author: SPAETH, President Judge:

text:
    500 A.2d 809
    COMMONWEALTH of Pennsylvania v. Vincent BOYD, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 30, 1984.
    Filed April 19, 1985.
    Reargument Denied May 13, 1985.

      Darryl A. Irwin, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before SPAETH, President Judge, and WIEAND and CIRILLO, JJ.
   SPAETH, President Judge:

This is an appeal from judgments of sentence for murder in the second degree, robbery, and criminal conspiracy. Appellant argues (1) that the evidence was insufficient to convict him of murder in the second degree; (2) that the trial court erred in admitting his statement to the police; (3) that the eyewitness testimony was so unreliable and contradictory as to be incapable of reconciliation; (4) that certain remarks by the prosecutor were improper; (5) that the trial court erred in admitting an in-court identification; and (6) that the trial court erred in permitting hearsay testimony. Except for the last argument, which we find waived, we have reviewed appellant’s arguments and find them without merit. We therefore affirm.

Appellant argues that the evidence was insufficient to convict him of murder in the second degree because the Commonwealth failed to establish beyond a reasonable doubt the cause of the victim’s death. We have reviewed the evidence in the light most favorable to the Commonwealth, Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983), and find it sufficient. While we agree with the analysis of the trial court, see slip op. of tr. ct. at 12-16, we add the following comments to address appellant’s contention that Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1968), and Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971), compel the conclusion that the evidence of causation was insufficient.

In Radford and Embry the expert medical witnesses were unable to establish causation beyond a reasonable doubt. In Radford the medical testimony was to the effect that “defendant’s assault ... probably caused the death.” 428 Pa. at 281, 236 A.2d at 803 (emphasis in original). In Embry the doctor who performed the autopsy testified that “he was only able to reconstruct the chain of causation with a ‘reasonable degree of medical certainty.’ ” 441 Pa. at 185, 272 A.2d at 179. These cases continue to be cited for the principle that causation, as an essential element of the crime of murder, must be proved beyond a reasonable doubt. See, e.g., Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); Commonwealth v. Webb, 449 Pa. 490, 296 A.2d 734 (1972). However, reliance on them has been criticized, and they have been distinguished. See, e.g., Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Webb, supra. But see Commonwealth v. Floyd, 499 Pa. 316, 453 A.2d 326 (1982) (Webb Court in error in distinguishing Embry). We are satisfied that Embry’s holding, that evidence of defendant’s initiating a “chain of causation with a ‘reasonable degree of medical certainty’ ” was insufficient, has been overruled sub silentio. In Commonwealth v. Webb, the Court stated:

It was not necessary ... that the [medical expert] witness state it was his conclusion beyond a reasonable doubt the head injuries caused McCall’s [the victim’s] death. “Beyond a reasonable doubt” is a legal standard. Medical causation and legal causation are qualitatively different in their application. Whether the Commonwealth’s evidence is sufficient to warrant a finding of causal connection is initially a legal question for the court, but whether it is persuasive beyond a reasonable doubt is for the jury to say.

449 Pa. at 496, 296 A.2d at 737 (citation omitted). See also Commonwealth v. Floyd, supra 499 Pa. at 320, 453 A.2d at 328 (agreeing that medical examiner need only entertain a “reasonable degree of medical certainty” for his conclusions); Commonwealth v. Stoltzfus, supra 462 Pa. at 56, 337 A.2d at 879 (same); Commonwealth v. Williams, 455 Pa. 539, 545, 316 A.2d 888, 891 (1974) (same).

Appellant next argues that the trial court erred in admitting his statement to the police because he was denied his right, as a juvenile, to consult with an adult interested in his welfare and informed of his rights under the Fifth and Sixth Amendments. Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), cert. denied 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976). See also Commonwealth v. Thomas, 486 Pa. 568, 406 A.2d 1037 (1979). At the conclusion of a suppression hearing, the trial court found appellant’s father to be such an interested and informed adult. See N.T. 5/5/82, 5-9. See also slip op. of tr. ct. at 40-41. The record supports this finding, and we are therefore bound by it. Commonwealth v. Jackson, 497 Pa. 591, 442 A.2d 1098 (1982). The trial court’s opinion focused on whether appellant’s statement was admissible under McCutchen. See slip op. of tr. ct. at 37-41. However, the Supreme Court overruled McCutchen in Commonwealth v. Christmas, 502 Pa. 218, 465 A.2d 989 (1983), and held that, instead of McCutchen’s per se rule, there was a rebuttable presumption that a juvenile’s statement made in the absence of an interested and informed adult was inadmissible. A year later the Supreme Court overruled Christmas and held that whether a juvenile’s statement was admissible, that is, whether the juvenile’s waiver of his Constitutional rights had been voluntary and intelligent, is to be determined by an analysis of the totality of the circumstances. Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984). We need not decide whether Williams should be applied to this case. Assuming that it should be, appellant’s statement was admissible, for the record shows that his waiver was voluntary and intelligent. See N.T. 4/30/82, 2.47-2.57, 2.61-2.62; 5/18/82, 4.17-4.27, 4.38-4.39; N.T. 5/3/83, 7. See also N.T. 5/5/82, 5-9 (findings of fact).

Appellant’s arguments that the eyewitness testimony was so unreliable and contradictory as to be incapable of reconciliation; that certain remarks by the prosecutor were improper; and that the trial court erred in admitting an in-court identification, are adequately disposed of by the trial court’s opinion. Slip op. of tr. ct. at 28-31, 31-37, and 41-46. With respect to the prosecutor’s remarks, we may add one comment: Appellant asserts that in referring to the coat worn by the victim, the prosecutor “ignored” an “explicit[]” instruction by the trial court “not to make reference” to the coat. Brief for Appellant at 18. Appellant does not state where in the record such an instruction appears, and we do not find it, although we do find reference to the coat in the testimony. See N.T. 5/17/82, at 102-03.

Finally, appellant argues that an out-of-court statement constituted inadmissible hearsay requiring a new trial. Since this argument was not presented in post-verdict motions, Pa.R.Crim.P. 1123, we find it waived. Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982); Commonwealth v. Cruice, 297 Pa.Super. 1, 442 A.2d 1183 (1982).

Affirmed.


source: Caselaw Access Project

author: SPAETH, President Judge: WIEAND, Judge,

license: Public Domain

text:
    500 A.2d 811
    COMMONWEALTH of Pennsylvania, Appellant, v. James P. PRYOR.
    Superior Court of Pennsylvania.
    Submitted May 13, 1985.
    Filed Sept. 27, 1985.
    Reargument Denied Dec. 5, 1985.

      Joel M. Kaufman, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    Mitchell A. Kaufman, Assistant Public Defender, Pittsburgh, for appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   SPAETH, President Judge:

This is an appeal by the Commonwealth, pursuant to 75 Pa.C.S. § 3731(e)(4), from a judgment of sentence for driving under the influence of alcohol, 75 Pa.C.S. § 3731(a). The Commonwealth argues that by ordering appellee released on parole after 48 hours in jail, the trial court violated the provision of 75 Pa.C.S. § 3731(e)(1)(ii) that a person previously convicted of driving under the influence of alcohol — as appellee had been — “shall” be sentenced to a minimum term of imprisonment of “not less than 30 days.” We agree and therefore vacate the judgment of sentence and remand for resentencing.

On March 5, 1984, appellee pleaded guilty to driving under the influence of alcohol. 75 Pa.C.S. § 3731(a)(1) and (4). The trial court knew that in 1982 appellee had been convicted of driving under the influence of alcohol, N.T. 3/5/84, 20-21, 25-26, but it refused to order appellee to serve a minimum term of imprisonment of not less than 30 days, as provided by 75 Pa.C.S. § 3731(e)(1)(ii). The court informed appellee that “since your offense occurred prior to the new act [Act of Dec. 15, 1982, P.L. 1268, No. 289, § 9, effective in 30 days], we may take that into account for the sentence, but will not impose thirty days on you but impose two days on you.” N.T. 3/5/84, 25-26. The sentence in its entirety was as follows:

And now Mar 5 1984, 19 [sic ] Defendant sentenced to pay a fine of $300.00 to the Commonwealth. Pay costs of prosecution, and undergo an imprisonment of not less than 48 hours or more than 6 months in the Allegheny County Jail and stand committed.
EO: DIE:: SENTENCE EFFECTIVE
April 2, 1984 at 8:00 P.M. The court recommends alternative housing at Hummell House[.] Defendant to pay fine and costs at a rate as arranged by the Clerk of Courts. Defendant is hereby paroled at expiration of service of 48 hours minimum sentence. Defendant to report to AC [Allegheny County] Jail on Apr 2, 1984 at 8:00 P.M. Defendant to be released in the custody of a representative of Hummell House on condition he pay the costs of alternative housing forthwith.

On March 15, 1984, the Commonwealth filed a motion to modify sentence. In response, on April 3, 1984, the trial court modified appellee’s sentence:

And Now April 3, 1984, after hearing in open court, Commonwealth’s Motion to Modify Sentence is Granted. Sentence amended as follows.
And now April 3, 1984 Defendant sentenced to pay a fine of $300.00 to the Commonwealth. Pay costs of prosecution, and undergo an imprisonment of not less than 30 days or more than 6 mos. in the Allegheny County Jail and stand committed. Defendant to receive credit for time he is presently serving at Hummell House. Defendant to be paroled on April 4, 1984 at the completion of 48 hour sentence. Defendant to undergo evaluation, to attend alcohol safe driving school, and to participate in any further evaluation and/or treatment deemed necessary by the probation office and the regional alcohol program. Defendant to pay a $150.00 fee in addition to regular court costs.

The Commonwealth appealed the next day.

