s prior criminal history for the purpose of impeaching the defendant’s credibility. The thrust of the decision was to permit such evidence “if the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of confinement is within ten years of the trial date.” Id., 515 Pa. at 415, 528 A.2d at 1329. We do not read Commonwealth v. Randall, supra, as permitting the use of evidence of prior convictions as was done in this case. See, Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973).

The importance of the distinction between the appellant’s status as a witness at the prior proceeding, and his status as a defendant in his own trial, cannot be understated. “If a witness is also the defendant in a criminal trial, additional protections attach when evidence of prior convictions is offered to impeach.” L. Packel & A. Poulin, Pennsylvania Evidence § 609.1 (1987). Generally, the credibility of any witness, other than an accused criminal defendant, is subject to being impeached either by cross-examination or introduction of competent evidence, of their prior convictions for crimes in the nature of crimen falsi. Commonwealth v. Eubanks, 511 Pa. 201, 512 A.2d 619 (1986); Commonwealth v. Gordon, 355 Pa.Super. 25, 512 A.2d 1191 (1986). The Supreme Court wrote:

Considerations which require that prior convictions be excluded from evidence against a defendant, except for convictions involving crimen falsi which may be admitted under well-established rules, are not applicable to the question of what prior convictions may be admitted into evidence against a complaining witness.

Commonwealth v. Eubanks, 511 Pa. at 208, 512 A.2d at 623. (Emphasis in original). But cf, Commonwealth v. Williams, 371 Pa.Super. 509, 511, 538 A.2d 557, 558 (1988) (In determining that the impeachment of the most critical defense witness with his convictions for crimes which were not crimen falsi had only de minimis effect upon the jury, the Court concluded that the same rules apply for impeaching a witness as for impeaching a defendant.) As briefly discussed supra, the Supreme Court modified the “well-established rules” somewhat with their decision in Commonwealth v. Randall, supra. Another set of the well-established rules under which a criminal defendant’s prior convictions may be admitted is found at 42 Pa.C.S. § 5918, which provides:

No person charged with any crime and called as a witness in his own behalf, shall be asked, or if asked, shall be required to answer, any question tending to show that he has committed, ... or been convicted of any offense other than the one wherewith he shall then be charged, ...:
(1) he shall have at such trial, personally or by counsel, asked questions of the witness for the prosecution with a view to establish his own good reputation or character, or has given evidence tending to prove his own good character or reputation; or
(2) he shall have testified at such trial against a codefendant, charged with the same offense.

Moreover, where a defendant does not testify, his credibility as a witness is not an issue and there is no basis for allowance of evidence to demonstrate his unreliability as a witness. Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982). See also, Commonwealth v. Candia, 286 Pa. Super. 282, 428 A.2d 993 (1981) (A defendant’s past criminal activities may not be used to impeach him so long as he has not taken the stand and thereby not opened the door to cross-examination.)

Although the question is difficult, and apparently novel, we are unable to conclude that cross-examining a witness in a criminal trial with his prior criminal convictions of crimen falsi may be introduced in a subsequent proceeding where the witness is now the accused. This is especially true where, as here, the accusation of perjury is premised on the testimony offered by the defendant at the prior proceeding at which he acknowledged his prior criminal activity. The fact that the appellant recounted, on cross-examination of the police officer, the explanations offered at the Miller trial to justify the difference between his testimony and his statement to the police, does not alter this conclusion. Indeed, the penury statute provides that retraction of a statement is a defense to the charge. 18 Pa.C.S. § 4902(d). See also, 18 Pa.C.S.A. § 4902 Official Comment (The purpose of subsection (d) is to provide an incentive for the witness to promptly correct his falsehood in order to eradicate any harm which may have been caused by the falsehood in the proceeding where made). Thus, were we to accept the Commonwealth’s argument, every defendant charged with perjury based upon testimony offered at a prior proceeding wherein they acknowledged their prior criminal convictions would be subjected to having those convictions admitted against them at their perjury trial simply because their testimony from the prior proceeding, which might very well establish the defense of retraction, as provided for by the perjury statute, was recounted. Such a practice is contrary to the added protection afforded a criminal defendant against the “tendency of a normal juror to accept testimony of prior convictions as a basis for finding a predisposition to commit the crime charged.” Commonwealth v. Bighum, 452 Pa. at 566, 307 A.2d at 262.

Accordingly, we are constrained to vacate the judgment of sentence and remand the matter for a new trial.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

After long reflection, I regret that I must disagree with my learned colleagues’ conclusion that the case at bar requires reversal. While I agree with the majority that the case of Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987), is inapplicable to the present situation, I do not agree that this fact, standing alone, warrants a new trial. I must, therefore, respectfully dissent.

As the majority correctly stated, Commonwealth v. Randall, supra, applies only to those situations where a defendant actually testifies at trial. It is clear, therefore, that the trial court should not have relied on this decision in affirming appellant’s conviction. This fact, however, does not mandate reversal as an appellate court can affirm the decision of a trial court on any basis even if the reasons given by the trial court for its decision are incorrect. Commonwealth v. Allem, 367 Pa.Super. 173, 532 A.2d 845 (1987). I believe just such a situation exists in the present case.

Appellant argues that the trial court erred by permitting the Commonwealth to introduce excerpts of testimony from another trial where, upon cross-examination, appellant acknowledged his prior criminal convictions. Perusal of the record, however, reveals that appellant’s counsel initiated the review of appellant’s prior testimony and even had admitted into evidence a portion of that testimony favorable to appellant. As previous panels of this Court have stated: “If a defendant delves into what would be objectionable testimony on the part of the Commonwealth, the Commonwealth can probe further into the objectionable area.” Commonwealth v. McCabe, 345 Pa.Super. 495, 498 A.2d 933 (1985); Commonwealth v. Sheaff, 365 Pa.Super. 613, 530 A.2d 480 (1987). In Sheaff we held that the trial court committed no error by allowing the Commonwealth to admit into evidence the remainder of a police report which contained the statement of a police officer who was not available to testify at trial, where the defendant had “opened the door” by first referring to the report and having a portion of it admitted into evidence. The analysis utilized by the Sheaff panel is equally applicable to the case at bar.

In the present case, appellant had, in effect, “opened the door” by having admitted into evidence that portion of his prior testimony that was favorable to his case. Moreover, the record indicates that before introducing this testimony, appellant was advised by the trial court that the Commonwealth would be allowed to introduce the remainder of his prior examination should he attempt to introduce only those favorable portions. Thus, appellant was by no means surprised by the Commonwealth’s attempt to introduce the remainder of the testimony and had ample opportunity to avoid the introduction of his prior crimes by not introducing any of the prior examination. Under these circumstances, appellant’s claim of trial court error should have been rejected. To hold otherwise would allow a non-testifying defendant to submit self-serving testimony free from attack which he would otherwise not be able to do had he taken the stand and testified.

Accordingly, I would affirm the judgment of sentence of the trial court.

      . The appellant acknowledged the following convictions: robbery, 1983; receiving stolen property, 1983; burglary, 1981; and, false reports to law enforcement agencies, 1981.

      . In light of our disposition of this issue, we need not reach the appellant’s remaining arguments.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    552 A.2d 1053
    COMMONWEALTH of Pennsylvania v. Garnet SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 16, 1988.
    Filed Dec. 8, 1988.
    Reargument Denied Feb. 2, 1989.

      Mitchell S. Strutin, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for murder in the first degree and possession of an instrument of crime. Appellant contends that the trial court erred in refusing to permit trial counsel to file supplemental reasons in support of post-trial motions. In addition, appellant raises nine claims of ineffective assistance of trial counsel. For the reasons that follow, we affirm the judgment of sentence.

On January 20, 1985, appellant was arrested and charged in connection with the November 20, 1980 shooting death of Rodney Smith. On December 3,1986, following a jury trial, appellant was found guilty of murder in the first degree and possession of an instrument of crime. Post-verdict motions were filed and denied. On July 27, 1987, appellant was sentenced to a life term of imprisonment on the murder charge, to be followed by a consecutive term of two-and-one-half-to-five-years for possession of an instrument of crime. This appeal followed, and new counsel was appointed to prosecute the appeal.

