author: WIEAND, Judge:

text:
    539 A.2d 887
    COMMONWEALTH of Pennsylvania v. Alfred Columbus SPARKS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 26, 1987.
    Filed March 23, 1988.

      Chris R. Eyster, Pittsburgh, for appellant.

      Timothy J. Lucas, Assistant District Attorney, Erie, for Com., appellee.
    Before WIEAND, McEWEN and HOFFMAN, JJ.
   WIEAND, Judge:

Alfred Columbus Sparks was tried by jury and was found guilty of robbery and rape. Timely post-trial motions were denied. After sentencing, appellant requested that trial counsel file an appeal on his behalf. When no appeal was filed, Sparks obtained other counsel. New counsel filed a notice of appeal but failed to file a brief. This Court dismissed the appeal without prejudice to appellant's right to proceed under the Post Conviction Hearing Act. Sparks then filed a P.C.H.A. petition in the trial court in which he averred that he had received ineffective assistance by trial counsel. This petition was dismissed without an evidentiary hearing. On appeal from the dismissal, this Court, after determining that an arguably meritorious issue existed, reversed and remanded for an evidentiary hearing. Commonwealth v. Sparks, 362 Pa.Super. 640, 520 A.2d 1217 (1986). On remand, an evidentiary hearing was held, after which appellant's motion for new trial was again denied. The present appeal is from the order of denial.

The specific conduct by counsel of which appellant complains is counsel's failure to present a closing argument to the jury. The standard by which we measure a claim of ineffective assistance has been set forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). The Court there said that if the underlying claim is of arguable merit, counsel’s performance must be evaluated in light of its reasonableness. However, counsel is presumed to have acted in an effective manner. Moreover, even if counsel’s performance is determined to have had no reasonable basis, the defendant must also demonstrate that the ineffectiveness caused actual prejudice to him in the outcome of the proceedings.

On October 6, 1982, Lou Ann Wolfe was walking home from Billie’s Bar in Erie when she was robbed and sexually assaulted in a field near her home. Immediately following the incident, she described her assailant to the police. A week later, she was shown a series of photographs from which she picked appellant and identified him as the perpetrator. At trial, defense counsel waived an opening statement. The Commonwealth called eight witnesses, including the victim and several experts, and the defense called four witnesses, including the appellant and two alibi witnesses. Our examination of the record discloses that the testimony was ambiguous and conflicting on both sides. The description of the assailant as given by the victim to police following the incident was inconsistent with appellant’s actual appearance. Immediately following the incident, Ms. Wolfe had described her assailant as a black man with short hair. Subsequently, after viewing photographs, she said that his hair had been worn in braids. She also had failed to tell police that her assailant had extensive facial scarring, a fact which she added for the first time after viewing appellant’s photograph. Additional discrepancies became apparent when her trial testimony was compared with her testimony at the preliminary hearing. The medical evidence presented by the Commonwealth was also inconclusive. A criminalist called by the Commonwealth testified that the semen removed from the victim’s vaginal area was that of a male who was a nonsecretor of antigens. Although tests involving appellant showed that he was a nonsecretor of antigens, it was conceded by the Commonwealth witness that twenty-seven (27%) percent of black males are nonsecretors. A Commonwealth medical expert also conceded during his cross-examination that the results of an acid phosphatase test performed on Ms. Wolfe three hours after the alleged incident had been inconsistent with recent sexual intercourse. The medical witness testified that the only positive evidence of an attack on the victim were scratches and abrasions appearing on her body. Ms. Wolfe had testified, however, that she did not receive the scratches and abrasions during the attack. On the defense side, there were inconsistencies in the testimony of alibi witnesses.

The trial lasted several days, and at the close of the evidence, the court recessed for the weekend. On Monday morning, appellant’s trial counsel stated:

Your Honor, the defense has nothing further to add to a case that is already riddled with confusion, reasonable doubt and contradictions. We rest.

The District Attorney thereafter presented a summation spanning thirty-nine pages of trial transcript, in which, inter alia, he offered explanations for the inconsistencies in the Commonwealth’s evidence and characterized the medical evidence as “unrefuted.”

At the P.C.H.A. hearing, trial counsel testified that he thought he “had the case won,” and, although admitting that he had never used the same strategy before, thought that his disdain for the Commonwealth’s evidence would have an impact on the jury by suggesting, at least by implication, that he “did not want to dignify the Commonwealth’s case with a response.”

The constitutional right to representation by counsel in a criminal proceeding includes the right to make a closing argument. Commonwealth v. Gambrell, 450 Pa. 290, 293, 301 A.2d 596, 598 (1973), citing Stewart v. Commonwealth, 117 Pa. 378, 11 A. 370 (1887). However, the right may be waived as a matter of trial strategy. Commonwealth v. Turner, 469 Pa. 319, 325, 365 A.2d 847, 850 (1976). Although this Court has on several occasions held that a waiver of the right to make closing argument might under certain circumstances be a reasonable trial strategy, those cases were non-jury trials of short duration in which the evidence had been straightforward and uncomplicated. See, e.g.: Commonwealth v. Turner, supra; Commonwealth v. Ramsey, 259 Pa.Super. 240, 393 A.2d 806 (1978).

In the instant case, the trial was held before a jury. Moreover, the evidence was neither consistent nor uncomplicated, and the trial consumed several days.

It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of the adversaries’ positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt.

Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593, 600 (1975), citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

We are constrained to conclude in this case that counsel’s failure to make closing argument was unreasonable and rendered his assistance constitutionally ineffective. He had made no opening statement to outline appellant’s case for the jury. The evidence had been conflicting, and the medical evidence had been complex. Defense counsel’s failure to comment thereon was in unfortunate contrast to an extensive closing argument made by counsel for the Commonwealth in which he offered plausible explanations for inconsistencies in the Commonwealth’s evidence. Thus, when it began deliberations, the jury had not had the benefit of any explanation by the defense of its version of the facts, while the Commonwealth’s position had been presented forcefully and emphatically. Although defense counsel might personally have found the inadequacies of the Commonwealth’s case to have been apparent, the assumption that they were equally obvious and memorable to the jury without comment by counsel was, under the circumstances of this case, unreasonable and strategically lacking in merit.

It seems eminently clear that appellant was prejudiced by his trial counsel’s ineffectiveness. The Commonwealth’s evidence was not overwhelming, and the contradictions and inadequacies therein, if pointed out to the jury, may well have created reasonable doubt as to whether appellant had committed the crimes with which he was charged. Had trial counsel addressed the jury on his client’s behalf and emphasized the weaknesses in the Commonwealth’s evidence, there would have been a “potential for success substantially greater than the tactics used.” Commonwealth v. Pierce, supra, 515 Pa. at 162, 527 A.2d at 977, quoting Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984).

Because appellant did not receive a fair trial in which he was represented by counsel who was constitutionally effective, he must be awarded a new trial.

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . 42 Pa.C.S. § 9541 et seq.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    539 A.2d 890
    COMMONWEALTH of Pennsylvania v. Michael FETZNER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1987.
    Filed March 21, 1988.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Paul Susko, Assistant District Attorney, Erie, for Com., appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for statutory rape, corruption of minors, interference with custody of children, and impersonation of a public servant. Appellant contends that (1) the trial court erred by (a) denying his motion for a mistrial, (b) denying his demurrers to the charges of statutory rape, corruption of minors, and impersonation of a public servant; (2) trial counsel was ineffective for failing to request a pre-trial competency hearing and a pre-sentencing psychiatric evaluation; and (3) the sentencing court (a) abused its discretion by failing to state adequate reasons on the record for his sentence and (b) failed to merge the convictions for statutory rape and corruption of minors for sentencing purposes. After carefully reviewing the record and the briefs submitted by the parties, we conclude that the trial court has adequately disposed of appellant’s first contentions relating to trial court error in its opinion and, accordingly, affirm the disposition of those issues on the basis of the court’s opinion. See Trial Court Opinion of January 7, 1987. For the reasons that follow, we vacate the judgment of sentence and remand the case for the appointment of new counsel and an evidentiary hearing.

On July 5, 1986, appellant was arrested and charged with the above-stated offenses. The charges stemmed from an incident involving appellant’s alleged enticement of a thirteen-year-old girl to his home by forging a note to her mother, while posing as a juvenile enforcement officer. Following a jury trial, appellant was found guilty of all charges. After denial of post-trial motions, appellant was sentenced to an aggregate term of eight-to-sixteen years imprisonment. Appellant then filed a motion to modify sentence which the court denied. This appeal followed.

Appellant contends that trial counsel was ineffective for failing to request (a) a pre-trial competency hearing to determine his mental capacity to stand trial, and (b) a pre-sentencing psychiatric evaluation to determine his mental capacity to be incarcerated. Appellant’s counsel below was a member of the Erie County Public Defender’s Office. On appeal, appellant is represented by another member of the same office.

Initially, the determination whether counsel rendered ineffective assistance is arrived at through a two-prong test. First, we must ascertain whether the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). This requirement is based upon the principle that we will not find counsel ineffective for failing to pursue a frivolous claim or strategy. Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1982). Second, if appellant’ claim does have arguable merit, we must determine whether “the course chosen by counsel had some reasonable basis designed to serve the best interests of the client.” Commonwealth v. Buehl, supra (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 353 (1967)).