The trial court states in its opinion that it modified the sentence “in response” to the Commonwealth’s argument regarding appellee’s prior conviction. Slip op. of tr. ct. at 1. The court supports its decision to parole appellee after 48 hours by stating that “[t]he decision and supporting rationale in this case is controlled by and consistent with the opinion entered in the case of Commonwealth of Pennsylvania v. Robert B. Crye, Superior Court of Pennsylvania Docket Numbers 759 PGH 84 and 761 PGH 84 and Court of Common Pleas of Allegheny County Docket Numbers CC 8311842A and CC 8311217A.”' Id. at 2. We have not yet listed Crye for argument; the opinion of the Court of Common Pleas in that case was apparently not published, and no copy of it was attached to the trial court’s opinion in this case.

We may dispose of two issues summarily. The first issue is whether appellee’s 1982 conviction of driving under the influence of alcohol could properly be considered by the trial court. (The briefs divide this issue into two sub-issues: whether the provision pursuant to which appellee was sentenced was “ex post facto legislation,” and whether appel-lee’s 1982 conviction was an “equivalent offense” within the provision.) This issue need not be decided, for, with no objection from appellee, the conviction was considered, and, notwithstanding the trial court’s comments during resen-tencing, N.T. 4/3/84, 3-4, appellee’s sentence was modified to reflect the conviction, see slip op. of tr. ct. at l. The second issue is whether the Commonwealth was obliged to allege the 1982 conviction in the information. This issue is raised for the first time on appeal. The record shows that the information did not allege the 1982 conviction. At the resentencing proceeding the trial court nevertheless imposed the minimum sentence, as though the conviction had been alleged. The Commonwealth may therefore not complain, and neither may appellee, for he did not object to the court considering the conviction, either during the resen-tencing hearing or in a motion to modify sentence. Given appellee’s failure to raise this issue in the trial court and his repeated requests that we affirm the judgment of sentence, see, e.g,, Brief for Appellee at 7, 10, 15, 22, we find the issue of the necessity of alleging a prior conviction waived.

The issue that is properly before us is whether, by ordering appellee released on parole after 48 hours in jail, the trial court violated the sentencing provisions of 75 Pa.C.S. § 3731(e)(1)(ii).

Appellee argues that the trial court could order appellee released on parole because a court “may grant parole ... even if there is a mandatory sentence, unless such is expressly prohibited by the legislature.” Brief for Appellee at 20. This argument begs the question, which is whether here the legislature has expressly prohibited parole:

The power to grant paroles is not inherent in courts; Pennsylvania never had such power until it was given to them by the Act of June 19, 1911, P.L. 1059, and then only with respect to prisoners in county jails and workhouses. What the legislature thus gave it can take away' again in whole or in' part and vest in some other agency of government. The legislature has exclusive power to determine the penological system of the Commonwealth. It alone can prescribe the punishments to be meted out for crime. It can provide fixed penalties or grant to the court such measure of discretion in the imposition of sentences as it may see fit. It may enact that prison confinement shall be the punishment for crime or may abolish prisons altogether and adopt some other method of enforcing the criminal law.
Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 587, 28 A.2d 897, 900 (1942).

We have already quoted the statutory language; the critical provision is that “the sentencing court shall order the person to ... serve a minimum term of imprisonment of ... not less than 30 days____” 75 Pa.C.S. § 3731(e)(1)(ii). In construing this provision, we have concluded that the legislature’s choice of the word “shall” demonstrates its intent that the minimum term of imprisonment is mandatory, and may not be avoided by releasing the convicted person on early parole. See Zimmerman v. O Bannon, 497 Pa. 551, 558-59, 442 A.2d 674, 678 (1982) (“[T]he inclusion of ‘shall’ when referring to the obligation of the court ... was intended to convey the lack of the court’s discretion in that decision.”). Cf. Commonwealth v. Godsey, 342 Pa.Super. 24, 492 A.2d 44 (1985) (referring to sentence as mandatory); Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985) (same). See also Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985) (discussing whether district attorney’s discretion is limited by the “mandatory sentencing provisions”).

We are aware that other sentencing enactments contain an explicit expression of legislative intent to restrict judicial sentencing authority. See 42 Pa.C.S. §§ 9712(c), 9713(d), 9714(d), 9715(c) (“There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence”); 42 Pa.C.S. §§ 9717(b), 9718(b) (“Parole shall not be granted until the minimum term of imprisonment has been served.”); 42 Pa.C.S. § 9721(a) (court may consider and select among sentencing alternatives “except where a mandatory minimum sentence is otherwise provided by law”). However, the language of the sentencing provision we must construe is clear and the absence of such a restrictive provision as is included in other statutes makes it no less clear.

Other principles of statutory construction support this result. In 1911, the legislature first granted courts the authority to parole those confined in a county jail, house of correction, or workhouse. Act of June 19, 1911, P.L. 1059, § 1, as amended Act of May 5, 1921, P.L. 379, § 1; Act of May 11, 1923, P.L. 204, § 1, repealed in part Act of Aug. 6, 1941, P.L. 861, § 35, 61 P.S. § 314. See also 61 P.S. § 331.17. The sentencing provision pursuant to which ap-pellee was sentenced was passed as part of a 1982 revision of the Motor Vehicle Code’s provisions specifically concerned with driving under the influence of alcohol. As a special provision, it must prevail over the general provisions of the statute authorizing parole:

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provisions, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.
1 Pa.C.S. § 1933.

Cf. Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980) (statute requiring maximum and minimum sentences will not prevail over later enacted statute requiring mandatory life sentence). Appellee’s interpretation of the statute would nullify the word “shall,” and thereby violate the principle that effect must be given to all the language in a statute. 1 Pa.C.S. § 1922(2) (legislature intends entire statute to be effective); Id. § 1921(a) (statute shall be construed if possible to give effect to all its provisions). Another way to state this is that appellee’s interpretation would lead to an absurd result: the legislature’s direction to the court to sentence defendants to certain minimum terms would be made meaningless for the court could in its discretion ignore the direction. 1 Pa.C.S. § 1922(1) (legislature does not intend absurd result).

Finally, the legislative history of the statute makes plain that “shall” is to be construed in a straightforward manner. See Pa.House Leg. J. 1704 (Sept. 9, 1982) (remarks of Representative Saurman) (“From the second time on, this bill says ‘jail,’ and it means jail____”); id. 1721 (Sept. 9, 1982) (remarks of Representative Evans) (“What you are actually saying is that they will go to jail 30 days, no parole, no good time, nothing but 30 days in jail.”). In 1984 an amendment relating to work release for the purposes of collecting litter was enacted. Act of June 30, 1984, P.L. 473, No. 99, § 2; Act of July 10, 1984, P.L. 704, No. 148, § 1, 75 Pa.C.S. § 3731(h). According to Senator Early:

It is my interpretation of this [amendment relating to work release] and I want to have it on the record, that it is the legislative intent that an individual who participates in the work release program is an individual who is incarcerated for the necessary time that the judge has sentenced him. This is not in lieu of an individual going to jail. He goes to jail, he is out in the daytime in the work release program, and then he goes back to jail.
Pa.Senate Leg. J. 2637 (June 29, 1984).

We therefore hold that the trial court had no discretion to grant appellee early parole.

Sentence vacated and case remanded for resentencing. Jurisdiction is relinquished.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

The power to grant paroles to prisoners in county jails and workhouses has been granted to courts of common pleas by the Act of June 19, 1911, P.L. 1059, § 1, as amended, 61 P.S. § 314. My reading of the provisions of 75 Pa.C.S. § 3731 does not disclose a legislative intent to take away this power of parole in cases where a person has been sentenced to prison for driving while under the influence of alcohol pursuant to the mandatory sentencing provisions of 75 Pa.C.S. § 3731(e)(1). To the extent that the majority holds that trial courts are powerless to grant paroles in such cases, therefore, I must respectfully voice my dissent. There may very well be cases in which a trial court, acting in a manner procedurally consistent with the Act of 1911, supra, can properly grant parole even before a prisoner has fully served a mandatory minimum sentence of imprisonment imposed pursuant to 75 Pa.C.S. § 3731(e)(1).

This case, however, is not one of them. Here, no petition for parole was filed, no parole hearing was held, and no reasons were alleged by the defendant or given by the court for granting parole. Instead, the record discloses a blatant attempt by a trial court to avoid imposition of the mandatory sentence required by 75 Pa.C.S. § 3731(e)(1). This was improper. In this respect, I agree with the Commonwealth that: “The device of sentencing a defendant and granting him immediate parole is a sham and does not comply with the statute.” (Appellant’s brief, p. 8). The use of immediate parole to avoid compliance with mandatory sentencing provisions is improper and deserves the condemnation of this Court. In my judgment, however, it is not necessary to throw out the baby with the bathwater. It is not necessary to deprive courts of the power to grant parole in order to prevent the abuse committed in this case.

Although I do not agree with the majority that the power of trial courts to grant parole has been taken away by the mandatory sentencing provisions of 75 Pa.C.S. § 3731(e)(1), I do agree that the sentence in this case, which included an immediate parole, was an abuse of discretion. Therefore, I concur in the decision of the majority to vacate the sentence and remand for resentencing.

      . The section provides:
      (e) Penalty.—
      (1) Any person violating any of the provisions of this section [§ 3731 Driving under influence of alcohol or controlled substance] is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
      (ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

      . Appellee was not present at the resentencing hearing; his counsel was present but did not object to proceeding, although the trial court twice offered to arrange another time for the resentencing. N.T. 4/3/84, 2, 5. The court stated that ‘‘[w]e are not making a significant change in his sentence.” N.T. 4/3/84, 5. The record does not indicate that the court reiterated the necessity of filing a motion to modify sentence within 10 days. But see N.T. 3/5/84, 26. As appellant does not question the propriety of the resentencing hearing, we do not consider it.

