Commonwealth v. Mitchell , 391 Pa. Super. 100 ( 1990 )

OLSZEWSKI, Judge:

Carlie Mitchell appeals nunc pro tunc from his conviction for murder in the first degree, arson, robbery, rape, criminal conspiracy, possessing an instrument of crime, and risking a catastrophe. He presents four arguments on appeal: (1) that the trial court improperly allowed impeachment by evidence of prior arrests without convictions; (2) that trial counsel was ineffective for failing to object to a charge on voluntariness of confessions; (3) that trial counsel was ineffective for failing to object to hearsay testimony; and (4) that trial counsel was ineffective for failing to object to the court’s response to a jury inquiry. We find no error; accordingly, we affirm.

First, appellant argues that the trial court erred in allowing impeachment using evidence of prior arrests not resulting in a conviction. During cross-examination of the defendant’s character witnesses, the prosecutor asked the witnesses if they knew of the appellant’s previous arrest record. Appellant’s trial counsel objected to the questioning, and the objection was overruled. At the time of trial, in June, 1981, this line of questioning was permissible; however, shortly thereafter, the rule was changed. See Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981). We must therefore decide whether the rule in Scott may be applied retroactively to this case.

In Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983), our Supreme Court held that the rule in Scott is applied retroactively “to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.” Id., 503 Pa. at 233, 469 A.2d at 148 (emphasis added). In the present case, trial counsel objected to the line of questioning, but did not preserve his objection through timely post-trial motions. See, e.g., Commonwealth v. Vernon, 324 Pa.Super. 395, 401, 471 A.2d 897, 900 (1984) (issues are preserved for appeal if raised at trial and in post-trial motions). For this reason, we cannot apply Scott retroactively to this case. Consequently, we affirm the decision of the trial court on this issue.¹

Next, appellant argues that his trial counsel was ineffective for failing to object to the court’s charge on confessions. Specifically, appellant claims that the trial court did not charge the jury that they should disregard the confession if they found it to be involuntary.

Appellant’s argument is nothing more than a game of semantics. The trial court instructed the jury that, before they could consider the confession as evidence, they must find that the confession was voluntary. The court then explained in great depth what a voluntary confession is. When reviewing a charge, this Court must only decide whether the area of the law is adequately, accurately, and clearly presented to the jury. Commonwealth v. Porter, 300 Pa.Super. 260, 446 A.2d 605 (1982). Instructions must be considered as a whole; error cannot be based on isolated portions. Commonwealth v. Kelly, 319 Pa.Super. 204, 465 A.2d 1301 (1983). Using this standard, the trial court’s charge was unquestionably adequate. Appellant’s trial counsel was not ineffective for failing to object to the instruction.

Appellant also argues that trial counsel was ineffective for failing to object to hearsay testimony. At trial, Dr. Robert Catherman, the medical examiner, testified as to the manner and cause of the victim’s death. Dr. Catherman’s testimony was based on autopsy reports prepared by Dr. Kenneth Carpenter, who was unavailable for trial because he had moved to Germany. We find that the testimony was properly admitted; accordingly, trial counsel was not ineffective for failing to object to it.

Experts may offer testimony based on the reports of others. Commonwealth v. Thomas, 444 Pa. 436, 443, 282 A.2d 693, 698 (1971). In homicide cases, pathologists may base their opinions on facts from autopsy reports prepared by others. Commonwealth v. Smith, 480 Pa. 524, 391 A.2d 1009 (1978). The present case is distinguishable from Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974), cited by appellant. In McCloud, the Commonwealth read substantial portions of the autopsy report, including opinions and conclusions, into the record. The Commonwealth relied on the business records exception to the hearsay rule. In the present case, Dr. Catherman did not read any of Dr. Carpenter’s opinions or conclusions. He read only the facts contained in the report,² and based his own opinion on those facts. Furthermore, in McCloud, the medical examiner who prepared the report was away temporarily attending a convention. The court emphasized the fact that the Commonwealth could have produced him. In the present case, the person who prepared the report moved out of the country, and was not available to testify.

Finally, appellant asserts that trial counsel was ineffective for failing to object to the trial court’s answer to a question from the jury. The jury asked the trial court why they were not permitted to hear testimony from appellant’s co-conspirator or the co-conspirator’s statement. The trial court explained that the statement was inadmissible, and that neither side had chosen to call the co-conspirator as a witness. The trial court instructed the jury not to speculate on the matter, and not to consider it in their deliberations.³ Appellant asserts that the trial court’s comments permitted the jurors to believe that the co-conspirator was not called because his testimony would have harmed appellant.

This argument is frivolous. The court’s response was no more damaging to appellant’s case than it was to the Commonwealth’s. Furthermore, the trial court specifically instructed the jury not to consider the matter in their deliberations. Accordingly, appellant’s trial counsel was not ineffective for failing to object to the trial court’s response.

Judgment of sentence affirmed.

CAVANAUGH, J., concurs in which CERCONE, J., joins.

1 . We note that trial counsel was not ineffective for failing to preserve this issue, because Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), and Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983), had not been decided and published at the time of the post-trial motions. Counsel is not ineffective for failing to predict a change in the law. Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983).

2 . The facts upon which Dr. Catherman based his report were merely • Dr. Carpenter’s observations of the nature and location of various injuries and results of various tests. Dr. Catherman drew his own conclusions as to the cause of these facts.

3 . The trial court’s comments follow:

Ladies and Gentlemen, the statement of Mr. Gale under the law and for reasons which I need not go into except that under the law the statement of Mr. Gale could not be read to you.

Now, your question also asks why we are not allowed to hear Mr. Gale.

Now, I merely want to point out to you that Mr. Gale was available to both sides, to either side. Either side could have compelled Mr. Gale's attendance in this courtroom by the method of issuing a subpoena for Mr. Gale.

Now, I do not care to elaborate further on what I have just told you. I do suggest to you very strongly, however, that you concentrate on the evidence that was presented for your consideration and do not attempt to speculate or concern yourselves with any thoughts about why Mr. Gale’s statement was not read to you or why Mr. Gale was not produced as a witness by either party.