If our review of the record reveals that counsel was ineffective, we then must determine whether appellant has demonstrated that counsel’s ineffectiveness worked to his or her prejudice. Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 976 (1987). To determine whether appellant was prejudiced, our Supreme Court adopted the test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Pierce, supra. Under Strickland, to prove that counsel’s ineffectiveness resulted in prejudice, an appellant must show that the error was “so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.” Strickland v. Washington, supra at 686, 104 S.Ct. at 2063-64.

We note here with importance that appellant’s trial and appellate counsel are both members of the same Public Defender’s Office. As a general rule, a public defender may not argue the ineffectiveness of another member of that public defender’s office who represented the client at a previous stage in the proceedings. See, e.g., Commonwealth v. Glaze, 366 Pa.Superior Ct. 517, 520, 531 A.2d 796, 798 (1987). Subsequently, an exception to the general rule was expanded to allow one member of a public defender’s office to raise the ineffectiveness of another member of the same office provided that reversible error was apparent on the record. See Commonwealth v. McNeal, 261 Pa.Superior Ct. 332, 336, 396 A.2d 424, 426 (1978).

Whether there is such reversible error here involves the same considerations as are involved in the resolution of the question on the merits: whether appellant’s counsel below were [sic] ineffective on the face of the record.

Id., 261 Pa.Superior Ct. at 337, 396 A.2d at 426.

Applying this rule to a claim of ineffectiveness of counsel, if, from a review of the record, we can determine that appellant’s underlying claim has arguable merit, counsel had no reasonable basis for his or her course of action, and counsel’s ineffectiveness prejudiced appellant, we may reverse without a remand for the appointment of new counsel and a hearing on ineffectiveness. See Commonwealth v. Glaze, supra. Should the record and the parties’ briefs prove to be insufficient to resolve the issue of counsel’s ineffectiveness, the case would be remanded to allow appellant to address the ineffectiveness issues. Commonwealth v. McDonald, 322 Pa.Superior Ct. 110, 120, 469 A.2d 206, 211 (1983) (case remanded because record at appellate stage was deficient to apprise Court of facts to decide appellant’s ineffectiveness of counsel claim).

We now turn to the merits of the claim underlying appellant’s ineffectiveness argument. Due process of the law requires that an accused be competent before he or she stands trial on a criminal charge. Commonwealth v. Garnett, 336 Pa.Superior Ct. 313, 318, 485 A.2d 821, 824 (1984). An accused’s competency to stand trial in Pennsylvania is governed by 50 Pa.S.A. § 7402(a):

Whenever a person who has been charged with a crime is found to be substantially unable to understand the nature or object of the proceedings against him [or her] or to participate or assist in his [or her] defense, he [or she] shall be deemed incompetent to be tried, convicted or sentenced so long as such capacity continues.

Id. The procedural mechanism for such a determination requires that the accused, or the court, itself, on its own motion, request a hearing on the accused’s competency to stand trial 50 Pa.S.A. § 7402(d). The final decision rests squarely within the discretion of the trial court. Commonwealth v. Edward, 303 Pa.Superior Ct. 454, 460, 450 A.2d 15, 18 (1982) (citing Commonwealth v. Knight, 276 Pa.Superior Ct. 348, 419 A.2d 492 (1980)). In exercising this discretion, the court is to undertake a careful and complete inquiry and reach an informed decision based on sufficient evidence of the accused’s mental state. Commonwealth v. Edward, supra. Where the decision is based on improper or insufficient evidence, the case will be remanded so that the trial court may make an informed decision. Id.; Commonwealth v. Marshall, 456 Pa. 313, 318 A.2d 724 (1974).

It is just as vital to constitutional principles to safeguard against sentencing an incompetent to incarceration. Commonwealth v. Moon, 383 Pa. 18, 22, 117 A.2d 96, 99 (1955). Thus, under Pennsylvania law, a convicted person may have sentencing deferred and be ordered to submit to a mental examination on either the court’s initiative or on application of counsel. 50 Pa.S.A. § 7405.

Here, our review of the record reveals that the ineffectiveness issues are not sufficiently addressed in either appellant’s or the Commonwealth’s briefs. Additionally, the record does not disclose any evidence that counsel requested a competency hearing or pre-sentencing psychiatric evaluation. The record is also devoid of any material concerning appellant’s mental capacity at the time of the trial and sentencing. The sentencing court, however, made specific reference to appellant’s history of mental illness. Before sentencing appellant the court stated the following:

This Court notes that you [the defendant] have been in the past, sir, diagnosed as a schizophrenic and you do have a lengthy history of involvement with various organizations because of your mental health problems, that involvement is with Children’s Services, Hamot Mental, the Sarah Reed Home, and Warren State Hospital and other mental health institutions. What is significant about all of that, sir, is it appears that your problems are still severe and significant.

Sentencing Transcript January 12, 1987 at 7. Prior to sentencing, it appears from the record that the foregoing information was not given any consideration by either appellant’s trial counsel or the court in determining whether appellant was competent to stand trial.

The deficiency in the record and the inadequate briefing on the part of appellate counsel renders it an impossibility to determine if appellant’s ineffectiveness of counsel claims have arguable merit. However, because trial and appellate counsel are members of the same public defender’s office and reversible error is not apparent on the face of the record, “it cannot be assumed that appellate counsel [provided] the zealous advocacy to which appellant is entitled.” Commonwealth v. Gardner, 480 Pa. 7, 10, 389 A.2d 58, 59 (1978) (citing Commonwealth v. Patrick, 477 Pa. 284, 287, 383 A.2d 935, 936 (1978) (quoting Commonwealth v. Fox, 476 Pa. 475, 479, 383 A.2d 199, 200 (1978)). We reiterate that the record and briefs at this stage are insufficient to resolve the ineffectiveness of counsel issues appellant raises and that this Court cannot apprise the facts of this case within the framework of the law. See, e.g., Commonwealth v. McDonald, supra. Accordingly, under these circumstances, we must remand the case for appointment of new counsel not associated with the Public Defender’s Office of Erie County, see Commonwealth v. Glaze, supra and remand for an evidentiary hearing to allow appellant to address these issues, see Commonwealth v. McDonald, supra (in the interest of judicial economy appellant allowed to raise ineffectiveness claims at hearing because judicial delay would result by directing appellant to file a PCHA petition to raise ineffectiveness claims).

Appellant next contends that the trial court abused its discretion at sentencing by failing to articulate adequate reasons on the record for the sentence it imposed upon appellant. We disagree.

It is well-settled law that sentencing is within the broad discretion of the court. Commonwealth v. DeCaro, 298 Pa.Superior Ct. 32, 43, 444 A.2d 160, 166 (1982). At the time of sentencing, however, the court must articulate, on the record, its reasons for the sentence imposed. Commonwealth v. Riggins, 474 Pa. 115, 122, 377 A.2d 140, 143 (1977). In this analysis, the sentencing court must consider the sentencing alternatives, the nature and circumstances of the offense, and character of the offender. Pa.R.Crim.P. 1405(b); Commonwealth v. Riggins, supra.

Here, it is clear from an examination of the record that the court properly stated adequate reasons for imposition of appellant’s sentence. See Sentencing Transcript January 12, 1987 at 6-13. Moreover, appellant concedes in his brief that the court specifically stated the circumstances that he considered warranted the sentence. Brief for Appellant at 40. The sentencing court stated:

The Court notes, as defense counsel has set forth, that the defendant not only has a prior record score of zero in the guidelines but, in fact, has no prior record as a juvenile or adult; for the Court’s consideration, that is certainly in the defendant’s favor.
Beyond that, however, the Court finds little in the defendant’s favor in the presentence report, the circumstances of this incident, or any of the background information that this Court has before it.

Sentencing Transcript January 12, 1987 at 7. Thereafter, the court gave ample consideration to the character of the appellant, the seriousness of the offense, and the surrounding circumstances. Id. at 7-13. Accordingly, appellant’s claim that the court failed to adequately state, on the record, reasons for the sentence imposed upon appellant is meritless.

Appellant’s final contention alleges that the court erred in failing to merge his convictions for statutory rape and corruption of minors for sentencing purposes. Essentially, appellant alleges that the two convictions amount to a single criminal act and thus, should have merged for sentencing purposes. The Commonwealth, in its brief, argues that appellant has waived his merger claim because he did not preserve the issue by raising it in the court below. Brief for Appellee at 13.

At the outset, we must determine whether appellant has failed to preserve his merger claim for appellate review. This court, en banc, held that,

[t]he question of the legality of multiple sentences based on a claim that the convictions should have merged for sentencing, is not waived by the failure to raise it in the trial court. This is because multiple sentences for a single criminal act are unlawful and are beyond the power of the trial court.

Commonwealth v. Campbell, 351 Pa.Superior Ct. 56, 63, 505 A.2d 262, 263 (1986). Because appellant’s claim that the lower court erred in failing to merge two convictions goes to the legality of the sentence, such a claim cannot be waived. Id. Thus, we cannot deny appellate review and will address the merits of appellant’s claim.

“The doctrine of merger has been invoked to limit duplicitous sentencing where one crime ‘necessarily involves’ another, Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973); Commonwealth ex rel. Moszcynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941), or where a defendant committed what in effect amounts to a single criminal act, Commonwealth v. Crocker, 280 Pa.Superior Ct. 470, 421 A.2d 818 (1980).” Commonwealth v. Sayko, 511 Pa. 610, 614, 515 A.2d 894, 896 (1986).