      . The notice of appeal incorrectly refers to March 5, 1984, the date of the original sentence, but since the notice followed the modified sentence, we do not consider this inaccuracy important. See Pa.R. Crim.P. 1410 Note.

      . If we were to construe appellee’s arguments on these two points as going to the legality of his sentence, we should find them without merit. Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962 (1984), rejected the ex post facto argument. With regard to whether a conviction for driving under the influence of alcohol, as defined by the Act of June 17, 1976, P.L. 162, No. 81, § 1, is an “equivalent offense” to appellant’s current conviction, we find that it is. Appellant pleaded guilty to both 75 Pa.C.S. § 3731(a)(1) and (a)(4); the former repeats verbatim the definition contained in the 1976 Act. Cf. Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985) (equivalency of prior conviction not addressed, but sentence affirmed where prior offense driving under the influence of alcohol); Commonwealth v. Grady, supra (same).

      . Note 1, supra.

      . An identical work release provision had been proposed in 1982 but was not retained in the final version of the 1982 bill.


author: CIRILLO, Judge:

text:
    500 A.2d 816
    COMMONWEALTH of Pennsylvania, Appellant, v. Brian WALLACE.
    Superior Court of Pennsylvania.
    Argued May 21, 1985.
    Filed Sept. 27, 1985.
    Reargument Denied Dec. 5, 1985.

      Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Louis Lipschitz, Philadelphia, for appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County granting appellee relief under the Post Conviction Hearing Act (PCHA). On July 7, 1972, following a jury trial, appellee was convicted of first-degree murder, agravated robbery, conspiracy, and a weapons offense. Post-verdict motions were filed and denied, and appellee was sentenced on April 5, 1973 to life imprisonment for murder and to concurrent prison terms for the remaining offenses. No direct appeal was taken from that sentence. Subsequently, on December 27, 1977, appellee filed a PCHA petition, alleging deprivation of his right to appeal and ineffective assistance of trial counsel. The PCHA court rejected appellee’s ineffectiveness claims, but granted him leave to file post-trial motions nunc pro tunc to perfect his right to appeal. The motions were filed and the court granted appellee’s motion for a new trial. The Commonwealth then filed this appeal. We reverse.

The evidence adduced at trial indicated that at approximately 4:15 p.m. on August 10, 1971, Guido Zanni, the owner of a candy store, was shot and killed. At about 4:00 p.m. appellee had been seen in front of the store by a neighborhood youth. Appellee entered the store, came out with a soda and, with his accomplice, walked down the block to a grocery store.

A second neighborhood youth saw appellee and his accomplice in the area of the murder. Appellee was wearing a black cap, black shirt, and black trousers. Tucked into the trousers was a gun. As the appellee and his accomplice walked back toward the candy store, the accomplice told the youth, “See you when we get done.”

A few minutes later, at approximately 4:15 p.m., a telephone company employee was driving by the scene when he heard a shot and saw three black youths run from the store.

Later that afternoon, appellee and one of his accomplices went to a friend’s house. Appellee admitted to the friend that they had robbed and shot Mr. Zanni, and had thrown the gun across the railroad tracks to the north. The accomplice told the friend that they had obtained about twenty-five or thirty dollars in the robbery.

The first issue presented for our review is whether trial counsel was ineffective in failing to present alibi testimony. At the PCHA hearing, evidence was presented indicating that trial counsel had been provided with the names of two alibi witnesses: Ellen Mitchell, appellee’s grandmother, and Gregory Starks, appellee’s friend, who was allegedly with him at the time of the crime. The trial court, in awarding a new trial, found that trial counsel was ineffective for failing to investigate such evidence.

It is well settled that counsel is presumed to be effective and that the burden of proving to the contrary rests upon the defendant. Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980). It is also established that trial counsel’s failure to conduct a more thorough investigation or to interview all potential witnesses does not constitute per se ineffectiveness. Commonwealth v. Murray, 338 Pa.Super. 580, 488 A.2d 45 (1985).

Failure to call an alibi witness does not per se constitute ineffective assistance of counsel. Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973); Commonwealth v. Olivencia, 265 Pa.Super. 439, 402 A.2d 519 (1979). Ineffectiveness will not be found where there is a reasonable basis for counsel’s decision based on a matter of trial strategy. In addition, the failure to call a possible witness will not be equated with a finding of ineffectiveness absent a positive demonstration that the testimony would have been helpful to the defense. Commonwealth v. Stokes, 294 Pa.Super. 529, 440 A.2d 591 (1982).

Commonwealth v. Rivera, 309 Pa.Super. 33, 38, 454 A.2d 1067, 1070 (1982) (Opinion by Cirillo, J.).

Moreover, the failure to call potential witnesses will not be equated with a conclusion of ineffectiveness absent some positive demonstration that their testimpny would have been helpful to the defense. Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983); Commonwealth v. Leonard, 499 Pa. 357, 453 A.2d 587 (1982). Because the burden of proving counsel’s ineffectiveness rests on the party alleging it, appellee’s burden in this case was to prove that trial counsel failed to pursue a course of conduct that would have helped the defense. See, e.g., Commonwealth v. Bailey, 322 Pa.Super. 249, 469 A.2d 604 (1983). We find that appellee has failed to carry this burden.

The evidence which appellee presented at the PCHA hearing demonstrated that Starks could not provide a sufficient alibi. Appellee testified that he arrived home on the day in question, accompanied by Starks, between 3:30 and 3:35 p.m., but that Starks departed shortly thereafter. The testimony elicited by appellee’s grandmother at the hearing confirmed that Starks left before dinner, which she served promptly at 4:00 p.m. The murder of Mr. Zanni did not occur until 4:15 p.m., just several blocks from appellee’s home. Starks’s testimony, therefore, could not have rebutted the inference that arose from the testimony of the Commonwealth’s witnesses that appellant was in the vicinity of the crime between 4:00 and 4:15 p.m., and had participated in the killing of Mr. Zanni. In light of the inability of Starks to say unequivocally that appellee was with him at the precise time of the crime, trial counsel’s decision not to call him as an alibi witness must be deemed to have had a reasonable basis.

Notwithstanding his failure to present any evidence that Starks’s testimony would have aided his defense, appellee, citing Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976), and its progeny, maintains that counsel’s failure to investigate such evidence was in and of itself ineffective assistance. Appellee’s reliance on Mabie is misplaced.

This Court, in Commonwealth v. Barren, 273 Pa.Super. 492, 498-499, 417 A.2d 1156, 1159 (1979), stated that

[Mabie] should not be indiscriminately expanded to require defense counsel upon threat of being declared ineffective, to interview all conceivable witnesses irrespective of the nature or extent of their potential information. Trial counsel’s failure to interview potential witnesses will not be equated with ineffective assistance in the absence of a showing that his or her testimony would have advanced the fact finding process.

In view of appellee’s obvious failure to substantiate how he was prejudiced by counsel’s alleged shortcomings, Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984), we cannot deem counsel ineffective.

As to appellee’s grandmother, appellee is required to prove that trial counsel was aware of Mitchell’s alibi evidence. See Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). The PCHA court, after hearing testimony from Mitchell and appellee, explicitly discredited their assertions that they had made the grandmother’s alleged alibi evidence available to trial counsel. Instead, the court found that it was a belated attempt by the appellee and his grandmother to add substance to his petition. We are not prepared to contravene the credibility findings of the PCHA court. Consequently, trial counsel cannot be found ineffective for failing to present alleged exculpatory testimony of which he was unaware. Commonwealth v. Presbury, 329 Pa.Super. 179, 187, 478 A.2d 21, 25 (1984); Commonwealth v. Hollerbush, 298 Pa.Super. 397, 405-406, 444 A.2d 1235, 1239-1240 (1982); Commonwealth v. Williams, 274 Pa.Super. 464, 472, 418 A.2d 499, 503 (1980); Commonwealth v. Ross, 273 Pa.Super. 67, 71, 416 A.2d 1092, 1094 (1979).

Appellee contends that the PCHA court had no authority to judge the grandmother’s credibility, and that such a determination should have been properly left to a jury. This argument must be rejected. As a matter of law, resolving issues of credibility falls clearly within the province of a PCHA court. See Commonwealth v. Glover, 497 Pa. 433, 441 A.2d 1216 (1982); Commonwealth v. Stromberg, 440 Pa. 168, 269 A.2d 741 (1970). Hence, this argument need not be accorded further consideration.

The second issue before this Court is whether trial counsel was ineffective for failing to put appellee on the stand to testify on his own behalf. We recognize that the decision whether or not to testify rests solely with the defendant. Commonwealth v. Rawles, 501 Pa. 514, 523 n. 3, 462 A.2d 619, 624 n. 3 (1983). At trial, the following discussion took place concerning appellee’s right to testify in his own defense:

[TRIAL COUNSEL]:
Q. Bryant, have I discussed this matter with you? A. No.
Q. No, not what I am getting ready to ask you, but have we discussed whether or not you would take the witness stand and testify?
A. Yes.
Q. Now, are you satisfied with that?
A. Yes.
[TRIAL COUNSEL]: Will the Court?
THE COURT: Well, that is being taken down.
THE COURT:
Q. You are satisfied you are taking the lawyer’s advice and you don’t want to take the witness stand?
A. Yes.

We are satisfied from the above colloquy that appellee knowingly and voluntarily decided not to testify at trial. There is no evidence here that trial counsel exercised any undue influence over appellee’s decision not to take the stand. While it is conceded that trial counsel urged his considered professional opinion on his client, appellee was apparently satisfied with this advice until the jury rendered an adverse verdict. It was only then that appellee began to reconsider his earlier tactical choices with an eye toward assessing the blame on his attorney. See Commonwealth v. Thomas, 279 Pa.Super. 413, 421 A.2d 267.