I. ALLEGED TRIAL COURT ERROR

Appellant first contends that the trial court erred in refusing to permit trial counsel to file supplemental reasons in support of post-trial motions. The facts related to this claim are as follows. On December 11, 1986, appellant filed timely post-trial motions in which he raised challenges to the sufficiency and weight of the evidence, and reserved the right to file supplemental motions. Thereafter, at the July 27, 1987 hearing on post-trial motions, appellant attempted to file supplemental motions. These motions were contained in a 53 page document, and included some 130 specifications of error. The trial court refused to accept the supplemental motions, noting in its opinion that “Defendant had not requested leave to hand up 130 supplemental reasons for post verdict relief, he had merely inserted a line in the original post trial motions hoping to alert the Court to his desire to argue further reasons for relief.” Trial Court Opinion at 4.

We note that “a defendant may be granted leave to file additional reasons for a new trial or in arrest of judgment but this is a matter of discretion with the trial court.” Commonwealth v. Pyett, 372 Pa.Super. 291, 294, 539 A.2d 444, 445 (1988) (citing Commonwealth v. Talley, 456 Pa. 574, 318 A.2d 922 (1974)). We need not determine whether the trial court abused its discretion in refusing to accept the supplemental motions, because we are satisfied that appellant was not prejudiced by the ruling. Appellant is presently represented by counsel other than trial counsel, and thus “the issue of trial counsel’s effectiveness may now be raised in this direct appeal.” Commonwealth v. Holmes, 482 Pa. 97, 105 n. 3, 393 A.2d 397, 401 n. 3 (1978). In fact, appellant has raised numerous instances of trial error, and has alleged that trial counsel was ineffective for failing to preserve these issues in post-trial motions. Because the claims related to trial error are cognizable on this direct appeal, see id,., appellant was not prejudiced by the trial court’s ruling on his supplemental motions.

II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

Appellant next raises nine claims of ineffective assistance of counsel. The determination whether counsel rendered ineffective assistance is arrived at through a two-prong test. First, we must ascertain whether the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). This requirement is based upon the principle that we will not find counsel ineffective for failing to pursue a frivolous claim or strategy. Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1983). Second, if appellant’s claim does have arguable merit, we must determine whether “the course chosen by counsel had some reasonable basis designed to serve the interests of his [or her] client.” Commonwealth v. Buehl, supra (citations omitted).

If our review of the record reveals that counsel was ineffective, we then must determine whether appellant has demonstrated that counsel’s ineffectiveness worked to his or her prejudice. Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 976 (1987). To determine whether appellant was prejudiced, our Supreme Court adopted the test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Pierce, supra. Under Strickland, to prove that counsel’s ineffectiveness resulted in prejudice, an appellant must show that the error was “so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.” Strickland v. Washington, supra at 686, 104 S.Ct. at 2063.

In this analysis, counsel is presumed to be effective, Commonwealth v. Norris, 305 Pa.Super. 206, 210, 451 A.2d 494, 496 (1982), and appellant bears the burden of establishing that trial counsel was ineffective. Commonwealth v. Jones, 298 Pa.Super. 199, 205, 444 A.2d 729, 732 (1982). Moreover, in Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981) our Supreme Court noted that,

Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can con-elude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.

Id., 492 Pa. at 568, 424 A.2d at 1335.

A.

Appellant first argues that trial counsel was ineffective for failing to preserve a claim related to the admission of a Commonwealth witness’s pretrial hearing testimony and the contents of a prior statement that the witness had given to police. The facts related to this claim are as follows. On March 14, 1984, Robert Smithson gave a statement to police Detective Kenneth Curcio, in which he identified appellant as the person who shot the victim, Rodney Smith. See N.T. November 19, 1986 at 6-8. Later, at a pretrial hearing, Smithson recanted this statement, asserted that appellant “was an innocent man”, and implicated himself as the killer. See N.T. January 30, 1986 at 12-18. At trial, the Commonwealth attempted to call Smithson as a witness. See N.T. November 17, 1986 at 156. Smithson, however, testified in camera that if called he would invoke his fifth amendment privilege against self-incrimination. Id. at 164-66. After the trial court instructed the jury that Smithson was unavailable, the Commonwealth introduced Smithson’s sworn testimony from the pretrial hearing, in which Smithson had recanted his original statement to police and implicated himself in the killing. See N.T. November 18, 1986 at 134-40. To impeach this testimony, the Commonwealth then introduced, through Detective Curcio, Smithson’s March 14, 1984 statement to police, in which he identified appellant as the gunman. See N.T. November 19, 1986 at 6-8. Appellant argues that both the pretrial hearing testimony and the statement to police were inadmissible, and that trial counsel was ineffective for failing to preserve a claim related to the admission of this evidence.

With regard to the admissibility of Smithson’s sworn pretrial hearing testimony, it is settled that an unavailable witness’s testimony from a prior judicial proceeding is admissible at trial, “provided the defendant had counsel and a full opportunity to cross-examine the witness during the earlier proceeding.” Commonwealth v. Sandutch, 498 Pa. 536, 540, 449 A.2d 566, 567 (1982) (plurality opinion), reargument denied; Commonwealth v. Scarborough, 491 Pa. 300, 317, 421 A.2d 147, 155 (1980); Commonwealth v. Bellachio, 296 Pa.Super. 468, 474, 442 A.2d 1147, 1149-50 (1982), allocatur denied. Moreover, “ ‘[a] witness who invokes the privilege against self-incrimination is “unavailable” for purposes of the hearsay exception permitting the introduction of the notes of his testimony from a prior judicial proceeding/ ” Commonwealth v. Sandutch, supra (quoting Commonwealth v. Rodgers, 472 Pa. 435, 453, 372 A.2d 771, 779 (1977) (plurality opinion)).

At the pretrial hearing in the instant case, appellant was present, represented by counsel, and was given and exercised the opportunity to cross-examine Robert Smithson. N.T. January 30, 1986 at 18-19. At trial, Smithson rendered himself unavailable by invoking his privilege against self-incrimination. Because Smithson was unavailable as a witness, and because appellant had a full opportunity to cross-examine Smithson at the pretrial hearing, the trial court did not err in allowing the Commonwealth to introduce Smithson’s testimony from the pretrial proceeding. Commonwealth v. Sandutch, supra; Commonwealth v. Bellachio, supra. Accordingly, appellant’s claim that counsel was ineffective for failing to preserve a claim based upon the introduction of this evidence lacks arguable merit.

With regard to the admissibility of Smithson’s prior statement to police, appellant argues that the “mere fact that the witness was declared unavailable and the Commonwealth was permitted to introduce his testimony from the pretrial proceeding, does not provide a basis upon which the content of the witness’s statement could be introduced.” Brief for Appellant at 33. We disagree. Prior recorded testimony, like any other testimony, is subject to impeachment through introduction of prior inconsistencies. See Commonwealth v. Davis, 363 Pa.Super. 562, 582-83, 526 A.2d 1205, 1215-16 (1987). Thus, in Davis, we rejected a hearsay challenge to the admission of an unavailable witness’s prior statement to a police officer, noting that “[a] trial court does not abuse its discretion in allowing the prosecution to attempt to impeach a witness’s [recorded] testimony by utilizing a statement given by the witness to a police officer at the scene of the crime. Cf. Commonwealth v. Thomas, 284 Pa.Super. 375, 425 A.2d 1151 (1981).” 363 Pa.Super. at 583, 526 A.2d at 1216.

Here, the Commonwealth introduced Smithson’s inconsistent statement for the limited purpose of impeaching his testimony from the pretrial hearing. Moreover, the trial court specifically instructed the jury that,

This evidence may be considered by you for one purpose only, that is to help you judge the credibility or believability and weight of the direct testimony of Robert Mathis, also known as Robert Smithson in this trial. You may not regard the prior inconsistent statement as proof of the matter asserted in the statement.

N.T. December 2, 1986 at 20. In light of Davis, we hold that the trial court did not abuse its discretion in allowing the prosecution to attempt to impeach Smithson’s recorded testimony with his prior inconsistent statement. Accordingly, appellant’s claim that counsel was ineffective for failing to preserve a challenge to the admissibility of Smithson’s prior statement lacks arguable merit.

B.

Appellant next claims that the trial court erred in allowing the Commonwealth to refer to trial counsel’s prior representation of Commonwealth witness Robert Smithson, and that counsel was ineffective for failing to preserve this claim. Appellant maintains that, by making reference to counsel’s prior representation of Smithson, the Commonwealth “clearly and unequivocally” accused trial counsel of wrongdoing and suggested that trial counsel was responsible for Smithson’s recantation of his initial statement in which he had implicated appellant. See Brief for Appellant at 42. We disagree.