To determine if separate statutory offenses merge, the court must examine whether the “crimes arose out of the same criminal act, transaction, or episode [and] also that the statutes defining the crimes charged were directed to substantially the same harm or evil.” Commonwealth v. Williams, 344 Pa.Superior Ct. 108, 143, 496 A.2d 31, 50 (1985) (en banc). Our Court has consistently held that a conviction for corruption of a minor is “a lesser included offense and is therefore merged into a statutory rape conviction where the jury finds a defendant guilty on both [charges].” Commonwealth v. Stafford, 307 Pa.Superior Ct. 278, 283, 453 A.2d 351 (1982) (citing Commonwealth v. Reidenbaugh, 266 Pa.Superior Ct. 315, 404 A.2d 697 (1978); Commonwealth v. Cox, 209 Pa.Superior Ct. 457, 228 A.2d 30 (1967)). See also Commonwealth v. Samuels, 354 Pa. Superior Ct. 128, 157, 511 A.2d 221, 236 (1986), rev’d on other grounds, 516 Pa. 300, 532 A.2d 404 (1987). Therefore, it is error for a court to impose two distinct and separate sentences for crimes that were directed at substantially the same harm and arose out of the same criminal act. Commonwealth v. Williams, supra; Commonwealth v. Reidenbaugh, supra.

Here, the information clearly indicates that appellant was charged with corrupting a minor because he allegedly engaged in sexual intercourse with the minor victim. See Record at 4. The same evidence was introduced at trial for prosecuting the charge of corruption of minors, as was statutory rape. Notes of Testimony November 20, 1986 at 69-79 and November 21, 1986 at 58. Appellant was convicted of both statutory rape and corruption of a minor and the crimes should have merged for sentencing purposes. See, e.g., Commonwealth v. Stafford, supra. The court, however, sentenced appellant to a four-to-eight-year term of imprisonment for statutory rape and a two-to-four-year term of imprisonment for corruption of minors, to run consecutively to each other. Because the convictions for corruption of minors and statutory rape arose from the same criminal act and are factually integrated, it was error for the trial court not to merge the two convictions for sentencing purposes. See, e.g., Commonwealth v. Williams, supra; Commonwealth v. Reidenbaugh, supra. Accordingly, the judgment of sentence for corruption of minors, which is the lesser included offense, is vacated.

For the foregoing reasons, we vacate the judgment of sentence for corruption of minors. On the remaining convictions, the judgment of sentence is vacated and remanded for appointment of new counsel and an evidentiary hearing on counsel’s ineffectiveness claims. If counsel is found to be ineffective, a new trial should be granted. If counsel is found not to be ineffective, the remaining judgment of sentence should be reinstated. Jurisdiction relinquished.

Judgment of sentence for corruption of minors vacated.

judgment of sentence for the remaining convictions is vacated and the case is remanded for proceedings consistent with this Opinion. Jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 3122.

      . 18 Pa.C.S.A. § 6301.

      . 18 Pa.C.S.A. § 2904.

      . 18 Pa.C.S.A. § 4912.

      . Statutory rape, 18 Pa.C.S.A. § 3122, is defined as a felony of the second degree and carries a maximum penalty of 10 years imprisonment. Whereas, corruption of minors, 18 Pa.C.S.A. § 6301, is defined as a misdemeanor of the first degree and carries a penalty of three-to-five years imprisonment.


author: CIRILLO, President Judge:

text:
    539 A.2d 1298
    Byron L. RINEHIMER, Jr., Appellant, v. LUZERNE COUNTY COMMUNITY COLLEGE; Board of Trustees of Luzerne County Community College; Joseph Collis; Helen G. Crossin, Executrix of the Estate of Francis Crossin, Deceased; Anthony Recupero; Edward Brominski; Michael Turco; William Schumacher; Jean Greco and John Roman.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1987.
    Filed Feb. 18, 1988.
    Reargument Denied April 12, 1988.

      Daniel L. Thistle, Philadelphia, for appellant.
    Stephen W. Saunders and Michael J. Donahue, Scranton, for appellee.
    Before CIRILLO, President Judge, and TAMILIA and KELLY, JJ.
   CIRILLO, President Judge:

Plaintiff/appellant Byron L. Rinehimer, Jr. was president of Luzerne County Community College from 1974 until he was terminated on September 23, 1980. His appeal arises from an order entered by the Court of Common Pleas of Luzerne County denying his request that the compulsory nonsuit entered against him be removed. Appellant had brought suit against the Luzerne County Community College Board of Trustees alleging that he was wrongfully discharged. Because we find that appellant failed to present sufficient evidence in his case-in-chief to enable the jury to find for him, we affirm the order of the trial court.

Rinehimer originally was given a contract for three years with the College. In 1977,1978, and 1979 the Board extended that contract orally for one-year periods. In 1980, Rinehimer requested several times that the contract be renewed; this the College deferred doing, claiming that their reasons for refusing to consider the contract were pressing financial problems as well as appellant’s election as President of the Pennsylvania Commission of Community Colleges, a position which required that he spend time away from the College.

At the same time, the College was undergoing serious problems. Robert Galardi, the Dean of the Business School, and Sam Lesante, the Chairman of the Board of Trustees, were accused of embezzling College funds. Rinehimer brought the matter before the Board; Lesante resigned, Galardi did not. Rinehimer ordered Galardi’s termination, and requested a Department of Education audit. Displeased with the audit, Rinehimer then called in the Auditor General’s Office and requested that they do an audit also. That audit showed that funds had indeed been misappropriated.

Rinehimer’s tactics engendered a great deal of internal unrest, as well as public comment unfavorable to the College. According to the Board, this as well as lack of leadership led to his termination on September 23, 1980. His oral contract had ended in April of that year, so that he was, in effect, working on a day-to-day basis when he was terminated.

Rinehimer filed suit against the Board, alleging that he had been fired in retaliation for exposing Galardi and Les-ante. He claimed that three other College officials instrumental in the investigation were also let go after he was fired, and that the Board had rehired Galardi, in spite of evidence against him. At trial, the court refused to allow testimony from the investigating auditor that Rinehimer claimed would show that several employees had refused to cooperate with the audit for fear of being fired, evidence of lost wages, and evidence of criminal prosecutions against LeSante, Galardi, and others. At the close of Rinehimer’s case, the trial judge granted a nonsuit. Rinehimer filed posttrial motions requesting that the compulsory nonsuit be removed; this request was denied. Rinehimer then appealed to this court.

Rinehimer argues on appeal that the nonsuit was improper because he did establish a claim for wrongful discharge; his discharge violated public policy and so took him out of the presumption of at-will employment accepted in this Commonwealth. He also claims that the nonsuit was improper because he detrimentally relied upon a promise to renew the contract. Rinehimer further argues that the trial court erred in making several evidentiary rulings, specifically that it erred in refusing to allow testimony of the investigating auditor, in refusing to allow testimony concerning criminal investigations arising from the results of the audit, and in refusing to allow evidence of lost wages. Lastly, Rinehimer asks that venue be transferred to Philadelphia because of the sensitive political nature of the case.

In examining the grant or denial of a request to remove a compulsory nonsuit, the appellate court must view the evidence in the light most favorable to the plaintiff in the underlying case, giving him the benefit of all reasonable inferences of fact in his favor arising from that evidence. Coatesville Contractors & Engineers, Inc. v. Borough of Ridley Park, 509 Pa. 553, 559, 506 A.2d 862, 865 (1986). A compulsory nonsuit will be affirmed on appeal “only where it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing that evidence in the light most favorable to the plaintiff, could determine the controlling issue in plaintiff’s favor.” Stevens v. Commonwealth, Dept. of Transp., 89 Pa.Commw. 309, 312-313, 492 A.2d 490, 492 (1985). After considering all of Rinehimer’s evidence, along with the inferences most favorable to him drawn from that evidence, we are unable to find that the trial court erred in granting the nonsuit. Further, we do not see that it erred in its evidentiary rulings. It is also clear to us that even if Rinehimer had been permitted to place the testimony in question before the jury, a nonsuit would have been proper. We do not find it necessary upon our disposition of this case to reach the question of venue.

The courts of this Commonwealth have long recognized that an employer has the right to discharge an employee who has no definite contract of employment at any time and for any reason. Henry v. Pittsburgh & L.E.R.R., 139 Pa. 289, 21 A. 157 (1891). This doctrine, the “at-will” employment doctrine, was reaffirmed by the Supreme Court of Pennsylvania in Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). In that case, Geary, an at-will employee involved in the sale of tubular products to the gas and steel industry, was discharged following his attempts to have United States Steel remove from the market a product that he did not feel was adequately tested. He had gone over the heads of several supervisors to a vice-president in charge of sales of the product in his attempts to be heard. Although the product was eventually removed, Geary was discharged.

Geary filed suit; the company’s preliminary objections in the nature of a demurrer were sustained. On appeal, Geary argued first, that he had been discharged maliciously, and second that his discharge contravened public policy. The court affirmed the decision of the trial court, finding that Geary had failed to plead facts that would support a cause of action. It found that he had, in effect, made a “nuisance” of himself, and that the natural inference to be drawn from the chain of events was that the company discharged him to preserve administrative order. According to the court, this was a legitimate reason for the discharge. “This hardly amounts to an ‘ulterior motive,’ much less to ‘disinterested malevolence’____” Id., 456 Pa. at 180, 319 A.2d at 178.