Appellee argues that he did not understand the right he was waiving, especially in light of his age (15) and inexperience. We disagree. The colloquy clearly reveals that the decision was ultimately made by appellee after full consultation with counsel. Moreover, given the appellee’s extensive juvenile record, it can hardly be said that he was naive or unfamiliar with the criminal justice system.

The final issue raised on appeal is whether trial counsel was ineffective for failing to object to an error in the court’s jury instruction. Appellee condemns the following jury charge as a misstatement of the law: “... Therefore, a killing committed in the perpetration of or attempting to perpetrate a robbery is a killing with malice, which under the statute is murder of the first degree. It is immaterial whether the idea to rob is conceived if the assault caused the death. ” (Emphasis by appellee).

We concede that this statement is not an accurate reflection of the law. Appellee would have to be guilty of the underlying robbery to be convicted of felony-murder. However, we do not believe that any confusion or prejudice arose in the minds of the jurors as a result of this isolated statement. To the contrary, our review of the court’s rather lengthy jury charge in its entirety convinces us that the jury properly understood that appellee’s participation in the robbery was a prerequisite to his conviction for felony-murder. Appellate review of the charge of the court for prejudicial and reversible error requires that the charge be read as a whole; error will not be predicated upon an isolated excerpt. Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978); Commonwealth v. Larkins, 340 Pa. Super. 56, 489 A.2d 837 (1985); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984); Commonwealth v. Bailey, supra; Commonwealth v. Fields, 317 Pa.Super. 387, 464 A.2d 375 (1983). It is the general effect of the charge that controls. Commonwealth v. Larkins, supra; Commonwealth v. Kelly, 319 Pa.Super. 204, 465 A.2d 1301 (1983); Commonwealth v. Todaro, 301 Pa.Super. 1, 446 A.2d 1305 (1982); Commonwealth v. Jones, 300 Pa.Super. 338, 446 A.2d 644 (1982). We find that the charge, read as a whole, adequately conveyed the proper legal principles to the jury. Consequently, we hold that trial counsel was not ineffective for failing to object to this isolated passage.

In view of these foregoing reasons, as well as the ample record in this matter which we have thoroughly studied, we reverse the order of the court below, and reinstate the judgment of sentence.


text:
    500 A.2d 820
    COMMONWEALTH of Pennsylvania v. Walter UNDERWOOD, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 21, 1985.
    Filed Sept. 27, 1985.
    Reargument Denied Dec. 5, 1985.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   CIRILLO, Judge:

Walter Underwood was convicted by a jury in the Court of Common Pleas of Philadelphia County on charges of robbery, simple assault, and conspiracy. He was sentenced by the Honorable Angelo A. Guarino to three to seven years in prison, and here appeals the judgment of sentence.

The evidence shows that on August 22, 1983, Charles Blow was walking down 24th Street in Philadelphia when he came upon four men standing on the sidewalk talking amongst themselves. Hoping to avoid the men, Blow circled into the middle of the street. Underwood followed Blow into the street and positioned himself in front of Blow, impeding his progress and restraining him with his arm. Underwood asked Blow for money, to which Blow responded he had none. As Blow tried to move away, Underwood told him he “wasn’t going anywhere.” At that point someone struck Blow in the head from behind with a bottle, dazing the man, and someone rifled Blow’s pockets, retrieving keys and $3.85 in cash. Blow did not see who committed these latter acts. However, he testified that the four men he had first seen were the only people on the block, and that after the incident all four walked away together.

Underwood was arrested a short distance, away by Officer Goldsmith, who testified at trial as to the circumstances of the arrest:

I was patrolling in my car and as I got to the corner of 23rd and Bainbridge Street, there was a group of [about seven or eight] young adults there.... They were hollering as I rode by that a fellow running up Grays Ferry Avenue had just robbed somebody____ [T]hey were indi-eating that the fellow running up Grays Ferry Avenue ... had just robbed an older man.

Goldsmith immediately apprehended Underwood, who was alone and running “at a track-type pace” on Grays Ferry Avenue. Blow then came up and identified Underwood as one of the robbers.

Underwood’s defense at trial was that he had spent the day with his friends panhandling for money to buy wine, and that two men (not the aforementioned friends) had robbed Blow while Underwood was innocently asking him for money. Underwood said he left the scene with his friends when he feared he would be implicated in the robbery.

On appeal to this Court, Underwood asks for a new trial on two grounds: 1) the trial court’s admission into evidence of the out-of-court declarations made to Officer Goldsmith by the young adults; and 2) the court’s refusal to give a “missing witness” instruction to the jury based on the Commonwealth’s failure to produce the young adults at trial.

I

Underwood argues that the statements of the young adults, to the effect that the man running had just robbed somebody, were hearsay statements prejudicial to his “mere presence” theory of defense, and that the statements were not admissible under any recognized exception to the hearsay rule.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Commonwealth v. Cassidy, 315 Pa.Super. 429, 462 A.2d 270 (1983); Commonwealth v. Darden, 311 Pa.Super. 170, 457 A.2d 549 (1983). Hearsay is generally inadmissible as evidence because the competency and veracity of the original speaker are not subject to examination. Commonwealth v. Lewis, 314 Pa.Super. 298, 460 A.2d 1149 (1983); Commonwealth v. Perry, 279 Pa.Super. 32, 420 A.2d 729 (1979). Therefore, unless the statements made to Officer Goldsmith fall under some exception to the hearsay rule, they were not admissible as substantive evidence that Underwood had robbed a man. It does not appear that a proper foundation was laid to admit the statements as “excited utterances,” the only hearsay exception of arguable applicability to this case. See Commonwealth v. Galloway, 336 Pa.Super. 225, 485 A.2d 776 (1984) (it must appear hearsay declarant had opportunity to perceive event); Commonwealth v. Summers, 269 Pa.Super. 437, 410 A.2d 336 (1979) (foundation includes evidence of personal observation and showing that statement was spontaneous product of shock or injury); see generally Commonwealth v. Blackwell, 343 Pa.Super. 201, 494 A.2d 426 (1985). Therefore, these statements were not admissible for their truth. Cf. Summers.

However, evidence that would constitute inadmissible hearsay if offered for one purpose may be admitted for another purpose, subject to the duty of the trial court to give limiting instructions if requested. See Commonwealth v. Johnson, 457 Pa. 554, 327 A.2d 632 (1974). Here the honorable trial judge explicitly admitted the exclamations of the young adults not as proof that Underwood in fact had robbed a man, but as circumstantial evidence to explain why Goldsmith arrested Underwood. Underwood did not request cautionary instructions, nor did he interpose anything but general objections to Goldsmith’s testimony at trial. Where only a general objection is made to the admission of evidence, its admission is not error if the evidence is competent for any purpose. Woldow v. Dever, 374 Pa. 370, 97 A.2d 777 (1953). Of course, we can affirm a trial court if for any reason its admission of evidence was proper. Commonwealth v. Pettiford, 265 Pa.Super. 466, 402 A.2d 532 (1979).

“It is well settled that an out-of-court statement offered to explain a course of conduct is not hearsay. Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980); Commonwealth v. Ryan, 253 Pa.Super. 92, 384 A.2d 1243 (1978).” Lewis, supra, 314 Pa.Super. at 305-06, 460 A.2d at 1152. This Court has repeatedly upheld the introduction of out-of-court statements for the purpose of showing that based on information contained in the statements, the police followed a certain course of conduct that led to the defendant’s arrest. Commonwealth v. Matthews, 314 Pa.Super. 38, 460 A.2d 362 (1983) (out-of-court statement that contraband was in certain apartment and that Matthews had put it there); Commonwealth v. Stewart, 304 Pa.Super. 382, 450 A.2d 732 (1982) (contents of phone call to police from residence where victim’s body discovered; defendant found leaving premises); Commonwealth v. Ryan, supra (plurality opinion) (police radio calls referring to unrelated holdups); Commonwealth v. Smith, 250 Pa.Super. 436, 378 A.2d 1015 (1977) (allocatur refused), cert. denied, 439 U.S. 835 (1978) (declarant told officer he could place bets by calling defendant’s telephone number); Commonwealth v. Tselepis, 198 Pa.Super. 449, 181 A.2d 710 (1962) (allocatur denied) (informant tip that defendant was conducting a lottery); see also Commonwealth v. Sampson, 454 Pa. 215, 311 A.2d 624 (1973) (alleged co-conspirator’s denial of involvement offered to show why police did not arrest him); Lewis, supra (admission of out-of-court statement that set wheels in motion for defendant’s capture); State v. McIntosh, 635 S.W.2d 370 (Mo.Ct.App.1982) (phone call identifying defendant admitted to show course of conduct leading to her apprehension); see generally 6 J. Wigmore, Evidence §§ 1788-89 (Chadbourn rev.1976) (declarations as circumstantial evidence).

Professor McCormick succinctly summarized the theory upon which out-of-court statements are admitted to explain a course of police conduct:

In criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct. His testimony that he acted “upon information received,” or words to that effect, should be sufficient. Nevertheless, cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted. The need for the evidence is slight, the likelihood of misuse great.