The references that are the subject of appellant’s contention were contained in the Commonwealth’s pre-trial examination of Smithson, a transcript of which was read into evidence at appellant’s trial, see N.T. November 18, 1986 at 135-38, and the Commonwealth’s closing argument at appellant’s trial. See N.T. December 1, 1986 at 75-81. We have reviewed these statements in their entirety. The thrust of the Commonwealth’s argument was that Smithson might have had a motive to recant his statement implicating appellant because appellant’s trial counsel had represented Smithson in an unrelated criminal case, and Smithson might want to call counsel as a witness if he filed a Post Conviction Hearing Act petition. Thus, in her summation to the jury, the trial prosecutor argued that:

Persons charged with crimes are able to go back to the trial Court and say to the trial Court, well, the case that was presented may have been correct, but my attorney didn’t do a good job. My attorney was ineffective. My attorney failed to present a certain witness, failed to ask a certain question, failed to present a different defense. And when defendants make these allegations under the Post Conviction Hearing Act, they’re required to prove their allegations. And how do you prove an allegation that your attorney who represented you at trial, didn’t do a proper job? Well, they call those trial attorneys to act as witnesses on their own behalf.
[Robert Smithson] has the opportunity to present such Post Conviction Hearing Act [petition?], and quite obviously any attorney has to be his trial attorney, a person who he would want to present evidence and didn't do a good job would be [appellant’s counsel]. Does he have any reason then for doing something, [appellant's counsel] asks him about. Are you going to testify? Just ask yourself that question____

N.T. December 1, 1986 at 80-81. We emphasize that the prosecutor confined herself to an analysis of Smithson’s possible motive for recanting his original statement. Importantly, we find no support for appellant’s allegation that the prosecutor “clearly and unequivocally” accused trial counsel of wrongdoing in connection with Smithson’s recantation. Moreover, we note that the Commonwealth was entitled to show that Smithson had a motive for recanting his original statement and fabricating testimony in favor of appellant. See Commonwealth v. Robinson, 507 Pa. 522, 526, 491 A.2d 107, 109 (1985). Because appellant’s claim that the Commonwealth accused his counsel of wrongdoing is unsupported by the record, he has failed to show that the court erred in allowing the Commonwealth to refer to counsel’s prior representation of Smithson. Accordingly, we must conclude that his claim that counsel was ineffective for failing to preserve this issue for review lacks arguable merit.

c.

Appellant next contends that trial counsel was ineffective for continuing in his representation of appellant despite “the appearance of a conflict of interest.” Brief for Appellant at 44-45. More specifically, appellant alleges that counsel could not effectively represent him because counsel had once represented Commonwealth witness Bobert Smithson. This claim is meritless. Counsel may be held to have been ineffective in representing a defendant if the defendant “demonstrates that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” In re Saladin, 359 Pa.Super. 326, 331, 518 A.2d 1258, 1261 (1986) (emphasis supplied) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980)). Moreover, in Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986), our Supreme Court noted that,

[w]hile it is true that prejudice is presumed when counsel is burdened by an actual conflict of interest, this is so only if the defendant demonstrates that counsel “actively represented conflicting interests ” and “that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 350, 348, 100 S.Ct. 1708, 1719, 1718, 64 L.Ed.2d 333 (1980).

510 Pa. at 379, 508 A.2d at 1175 (emphasis supplied). In Saladin, we defined an “actual conflict of interest” as follows: “such a conflict is evidenced whenever during the course of representation, the interests of appellant — and the interests of another client towards whom counsel bears obligations — diverge with respect to a material factual or legal issue or to a course of action.” 359 Pa.Super. at 332, 518 A.2d at 1261.

Here, at the time of appellant’s trial, counsel was no longer representing Robert Smithson. Indeed, counsel withdrew from his representation of Smithson in May, 1985, a year and a half before appellant’s trial. N.T. January 30, 1986 at 17, 24; N.T. December 1, 1986 at 75-76. Moreover, at trial, Smithson invoked his privilege against self-incrimination and refused to testify. Because the record clearly demonstrates that counsel was not actively representing conflicting interests, see Commonwealth v. Buehl, supra; In re Saladin, supra, appellant’s claim that counsel was ineffective in continuing in his representation of appellant lacks arguable merit.

D.

Appellant next contends that the trial court erred in refusing to allow him to cross-examine Commonwealth witness Jeffrey Harrison regarding Harrison’s testimony in an unrelated homicide trial, and that trial counsel was ineffective for failing to preserve this claim for review. Appellant summarizes the facts related to this claim as follows:

In 1980, Harrison had given a statement to the police concerning the shooting of Luther Sherfield. During that statement he denied having any information concerning the shooting---- In 1984, however, he gave a second statement concerning the Sherfield shooting and stated that he had been an eyewitness to the shooting____ Despite this, the trial court refused to permit trial counsel to cross-examine Harrison concerning these statements ____

Brief for Appellant at 48. Appellant maintains that the trial court’s ruling precluded him from inquiring into Harrison’s possible motive for testifying, and thus deprived him of his right to confrontation. We disagree. “A defendant’s right of confrontation includes the right to cross-examine witnesses about possible motives to testify.” Commonwealth v. Dawson, 486 Pa. 321, 323, 405 A.2d 1230, 1231 (1979). Moreover, “[a] party against whom a witness is called has the right to show that the witness has an interest, direct or collateral, to the result of the trial.” Commonwealth v. Shands, 338 Pa.Super. 296, 303, 487 A.2d 973, 977 (1985).

Here, appellant does not in any way specify how Harrison’s inconsistent statements in the prior case suggest that he had a motive to testify in a manner favorable to the Commonwealth in this case. Because appellant has not made an offer to prove why the prior testimony is relevant to establishing a motive to testify, we cannot conclude that trial counsel was ineffective for failing to preserve a claim based on the court’s ruling the prior testimony inadmissible. See Commonwealth v. Pettus, 492 Pa. at 563, 424 A.2d at 1335 (courts may not consider claims of ineffective assistance of counsel in abstract).

Moreover, we note that in fact Harrison did not testify in a manner favorable to the Commonwealth. Instead, he recanted a prior statement that he had made to police, in which he had implicated appellant, and stated that appellant was not the person who shot the victim. See N.T. November 19, 1986 at 137-53; N.T. November 20, 1986 at 14-15. Thus, appellant’s claim that the trial court erred in refusing to allow him to use appellant’s prior testimony in the unrelated case to establish a present motive to testify in favor of the Commonwealth is meritless on its face.

E.

Appellant next contends that the trial court erred in allowing various police officers to refer to their prior contacts with him, and that trial counsel was ineffective for failing to preserve this claim for review. Appellant contends that this testimony was inadmissible because the references raised an inference that he had committed other crimes. We disagree.

It is settled that reference to prior criminal activity by the accused, either expressly or by reasonable implication, is impermissible. Commonwealth v. Percell, 499 Pa. 589, 592, 454 A.2d 542, 544 (1982). See also Commonwealth v. Povish, 479 Pa. 179, 387 A.2d 1282 (1978). This Court has recognized, however, that “[n]ot everything a policeman says about a person constitutes an inference of prior criminal activity on the part of that person.” Commonwealth v. Sanders, 296 Pa.Super. 376, 379, 442 A.2d 817, 818 (1982). As we noted in Sanders:

Merely because a police officer knows someone or knows where [he] may be found does not suggest that the person has been engaged in prior criminal activity. A policeman may know someone because they reside in the same neighborhood or for any number of reasons. We refuse to hold that a policeman’s statement to the effect that he knew someone, knew his nickname, or was familiar with the person’s whereabouts raises an inference of prior criminal activity.

Id.

Here, the Commonwealth presented the testimony of four different police officers, each of whom had worked in the Germantown section of Philadelphia for a number of years. The officers testified that they knew appellant from their prior contacts with him in Germantown, and that they knew him by the name “Fareed.” N.T. November 24, 1986 at 6 (Detective Troutner); id. at 111 (Detective Gerard); id. at 128-29 (Officer Kober); id. at 132-33 (Detective Judge). The Commonwealth introduced this evidence because a Commonwealth witness, Jeffrey Harrison, had given a statement to police in which he identified the person who committed the killing as “Fareed.” N.T. November 19, 1986 at 137-38. Because the officers testified only that they knew appellant and knew his nickname, appellant’s claim that this testimony impermissibly raised an inference of prior criminal activity is meritless. See Commonwealth v. Sanders, supra. See also Commonwealth v. Starks, 484 Pa. 399, 408-09, 399 A.2d 353, 357 (1979) (plurality opinion) (police detective’s testimony that he knew defendant’s nickname because of prior contacts with defendant did not “expressly or by reasonable implication convey the impression of prior criminal activity so as to require a mistrial.”); Commonwealth v. Riggins, 478 Pa. 222, 230-31, 386 A.2d 520, 524 (1978) (police detective’s testimony that he knew where defendant lived “cannot be said to have given the jury the impression that appellant must have been involved in prior criminal activity.”). Accordingly, we cannot hold that trial counsel was ineffective for failing to preserve a claim relating to the admissibility of this testimony-

F.