In addressing the public policy question, the court expressed great concern over the company’s interest in protecting its managerial prerogative: “The praiseworthiness of Geary’s motives does not detract from the company’s legitimate interest in preserving its normal operational procedures from disruption.” Id., 456 Pa. at 183, 319 A.2d at 180. It is from this concern that the court’s holding arises:

It may be granted that there are areas of an employee’s life in which his employer has no legitimate interest. An intrusion into one of these areas by virtue of the employer’s power of discharge might plausibly give rise to a cause of action, particularly where some recognized facet of public policy is threatened. The notion that substantive due process elevates an employer’s privilege of hiring and discharging his employees to an absolute constitutional right has long since been discredited____ We hold [however] that where the complaint itself discloses a plausible and legitimate reason for terminating an at-will employment relationship and no clear mandate of public policy is violated thereby, an employee at will has no right of action against his employer for wrongful discharge.

Id., 456 Pa. at 184-185, 319 A.2d at 180.

Geary, therefore, re-emphasized this Commonwealth’s commitment to the at-will employment doctrine. This court has recently reiterated that commitment in Greene v. Oliver Realty Co., 363 Pa.Super. 534, 526 A.2d 1192 (1987). We have also recognized, as did the supreme court, that exceptions to the at-will doctrine exist. We have indicated that an implied contract could exist in an employee handbook that explicitly indicates that discharge will be for just cause only. See, e.g., Greene, supra; Banas v. Matthews International Corp., 348 Pa.Super. 464, 502 A.2d 637 (1985); Richardson v. Cole Memorial Hospital, 320 Pa.Super. 106, 466 A.2d 1084 (1983). Additional consideration given the employer by the employee also removes the case from the at-will doctrine. See Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571 (1986). Courts of some states have implied just cause requirements in all terminations, see Comment, The Role of Federal Courts in Changing State Law: The Employment At-Will Doctrine in Pennsylvania, 133 U.Penn L.Rev. 227 (1984); Pennsylvania is not among these.

Pennsylvania has, however, recognized the public policy exception to at-will employment. This court has held that an employee who can show that his discharge violated public policy and that there was no legitimate and plausible reason for that termination can make out a cause of action despite his at-will status. This exception is, however, a narrow one, Martin v. Capital Cities, Inc., 354 Pa.Super. 199, 222, 511 A.2d 830, 842 (1986), and we have never indicated that it could be considered independent of the employer’s right to run his business as he sees fit. Householder v. Kensington Mfg. Co., 360 Pa.Super. 290, 295-296, 520 A.2d 461, 464-465 (1987). In only two cases since Geary has this court found that public policy considerations outweighed an employer’s interest in running his business: Hunter v. Port Auth., 277 Pa.Super. 4, 419 A.2d 631 (1980) (employee convicted of assault and pardoned by governor made out claim for wrongful discharge by public employer because there is public policy against stigmatizing former offenders); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978) (employee discharged either because failed to inform employer about jury duty or because of jury duty; under second theory, damages recoverable because of public policy of promoting responsibility of serving on juries). In determining what the parameters of this exception are, and how they should be applied to this case, we must turn to recent decisions of this court which have analyzed and applied this particular exception.

In Yaindl v. Ingersoll-Rand Co., 281 Pa.Super. 560, 422 A.2d 611 (1980), the court interpreted Geary to imply that the legitimacy of the employer’s reason for discharge could depend upon its motive and manner of discharging the employee. Id., 281 Pa.Superior Ct. at 572-573, 422 A.2d at 617. The court discussed a set of factors to be considered in analyzing the applicability of the public policy exception, analogizing an action for wrongful discharge to an action for tortious interference with contract:

(a) the nature of the actor’s conduct,
(b) the actor’s motive,
(c) the interests of the other with which the actor’s conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other____

Id., 281 Pa.Superior Ct. at 574, 422 A.2d at 618. In applying these factors, the court found that it had to balance the employee’s interest in making a living, the employer’s interest in running its business, its motive for discharging the employee, its manner of effecting the discharge, and any social interests or public policies implicated in the discharge. Id., 281 Pa.Superior Ct. at 577, 422 A.2d at 620. According to that court, the outcome of this balancing exercise was the precise extent to which the employer’s interest in running his business could be limited by public policy considerations. Id., 281 Pa.Superior Ct. at 572, 422 A.2d at 617.

This court addressed the public policy exception again in Cisco v. United Parcel Services, 328 Pa.Super. 300, 476 A.2d 1340 (1984). Reviewing the important case law in the area, the court held that, in analyzing a claim for wrongful discharge, a thorough examination of all the circumstances surrounding the termination was imperative. Id., 328 Pa. Superior Ct. at 306, 476 A.2d at 1343. Although stating that this was what the Yaindl court had done in coming to its decision, id., 328 Pa.Superior Ct. at 305-306 n. 3, 476 A.2d at 1343 n. 3, the court, in effect, redefined the Yaindl balancing test: “First, we must discern whether any public policy is threatened thereby; second, even when an important public policy is involved, an employer may discharge an employee if he has separate, plausible and legitimate reasons for doing so.” Id., 328 Pa.Superior Ct. at 306, 476 A.2d at 1343. It seems to us that the factors cited by the Yaindl court (aside, of course, from consideration of any public policy involved) now go to the second part of the Cisco test, that is, determining the legitimacy of the employer’s interest.

Clearly, in Cisco, this court made the determination that the employer’s interest in the operation of his business is an overriding concern for the courts to consider in determining whether a cause of action will lie for wrongful discharge. Accord Turner v. Letterkenny Federal Credit Union, 351 Pa.Super. 51, 55, 505 A.2d 259, 261 (1985) (“It is clear that [recent case law] demonstrate^] a pattern of favoring the employer’s interest in running its business”). Although admitting that there was a public policy which prevents employers from considering “any experience with the criminal justice system that falls short of a conviction,” Cisco, 328 Pa.Super. at 307, 476 A.2d at 1343, the court nonetheless found a legitimate business reason for the employee’s termination: “We have concluded that a plausible and legitimate reason for appellee’s discharge existed in that his employer was protecting its reputation by discharging an employee who was accused of theft and trespass in connection with his employment, even though a jury ultimately acquitted him.” Id., 328 Pa.Superior Ct. at 308, 476 A.2d at 1344.

The public policy aspect of the analysis still remains important, however. In more recent cases, we merely have seen fit to redefine its parameters. In Turner, we noted that while the Yaindl test was still a part of the wrongful discharge analysis, the employee had to show a “violation of a clearly mandated public policy which ‘strikes at the heart of a citizen’s social right, duties, and responsibilities.’ ” Turner, 351 Pa.Super. at 55, 505 A.2d at 261 (emphasis added) (quoting Novosel v. Nationwide Ins. Co., 721 F.2d 894, 899 (3rd Cir.1983)). This court has refused to find that such a public policy exists where an employee was discharged for actively seeking a position with a competitor, McCartney v. Meadowview Manor, Inc., 353 Pa.Super. 34, 36-37, 508 A.2d 1254, 1255 (1986) (employer has right to expect loyalty from employees); where relations with those under the employee’s supervision had deteriorated irretrievably, Turner, 351 Pa.Super. at 55-56, 505 A.2d at 261 (“ ‘even an unusually gifted person may be of no use to his employer if he cannot work effectively with his fellow employees’ ”); where an employee was discharged even though he had done the job well, Betts v. Stroehmann Bros., 355 Pa.Super. 195, 199, 512 A.2d 1280, 1282 (1986) (balance between employee’s and employer’s interests not a specific, mandated public policy; competitive worldwide economy made it necessary for employer to have flexibility in choosing work force); where false accusations of criminal behavior had led to discharge, Gillespie v. St. Joseph’s Univ., 355 Pa.Super. 362, 364-365, 513 A.2d 471, 473 (1986) (as a matter of law university could discharge employee who had been accused of crime of dishonesty even though accusations were proven to be false); and where an employee claimed that every person has a right to earn a living in a job that he chooses, Marsh v. Boyle, 366 Pa.Super. 1, 8, 530 A.2d 491, 495 (1987).

The analysis, therefore, calls for a case-by-case determination of the circumstances and policies in question. Rinehimer claims that he was discharged for exposing the illegal activities of a member of the Board and a dean of the College. He appears to be arguing both that a specific intent to harm him is evident from the facts presented, and that his discharge went against public policy as he was attempting to prevent the embezzlement of funds and punish the wrongdoers. Keeping in mind that in reviewing the refusal to remove a compulsory nonsuit we must review the evidence in the light most favorable to the plaintiff and give him the benefit of all favorable inferences, we nevertheless cannot find that the College violated any clearly mandated public policy.

We recognize, of course, that the employer’s interest in the operation of his business is not completely unfettered. This court has indicated that that interest will be outweighed by allegations that the discharge was motivated by a specific intent to harm the employee, if those allegations are supported by the facts alleged. We have stated that such an intent would trigger the public policy exception. Yaindl, 281 Pa.Super. at 573 n. 5, 422 A.2d at 618 n. 5. In Tourville v. Inter-Ocean Ins. Co., 353 Pa.Super. 53, 508 A.2d 1263 (1986), this court determined what the facts had to establish in order to support a claim for wrongful discharge in this situation. It found two instances in which a claim could be made: first, if the pleadings showed disinterested malevolence; or second, if they showed an ulterior purpose for the discharge. Id., 353 Pa.Superior Ct. at 56-57, 508 A.2d at 1265-1266. The court stated that disinterested malevolence would be present if “there were not present a cause, which in every day, civilized life would serve as the basis for the action.” Id., 353 Pa.Superior Ct. at 57, 508 A.2d at 1265. In that case, the malevolence would be “pure, unadulterated, and disinterested.” Id.