C. McCormick, Evidence § 249, at 734 (Cleary 3rd ed. 1984) (footnotes omitted).

As Professor McCormick points out, there is a balance to be struck between the dangers of hearsay testimony and the need for circumstantial evidence to explain why the police acted as they did. In determining whether Judge Guarino properly struck that balance, we must not forget the general principles that govern an appellate court’s review of evidentiary decisions taken in the trial court: the admission and exclusion of evidence are matters committed to the sound discretion of the trial judge, whose decision will not be reversed unless it amounts to an abuse of discretion. Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984); Commonwealth v. Lumpkins, 324 Pa.Super. 8, 471 A.2d 96 (1984); Commonwealth v. Krajci, 283 Pa.Super. 488, 424 A.2d 914 (1981). Not all relevant evidence is admissible, and the trial court may exercise its discretion to exclude evidence that, though relevant, may confuse, mislead, or prejudice the jury. Commonwealth v. Perry, 307 Pa.Super. 327, 453 A.2d 608 (1982); accord, Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982) (plurality opinion); Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973); see generally McCormick, supra, § 185. As Judge Hester said in Commonwealth v. Shain, 324 Pa.Super. 456, 462, 471 A.2d 1246, 1248-49 (1984) (allo-catur denied), “An abuse of that discretion may be found if it appears that a trial judge admitted irrelevant evidence that was prejudicial to the accused or evidence the probative value of which was outweighed by its prejudicial impact or its tendency to suggest decision on an improper basis.” However, an abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, then discretion is abused. Commonwealth v. Miller, 303 Pa.Super. 504, 510 n. 4, 450 A.2d 40, 43 n. 4 (1982) (citing Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980); Man O’War Racing Association v. State Horse Racing Commission, 433 Pa. 432, 250 A.2d 172 (1969)).

Under this standard, we are unable to find that the learned trial judge abused his discretion. The statements of the youths were necessary for a proper understanding of why Officer Goldsmith stopped Underwood, who according to his own testimony was a mere innocent beggar uninvolved with the crimes against Blow. As Judge Guarino commented at the post-verdict motions hearing, it would have seemed an “irrational act” for the officer to have detained this poor beggar without evidence that someone had pointed him out. Perhaps Judge Guarino could have restricted Officer Goldsmith to testifying that he arrested Underwood “on information received”; however, as a practical matter it is highly doubtful that such a tactic could have saved the defendant from the unfavorable inference that some third party tipped the officer, especially since it had already been established through Blow’s testimony that Blow did not identify Underwood to the police until after the arrest. See also Commonwealth v. Farris, 251 Pa.Super. 277, 380 A.2d 486 (1977) (disparaging effectiveness of formulation “as a result of information received ...”).

In weighing the prejudice to the defendant against the need for the challenged evidence, we may also properly consider that Underwood never moved to mitigate the prejudicial impact of the out-of-court statements by requesting an instruction that they not be considered as evidence of guilt. See Commonwealth v. Bryant, 316 Pa.Super. 46, 462 A.2d 785 (1983); see also State v. Ford, 322 N.W.2d 611 (Minn.1982) (defendant’s failure to raise inadequacy of cautionary instruction at trial where police testified to contents of tip identifying defendant).

Finally, it would be hypocritical of us to cite Judge Guarino for “overriding” or “misapplying” the law, when in making his ruling he was entitled to rely on our own decisions in Matthews, Stewart, Smith, and Tselepis, supra; in each of these cases we held that an out-of-court statement was admissible to convey to the jury the circumstances surrounding the defendant’s arrest, despite the potential prejudice inherent in the statement’s direct or implicit identification of the defendant with the crimes on trial.

We find no abuse of discretion in the trial judge’s admission of evidence.

II

Appellant also finds error in the judge’s refusal to grant a missing witness charge with regard to the Commonwealth’s failure to produce the young adults.

The missing witness inference rule was articulated by the Supreme Court in Commonwealth v. Jones, 455 Pa. 488, 317 A.2d 233 (1974), as follows:

“ ‘When a potential witness is available to only one of the parties to a trial, and it appears this witness has special information material to the issue, and this person’s testimony would not be merely cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference it would have been unfavorable.’ ” (citations omitted).

Id., 455 Pa. at 495, 317 A.2d at 237, quoting Commonwealth v. Moore, 453 Pa. 302, 305, 309 A.2d 569, 570 (1973).

Commonwealth v. Carey, 313 Pa.Super. 20, 32-33, 459 A.2d 389, 395 (1983).

We find nothing in the present record to indicate that the young adults were available to the Commonwealth as witnesses, or that the Commonwealth was even aware of their identities or whereabouts. The evidence showed merely that seven or eight unidentified youths shouted to Officer Goldsmith as he drove by that the man running down the street had robbed somebody. Officer Goldsmith chased and apprehended the defendant, and shortly thereafter the victim arrived on the scene to identify him. There is no reason to assume that the Commonwealth’s officers later interviewed the youths, nor is there anything to rebut the reasonable expectation that the youths would have long since departed had the Commonwealth tried to look for them. Cf., e.g., Commonwealth v. Wright, 444 Pa. 536, 282 A.2d 323 (1971) (named alibi witnesses who knew the defendant personally).

Appellant contends that under Commonwealth v. Matt, 295 Pa.Super. 293, 441 A.2d 1239 (1982), the burden was on the Commonwealth to produce evidence that the witnesses were not available to it. Matt does not support such a holding. Matt was decided under the rubric ineffectiveness of counsel, and held that counsel was ineffective for failing to explain the absence of a witness where the trial court gave a missing witness charge against the defendant. Obviously Matt has little relevance to the present situation.

Since there is no evidence the witnesses were within the Commonwealth’s control, we need not address the other factors bearing on the propriety of a missing witness charge. See and compare Commonwealth v. Owens, 315 Pa.Super. 400, 462 A.2d 255 (1983).

Affirmed.

CAVANAUGH, J., concurs in the result.


text:
    500 A.2d 825
    COMMONWEALTH of Pennsylvania v. Alonzo POLK, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 23, 1985.
    Filed Oct. 4, 1985.
    Reargument Denied Dec. 5, 1985.

      William P. James, Philadelphia, for appellant.
    Ann A. Nevel, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence imposed on a conviction for rape. We affirm in part and remand in part.

The facts as accepted by the trial court indicate the following: on June 17, 1982, the victim, Lynise Parker, left her apartment to take her first walk outside after undergoing a biopsy and hysterectomy a week and one-half earlier. She still had sutures, both external and inside her vagina. The victim was walking with her thirteen year old daughter in the vicinity of her apartment, when she encountered appellant, Alonzo Polk, whom she had known for thirteen years “like a brother”. The victim was angry with Polk because she believed that he had entered her apartment without her permission while she was in the hospital. Polk and the victim began to argue. Polk pushed the victim’s daughter and, after a scuffle between them, the victim threw a bottle at him. Polk ducked out of the way of the bottle and pushed the victim with both hands, whereupon the victim fainted. Polk and a neighbor then carried the victim to her second floor apartment. When she revived, she was lying on her back on her bed. The neighbor was gone and Polk was sitting on her bed holding her face in his hands. The victim was having difficulty breathing. Polk got on top of the victim, pulled up her slip, pulled down her underpants, pulled down his zipper, exposed his penis, and inserted it slightly into her vagina. Polk caused the victim such pain that she screamed and threw herself and him onto the floor. Shortly thereafter, while the victim was still on the floor, hysterical and crying, and trying to crawl away from Polk, her son, Thurmon Parker, entered the apartment through the second floor window because the front door had been locked. Thurmon Parker then admitted the paramedics and police who were awaiting entry outside the front door. Officer William Borbridge entered the room and noted that the victim was lying on the floor, hysterical, with her slip pulled up around her waist and her underpants pulled down. He also noted that it was appellant’s presence in the room that was causing her hysteria. She was attempting to crawl away from Polk even though the police and rescue personnel were present. After the victim told Officer Borbridge what happened, the officer arrested Polk.

Following a bench trial, appellant was found guilty on charges of rape, simple assault, recklessly endangering another person, indecent assault and indecent exposure. Post-verdict motions were argued and denied. Polk was subsequently sentenced to a term of incarceration of not less than two and one half nor more than ten years on the rape conviction. Sentence was suspended as to the remaining charges. No motion to modify or reconsider sentence was filed. This timely appeal followed, filed by appellant pro se. Present counsel was appointed to represent Polk on appeal. We note that Polk was represented by different counsel at trial and post-trial stages.

Appellant contends initially that the testimony presented by the Commonwealth is against the weight of the evidence and that a new trial should be granted. While the appellant concedes that the evidence is facially sufficient to sustain the conviction, he contends nevertheless that the testimony presented by the Commonwealth was inherently unreliable.

The standard of appellate review where it is alleged that a verdict is contrary to the weight of the evidence is clearly set out in Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984):

Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion. (Citations omitted). The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.

Although appellant acknowledges that it is the province of the trier of fact to pass upon the credibility of the witnesses and the weight to be accorded the evidence produced, Commonwealth v. Sudler, 496 Pa. 295, 436 A.2d 1376 (1981); Commonwealth v. Robinson, 494 Pa. 372, 431 A.2d 901 (1981); Commonwealth v. Hayes, 314 Pa.Super. 1121, 460 A.2d 791 (1983), he nevertheless argues that the findings of the trial judge should be rejected as based solely on conjecture. We find appellant’s contention meritless.

The appellant attacks the Commonwealth’s case on several grounds: 1) internal inconsistencies in the victim’s testimony, 2) inconsistencies between the victim’s testimony and other evidence, and 3) certain miscellaneous gaps in the evidence which would require that the verdict be rejected.

To begin with, the appellant points to the fact that the victim told the police at first that he had tried to rape her, but the next day she told the police that he had actually penetrated her. The victim also told her physician several days later that she had been raped. Polk claims that this inconsistency in the victim’s testimony affects her credibility as a witness. However, the victim offered as a credible explanation for these inconsistencies her lack of understanding of the legal definition of “rape.” She explained that it was not until she spoke with her boyfriend after the assault that she understood that even slight penetration may constitute rape and that the rapist need not have ejaculated. See 18 Pa.C.S. §§ 3101, 3121.

We find that this inconsistency in the victim’s testimony is not such that would justify our setting aside the verdict as a matter of law. Cf. Smith, supra (although witness’s various statements contained contradictions and some inconsistencies, testimony was not so unreliable as to justify finding that the verdict based upon it must as a matter of law be set aside, where witness offered as explanation for contradictions and inconsistencies her alleged fear of defendant). Accordingly, the trial court was justified in finding the victim’s explanation credible.