Appellant next contends that the trial court erred in allowing witnesses to “make reference to [appellant’s] photograph”. Brief for Appellant at 62. Appellant maintains that these references raised an impermissible inference of prior criminal activity, and thus trial counsel was ineffective for failing to preserve this issue for review. “[Photographic evidence should not give rise to an inference of prior criminal activity.” Commonwealth v. Brown, 511 Pa. 155, 160, 512 A.2d 596, 598 (1986) (plurality opinion) (citing Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972)). After reference has been made to the photograph, “the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.” Commonwealth v. Allen, supra. In this analysis, our Supreme Court has held that references to photographic identifications of the defendant are permissible if there is no indication that the photographs are “mugshots” or that they came from police files. Commonwealth v. Reiss, 503 Pa. 45, 50, 468 A.2d 451, 453 (1983). In addition, the Supreme Court has noted that, even when there is evidence that the photograph is from police files, “the possession by the police of one’s photo does not ineluctably prove a previous conviction. At the most it proves only that the police had a photo of the defendant on file.” Commonwealth v. Brown, supra 511 Pa. at 161, 512 A.2d at 599.

In the case at bar, three separate references were made to photographs of appellant. First, a police detective stated that he gave appellant’s photograph to another officer, N.T. November 25, 1986 at 9; a second detective stated that he showed a Commonwealth witness a photographic array that contained appellant’s photograph, N.T. November 18, 1986 at 144; and, finally, a witness stated that he identified appellant after being shown his photograph. N.T. November 19, 1986 at 163. A review of the record reveals, however, that no witness referred to the photographs as “mugshots”, and there was no indication that the photographs came from police files. Thus, we cannot conclude that the references to photographs of appellant improperly suggested that appellant had a prior criminal record. See Commonwealth v. Brown, supra; Commonwealth v. Reiss, supra. Because the witnesses’s references to appellant’s photograph we ?e not improper, appellant’s claim that counsel was ineffective for failing to preserve this issue for review lacks arguable merit.

G.

Appellant next contends that the trial court erred in ruling that a defense witness could be impeached with his twelve-year old robbery conviction, and that trial counsel was ineffective for failing to preserve this claim for review by raising it in post-verdict motions. Appellant maintains that evidence regarding the robbery conviction was inadmissible because the conviction was more than ten years old. We note that in Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987) our Supreme Court modified the rule governing the admissibility of prior convictions for impeachment purposes. The specific issue presented in Randall concerned the use of prior convictions to impeach a criminal defendant who testified on his own behalf. Id., 515 Pa. at 412, 528 A.2d at 1327. The Randall court nevertheless fashioned a broad rule, holding that,

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

Id., 515 Pa. at 415, 528 A.2d at 1329 (emphasis supplied).

The robbery conviction at issue in the instant case occurred more than ten years before the trial date. Thus, the broad language in Randall would appear to support appellant’s claim that the trial court erred in ruling that the defense witness could be impeached with this conviction. Nevertheless, we still cannot conclude that trial counsel was ineffective for failing to preserve an objection to this ruling. Before Randall was decided, the rule in this Commonwealth was that a witness other than the defendant could be impeached with a prior conviction as long as the prior conviction was for a crime involving dishonesty or false statement. “When the Commonwealth seeks to use a prior conviction to impeach the testimony of a defense witness other than the defendant himself, ... the only relevant inquiry is whether the convictions were for crimes involving dishonesty or false statement.” Commonwealth v. Gordon, 355 Pa.Super. 25, 27, 512 A.2d 1191, 1192 (1986). See also Commonwealth v. Pilosky, 239 Pa.Super. 233, 240, 362 A.2d 253, 257 (1976). Thus, in Gordon, for example, we held that a defense witness’s two twelve-year old burglary convictions were properly admitted to impeach his testimony. 355 Pa.Super. at 27, 512 A.2d at 1192.

Here, appellant was found guilty on December 3, 1986. Post-verdict motions were filed on December 11, 1986, approximately seven months before Randall was decided. Thus, if counsel had raised a claim related to the admission of the witness’s prior conviction, that claim would have been evaluated under Commonwealth v. Gordon, supra. Under Gordon, such a claim would clearly have been meritless because the prior conviction at issue was for robbery, which traditionally has been viewed as a crime involving an element of dishonesty. See Commonwealth v. Roots, 482 Pa. 33, 38-39 n. 3, 393 A.2d 364, 367 n. 3 (1978). See also Commonwealth v. Penn, 497 Pa. 232, 244, 439 A.2d 1154, 1160 (1981). We cannot hold that counsel was ineffective for failing to raise a claim which, at the time, would have clearly been meritless, or for failing to foresee the change that Randall made in the law. See Commonwealth v. Franklin, 306 Pa.Super. 382, 389, 452 A.2d 777, 780 (1982), allocatur denied (“Counsel cannot be found ineffective for not acting in conformity with unforeseen law ... or for not pursuing meritless claims.”). See also Commonwealth v. Ray, 483 Pa. 377, 396 A.2d 1218 (1979). Accordingly, appellant is not entitled to relief on this ground.

H.

Appellant next contends that trial counsel was ineffective for failing to preserve a claim related to the trial court’s alleged error in allowing various police officers to testify with regard to their efforts to locate and arrest appellant. Appellant maintains that this evidence “had the effect of raising an inference that [appellant] fled the jurisdiction to avoid apprehension”, and thus is inadmissible. Brief for Appellant at 72. We disagree.

The law in this Commonwealth as to the significance of the evidence of flight is clear.
“The rule of law on this situation is ‘When a person commits a crime, knows that he is wanted therefor, and flees or conceals himself, such conduct is evidence of consciousness of guilt, and may form the basis in connection with other proof from which guilt may be inferred.’ Commonwealth v. Coyle, 415 Pa. 379, 393, 203 A.2d 782, 789 (1964).”

Commonwealth v. Tinsley, 465 Pa. 329, 333, 350 A.2d 791, 792-93 (1976) (quoting Commonwealth v. Osborne, 438 Pa. 297, 302-03, 249 A.2d 330, 333 (1969)). Moreover, the Commonwealth may use circumstantial evidence to show that appellant was aware that he was being sought by police. Thus, in Tinsley, our Supreme Court noted that:

Although no direct evidence was presented to establish appellant’s actual knowledge that he was being sought by the police for this crime, there was unquestionably circumstantial proof of this fact____ Immediately after the incident and for a period of five days thereafter, he abandoned his normal pattern of living and could not be located at those places where his regular pursuits would place him. Contacts at his residence, place of employment and the home of his brother, were to no avail. Without any explanation whatsoever for this absence, we believe these circumstances raise a permissible inference that appellant was aware that he was being sought by the police and attempted to conceal his whereabouts to avoid apprehension for this crime.

465 Pa. at 333, 350 A.2d at 793. See also Commonwealth v. Whack, 482 Pa. 137, 143, 393 A.2d 417, 420 (1978) (where “detective testified that he was unsuccessful in locating appellant at his home or the usual places he frequented____ there was sufficient basis for a permissible inference that appellant was aware that he was being sought by the police ... and that he deliberately attempted to conceal his whereabouts to avoid prosecution.”).

Here, an arrest warrant was issued for appellant on October 29, 1984. Appellant, however, was not arrested until January 28, 1985. To explain the delay in arresting appellant, the Commonwealth introduced testimony from several police officers regarding their efforts to locate appellant. The officers testified that, despite repeated efforts, they were unable to locate appellant at several places he was known to frequent in his neighborhood. See, e.g., N.T. November 24, 1986 at 141-42 (Detective Lubiegewski); N.T. November 25, 1986 at 9-10, 29-40 (Detective Cohen). The officers’ attempt to locate appellant included searches for him in the neighborhood and at the places he was known to frequent, and surveillance of certain residences. In light of Tinsley and Whack, we conclude that the testimony of the officers provided a sufficient basis for an inference that appellant was aware that he was wanted by police, and that he attempted to conceal his whereabouts to avoid prosecution. We therefore hold that the trial court did not err in allowing the officers to testify with regard to their efforts to locate appellant, and thus appellant’s claim that trial counsel was ineffective for failing to preserve this issue for review is meritless.