The second set of facts which would support a claim for wrongful discharge here must show an ulterior motive. That is, although sufficient reason exists for the discharge, there is another motive present — desire to cause harm to the employee. The Tourville court explained how these facts would present themselves: “The quality of maliciousness could be discovered by the lack of proportionality or the impropriety or viciousness with which a thing is done.” Id., 353 Pa.Superior Ct. at 58, 508 A.2d at 1266.

Clearly, in the instant case, the Board has offered a reason for Rinehimer’s discharge which is plausible and legitimate —it was distraught over the uproar he had caused in the College community and among the community at large. Further, the Board felt that he lacked the leadership to steer the College through the present situation. The facts do not support a claim of disinterested malevolence.

Similarly, we cannot find that Rinehimer has made out a claim of an ulterior motive. Rinehimer has alleged no facts from which we may draw the inference of malice. Under the court’s construction of the term in Turner, we see no lack of proportionality in Rinehimer’s discharge, nor do we see any viciousness or impropriety here. Taking the facts in the light most favorable to Rinehimer, he was discharged because he insisted upon a publicly conducted investigation of the situation. Rinehimer does not dispute the upheaval caused by his actions among either the academic community or the community in which the college was located. The difficulties of running a college under such conditions is obvious. The Board has stated that it had no confidence in Rinehimer’s abilities given the turn of events. Moreover, Rinehimer was working on an at-will day-to-day basis; his previous requests that the Board reconsider his contract had been denied. We can see no viciousness in his discharge.

We also do not see that Rinehimer has alleged any other violation of clearly mandated public policy. He alleges no statutory policy which was violated by his termination. We fail to see that any policy which strikes to the heart of his duties, rights, and responsibilities as a citizen was contravened in this case. Rinehimer merely argues that he was terminated for his attempts to “clean house,” and that this violated public policy. We hold that the specificity and clarity necessary to sustain such a cause of action are lacking here.

In Rossi v. The Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985) this court upheld the discharge of an employee who had attempted to convince the administration of the University to adopt his plans to curtail the use of public tax revenues. He claimed that he was discharged for his insistence on this, and that the public policy to save tax dollars was violated by his discharge. Id., 340 Pa.Superior Ct. at 48, 489 A.2d at 833. The court stated:

The question before us is whether there is a public policy against firing an employee who continuously complains about what he considers to be poor management of the unit in which he is an employee. In every situation in the public sector, where there is poor management, a loss of tax payers’ dollars must necessarily follow. Nevertheless, the test is still whether there is a public policy against terminating an at will employee who disagrees with the way in which his supervisors are managing the department encompassing his employment. We think not.

Id., 340 Pa.Superior Ct. at 54, 489 A.2d at 836; see also Geary, 456 Pa. at 180, 319 A.2d at 178 (“The most natural inference from the chain of events recited ... is that Geary made a nuisance of himself [by bypassing the supervisory chain and complaining directly to a vice-president with whom he was friendly], and the company discharged him to preserve administrative order in its own house”); Turner, 351 Pa.Super. at 55, 505 A.2d at 261 (“The employee was terminated after an employment tenure of six years. Relations with those who were under his supervision deteriorated significantly during that time ... ”). Further, several federal courts have held that where an employee cannot function with his fellow employees, and the link to a public policy is tenuous, the employee has failed to make out a cause of action for wrongful discharge. See Adams v. Budd Co., 583 F.Supp. 711 (E.D.Pa.1984); Boresen v. Rohm & Haas, Inc., 526 F.Supp. 1230 (E.D.Pa.1981). An analogous situation seems to have existed in the instant case; along with the Rossi court, we do not think that a public policy exists against discharging an employee for disagreeing with the policy makers of a college, and for disrupting its administrative operations.

It was clearly within Rinehimer’s duties as president of the College to bring to the Board’s attention irregularities with the functioning of that College. We do not see, however, that it was also within those duties and rights to cause a major upheaval in the functioning of that university, all of which it is clear from the evidence that Rinehimer’s actions did. The Board indicated that his discharge was for this reason, and for his lack of leadership. Further, it should be noted that he was well aware that he was retained on an at-will basis. Considering all these circumstances surrounding his discharge, and the manner in which he was terminated, we cannot find that there was not a legitimate business reason for the termination. The College has the right to operate its business in the way it sees fit; clearly a college cannot be of any benefit to the students or community under such turmoil and public comment as were caused by Rinehimer’s insistence on a public audit. As this court stated in McCartney, “The fact that an employer’s actions seem unfair is not enough.” McCartney, 353 Pa. Super, at 36, 508 A.2d at 1255. We hold that the trial court’s refusal to withdraw entry of the nonsuit was proper.

Rinehimer next argues that the trial court erred in granting a nonsuit because he had stated a claim for intentional infliction of emotional distress, and that therefore. he should not have been nonsuited on his claim for punitive damages. We do not find that Rinehimer’s claim for damages under a charge of intentional infliction of emotional distress presents sufficient facts to show the type of outrageous conduct that is the gravamen of this tort.

It is well settled in Pennsylvania that a cause of action for intentional infliction of emotional distress is made out where the conduct in question is “so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community____” Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 383, 368 A.2d 770, 773 (1976) (quoting Restatement (Second) of Torts, 46, comment d (1965)). “It is apparent that the gravamen of this tort is that the conduct complained of must be of an extreme or outrageous type.” Id; see also Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 126, 437 A.2d 1236, 1238 (1982). Pennsylvania courts have found a cause of action for intentional infliction of emotional distress to exist only in limited circumstances, where the conduct has been clearly outrageous. See, e.g., Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970) (withholding body of deceased child from parents for two months constituted intentional infliction of emotional distress).

The College argues that federal courts have refused to find that a cause of action exists in an employment relationship. It cites Cautilli v. GAF Corp., 531 F.Supp. 71 (E.D.Pa.1982) and Brieck v. Harbison-Walker Refractories, 624 F.Supp. 363 (W.D.Pa.1985) in support of its arguments. In both cases, the courts clearly held that loss of employment was too common a happening in today’s world to rise to the level of outrageousness necessary to support a cause of action for this tort. Brieck, 624 F.Supp. at 367; Cautilli, 531 F.Supp. at 74. While we agree that the conduct complained of in those cases was not extreme or outrageous in the manner necessary to make out a cause of action, we do not agree that an employment situation could never give rise to the tort of intentional infliction of emotional distress. We are not called upon here, however, to outline the instances in which it might arise. We simply fail to find, after viewing all the evidence presented by Rinehimer in the light most favorable to him, that the conduct of his employer was so extreme and outrageous that a claim for intentional infliction of emotional distress was established. Viewing the evidence in that light, Rinehimer was discharged because his employer was displeased with the manner in which Rinehimer handled the situation that he had caused. This does not rise to the level of outrageous conduct that the courts of this Commonwealth require. See, e.g., Banyas, 293 Pa.Super. at 127, 437 A.2d at 1239 (intentional misstatement of cause of death naming appellant as cause held to be intolerable professional conduct and extreme and outrageous).

Further, we note that Rinehimer failed to present competent medical evidence of his emotional distress. Under the supreme court’s recent decision in Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987), failure to present such evidence is grounds for a nonsuit. Id., 515 Pa. at 197, 527 A.2d at 995.

Rinehimer also argues that the nonsuit was improper because he made out a cause of action against the Board on a theory of detrimental reliance. Rinehimer contends that Board members told him that he would be given a contract once the situation had been settled. We can find no justifiable reliance and agree with the trial court that a nonsuit was proper.

A cause of action under detrimental reliance or promissory estoppel arises when a party relies to his detriment on the intentional or negligent representations of another party, so that in order to prevent the relying party from being harmed, the inducing party is estopped from showing that the facts are not as the relying party understood them to be. Straup v. Times Herald, 283 Pa.Super. 58, 71, 423 A.2d 713, 720 (1980). The elements of promissory estoppel are:

(1) misleading words, conduct or silence by the party against whom the estoppel is asserted,
(2) unambiguous proof of reasonable reliance on the misrepresentation by the party seeking to assert the estoppel, and
(3) no duty of inquiry on the party seeking to assert estoppel.

Id.

Even assuming that the Board made representations to Rinehimer, we find no evidence that he reasonably relied upon any statements by the Board. He had attempted several times to have his contract reinstated, and each time the Board put him off with an excuse. He was fully aware that he was working on a day-to-day basis. Rinehimer has failed to present the unambiguous proof necessary to give rise to a claim of estoppel.

Lastly, Rinehimer complains that the evidentiary rulings made by the trial court were improper. The admission or exclusion of evidence is within the sound discretion of the trial court, and will not be reversed absent a clear abuse of discretion. Concorde Investments, Inc. v. Gallagher, 345 Pa.Super. 49, 56, 497 A.2d 637, 641 (1985). Here the trial court found that the proffered testimony of the investigating auditor was not responsive to Rinehimer’s questions. Rinehimer, through his examination of that witness, was attempting to discover whether the witness’ investigation of financial matters had uncovered any evidence that Rinehimer had been terminated because of his cooperation with the investigation. The witness attempted to testify that other College employees had refused to cooperate because they believed that they would be discharged. The trial court found that this testimony was unresponsive, called for hearsay, and was unduly prejudicial. We cannot conclude that, in making this determination, the trial court clearly abused its discretion.