Next, the appellant points to the fact that there are inconsistencies between the victim’s testimony and that of Officer Borbridge. The victim testified: “He laid on me. And when he went to put it in, the pain, you know, I just threw myself on the floor and I threw him — he went along with me.” Officer Borbridge, on .the other hand, testified that the victim was on the floor suffering from a convulsion: “I observed a negro female lying on the floor curled up ... and she was very hysterical. She seemed to be in convulsions. She had thrown up and was babbling incoherently.” Even assuming that Officer Borbridge’s claim may have been medically correct, since he was not present in the room at the time the victim fell to the floor his testimony certainly does not render the victim’s explanation for having been there incredible. Additionally, Officer Borbridge’s theory contradicts Polk’s own testimony at trial in which he claimed that the victim had “fainted” on the floor.

Another inconsistency that appellant points to is the discrepancy between the victim’s account of the disagreement concerning Polk’s stay in her house while she was in the hospital with the stipulation admitted into evidence. The parties agreed that, if called as a witness, the victim’s boyfriend would testify that he asked the victim if she would permit Polk to stay in her house. As Polk did not offer to prove that she agreed to the request, her testimony that she fought with Polk on learning that he was in her home without her permission is uncontradicted.

Finally, appellant alleges certain gaps in the evidence which require that the verdict be rejected. First, he claims that there was no evidence to corroborate the victim’s testimony. However, Officer Borbridge’s testimony does corroborate the victim’s testimony as to the portion of the incident that he observed. Moreover, Officer Borbridge testified that he found the victim with her panties pulled down around her knees and her dress and slip pulled up. This testimony provides circumstantial evidence that appellant raped her. Second, the appellant points to the absence of physical evidence of rape or of force or violence. However, because the victim initially referred to her attack as attempted rape, the hospital and police did not pursue the investigatory steps they would ordinarily have taken with a rape victim. Further, as the victim was recovering from a major operation and had fainted just prior to the incident, it is unlikely that the appellant would have had to use force to overcome her. See Commonwealth v. Williams, 294 Pa. Super. 93, 439 A.2d 765 (1982) (force necessary to support a rape conviction need only be such as to establish a lack of consent; it is relative depending upon the particular circumstances). Third, the appellant claims that the victim’s son, Thurmon, seemed unconcerned by what he witnessed when he entered the house. This claim is unfounded as there is nothing in the record to suggest that Thurmon was unconcerned. On the contrary, the fact that it was Thurmon who called the police and climbed through a second floor window to unlock the door justifies the conclusion that he was indeed concerned.

We are not persuaded by the appellant’s argument that the verdict was against the weight of the evidence, nor are we persuaded to reject the findings of the trial judge. We find, to the contrary, that the trial judge exercised sound discretion in determining the credibility of the witnesses and the weight accorded the evidence produced at trial. Insofar as the verdict was based on reason and not conjecture, we find no ground for granting appellant’s motion for a new trial.

Appellant contends next that he was deprived of effective assistance of counsel in that trial counsel failed to interview or present the testimony of known and available witnesses who could have been beneficial to his defense. In examining a claim of ineffectiveness of counsel, the court must first determine whether the underlying claim of ineffectiveness is of arguable merit. The court must then proceed to ascertain whether the strategy chosen by counsel had a reasonable basis designed to effectuate the interests of his client. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Torres, 329 Pa.Super. 58, 477 A.2d 1350 (1984); Commonwealth v. Luther, 317 Pa.Super. 41, 463 A.2d 1073 (1983).

The trial court aptly reiterated the standard of Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):

We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.

(Emphasis in original). When viewed under the above standard the facts in the case at bar reveal that appellant’s underlying claim of ineffectiveness is devoid of merit.

In seeking to establish that counsel was ineffective for failing to call or investigate witnesses, appellant must show (1) the identity of the witnesses, (2) that counsel knew of the existence of the witnesses, (3) the material evidence that the witnesses would have provided, and (4) the manner in which the witnesses would have been helpful to his cause. Commonwealth v. Torres, supra, 329 Pa.Super. at 68, 477 A.2d at 1355. In the present case the appellant claims that counsel should have interviewed the victim’s children and her boyfriend. However, he has not shown how the witnesses he claims should have been interviewed would have been helpful to his defense. Moreover, Polk has made no offer of proof as to the substance of the information which the victim’s children would have provided. See Commonwealth v. Pettus, 482 Pa. 558, 424 A.2d 1332 (1981).

Polk argues that counsel was ineffective for failing to interview the victim’s son Thurmon who could have testified as to what he saw and heard when he entered the room, his mother’s medical condition at that time, and the demeanor of the appellant. However, the Commonwealth properly asserts that Thurmon’s testimony would have contained statements corroborating the victim’s version of the incident, rather than the appellant’s. Further, as the victim’s son he would have been neither cooperative nor helpful. See Commonwealth v. Warner, 277 Pa.Super. 598, 419 A.2d 1312 (1980). Indeed, Thurmon Parker’s testimony could only have damaged the appellant’s case as his statement to the police included the fact that Polk did not let go of his mother until Thurmon “got into the act” and the fact that his mother told him that Polk tried to put “his thing into her.”

Based on the foregoing, the trial court logically concluded that the testimony of the victim’s son would have been fruitless. Counsel will not be deemed ineffective for failing to assert a defense that would not have been beneficial or for failing to interview witnesses whose testimony would not have been helpful. Commonwealth v. McNeil, 506 Pa. supra at 619-20, 487 A.2d at 808; Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983); Commonwealth v. Leonard, 499 Pa. 357, 453 A.2d 587 (1982); Commonwealth v. Torres, supra.

Polk also claims on appeal that counsel was ineffective for failing to interview the victim’s other children. However, these witnesses were not named in the post-verdict or supplemental post-verdict motions for a new trial. Thus, appellant’s claim is waived with respect to these witnesses. Commonwealth v. Anderson, supra.

The appellant argues additionally that post-trial motion counsel was ineffective for failing to assert the ineffectiveness of trial counsel for not interviewing or presenting the testimony of the victim’s son. However, counsel cannot be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Bonacurso, 500 Pa. 247, 455 A.2d 1175, cert. denied 462 U.S. 1120, 103 S.Ct. 3090, 77 L.Ed.2d 1350 (1983). Appellant also argues that new counsel who filed supplemental post-trial motions was ineffective for failing to allege that trial counsel had not interviewed or presented the testimony of the victim’s boyfriend and of her children other than Thurmon. In addition, the appellant contends that new counsel failed to conduct a proper evidentiary hearing on his ineffectiveness claims. We find this contention to be without merit as well. There is no indication in this case that a more intensive investigation than was conducted would have developed more than was already known. Therefore, supplemental post-trial counsel’s assistance to the appellant cannot be viewed as ineffective.

The appellant relies on several cases to support his ineffectiveness claim; however that reliance is misplaced. In Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976), the appellant was convicted of murder in the second degree. His ineffectiveness claim was based on counsel’s failure to investigate a potentially meritorious defense as well as counsel’s failure to interview eyewitnesses whose testimony could have proved beneficial and exculpatory. Similarly, in Commonwealth v. Abney, 465 Pa. 304, 350 A.2d 407 (1976), on which appellant also relies, counsel rejected an opportunity to interview and present the testimony of eyewitnesses to a homicide where counsel was aware that their testimony would have exculpated his client. That is simply not the case here. To begin with, it was evident to counsel that the testimony of the victim’s son Thurmon would have contradicted the appellant’s defense. Additionally, Thurmon was not an eyewitness to the actual rape; therefore his testimony could not have proved exculpatory. Commonwealth v. Jones, 496 Pa. 448, 437 A.2d 958 (1981) (trial counsel’s decision not to interview an available eyewitness to incident did not amount to ineffective representation of counsel, particularly where case turned primarily on question of credibility of defendant and undercover policeman) is also distinguishable from the instant case since the police officer in Jones was an eyewitness to the crime, whereas here the victim’s son was not. Further, in Jones, at the evidentiary hearing the informant offered exculpatory testimony which corroborated the defendant’s trial testimony. In contrast, the record of Thurmon’s police interview establishes that his testimony would not have corroborated Polk’s version of the incident.

For the reasons stated above, counsel’s actions with regard to interviewing and presenting the testimony of witnesses were based on reason and, therefore, must be deemed effective.

Appellant contends finally that the sentencing court failed to state adequate reasons for the sentence imposed as required by Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). He alleges that the court’s rationale was based on a misconception of the facts of the case. Polk also contends that he was denied his right of allocution at sentencing as provided for by Pa.R.Crim.P. 1405(a), which provides that at the time of sentencing, the judge shall afford the defendant the opportunity to make a statement on his own behalf.

The Commonwealth, on the other hand, asserts that these sentencing issues are to be considered waived due to appellant’s failure to timely file a motion for reconsideration under Pa.R.Crim.P. 1410. See Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984); Commonwealth v. Duden, 326 Pa.Super. 73, 473 A.2d 614 (1984). However, Polk has attempted to circumvent the doctrine of waiver by claiming that trial counsel was ineffective for failing to insist that he be afforded his right of allocution, for failing to correct the court’s misimpression of the facts of the case, and for failing to file a motion for reconsideration of the sentence in order to preserve these issues for appellate review. We need not address each aspect of appellant’s ineffectiveness claim as we find that trial counsel’s failure to ensure that Polk was afforded an opportunity to speak on his own behalf at sentencing constituted ineffective assistance of counsel.