/.

Appellant last contends that “the trial court acted improperly so as to deprive [appellant] a fair trial”, and that trial counsel was ineffective for failing to preserve this issue for review. Brief for Appellant at 74. In support of this argument, appellant cites to numerous instances in which he claims that the trial court displayed bias against him. Id. at 74-75. In Nemeth v. Nemeth, 306 Pa.Super. 47, 451 A.2d 1384 (1982), we noted that a claim that a trial judge was partial, biased, and prejudiced against a party’s case “is one of the most serious charges that can be leveled at a judge. The record must clearly show prejudice, bias, capricious disbelief or prejudgment____” Id., 306 Pa.Superior Ct. at 54, 451 A.2d at 1388. See also Commonwealth v. Darush, 501 Pa. 15, 21, 459 A.2d 727, 731 (1983) (party who asserts that trial judge must be disqualified bears burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal; decision by judge against whom plea of prejudice is made will not be disturbed except for abuse of discretion).

Here, appellant cites to some fifty-four instances of alleged court misconduct during his trial. Appellant, however, does not state why the court’s conduct in any of the cited instances was improper, or how the court’s conduct prejudiced him. Because appellant has failed to make an offer to prove why the court’s actions were prejudicial, biased, or unfair, we cannot conclude that counsel was ineffective for failing to preserve for review a claim based upon the court's allegedly improper conduct during the trial. See Commonwealth v. Pettus, supra, 492 Pa. at 563, 424 A.2d at 1335.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . We note that appellant’s brief is eighty pages long. Although we have reviewed the entire brief and carefully considered each argument, appellant’s counsel is cautioned that the brief exceeds the allowable limit by ten pages. See Pa.R.A.P. 2135(1). We also note that appellant’s Statement of Questions Involved is forty-four lines long, which is well in excess of the recommended fifteen line limit contained in Pa.R.A.P. 2116(a).

      . Because these timely claims were stated in "boilerplate" fashion, the trial court properly held that they were insufficient to preserve any issue for appellate review. See Commonwealth v. Holmes, 315 Pa.Super. 256, 259, 461 A.2d 1268, 1274 (1983) (en banc).

      . Appellate counsel candidly notes that ‘‘[s]ince the trial court refused to consider the defendant’s supplemental reasons in support of post-trial motions and concluded that all issues had been waived, the issues in this brief are raised by way of an allegation of ineffective assistance of trial counsel.” Brief for Appellant at 22.

      . Appellant also seems to argue that Smithson’s prior statement was inadmissible because the Commonwealth should not be permitted to impeach its own witness. A party may cross-examine its own witness when “ ‘the interest of truth and justice so require.’ ” Commonwealth v. Dancer, 452 Pa. 221, 225-26, 305 A.2d 364, 366 (1973) (quoting Commonwealth v. Knudsen, 443 Pa. 412, 278 A.2d 881 (1971)). Moreover, the determination whether to allow a party to impeach its own witness rests in the discretion of the trial court. See Commonwealth v. Brady, 510 Pa. 123, 134, 507 A.2d 66, 72 (1986); Commonwealth v. Dancer, supra 452 Pa. at 225, 305 A.2d at 366 (1973). Here, appellant makes no argument regarding why the court’s decision to allow the Commonwealth to impeach its own witness was an abuse of discretion.

      . Moreover, we note that, because appellant recognizes that the two cases are "unrelated”, he apparently concedes that the prior testimony is irrelevant to the case at bar.

      . There are limited exceptions to this general rule, none of which are relevant here. See, e.g., Commonwealth v. Green, 351 Pa.Super. 170, 176, 505 A.2d 321, 324 (1986).

      . Appellant also objects to the testimony of Detective Cohen, who stated that he had notified police in Germantown that an arrest warrant had been issued charging appellant with murder in this case. Appellant does not state why this testimony is inadmissible. Because the testimony referred only to the warrant issued in the instant case, however, we cannot hold that it was an impermissible reference to prior criminal activity.

      . A panel of this Court has noted that, in light of Randall, "the same rules apply for impeaching a witness as for impeaching a defendant." Commonwealth v. Williams, 371 Pa.Super. 509, 513, 538 A.2d 557, 559 (1988).

      . We note that the trial court did not instruct the jury that it could infer consciousness of guilt from appellant’s apparent flight. Thus, even if appellant’s claim possessed arguable merit, it would be difficult for appellant to show that he was prejudiced by the introduction of this evidence.

      . More specifically, appellant alleges that the trial court "admonish[ed] and berat[ed]” defense counsel (fourteen instances), unnecessarily involved itself in the trial (eleven instances), commented on trial counsel's questions (six instances), mishandled requests for sidebar conferences (three instances), and permitted the prosecutor to make speeches in front of the jury (twenty instances). Brief for Appellant at 74-75.

      . Appellant offers only one specific example of the trial court’s alleged bias against him. Appellant argues that,
      [t]he trial court’s actions in this matter displayed its extreme bias toward the defendant and trial counsel culminating in the holding of trial counsel in contempt of court before the jury on two separate occasions for conduct directed toward defending his client____ As a result, the jury had to have been unduly swayed by the trial court’s attitude toward [appellant] and trial counsel. Under such an atmosphere, [appellant] could not receive a fair trial.
      Brief for Appellant at 78-79 (emphasis supplied). The record indicates, however, that the jury was not present when appellant was held in contempt. N.T. November 19, 1986 at 25-30. Thus, this argument is frivolous.


author: MELINSON, Judge:

text:
    552 A.2d 1064
    COMMONWEALTH of Pennsylvania v. Jonathan ANDERSON, Appellant.
    Superior Court of Pennsylvania.
    Filed Dec. 15, 1988.
    Reargument Denied Feb. 3, 1989.

      Michael J. Rostolsky, Lancaster, for appellant.
    Before CAVANAUGH, OLSZEWSKI and MELINSON, JJ.
   MELINSON, Judge:

This is an appeal from a conviction and judgment of sentence in the Court of Common Pleas of Lancaster County. We affirm.

On May 8, 1986, following a trial by jury, Jonathan Anderson, the appellant, was found guilty of indecent assault and conspiracy to commit rape. The evidence presented at trial revealed that on the afternoon of June 16, 1985, James Vinson visited Anderson for approximately fifteen minutes. Vinson then left Anderson’s apartment. On his way home he encountered Sandra Lewis as she left a laundromat. Vinson offered to take her home, but instead, he escorted her to Anderson’s apartment. Ms. Lewis, age 39 at the time of trial, is a mentally retarded woman with the estimated intellectual age of a six year old child. Anderson testified that he recognized Lewis from the laundromat, but had never spoken to her and did not know of her mental retardation. However, he told the police officer who investigated the crime that he knew as soon as Vinson appeared with Sandra Lewis that the acts about to transpire were wrong. Shortly after bringing Sandra Lewis into Anderson’s apartment, Vinson had sexual intercourse with her. Anderson watched this act take place and heard Lewis protest. Immediately after Vinson was done, Anderson had sexual intercourse with Sandra Lewis. When Anderson had finished, he told Lewis to put on her clothes. Anderson then called a taxicab for Lewis.

After his conviction, Anderson filed timely post-trial motions. These motions were denied. Anderson was subsequently sentenced to concurrent terms of incarceration of twenty-seven to fifty-four months on the conspiracy charges, and one to two years on the indecent assault charges. Following the denial of Anderson’s motion to modify his sentence, this appeal was taken in a timely fashion.

On appeal, Anderson raises five issues for our review:
(1) Whether the trial court abused its discretion by ruling that the chief Commonwealth witness, Sandra Lewis, was competent to testify?
(2) Whether the trial court erred in permitting a Commonwealth witness to answer a hypothetical question, as well as seeking an answer which was the ultimate question of fact for the jury?
(3) Whether the trial court erred in permitting evidence of a photograph lineup to be introduced at trial?
(4) Whether there was insufficient evidence to support the jury’s guilty verdict of conspiracy to commit rape?
(5) Was the sentence by the trial court excessive? Initially, Anderson challenges the testimonial competency

of Sandra Lewis. Prior to trial, the trial court conducted an inquiry into Ms. Lewis’s testimonial competency. The court thereafter determined that she was competent to testify. Anderson argues that Sandra Lewis was unable to perceive the alleged occurrence with a substantial degree of accuracy, she did not remember what she saw, and that she was unable to understand questions or to communicate intelligent answers while on the witness stand.