We also find no abuse of discretion in the court’s decision that evidence of the criminal prosecutions of Galardi and Lesante should be excluded. As the trial court pointed out in its opinion, proof at trial must conform with and must be limited to the pleadings. See Willinger v. Mercy Catholic Medical Center, 241 Pa.Super. 456, 362 A.2d 280 (1976). According to the court:

Plaintiff’s Complaint claims he was fired in retaliation for exposing Galardi and LeSante and calling for an investigation into the entire matter____ Thus, the offered evidence was beyond the scope of the matters pleaded. More importantly, we note that Plaintiff’s contention that the aforementioned individuals pleaded guilty to the charges was a misrepresentation of facts. We specifically note that under Pa.R.Crim.P. 314, offenses may be dismissed and, thus, cannot be considered as guilty pleas or convictions. Also, it should be noted that the Court did authorize the Plaintiff to introduce evidence that the aforementioned individuals entered into a settlement____ Consequently, the Court acted properly in preventing the Plaintiff [Rinehimer] from misrepresenting the outcome of the charges filed against LeSante and Galardi.

We agree, and again fail to find any clear abuse of discretion here.

Rinehimer finally contends that it was error for the trial court to exclude evidence of mental anguish. We disagree. As the trial court stated, it is for Rinehimer in his complaint to specify the particular injury or injuries for which relief is sought. This Rinehimer admits he failed to do. It was within that court's discretion to disallow the evidence.

Rinehimer also makes the argument that evidence of lost wages should not have been limited to April 1, 1981. According to Rinehimer, had the Board granted him any contract, it would have been an extended one. Since Rinehimer’s only other extended contract had been for three years, Rinehimer argues that he was then éntitled to produce evidence of lost wages for a time period of three years. The trial court, instead, only allowed evidence of lost wages for the period that each of Rinehimer’s previous one-year contracts had covered. Rinehimer admits, however, that evidence of lost wages is not relevant to his argument that a new trial on the merits should be granted. Since we have found no reason to grant a new trial, we find no need to address this issue.

Similarly, since we do not grant Rinehimer a new trial, we do not address his argument that venue be changed for political reasons.

Upon review of the evidence in the light most favorable to Rinehimer, we find that he has failed to state claims for wrongful discharge, for detrimental reliance and for intentional infliction of emotional distress. Further, we cannot conclude that the trial court abused its discretion in excluding the evidence in question. We therefore affirm the decision of the trial court.

KELLY, J., notes dissent.


author: ROWLEY, Judge:

text:
    539 A.2d 1307
    COMMONWEALTH of Pennsylvania, Appellant, v. Albert E. FUCHS.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1987.
    Filed Feb. 19, 1988.
    Reargument Denied April 25, 1988.

      Andrea F. McKenna, Assistant Deputy Attorney General, Harrisburg, for Com., appellant.
    Dennis G. Kuftic, Edinboro, for appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   ROWLEY, Judge:

This is an appeal from the trial court’s order denying the Commonwealth’s Motion to Extend Time for Commencement of Trial pursuant to Pa.R.Crim.P. 1100 and granting defendant’s Petition to Dismiss.

On February 23, 1984, a criminal complaint was filed by the Pennsylvania Attorney General’s Office (“the Commonwealth”) in the Court of Common Pleas of Erie County, Criminal Division, against the defendant, Albert Fuchs, charging him with violations of the Solid Waste Management Act, 35 Pa.S. sections 6018.101-701. Following a preliminary hearing on March 23, 1984, defendant was bound over for trial.

On June 13, 1984, defendant filed pretrial motions which alleged, inter alia, that the criminal provisions of the Solid Waste Management Act were unconstitutional. The case was scheduled for trial during the July 1984 term. On July 12,1984, an application for continuance was filed by defendant. With the defendant’s consent and by order of court, the time for commencing trial on the pending charges was extended until October 31, 1984. The original rúndate under Rule 1100 had been August 21, 1984.

On August 29, 1984, following argument, the trial court found the relevant portions of the Solid Waste Management Act violative of both the state and federal constitutions and dismissed all charges against defendant. On September 21, 1984, the Commonwealth filed a timely appeal from this order.

On October 9, 1986, our Supreme Court entered an order reversing the trial court’s decision and remanding the case for further proceedings. The record was remanded to the trial court on October 27, 1986.

On November 26, 1986, defendant filed a petition for writ of certiorari with the United States Supreme Court. The Commonwealth filed a brief in opposition to the petition on December 24, 1986. On December 30, 1986, defendant withdrew his petition.

On February 4,1987, the Commonwealth filed a Motion to Extend Time to Commence Trial. On February 13, 1987, a hearing was held on this motion. At that time, defendant petitioned the trial court for dismissal of the charges pursuant to Rule 1100. Finding that the Commonwealth had failed to bring defendant to trial within 180 days, the trial court entered its order denying the Commonwealth’s motion and granting defendant’s petition. This timely appeal followed .

The Commonwealth contends that the trial court erred in calculating the 180-day period under Rule 1100, and in finding that the Commonwealth failed to exercise due diligence. According to the trial court, the Commonwealth’s motion for an extension of time was filed on the 211th day, long after the expiration of the 180-day period. In making its calculations, the trial court excluded the time from June 13, 1984, the date defendant filed his pretrial motion, until October 27,1987, the date the Supreme Court remanded the case to the trial court.

Our scope of review of the trial court’s determination “is limited to evidence on the record of the Rule 1100 evidentiary hearing and findings of the lower court.” Commonwealth v. Alston, 286 Pa.Super. 290, 294, 428 A.2d 997, 999 (1981) (citation omitted). Further, “[w]here a dispute as to the correct computation of the period results from a disagreement as to the legal consequences of certain periods of delay under paragraph (d) of the rule, it is then appropriate for an appellate court to resolve such questions.” Commonwealth v. Byrd, 493 Pa. 178, 183, n. 7, 425 A.2d 722, 724, n. 7 (1981) (citations omitted). With these standards in mind, we have reviewed the trial court’s adjudication and, per the following discussion, find that we must reverse its order.

The Commonwealth makes two allegations of error by the trial court in its calculation of the 180-day period. The first argument is as follows:

1. Defendant’s filing of his pretrial motion on June 13, 1984, tolled the Rule 1100 clock. At that time, 69 days remained of the 180 days in which to commence trial.

2. Defendant’s request for a continuance in July, 1984, in which he agreed to extend the run date until October 31, 1984, provided an additional 71 days in which to commence proceedings. This figure of 71 is arrived at be counting the days between August 21, 1984 (the original run date) and October 31, 1984.

3. By adding the original 69 days remaining as of June 13, 1984, to the 71 additional days agreed to by defendant, appellant contends that it had 140 days within which to commence trial.

4. 140 days from October 27, 1986 (the day that the case was remanded to the trial court from the Supreme Court) is March 16, 1987. Therefore, the Commonwealth concludes, its motion to extend, filed February 4, 1987, was timely.

We agree with the Commonwealth that the 180-day clock was tolled on June 13, 1984, when defendant filed his pretrial motion raising constitutional issues. Commonwealth v. Mason, 358 Pa.Super. 562, 518 A.2d 282 (1986); Commonwealth v. Bond, 350 Pa.Super. 341, 504 A.2d 869 (1986). However, we find that steps two and three of its argument are flawed. The Commonwealth cites no authority, and we know of none, for the finagling of an additional 71 days.

In Bond, this court en banc considered the effect on the 180-day period of an appellant’s pretrial motion challenging the constitutionality of the statute under which she had been charged. In a plurality decision authored by Judge Cavanaugh, the court stated that:

[u]nlike a motion to suppress or to change venue, appellant presented a motion to dismiss the complaint lodged against her. If successful, the charges against the appellant would necessarily have been avoided and the appellant discharged. Therefore, consideration of appellant’s constitutional challenge ... was itself a process of promptly determining the appellant’s asserted innocence. As such it constituted a “first step in the trial” for purposes of Rule 1100, tolling the 180-day period.

Id., 350 Pa.Superior Ct. at 350, 504 A.2d 874. In a concurring opinion, which was subsequently adopted by the Mason court, Judge Spaeth stated:

[t]he critical point, as I see it, is that in instituting her constitutional challenge, appellant initiated foreseeable delay for which the Commonwealth was not responsible. The period extending from the date of appellant’s motion to the date of the trial court’s order denying the motion should be excluded from the 180-day period. To permit the period to run while the court deliberated on the motion would be to permit appellant to wield her right to a speedy trial in an unjust and uncontemplated manner.

Id., 350 Pa.Superior Ct. at 358, 504 A.2d at 878, quoted with approval in Mason, 358 Pa.Super. at 573, 518 A.2d at 288.

Applying the rationale and holdings of these cases, we find in the instant case that the time from defendant’s filing of his pretrial motion challenging the constitutionality of the statute under which he had been charged until the disposition of that issue by the trial court, is excludable from the 180-day period mandated by Rule 1100. At that point, no charges remained pending against the defendant to be tried and the Commonwealth had no basis for proceeding in the trial court. It was not until the Supreme Court reversed the trial court’s order and remanded the case to the trial court that defendant became available for prosecution. We therefore find that the period from June 13, 1984 until October 27, 1986, was excludable under Pa.R.Crim.P. 1100(d)(3)(i) due to the unavailability of the defendant. Neither the Commonwealth nor defendant needed to file motions for an extension of time during this period. Thus, defendant’s request for a continuance was superfluous and did not result in an automatic grant to the Commonwealth of an additional 71 days in which to commence trial.