Our recent decision in Commonwealth v. Brown, 342 Pa.Super. 249, 492 A.2d 745 (1985) (en banc) addressed the issue of a defendant’s right to allocution at sentencing. In Brown, the defendant pled guilty to robbery charges and was sentenced to imprisonment. In his second PCHA petition, Brown alleged ineffectiveness of counsel for failing to preserve or argue the claim that the sentencing judge did not invite him to exercise his allocution rights at sentencing. Brown held that where the record of the defendant’s sentencing hearing demonstrated that, although his counsel spoke, defendant was not asked if he had a statement to make to the court, the case would be remanded to permit defendant to exercise his right to allocution. See also Commonwealth v. Curry, 318 Pa.Super. 490, 465 A.2d 660 (1983).

It is to be noted, however, that despite the court en banc’s decision in Brown, it was argued that to state a valid claim for relief a petitioner must show that he had something to say at sentencing that likely would have had a favorable impact on the sentence imposed. Brown, supra 342 Pa. Super. at 262, 492 A.2d at 757 (Cirillo, J., Opinion in Support of Affirmance, joined by Beck and Hester, JJ.). Accord Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984); Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984); Commonwealth v. Brown, 313 Pa.Super. 256, 459 A.2d 837 (1983) (en banc); Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984). This line of reasoning adheres to the Court’s statement of the law pronounced in Commonwealth v. Barton, 312 Pa.Super. 176, 182-83, 458 A.2d 571, 574-75 (1983):

A bare denial of the right to allocution, without evidence that appellant had something to say, will not require the vacation of an otherwise proper sentence. That which he wished to say, moreover, must be such as would likely have influenced the sentence imposed. To require a vacating of the sentence and a subsequent re-sentencing, appellant will have to show that the sentencing judge was either misinformed or uninformed regarding one or more relevant circumstances. The sentence need not be vacated in order to provide appellant an opportunity to speak if he has nothing significant to say. Commonwealth v. Rivera, 309 Pa.Super. 33, 39, 454 A.2d 1067, 1070 (1982).
The right to allocution is neither constitutional nor jurisdictional. The failure to ask a defendant if he has anything to say before sentence is imposed is not a fundamental defect inconsistent with rudimentary requirements of due process or an error inherently resulting in a miscarriage of justice. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417, 421 (1962). Thus, as the Supreme Court held in Hill, collateral relief is not available when a petitioner shows merely a formal failure to comply with a rule requiring the court to invite a defendant to speak before sentence is imposed.

The PCHA lends additional support to the contention that petitioner must set forth facts in support of his claim for relief. See 42 Pa.C.S. § 9545(b). Further, we have held repeatedly that our Court will not consider ineffectiveness claims in the abstract. Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 214 (1983); Brown, supra, 342 Pa.Super. at 262, 492 A.2d at 757; Floyd, supra, 506 Pa. at 91, 484 A.2d at 368.

In the instant case, the sentencing court failed to invite Polk to make a statement on his own behalf, even though counsel had an opportunity to speak. Nonetheless, the record reveals that it is unlikely that Polk, even given the opportunity, would have something to say that would influence the deliberations of the sentencing judge. Therefore, it would be pointless from a practical standpoint in this case to remand for allocution. However, notwithstanding the admittedly conflicting lines of authority, this Author reluctantly defers to the holding in Brown. Accordingly, the proper recourse is to vacate the sentence and remand so that appellant may exercise his right of allocution.

Conviction affirmed, sentence vacated, and case remanded for sentencing.


author:
      BROSKY, Judge: BECK, Judge,
      SPAETH, President Judge,

text:
    500 A.2d 832
    COMMONWEALTH of Pennsylvania, Appellant, v. Darlene Alice MEHMETI.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1984.
    Filed Oct. 11, 1985.
    Reargument Denied Dec. 5, 1985.

      David Christine, Assistant District Attorney, Strouds-burg, for Com., appellant.
    Marc R. Wolfe, Stroudsburg, for appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, CIRILLO, BECK, POPOVICH and HESTER, JJ.
   BROSKY, Judge:

This appeal is from the pre-trial suppression of certain statements. Appellant, the Commonwealth, contends that the fact that the witnesses were put under hypnosis should not render inadmissible their pre-hypnotic statements. We agree and, subject to the strictures hereinafter detailed, reverse the suppression and remand for trial.

An auxiliary issue is the method to be applied by the courts in determining whether a suppression order substantially handicaps or terminates the prosecution and is, therefore, interlocutorily appealable. See Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983). The Pennsylvania Supreme Court has, since Lapia, made suppression orders appealable on the bare allegation of the District Attorney that the prosecution is substantially handicapped. Thus, that auxiliary issue is no longer before us.

Having established that the instant suppression order is appealable, the next question is whether the testimony of the hypnotized witnesses was properly suppressed.

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The facts and procedural history of this case are as follows:

On September 22, 1981, appellee, Darlene Alice Mehmeti, was bound for court on charges of Criminal Homicide, Crimes Committed With Firearms,Aggravated Assault and Recklessly Endangering Another Person. Pursuant to appellee’s supplemental omnibus pre-trial motion to suppress, inter alia, the complete testimony of four prosecution witnesses whose memories were hypnotically-refreshed, the Court of Common Pleas of Monroe County conducted a pre-trial hearing on December 21, 1981. Following the testimony of two investigating officers and the hypnotist, the lower court, in two separate Orders of Court, dated January 26, 1982 and February 4, 1982, deemed the complete testimony of prosecution witnesses, Rosemary Kessler, Scott James Kessler, Linda Landis, and Stephen J. Landis, inadmissible for trial due to their earlier submission to hypnosis. Appellant/Commonwealth filed this appeal from the aforementioned Orders.

The relevant facts surfaced at the preliminary hearing conducted on September 22, 1981. Stephen J. Landis and his wife, Linda, of Telford, Pennsylvania, were driving northerly on Route 209 on August 6, 1981. As they passed Dutchman’s Gas Station in East Stroudsburg, Monroe County, between 9:00 p.m. and 10:00 p.m., Mr. Landis heard three firecracker-type disturbances originating at the gas station pumps; Landis turned his head quickly to the pumps and observed the attendant fall to the ground. He identified no one; however, he detected a “mid-60’s”, dull-blue Chevrolet Impala parked parallel to both the pumps and highway. Mrs. Landis observed nothing.

Suspecting the mere romp of adolescents, Mr. and Mrs. Landis continued their journey to Dingman’s Falls. The next morning, they first learned of the death of George Coco, the Dutchman’s gas station attendant.

Prosecution witness, Scott James Kessler, and his wife, Rosemary, resided in East Stroudsburg, some 200 yards from Dutchman’s Gas Station, at the time of George Coco’s death. At approximately 9:40 p.m. on August 6, 1981, Mr. and Mrs. Kessler purchased gasoline at Dutchman’s, chatted briefly with the victim and drove home. A few minutes after arriving home, while lifting barbells on his front porch, Mr. Kessler heard several, firecracker-type sounds emanating from Dutchman’s. From a better vantage point at his bedroom window, Kessler perceived a cloud of white smoke hovering above and between the two gas pump islands. He also observed a white Ford pick-up truck driving southbound on Route 209. Although he immediately called the gas station and received no answer, Kessler was not alarmed; he suspected that the victim was playing with firecrackers and was away from the phone while servicing customers. A few moments later, however, he observed the flashing lights of police vehicles and proceeded quickly to the station. Upon arriving at the station a few minutes before 10:00 p.m., Kessler learned that Coco was the victim of multiple gunshot wounds. Following a pathological examination, gunshot wounds to the right hand, neck and back were recorded, and manner of death was labeled homicide.

Officer Thomas Mastrusso, of the Pennsylvania State Police, interviewed the Landises and Kesslers and acquired the information hitherto discussed. These interviews were recorded neither mechanically nor electronically; Officer Mastrusso simply took handwritten notes. In an attempt to freshen their memories and thereby produce additional evidence, investigating officials persuaded the four witnesses to submit to a hypnotic interview.

Hypnotist David Miller, assisted by Officer Mastrusso, hypnotically interviewed Mr. and Mrs. Kessler on August 19, 1981. David Miller, a designer with Patterson-Kelley Company and mayor of East Stroudsburg, was neither a psychiatrist nor psychologist; he simply received informal hypnotic training from Dr. Bernard Gorton, a Philadelphia neurologist. Mr. Miller had placed 30,000 people under hypnosis prior to this incident.

Prior to the session, Officer Mastrusso gave Mr. Miller a synopsis of the Coco slaying and the hypnotic subjects’ earlier statements. Once again, only the Officer’s handwritten notes were taken of the Kesslers’ statements under hypnosis. Mr. and Mrs. Kessler did not add to, delete or revise any portion of their pre-hypnotic statements during the hypnotic session with Miller. In fact, there was some indication that attempts to hypnotize Mr. Kessler were unsuccessful.

On August 21, 1981, Mr. and Mrs. Landis were hypnotized by Mr. Miller under the identical conditions provided at the Kesslers’ interview. Mrs. Landis did not change or expand her earlier statement; Mr. Landis, however, altered his pre-hypnotic statement to the nominal extent of adding his observance of a bar behind the taillight lens of the blue Chevrolet Impala.

In Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304, 1306 (1984), the Pennsylvania Supreme Court ruled on the admissibility of testimony. “Hence, again, we hold that testimony adduced by hypnotism is inadmissible.”

In the instant case, the testimony of Stephen Landis with regard to the identification of the vehicle — specifically that there was a bar running behind the taillight lens of the vehicle which he had earlier described — is not admissible. It was adduced by hypnosis.

However, the test enunciated by the Supreme Court of Pennsylvania does not invalidate the admission into evidence of all testimony derived from a witness who has undergone hypnosis. The testimony which was not hypnotically adduced is admissible at trial, but under the following guidelines outlined in Smoyer, 505 Pa. at 89-90, 476 A.2d at 1308: “[W]henever a person previously hypnotized is offered as a witness, the offering party must so advise the court and show that the testimony to be presented was established and existed previous to any hypnotic process; that the person conducting the hypnotic session must be trained in the process and is neutral of any connection with the issue or the parties; and, the trial judge shall instruct the jury that the testimony of a witness previously hypnotized should be carefully scrutinized and received with caution.”