Because a trial judge has a superior opportunity to assess the competency of a witness, an appellate court should virtually never reverse a competency ruling. See Commonwealth v. Stohr, 361 Pa.Super. 293, 522 A.2d 589 (1987). Thus, the determination of a witness’s competency to testify will not be disturbed on appeal absent a clear abuse of discretion. Commonwealth v. Gaerttner, 335 Pa.Super. 203, 484 A.2d 92 (1984). However, we have articulated some guidelines that a trial court must follow before reaching a decision as to a witness’s competence to testify.

In general, the testimony of any person, regardless of his mental condition, is competent evidence, unless it contributes nothing at all because the witness is wholly untrustworthy. Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974). Thus, in Pennsylvania, witnesses are presumed competent to testify, and it is incumbent upon the party challenging the testimony to establish incompetence. Commonwealth v. Stohr, 361 Pa.Super. 293, 522 A.2d 589 (1987). Moreover, a trial court need not order an investigation of a witness’s competency, unless the trial judge has some doubt about the witness’s competency after having observed the witness. Commonwealth v. Fulton, 318 Pa. Super. 470, 465 A.2d 650 (1983).

Different standards apply for the interpretation of the testimonial competency of children. This court has recently concluded that the presumption of competency remains for proposed child witnesses. See Stohr, 361 Pa. Super. at 296, 522 A.2d 589; Commonwealth v. Fultz, 316 Pa.Super. 260, 462 A.2d 1340 (1983); and Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694 (1980). However, children are “peculiarly susceptible to the world of make-believe and of suggestions.” Rosche v. McCoy, 397 Pa. 615, 621, 156 A.2d 307, 310 (1959). Accordingly, the law of this Commonwealth is that when a proposed witness is under fourteen years of age there must be a searching judicial inquiry into his or her mental capacity before he or she can testify. Stohr, 361 Pa.Super. at 296, 522 A.2d 589. This competency investigation should determine whether the witness has the following:

(1) capacity to observe or perceive the occurrence with a substantial degree of accuracy; (2) ability to remember the event which was observed or perceived; (3) ability to understand questions and to communicate intelligent answers about the occurrence, and (4) consciousness of the duty to speak the truth.

Fultz, 316 Pa.Super. at 267, 462 A.2d 1340; see also: Commonwealth v. Penn, 497 Pa. 232, 240, 439 A.2d 1154, 1158 (1982), cert. denied Penn v. Pennsylvania, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982); Commonwealth v. Trudell, 371 Pa.Super. 353, 538 A.2d 53 (1988). With age, children acquire a greater command of language, develop better powers of observation and memory, and have a more acute comprehension of a responsibility to tell the truth. Thus, the inquiry into the child’s competence to testify must be more searching in proportion to the proposed witness’s chronological immaturity. Rosche, 397 Pa. at 621, 156 A.2d 307; Stohr, 361 Pa.Super. at 296, 522 A.2d 589.

We hold that the competency considerations applicable to a child witness are also applicable to a retarded adult with the mental capacity of a child. While we realize that no precise comparison can be made linking the mental capacity of a child who is functioning age-appropriately with the mental capacity of a retarded adult who is not, we find the criteria for determining the testimonial competence of a proposed child witness to be helpful in determining the testimonial competence of a mentally retarded proposed witness.

Initially, we note that the determination of the trial court regarding the testimonial competency of a mentally retarded person will not be disturbed absent a clear abuse of discretion. The trial court, however, shall follow certain guidelines before making its competency determination. If the trial court is presented with credible evidence that a proposed witness is or might be mentally retarded, the court shall conduct a judicial inquiry to determine the testimonial competency of the proposed witness. The factors the judge shall consider in making his determination are the same factors, enumerated previously herein, used in determining the competency of a child witness. See Penn, 497 Pa. at 232, 439 A.2d 1154. It would be a grave injustice to deny a retarded victim of a crime his or her right to testify against the alleged perpetrator of the crime simply because of the victim’s retardation. Accordingly, because all witnesses, including child witnesses, are presumed competent to testify, the judge shall presume the mentally retarded proposed witness competent to testify when conducting his inquiry. To hold otherwise would be to countermand the general presumption of testimonial competency established in Pennsylvania, and would be unfair to retarded citizens who would be subjected to the resulting double standard of testimonial competency. See: Ware, 459 Pa. at 351-52, 329 A.2d 258; Stohr, 361 Pa.Super. at 296, 522 A.2d 589; see also United States v. Odom, 736 F.2d 104 (4th Cir.1984) citing Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978).

Furthermore, even though we are not convinced that the mental age of a mentally retarded person can always be determined with exactitude, the judge shall be permitted to receive evidence of estimated mental age to assist him in making a determination concerning the degree of retardation of the proposed witness. Just as the judicial inquiry into the competence of a proposed child witness must be more searching in proportion to the child’s chronological immaturity, the judicial inquiry into the testimonial competence of a mentally retarded individual must be more exhaustive in proportion to the proposed witness’s degree of mental retardation. Only after a trial court has followed these guidelines in making its decision as to the proposed witness’s competency, shall we apply an abuse of discretion standard to its determination.

At bar, the trial court conducted a pre-trial hearing to inquire into the testimonial competence of Sandra Lewis. At the hearing, Ms. Lewis was subject to direct and cross-examination by counsel for both parties. The questions posed by counsel probed the criteria necessary for a determination of testimonial competence. At the hearing, Ms. Lewis testified that she knew the difference between the truth and a lie, and that she would “go to hell” if she did not tell the truth. After the inquiry, the court determined that she was competent to testify.

At trial, Ms. Lewis did experience some difficulty in understanding the questions asked by the attorneys, yet, she unambiguously identified Anderson as one of the perpetrators of the crime, and she testified that the man who brought her to the apartment was named Vinson. Furthermore, she was lucid in her testimony that Vinson took her clothes off, that both men “messed with her,” and that she called for help during the ordeal. Based on the foregoing, we are satisfied that the trial court conducted its inquiry into the testimonial competence of Sandra Lewis in a thorough and conscientious manner, and that she was, indeed, competent to testify to the events which gave rise to this action. Accordingly, we find that the trial court did not abuse its discretion in allowing the testimony of Sandra Lewis.

Anderson next contends that the trial court erred by permitting the Commonwealth’s expert witness to answer a hypothetical question which, Anderson alleges, contained inaccurate statements of the evidence. The Commonwealth presented Dr. Herbert Cooper as an expert in the field of psychiatry in order to establish that Sandra Lewis was mentally retarded and that she could not have consented to a rape. The hypothetical question posed by the Commonwealth’s attorney was as follows:

A woman who is thirty-eight years old and mentally retarded with a functional [age] of a six-year-old child is approached on the street by a middle-aged male she does not know. The male pretends to help her with some laundry he [sic] is carrying and directs her into an apartment. She has never been in the apartment before. Inside she is met by another middle-aged man she does not know. The first man asks her to undress. She refuses. He takes off her shirt [sic] and undergarment. He tells her to sit on the sofa in the living room. She does. She is forced on to the sofa in the living room. One of the men forces her legs. Both men have sexual intercourse with her vaginally and anally ...
Dr. Cooper, do you have an opinion, based on a reasonable degree of medical certainty, ... whether the victim could have consented to the series of events that befell her on June 16th of 1985, as described in the set of hypothetical facts just given?

Anderson maintains that there was no evidence presented at trial that Ms. Lewis refused to take off her clothes, that she was forced onto the sofa, that one of the men forced her legs apart, and that both men had anal intercourse with her. Accordingly, Anderson contends that because the expert opinion was based upon facts not in evidence, the jury could not make an informed evaluation of the testimony of the expert.

Anderson is correct in asserting that an expert witness is not permitted to express an opinion in response to a hypothetical question which is based upon facts not a part of the record or warranted by the evidence. Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978). Here, he is incorrect, however, in asserting that the hypothetical question posed to the expert was not a part of the evidence introduced at trial. There was trial testimony that Sandra Lewis was reluctant to undress when asked to by Vinson, and that Vinson then helped her to disrobe. Sandra Lewis testified that after Vinson removed her shorts and underpants, the two men pushed her back onto the sofa, where Vinson spread her legs open. Finally, she testified that both men had vaginal and anal intercourse with her. Accordingly, there was evidence supporting each of the factual allegations that comprised the hypothetical question presented to the expert. Because these facts were warranted by the evidence, Anderson’s second contention is merit-less.