The Commonwealth next contends that the trial court erred in failing to exclude the 34 days between November 26, 1986, the day on which defendant filed a petition for writ of certiorari in the United States Supreme Court, and December 30, 1986, the day on which defendant withdrew his petition. In its analysis of this issue, the trial court first recognized that both the defendant and the Commonwealth have the right to petition for writ of certiorari to the United States Supreme Court. According to the trial court however, the mere filing of such a petition does not automatically stay the proceedings in the trial court. Rather, the Commonwealth must “affirmatively make an application for the stay of the remand of the record.” Opinion of March 3, 1987, p. 13. Because the Commonwealth failed to make such an application, no stay was granted. Moreover, the trial court concluded that “the Commonwealth could have brought the defendant to trial even while his Petition For Writ of Certiorari was pending before the United States Supreme Court had it so desired.” Id. at 14.

We find that the trial court’s analysis is premised upon an inapplicable rule of law. The trial court applied Pa.R.A.P. 2572(c), entitled “Stay of remand pending United States Supreme Court review.” Generally, Rule 2572 concerns the remand of the record from an appellate court. Rule 2572(c) is utilized to stay the remand of the record pending United States Supreme Court review: “A stay of the remand of the record pending review in the Supreme Court of the United States may be granted upon application to the appellate court possessed of the record in the case.” (Emphasis added). This rule cannot be applied in the instant case because defendant’s petition was not filed until after the record had been remanded to the trial court. Therefore, no appellate court possessed the record at that time. The trial court thus erred in finding that the Commonwealth should have applied for a stay under this rule.

We further find that the trial court misapplied the law when it concluded, without citing authority, that the Commonwealth could have brought defendant to trial while his petition remained outstanding. Pa.R.A.P. 1701(a) provides: “Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.” “Appeal” is defined in Pa.R.A.P. 102 as “[a]ny petition or other application to a court for review of subordinate governmental determinations. The term includes an application for certiorari under 42 Pa.C.S. section 934 (writs of certiorari) or under any other provision of law. Where required by the context, the term includes proceedings on petition for review.”

These rules clearly encompass a petition for a writ of certiorari to the United States Supreme Court. Moreover, defendant’s action in petitioning for review of our Supreme Court’s decision is in effect an attempt to avoid the charges and have the case against him dismissed. There is thus no significant difference between this petition and defendant’s original pretrial motion challenging the constitutionality of the Solid Waste Disposal Act. For the same reasons as previously discussed, we find that during the period that defendant’s petition remained outstanding, he was “unavailable” as provided by Rule 1100(d)(3)(i). Commonwealth v. Mason, 358 Pa.Super. 562, 518 A.2d 282 (1986); Commonwealth v. Bond, 350 Pa.Super. 341, 504 A.2d 869 (1986). See also Commonwealth v. Norman, 262 Pa.Super. 45, 396 A.2d 476 (1978) (“[u]nder Pa.R.Crim.Pro. 1100(e)(2) once the certiorari is filed the appellant is unavailable. ...” 262 Pa.Super. at 48, 396 A.2d at 477).

We therefore find that the trial court erred in not excluding the 34 days between the filing of defendant’s petition for writ of certiorari in the United States Supreme Court and the day on which he withdrew his petition. The trial court should have calculated the new run date to be February 7,1987: the Rule 1100 clock was tolled on June 13,1984 with 69 days remaining; the clock began to run again on October 27, 1986 when the case was remanded to the trial court; 30 days expired between October 27, 1986 and November 26, 1986, when defendant filed his petition for writ of certiorari in the United States Supreme Court; 39 days remained in the 180-day period when defendant withdrew his petition on December 30, 1987; 39 days after December 30, 1987 is February 7, 1987. The Commonwealth’s Motion to Extend Time to Commence Trial, filed February 4, 1987, was therefore within the 180-day period.

The final issue before us is whether the trial court erred in finding that the Commonwealth failed to exercise due diligence in bringing defendant to trial. The trial court determined that the Commonwealth should have scheduled a trial in this matter during either the November 1986 term or the January 1987 term. “In reviewing whether a lower court properly ruled that the Commonwealth has or has not met its burden of proving due diligence in a Rule 1100 extension hearing, we are limited to considering evidence presented by the Commonwealth and uncontradicted evidence presented by the defendant.” Commonwealth v. Lafty, 333 Pa.Super. 428, 434-35, 482 A.2d 643, 646 (1984) (citations omitted).

We begin our discussion by reiterating that the trial court erred in determining that the Rule 1100 clock continued to run during the 34 day period that defendant’s petition remained outstanding. Therefore, the trial court further erred in concluding that the Commonwealth was able to schedule trial during the November 1986 term. The record of the extension hearing discloses that the Commonwealth did not receive notice that defendant withdrew his petition for writ of certiorari until January 5, 1987 (N.T., p. 6) and that no criminal trials could have been scheduled between January 24, 1987 and March 9, 1987 (N.T., p. 8). Only 19 days remained during the January 1987 term within which to schedule trial when the Commonwealth received notice that defendant had withdrawn his petition. We agree with the Commonwealth that this was an insufficient amount of time to prepare for trial considering the complexity of the case and that approximately 24 witnesses were to testify for the Commonwealth, some of whom were particularly difficult to locate (N.T., pp. 37-45). Considering further the fact that during the extension hearing the Commonwealth was ready to list the case for the upcoming March term of criminal court, but counsel for defendant objected because of a vacation that he had planned (N.T., p. 54), we find that the Commonwealth acted with due diligence in attempting to bring the defendant to trial. We therefore reverse the order of the trial court and remand this case for further proceedings.

Order reversed. Case remanded. Jurisdiction relinquished.

      . The prosecution of the instant action is by the Pennsylvania Attorney General, not by the Erie County District Attorney.

      . We agree with the trial court that the 120-day period provided by Rule 1100(e)(2) is inapplicable. The 120-day rule is applicable only when "an appellate court has granted a new trial or affirmed an order of the trial court granting a new trial----” Pa.R.Crim.P. 1100(e)(2). No new trial has been granted by any court in the instant action.

      . We note that the July, 1984 agreement entered into between the Commonwealth and defendant was to extend the run date to a date certain, e.g., October 31, 1984. Applying simple contract principles, the Commonwealth cannot unilaterally change the date certain simply because the period tolled by the filing of a motion went past the date certain.


author: WATKINS, Senior Judge:

text:
    539 A.2d 1312
    Carol J. KRAFT v. Andrew H. KRAFT, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1987.
    Filed Feb. 24, 1988.
    Reargument Denied April 21, 1988.

      Leslie M. Fields, York, for appellant.
    Judith A. Calkin, Harrisburg, for appellee.
    Before CAVANAUGH, BROSKY and WATKINS, JJ.
   WATKINS, Senior Judge:

This is an appeal from an Order entered January 13, 1987, in the Court of Common Pleas of Dauphin County, denying appellee-wife’s request for an increase in support and granting appellant-husband’s request for a decrease in support.

The history of this case as set forth in the trial court’s opinion is as follows:

On November 25, 1986, the Court modified a previous Support Order dated December 18, 1984 and ordered the Defendant (Andrew H. Kraft, Jr., husband) to pay the sum of $175.00 per week plus $10.00 per week arrearages for the support of his wife and two children. Defendant was given credit for $305.00 towards the arrears. This modified order was an increase from the previous Support Order entered by the Court on December 18, 1984 which ordered Defendant to pay $110.00 per week.
On December 8, 1986, Defendant appealed the entry of the November 25, 1986 Order and requested a hearing before this Court to reduce the Order. On December 15, 1986 Plaintiff (Carol J. Kraft, wife) also appealed the Order and requested a hearing before this Court to increase the November 25, 1986 Order.
A hearing was held before this Court on January 13,1987
At the conclusion of the hearing, this Court reduced the award to $160.00 a week plus 10.00 on arrears.
(Trial court opinion, March 26, 1987, pp. 1-2)

On appeal appellant-husband presents the following questions:

A. Whether the lower court erred in increasing the original support order from $110.00 per week to $160.00 per week when the additional expenses claimed by appellee-wife in support of her request for an increase were covered by the $110.00 per week of support she was already receiving?
B. Whether the lower court erred in ordering spousal support at all to appellee-wife in the amount of $25.00 per week when the divorce court had issued a decree in divorce and had denied appellee-wife’s request for alimony, alimony pendente lite, and attorney’s fees, costs and expenses?

(Appellant’s brief, p. 3)

With regard to appellant’s first claim, apparently there was some confusion at the de novo hearing before the trial court. At that hearing it should have been determined again whether or not wife was entitled to an increase in the $110.00 per week support order entered by the court on December 18, 1984.

Although the January 13, 1987 Order actually indicates an increase in the original support order of December 18, 1984, the trial court stated in its Order of January 13, 1987, that this was a decrease from the $175.00 support order entered on November 25, 1986.

Further, we are unable to determine from either the hearing transcript or the trial court’s opinion what evidence the trial court used to establish support at $160.00 per week.

Accordingly, we will reverse and remand with instructions to the trial court to modify its order to reflect an increase or decrease, whichever the court deems appropriate, in light of the evidence, in the December 18, 1984 support order. Also, we request that the trial court provide us with a comprehensive opinion indicating what evidence it relied upon in reaching its decision.

Because of our disposition with regard to appellant’s first claim, we do not reach the merit of his second claim at this time.

Order reversed; case remanded for compliance with instructions contained in this opinion. Jurisdiction retained.


author: POPOVICH, Judge:

text:
    539 A.2d 1314
    COMMONWEALTH of Pennsylvania v. Girlie SINGH, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1987.
    Filed Feb. 26, 1988.
    Reargument Denied April 26, 1988.