In the instant case, the only guideline that posed any threat to the admission of the testimony of Scott and Rosemary Kessler and Linda Landis, and to the portion of Stephen Landis’ testimony that did not deal with the bar running behind the taillight lens, is the guideline which requires that the hypnotist be neutral of any connection with the issues or parties. However, after careful review of the facts in this case, it is clear that David Miller was neutral as required. The only connection he had with the parties occurred when Officer Mastrusso gave Miller a synopsis of the Coco slaying and the hypnotic subjects’ earlier statements. This minimal connection is necessary in order to give the hypnotist a basis for his hypnotic session. It does not serve to make the testimony inadmissible.

Orders reversed in part. They are affirmed only to the extent of prohibiting Stephen Landis from testifying concerning the bar behind the taillight lens.

BECK, J., files a concurring opinion.

SPAETH, President Judge, files a concurring and dissenting opinion.

BECK, Judge,

concurring:

Except for the ultimate question as to whether the pre-hypnosis recollections had been preserved, both Judge Bro-sky and President Judge Spaeth present similar analyses of the issues. Both would conclude that hypnotically-induced testimony is inadmissable. Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984). Both would conclude, Judge Brosky by implication, that witnesses who were hypnotized are not competent to testify as to their pre-hypnotic recollection except where the pre-hypnotic recollection had been properly preserved. Commonwealth v. McCabe, 303 Pa.Super. 245, 449 A.2d 670 (1982). I agree with Judge Brosky’s analysis that the prehypnotic recollection has been properly preserved. Accordingly I concur.

SPAETH, President Judge,

concurring and dissenting:

I believe we should affirm on the basis of the able opinions of the trial court. I add these further comments only because, subsequent to the filing of the trial court opinions, the Supreme Court has again addressed the issue of the admissibility of hypnotically refreshed testimony. See Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984). I disagree with the majority’s conclusion that Smoyer requires that we reach a different result than that of the trial court.

The trial court concluded, on the basis of the Supreme Court’s opinion in Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), that the testimony of all four witnesses who had been hypnotized should be excluded. It reached this conclusion after a three part analysis. It first asked whether the testimony that was hypnotically-adduced, that is, wholly the result of hypnosis, was admissible. It next asked whether the witnesses who had been hypnotized were competent to testify as to their pre-hypno-sis recollections. It finally asked whether these pre-hypno-sis recollections had been preserved in a sufficiently reliable way to render them independently admissible. Slip op. of tr. ct. at 4-5.

In answer to its first question, the trial court held that hypnotically-adduced testimony is inadmissible. The majority affirms this holding, and as to this point, I join the majority. See Commonwealth v. Smoyer, supra; Commonwealth v. Nazarovitch, supra; Majority at 282-284; Slip op. of tr. ct. at 6.

In answer to its second question, the trial court concluded, after a thorough analysis of the reasoning in Commonwealth v. Nazarovitch, supra, and the authorities cited therein, that the four witnesses were not competent to testify as to their pre-hypnotic recollections. In Nazaro-vitch, the Supreme Court addressed the threshhold issue of whether hypnotically-refreshed testimony was competent. It applied the test announced in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), for determining whether evidence adduced by a particular scientific method is sufficiently reliable to be competent, i.e., it asked whether “the thing from which the deduction is made [is] ... sufficiently established to have gained general acceptance in the particular field in which it belongs.” Id. at 1014, cited in Commonwealth v. Nazarovitch, supra, 496 Pa. at 101, 436 A.2d at 172 (emphasis omitted). In applying this test, the Supreme Court expressed its concern with the conclusion of medical experts, summarized by the New Jersey Supreme Court in State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981), that previously hypnotized witnesses have difficulty in distinguishing between pre- and post-hypnotic recollection:

“[a] subject often will incorporate into his response his notion of what is expected of him.... Because of the unpredictability of what will influence a subject, it is difficult even for an expert examining a videotape of a hypnotic session to identify possible cues.
“Perhaps [the] most troubling phenomenon is the tendency to confound memories evoked under hypnosis with prior recall.
“Typically, a subject is told he will remember what he has recalled under hypnosis after he awakes from the trance. In response to this post-hypnotic suggestion, most subjects will indiscriminately mix their hypnotic recall with their waking memory. Many experts believe that the subject is then unable to evaluate critically the resulting memory to determine what he himself believes is the accurate version... Furthermore he will have a strong subjective confidence in the validity of his new recall, which will make it difficult for an expert or a jury to judge the credibility of his memory. [ (citations and footnotes omitted)]”
Id. at 539, 432 A.2d at 93.
Cited in Commonwealth v. Nazarovitch, supra, 496 Pa. at 107-08, 436 A.2d at 176.

On the basis of such considerations, the Supreme Court concluded that “we do not believe that the process of refreshing recollection by hypnosis has gained sufficient acceptance in its field” to meet the Frye test of reliability, and it held: “While we do not want to establish a per se rule of inadmissibility at this time, we will not permit the introduction of hypnotically-refreshed testimony until we are presented with more conclusive proof than has been offered to date of the reliability” of hypnosis. Id., 496 Pa. at 110-11, 436 A.2d at 177, 178. The trial court relied on this analysis to conclude that here, “[s]ince the Court, the defense and jury cannot discern whether the witness is relating a historically accurate account of events free from the taint of hypnotic suggestion, the more reasoned approach requires that all witnesses who underwent hypnosis as an aid to [the] criminal investigation shall be incompetent to testify at trial regarding the criminal episode.” Slip op. of tr. ct. at 8-9.

The question we must decide is whether Commonwealth v. Smoyer, supra, requires that we disturb this conclusion. I do not believe it does. In Smoyer, the Supreme Court was required to decide whether hypnotically-adduced testimony had been improperly admitted at trial. It concluded that it had been improperly admitted, and in doing so, strongly reaffirmed both the holding in Nazarovitch and the policy concerns that underlay that holding:

In Commonwealth v. Nazarovitch, supra, Mr. Chief Justice O’Brien examined at length the scientific state of hypnotism and found it wanting as a source of admissible evidence. Whatever its value in other disciplines, it cannot be relied upon to produce evidence untainted by untraceable factors. It is of no moment that all evidence is ultimately delivered by fallible human agency. Such fallibility is a known quantity, understood and expected in ordinary human experience. It is at least only the fallibility of the witness and not the added dimension of another stirring his psyche, waking who knows what fanciful ghosts.
Hence, again we hold that testimony adduced by hypnotism is inadmissible as evidence. Therefore, the hypnotically adduced testimony herein was improperly admitted.
Id., 505 Pa. at 87, 476 A.2d at 1306.

Because the Court concluded that the admission of the testimony had not been harmless error, it remanded for a new trial. At that trial, it noted, the question of whether the witness was incompetent for all purposes was likely to arise. It held that in such a case there might be an exception to the presumption of incompetence, provided the Commonwealth could satisfy certain stringent conditions designed to obviate the concerns expressed in Nazarovitch. If the Commonwealth could prove that the session had been conducted by a trained hypnotist, thereby minimizing the danger of suggestiveness, and if it could “show that the testimony ... was established and existed previous to any hypnotic process,” then it would be within the discretion of the trial court to admit the testimony. Id., 505 Pa. at 90, 476 A.2d at 1308.

I cannot agree that this language requires us to reach a result different from that reached by the trial court. The trial court has determined that the Commonwealth cannot satisfy the requirements of Smoyer. The court has found as a fact, and the finding is supported by the record, see N.T. 12/21/81 at 12, 14, 20, that “[n]one of the statements of any of the four witnesses [who were subsequently hypnotized] were recorded or preserved verbatim except as a loose synopsis in the police notes [of the investigating officer.]”, slip op. of tr. ct. at 2, and that the Commonwealth “failed to employ even the most minimal safeguards to preserve the testimony of those witnesses for use at trial,” id. at 11. It therefore ruled that the prior statements of those witnesses, preserved only in the notes of the investigating officer, were inadmissible for use at trial. Slip op. of tr. ct. at 12. Compare Commonwealth v. Taylor, 294 Pa.Super. 171, 439 A.2d 805 (1982) (pre-hypnotic identification by victim of her assailants properly preserved where victim had made positive identification in pre-hypnotic photo arrays). Under Smoyer, the Commonwealth therefore has no competent evidence by means of which it may “show that the testimony ... was established and existed previous to any hypnotic process.” Commonwealth v. Smoyer, supra, 505 Pa. at 90, 476 A.2d at 1308.

I should accordingly affirm the order of the trial court.

      . In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), it was stated: "That we directed, in the clearest fashion, that the Superior Court is required to hear a Commonwealth appeal from a suppression hearing, and gave definitive reasons why, cannot be doubted.”

      . Crimes Code, Dec. 6, 1972, § 1, 18 C.P.S.A. § 2501.

      . Crimes Code, Dec. 6, 1972, § 1, 18 C.P.S.A. § 6103.

      . Crimes Code, Dec. 6, 1972, § 1, 18 C.P.S.A. § 2702.

      . Crimes Code, Dec. 6, 1972, § 1, 18 C.P.S.A. § 2705.

      . The Orders of January 26, 1982 and February 4, 1982 denied suppression of a 1966 blue Chevrolet and hand-written Bill of Sale. They further denied appellee’s motion to quash the complaint. They did, however, suppress an undated letter written by appellee to her husband. These portions of the Orders are not at issue here.

      . We think it advisable to emphasize that the defendant will be entitled, pursuant to Smoyer, to an instruction that the testimony of the previously hypnotized witnesses should be carefully scrutinized and received with caution.