Anderson’s third contention is that the trial court erred in admitting into evidence an improperly suggestive photographic lineup to be introduced into evidence at trial. Specifically, he alleges that Sandra Lewis testified at the suppression hearing that she was only shown two photographs by the police when she identified Anderson from a photo array. Accordingly, he argues that the photograph array was unduly suggestive and should have been suppressed prior to trial. This claim is meritless.

When this court reviews a suppression order, it is bound by the trial court’s findings of fact, as long as those findings are supported by competent evidence. Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986). If the suppression court held for the prosecution, in making our review we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986). In determining the admissibility of a pre-trial identification, the essential criterion to consider is the reliability of the identification under the totality of the circumstances disclosed by the record. Commonwealth v. Scaine, 337 Pa.Super. 72, 486 A.2d 486 (1984). Generally, a pre-trial identification may be inadmissible at trial if it was obtained by a procedure so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny the accused due process rights. Commonwealth v. Voss, 333 Pa.Super. 331, 482 A.2d 593 (1984).

At bar, Ms. Lewis testified at the preliminary hearing that the photograph array shown to her by police contained only two photographs. However, Ms. Lewis, as mentioned previously, had difficulty understanding the questions asked of her at the preliminary hearing and at trial. Therefore, her testimony cannot be considered dis-positive of this issue. Conversely, Sergeant James Walsh of the Lancaster Police testified at the suppression hearing that he showed Ms. Lewis photographs of eleven black males, of which Jonathan Anderson was one. Sergeant Walsh testified that all of the men looked generally like Anderson and all were approximately his age. He further testified that Ms. Lewis had no difficulty in picking out Anderson as one of the men who assaulted her. We, as an appellate court, must consider only the evidence of the prosecution and so much of the evidence for the defense that remains uncontradicted. Considering the evidence within the framework of this standard of review for ruling on suppression orders, we find that, based on the testimony of Sergeant Walsh, the identification procedure utilized by the police at bar was not unduly suggestive. Therefore, the trial court did not abuse its discretion in admitting the photographic identification of Anderson made by Sandra Lewis.

Anderson's penultimate contention is that the evidence presented by the Commonwealth at trial was insufficient to prove beyond a reasonable doubt that he was guilty of conspiracy to commit rape. Specifically, he argues that there was insufficient evidence to prove an agreement or common understanding between himself and Vinson. We disagree, and find that there was sufficient evidence presented to support a conviction for conspiracy to commit rape.

The test for evaluating the sufficiency of the evidence in a criminal trial is whether, viewing all of the evidence admitted at trial in the light most favorable to the Commonwealth as verdict winner, and drawing all reasonable inferences therefrom, the jury could have reasonably determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Aulisio, 514 Pa. 84, 522 A.2d 1075 (1987).

Conspiracy is defined in Pennsylvania by 18 Pa. C.S.A. Section 903. Relevantly, that statutory section states:

(a) Definition of conspiracy — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

Clearly, in order to convict a defendant of conspiracy, a factfinder must conclude that he reached an agreement with his co-conspirator to commit the crime. Commonwealth v. Graves, 316 Pa.Super. 484, 463 A.2d 467 (1983). Direct proof of the corrupt agreement, however, is not necessary. Commonwealth v. Brown, 351 Pa.Super. 119, 505 A.2d 295 (1986). “An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities.” Commonwealth v. Campbell, 353 Pa.Super. 178, 509 A.2d 394 (1986) quoting Commonwealth v. Strantz, 328 Pa. 33, 43, 195 A. 75, 80 (1937). Thus, the existence of a common agreement between co-conspirators may be inferred from circumstantial evidence surrounding the allegedly conspiratorial activities, and from the relationship between and the conduct of the parties. Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984).

Here, Anderson met with Vinson at Anderson’s apartment immediately before Vinson brought Sandra Lewis there. Furthermore, there was testimony that Anderson stated that he knew that the acts about to occur at the apartment were wrong. Finally, Anderson was present when Vinson had sexual intercourse with Ms. Lewis, and he had intercourse with her himself. We find that from these facts it can be reasonably inferred that Anderson and Vinson conspired to rape Sandra Lewis. Accordingly, the evidence was sufficient to convict Anderson of this charge.

Finally, Anderson contends that the trial court abused its discretion for failing to take into consideration several mitigating factors in rendering its sentence. The mitigating factors Anderson enumerates are his limited intelligence, his lack of a history of criminal behavior, his expressions of remorse for this event, and his maintenance of steady employment since his arrest.

Initially, we note that Anderson has complied with the requirements of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and Pa. R.A.P. 2119(f), by including in his brief a concise statement of the reasons relied upon for allowance of appeal concerning the discretionary aspects of sentence. We must next examine Anderson’s claim to determine whether there is a substantial question that the sentence imposed was inappropriate. Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) {en banc). We find that Anderson has presented a substantial question here. Accordingly, in the exercise of our discretion, we will address the merits of Anderson’s claim. See Commonwealth v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988).

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of that discretion. Commonwealth v. Fries, 362 Pa.Super. 163, 523 A.2d 1134 (1987). A sentence must either exceed statutory parameters or be manifestly excessive in order to constitute an abuse of discretion. Id.

Anderson was sentenced to a term of imprisonment of twenty-seven to fifty-four months for conspiracy to commit rape. His sentence of one to two years’ imprisonment for indecent assault was imposed to run concurrently. Conspiracy to commit rape is a second degree felony. 18 Pa. C.S.A. 905. The maximum term permitted for felonies of the second degree is ten years’ imprisonment. 18 Pa. C.S.A. 1108(2). Clearly, Anderson’s sentence was within statutory parameters.

In considering whether a sentence was manifestly excessive, we must give great weight to the sentencing judge’s discretion as he is in the best position to measure various factors, such as the nature of the crime, the defendant’s character, and the defendant’s displays of remorse, defiance, or indifference. Fries, 362 Pa.Super. at 167, 523 A.2d at 1135. Certain factors, however, must be considered by the sentencing court. The court must consider the rehabilitative needs of the defendant, the need for the protection of the public, and the gravity of the offense. Commonwealth v. Peters, 358 Pa.Super. 94, 516 A.2d 1197 (1986); see also Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988).

The sentencing court found that although Anderson has limited intelligence, his age, work history, eight years of schooling, and statements made at trial enabled him to recognize the seriousness of his actions. Furthermore, the court considered the “despicable” nature of the crime when rendering its sentence. Thus, we find that the sentencing court adequately considered the necessary factors for imposing sentence and did not abuse its discretion in sentencing Anderson.

JUDGMENT OF SENTENCE AFFIRMED.

      . We must note, however, that in the 1977 case of Commonwealth v. Mangello, 250 Pa.Super. 202, 378 A.2d 897 (1977), this court stated that: "when a child under the age of fourteen is called to testify, the presumption does not operate, and the competency of the infant-witness must be independently established." Mangello, 250 Pa.Super. at 204-205, 378 A.2d 897. Obviously, this contradicts the mandate that all witnesses are presumed competent to testify, as held by this court in Stohr, Fultz, and Short.

        Mangello is also at odds with the Federal Rules of Evidence and with the opinions of leading commentators on the subject. See Fed.R.Evid. 601-605; McCormick, Handbook of the Law of Evidence, section 62 (3rd ed., E. Cleary 1984); Wigmore, Evidence, sections 501, 509 (2d ed., Chadbourn 1979); Weihofen, Testimonial Competence and Credibility, 34 Geo. Wash. L.Rev. 53 (1965). These commentators do not stop at the conclusion that the presumption of competence should remain for child witnesses, but instead, they argue that the testimony of the child witness should be uniformly permitted, giving the jury the opportunity to gauge the credibility of the testimony. Writes McCormick, "[t]he major reason for disqualification of [child witnesses] to take the stand is the judge’s distrust of a jury’s ability to assay the words of a small child ... Conceding the jury’s deficiencies, the remedy of excluding such a witness, who may be the only person available who knows the facts, seems inept and primitive. Though the tribunal is unskilled, and the testimony difficult to weigh, it is still better to let the evidence come in for what it is worth, with cautionary instructions.” McCormick, supra, at 156.
      Though we are not bound by the dictates of these authorities, their approach reflects a logical attempt to promote and facilitate the credibility-finding function of juries by allowing them the benefit of all relevant testimony. While we do not go so far, at bar, as to apply the approach the commentators suggest, we note the following: Stohr, Fultz, and Short are all more recent cases than Mangello, these three cases are in accordance with the general Pennsylvania proposition that all witnesses are presumed competent, and, finally, they more closely resemble the approach of the commentators and the Federal Rules than does Mangello. Accordingly, we find that Mangello is not a correct statement of the law with respect to this issue.