      Burton A. Rose, Philadelphia, for appellant.
    Ann A. Osborne, Assistant District Attorney, Radnor, for Com., appellee.
    Before BECK, KELLY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence (5-10 years) for voluntary manslaughter and possession of an instrument of crime by the appellant, Girlie Singh. We affirm.

Counsel other than trial counsel (first counsel) is representing the appellant on appeal and raises four (4) issues for our consideration.

The initial contention by the appellant challenges the sufficiency of the evidence for voluntary manslaughter, as well as questioning whether the Commonwealth met its burden of disproving the appellant’s self-defense argument. We find that this bifurcated issue does not withstand scrutiny under a waiver analysis.

To explicate, the post-trial motions filed merely alleged that the verdict was against the weight of the evidence and that the court erred in denying the appellant’s demurrer. Moreover, in supplemental post-trial motions submitted by second, appointed counsel, which were restricted to assailing the ineffectiveness of first counsel, nowhere therein is the basis for an attack on the sufficiency of the evidence elaborated upon to satisfy the specificity requirements enunciated by Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) and followed by this Court in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). Nor does appellate counsel, who is the third counsel and unassociated with prior counsel, assert the ineffectiveness of previous counsel as a vehicle by which the self-defense argument of the appellant in the first issue can be addressed. See Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Dancer, 460 Pa. 95, 331 A.3d 435 (1975); Commonwealth v. Klaric, 263 Pa.Super. 286, 397 A.2d 1212 (1979); Commonwealth v. Sweitzer, 261 Pa.Super. 183, 395 A.2d 1376 (1978). Accordingly, the matter is deemed waived.

The second issue posed relates to the claimed ineffectiveness of trial counsel in not requesting an instruction informing the jury about the victim’s alleged pattern of spousal abuse in support of the appellant’s argument and belief that deadly force was necessary to repulse the victim.

Albeit (second) post-trial counsel also failed to raise the issue at bar, appellate counsel labels such counsel as ineffective for not doing so. This appeal being the first occasion that counsel other than counsel whose stewardship is being challenged is representing the appellant, it is the proper stage at which to examine the claim. See Dancer, supra; see also Commonwealth v. Jenkins, 362 Pa.Super. 138, 143 n. 5, 523 A.2d 813, 816 n. 5 (1987).

As has been oft-stated, before counsel will be deemed ineffective, the contention of ineptness must be determined to be of arguable merit. If such is the case, the court is to determine if counsel had some reasonable basis for not acting in his client’s best interests. See Commonwealth v. Jennings, 285 Pa.Super. 295, 427 A.2d 231 (1981). Furthermore, the appellant must establish how he has been prejudiced by counsel’s ineffectiveness before relief will be granted. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.3d 973 (1987).

Under the aforesaid standard, we take odds with the appellant’s contention that Commonwealth v. Watson, 494 Pa. 467, 431 A.2d 949 (1981) entitled her to a jury instruction explaining the relevancy of the victim’s prior acts of violence as a defense for her shooting the victim.

Watson makes no such pronouncement warranting, ipso facto, a jury instruction when there is evidence of prior violent acts by the victim upon the defendant. Rather, Watson stands for the proposition that a history of the defendant’s abuse at the hands of the victim is relevant to support a claim of self-defense. Accord Commonwealth v. Stewart, 483 Pa. 176, 394 A.2d 968 (1978) and Commonwealth v. Darby, 473 Pa. 109, 373 A.2d 1073 (1977), wherein both cases found that a defendant should have been allowed to testify to knowledge of the decedent’s prior violent behavior to corroborate an accused’s testimony as to a justification defense.

Instantly, the appellant was given the opportunity to and did present evidence regarding the prior acts of violence by the decedent against her. Thus, we find the Watson requirement of allowing evidence of prior acts of violence by the decedent upon the defendant to have been satisfied. Therefore, the conclusion drawn by the appellant from the Watson ruling is unjustified, and this, in ineffectiveness of counsel terms, means there is no arguable merit to the claim. (See Trial Court Opinion at 14-15) Ergo, counsel will not be held to have rendered less than competent representation to the appellant at trial.

Moreover, we find that Commonwealth v. Fisher, 342 Pa.Super. 533, 493 A.2d 719 (1985) is not supportive of a new trial, under the particular facts of this case.

In Fisher, trial counsel was held to be inept for submitting an untimely charge seeking to present to the jury evidence of the victim’s prior acts of violence against the appellant. Because this evidence was deemed to be appropriate to reflect on the appellant’s reasonableness in believing he was faced with imminent death or serious bodily injury, we reversed the judgment of sentence and remanded for a new trial.

Instantly, unlike in Fisher, the record is replete with instances in which the history of physical abuse of the appellant by the victim was recounted in depth and at length. In contrast, in Fisher it appears that the only evidence of the prior incidents of physical abuse by the victim against the appellant would have surfaced solely through trial counsel’s requested charge, which was denied by the trial court. Therefore, we find the case at bar to be more akin to Commonwealth v. Tyson, 363 Pa.Super. 380, 526 A.2d 395 (1987), wherein a claim of ineffectiveness of counsel for failure to request a jury instruction concerning the victim’s prior acts of violence was found wanting. In doing so, we wrote the following:

... Appellant claims that trial court’s [sic — counsel’s] failure to request a jury instruction concerning the victim’s prior acts of violence rendered his assistance ineffective. The basis of Appellant’s argument is that this type of instruction was necessary because the evidence adduced at trial of the victim’s prior acts of violence was critical to show Ms. Tyson’s state of mind when she allegedly acted in self-defense in shooting the victim.
As set out earlier in this writing, it is elementary that a finding of ineffectiveness can never be made unless we conclude that Appellant was prejudiced by counsel’s conduct or strategy to the extent that it is reasonable to determine that the result would have been different had counsel pursued the action currently proposed. Commonwealth v. Pierce, supra.
“A court’s charge to the jury will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury properly in its deliberations.” Commonwealth v. Stonehouse, supra [358 Pa.Super. 270], 517 A.2d [540] at 545 [1986], citing Commonwealth v. Reynolds, 256 Pa.Super. 259, 389 A.2d 1113, [1]122 (1978).
Our review of the record leads us to conclude that the extensive charge on self-defense and the court’s specific warning that the juror’s [sic] reach their verdict based on the evidence presented using common sense ... was sufficient to insure that the jurors considered the testimony regarding the alleged prior violent acts of the victim in considering Appellant’s justification defense. We do not find the omission of the instruction at issue here prejudicial to the Appellant. We find that it is not reasonably likely that the result would have been different had the trial court instructed the jury in some manner, (not now specified by the Appellant), on the relevance of the victim’s prior violent acts. Therefore, Appellant has failed to prove the requisite prejudice for trial counsel to be deemed ineffective. Pierce, supra.

363 Pa.Super. at 385-86, 526 A.2d at 398.

As in Tyson, the trial court here gave a self-defense charge which asked the jury to utilize “common sense” in “deciding the facts” before reaching a verdict. Further, two of the appellant’s children gave an accounting of a “violent” relationship between their parents which escalated over the last year of marriage to a scenario of weekly abuse in which the appellant was struck to the point of having black eyes and bruises on her body.

Likewise, the appellant’s recitation of her marriage depicted a woman locked into a verbally and physically offensive relationship which heightened in intensity when the victim became intoxicated, and this occurred every day during the last year of marriage and culminated in the appellant retrieving a gun to protect herself. We read the appellant’s marriage to be one held together out of fear of reprisal from the victim if she left, the need to have financial assistance in raising her three children and the hope that the victim would change his abusive ways.

Thus, just as in Tyson but unlike in Fisher, the record is saturated with accountings of the victim’s conduct toward the appellant. In fact, her apprehension of the victim was echoed in the testimony of the appellant’s children and the psychologist employed by the defense to test and evaluate the appellant’s state of mind on the evening of the shooting, which resulted in six bullets penetrating the victim’s head and upper torso.

Accordingly, as we ruled in Tyson,

We do not find the omission of the instruction at issue here prejudicial to the Appellant. We find that it is not reasonably likely that the result would have been different had the trial court instructed the jury in some manner ... on the relevance of the victim’s prior violent acts. Therefore, Appellant has failed to prove the requisite prejudice for trial counsel to be deemed ineffective. Pierce, supra.

Id.

We can add nothing to the remarks of this Court in Tyson, for the response is appropriate in disposing of the appellant’s ineffectiveness of counsel claim here.

The third issue appearing in the appellant’s brief alleges trial counsel’s ineffectiveness in failing to object to various statements by the prosecutor in his closing argument, which are said to have prejudiced the appellant.

We have read the record and are in agreement with the trial court’s finding that the actions of the prosecutor merely responded to the characterization of the decedent painted by the appellant, i.e., “brutish”, “alcoholic” and a “pimp”. Further, we find the trial court’s response to this issue, as well as the fourth proffered by the appellant challenging the admission of four photographs of the decedent’s bullet-wounds, is adequately responded to at pages 10-13 and pages 5-6, respectively, of the opinion filed with this Court.

Judgment of sentence affirmed.

KELLY, J. concurs in the result.

      . We would note that, albeit the appellant makes reference to six issues in her "Statement of the Questions Involved”, in the body of the appellant’s brief only four Roman-numeraled issues are presented for our consideration. All, of the four recited, have been answered by this Court. We read the other two claims to be subsumed within the ones addressed. Thus, they do not need separate consideration.