      . We recognize the dictum of this court in Commonwealth v. Trudell, 371 Pa.Super. 353, 538 A.2d 53 (1988), relating to the testimonial competency of "mentally disabled” individuals. There, in evaluating the previously-discussed criteria for testimonial competency, the court asserted: "[w]here the court is assessing the competency of a mentally disabled person, the main concern is understandably whether the witness has the mental ability to understand what he observes, remember it and accurately relate it, since many mental disorders may well affect these mental functions.” Trudell, 371 Pa.Super. at 361, 538 A.2d 53 (emphasis added). In reviewing this matter, however, we note that the majority of Pennsylvania case law does not support the proposition that one criterion is more important than others when evaluating testimonial competency. See: Penn, 497 Pa. 232, 439 A.2d 1154, Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982), Rosche, 397 Pa. 615, 156 A.2d 307, Stohr, 361 Pa.Super. 293, 522 A.2d 589, Fultz, 316 Pa.Super. 260, 462 A.2d 1340, and Short, 278 Pa.Super. 581, 420 A.2d 694. (Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974), is the lone Pennsylvania case that gives greater emphasis to one of the criteria over the others. There, the Court stated, ”[t]he core of the competency test is ability to give ‘a correct account of the matters which he has seen or heard.’ ’’ Ware, 459 Pa. at 353, 329 A.2d 258 [citations omitted]. No Pennsylvania Supreme or Superior Court case, either before or since Ware, has given priority to any of the testimonial criteria). Furthermore, the phrase “mentally disabled persons” encompasses too broad a grouping of individuals. Disability is defined by Dorland’s Medical Dictionary as "a lack of ability to function normally, [either] physically or mentally ..." DORLAND’S MEDICAL DICTIONARY 480 (27th ed. 1988). Clearly, the term “mentally disabled persons” includes both mentally ill and mentally retarded individuals. We hold that the instant case, in which we do not place more emphasis on one competency criterion over another, and in which we deal exclusively with the testimonial competency of mentally retarded individuals, will provide the guidelines that should be utilized for evaluating the testimonial competency of mentally retarded individuals.

        . In his Statement of Questions Involved in his brief to this court, Anderson additionally claims that the trial court erred in allowing Dr. Cooper to answer the hypothetical because it involved “the ultimate question of fact for the jury." The Argument section of Anderson’s brief, however, is devoid of any elaboration upon this contention. Therefore, this contention is waived. See Commonwealth v. Balch, 328 Pa.Super. 71, 476 A.2d 458 (1984).


author: OLSZEWSKI, Judge:

text:
    552 A.2d 1072
    COMMONWEALTH of Pennsylvania v. Rodolfo SANTIESTEBAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1988.
    Filed Dec. 28, 1988.
    Reargument Denied Feb. 9, 1989.
    Anthony J. Petrone, Philadelphia, for appellant.
    Jeffrey Heilman, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying defendant’s motion in arrest of judgment.

On March 7, 1986, Philadelphia Police Officer Rosemary Giordano obtained a search warrant for the premises located at 3521 North Phillip Street in Philadelphia. On that date at 6:30 a.m., Officer Giordano and other officers knocked on the door and announced their presence and possession of a warrant. The officers waited thirty to sixty seconds, and then broke through the door. In the second floor front bedroom, the defendant, Rodolfo Santiesteban, was lying in bed, awake, next to a sleeping female. On the floor was an open briefcase, full of United States currency, later determined to be $6,271.00. A closed metal box containing $4,500.00 in cash was found in a chest of drawers in the bedroom; an additional $522.00 was found in the pocket of defendant’s pants, which were on the floor next to the bed.

On the first floor of the house, police found concealed inside a heating grate a plastic bag containing approximately one ounce of a hard white substance, later determined to be cocaine. The officers also found a brown paper bag containing empty clear plastic packets and 1,000 plastic bags. A gram scale, plastic strainer, and a grinder with cocaine residue were also found inside the heating grate.

Santiesteban was arrested and tried before a jury. He was convicted of possession of a controlled substance with intent to deliver, 35 P.S. § 780-113(a)(30), and possession of drug paraphernalia, 35 P.S. § 780-113(a)(32). Santiesteban filed a motion in arrest of judgment based on his contention that the evidence was insufficient to sustain the conviction. This motion was denied. The defendant also filed a motion for a new trial, which was granted.

On appeal, Santiesteban raises one issue: Did the trial court err in denying defendant’s Post-Verdict Motion in Arrest of Judgment on the basis that the evidence presented was insufficient to prove that defendant, as opposed to other persons with equal access, was in constructive possession of contraband seized by the police?

At trial, the Commonwealth presented evidence that the defendant resided in the house on Phillips Street. Defense witness Flor Perez testified that he and another man named Angel Cruz were “doing drugs at that time” and would “go to the house on Phillip Street.” Perez testified that he did not know what, if any, relationship there was between Angel Cruz and the defendant; he only knew that Angel Cruz had keys to the house and would “shoot up” cocaine there, and Perez would join him there to smoke cocaine. This activity went on for a period of approximately four weeks. Perez indicated that the defendant was not living in the house during that time, and that he met Santiesteban when Santiesteban was moving into the house.

The well-established standard for reviewing a sufficiency of the evidence claim on appeal has been stated by our Supreme Court as follows:

[Wjhether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt____ The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence---- Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered____ Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986) quoting Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 538-539 (1979) (citations omitted). When reviewing for sufficiency of the evidence, an appellate court may not substitute its judgment for that of the jury. Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982), cert. denied, 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983).

Constructive possession, on which the Commonwealth’s case is based, is a legal fiction — “a pragmatie construct to deal with the realities of criminal law enforcement.” Commonwealth v. Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213 (1986). Our Supreme Court has defined constructive possession as “conscious dominion,” Commonwealth v. Davis, 444 Pa. 11, 15, 280 A.2d 119, 121 (1971), and has further defined “conscious dominion” as “the power to control the contraband and the intent to exercise that control.” Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983). Additionally, our Supreme Court has held that constructive possession may be established by the totality of the circumstances. Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974).

In Mudrick, supra, the defendant was convicted of possession of marijuana and cocaine and possession with intent to deliver. Local police officers and narcotics agents arrived at the residence of Sandra Deitz, the defendant’s girlfriend, in Pocono Summit, Pennsylvania. Their intention was to serve a New Jersey fugitive warrant on Ms. Deitz. They knocked on the door, and the defendant answered. Ms. Deitz was placed under arrest. The defendant told the officers that he lived with Ms. Deitz and that they were going to be married. When the officers saw a box of what they believed to be marijuana on a table in the living room, they ordered defendant to sit down. Some of the officers left to obtain a search warrant. When they returned with the warrant, the officers found marijuana in the living room and cocaine in the bedroom and study. The defendant was arrested.

At trial, defendant Mudrick presented evidence that he lived in Blakeslee in the home of Patrick Simonick, and that he paid room and board to Simonick. A jury convicted Murdrick and this Court reversed, finding that the Commonwealth had proven no more than the defendant’s presence at the scene, and that the evidence was therefore insufficient to support the conviction.

The Pennsylvania Supreme Court reversed, acknowledging that although the tests for showing constructive possession may be “helpful and logical in the abstract, application to actual factual situations, particularly when multiple actors are involved, has proven difficult for [the] ... courts in cases involving controlled substances located on premises in ... possession but not on the actual person of any of the parties entitled to occupy those premises.” Mudrick, 510 Pa. at 308, 507 A.2d at 1213. The Court concluded that constructive possession may be found if contraband is located in an area of [individual] or joint control and access. Id., 510 Pa. at 310, 507 A.2d at 1214.

These principles are equally applicable here. Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all reasonable inferences in favor of the Commonwealth, we conclude that the jury in this case could properly find that the defendant, who lived in the house, had both access and control of the first floor where the contraband was found. From this, as well as other circumstantial evidence, including the large amount of cash in defendant’s bedroom, the jury could infer constructive possession even though evidence directly connecting the defendant with the contraband is lacking. Mudrick, supra; Macolino, supra; see also Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981) (in prosecution for possession of heroin, evidence was sufficient to prove beyond a reasonable doubt that defendant, as sole tenant of apartment, was in constructive possession of heroin hidden under sofa cushion in parlor bedroom of apartment); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984) (Commonwealth may demonstrate constructive possession of drugs or narcotics from totality of the circumstances, even though others may have had access to the drugs).

ORDER AFFIRMED.