author: ROWLEY, President Judge.

text:
    615 A.2d 796
    COMMONWEALTH of Pennsylvania, Appellant, v. Anthony Victor REPACI.
    Superior Court of Pennsylvania.
    Submitted Aug. 17, 1992.
    Filed Nov. 6, 1992.

      Kenneth A. Osokow, Asst. Dist. Atty., Williamsport, for Com., appellant.
    Michael J. Rudinski, Williamsport, for appellee.
    Before ROWLEY, President Judge, and JOHNSON and BROSKY, JJ.
   ROWLEY, President Judge.

The Commonwealth appeals from the order granting appellee/defendant, Anthony Victor Repací, who was convicted of criminal trespass, a new trial pursuant to his petition for relief under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. (“PCRA”). In his PCRA petition, appellee alleged the ineffective assistance of trial counsel as a basis for relief, premised on counsel’s failure to request an alibi instruction. In granting appellee a new trial, the trial court agreed with his allegation that an alibi had been presented and that counsel’s subsequent failure to request the instruction “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Having reviewed the record, we disagree with the trial court’s conclusion regarding the presentation of an alibi which would have necessitated an alibi instruction. Therefore, we reverse the order granting appellee a new trial.

When a claimant seeks relief under the Post Conviction Relief Act, the trial court can grant a new trial if it finds i) ineffective assistance of counsel; ii) which so undermined the truth-determining process that no reliable adjudication of guilt or innocence was possible. 42 Pa.C.S.A. § 954S(a)(2)(ii). We will affirm a trial court’s finding of ineffective counsel if i) petitioner’s claim regarding the inappropriateness of counsel’s action or inaction has arguable merit; ii) counsel had no reasonable basis for his action or inaction; and iii) petitioner was so prejudiced by counsel’s action or inaction that he was denied a fair trial. Commonwealth v. Rollins, 525 Pa. 335, 344, 580 A.2d 744, 748 (1990).

The Commonwealth argues that appellee’s claim lacks arguable merit and therefore trial counsel was not ineffective. Appellee claims he presented an alibi which consequently entitled him to an alibi instruction. He further concludes that his counsel’s failure to request an alibi instruction was an error warranting a new trial. If appellee were correct in his claim that he presented an alibi at trial, his conclusions would also be correct. Commonwealth v. Weinder, 395 Pa.Super. 608, 618 & 623-28, 577 A.2d 1364, 1370 & 1372-75 (1990) (presentation of alibi entitles defendant to alibi instruction; verdict in absence of instruction undermines truth-determining process, warranting new trial under PCRA). But because we find that he did not present evidence of an alibi defense, his claim of entitlement to an alibi instruction has no arguable merit.

Appellee sought to establish as his alibi that although he was not at home, he was in a local sandwich and pizza shop, “Doreen’s Pizza & Subs” [hereinafter “sub shop”], at the time the criminal trespass occurred at a woodworking plant. Appellee’s home is six miles from the woodworking plant (N.T. at 45), and between one mile and “ten minutes” from the sub shop (N.T. at 65-66, 84, 88).

The record shows that the crime occurred at 10:06 p.m. Appellee did not testify; however, his wife testified that police officers arrived at their home between 10 p.m. and 11 p.m. and that appellee had left home “not too long,” “maybe ten, fifteen minutes” before the police arrived. She then testified that her husband returned home after the police had questioned her, and that he had not been gone “very long.” Her speculative testimony clearly does not provide Appellee with an alibi.

The primary alibi witness for the defense, Mr. Raymond Falls, worked in the sub shop. He was the only witness who attempted to place Appellee at the sub shop. That evening, Mr. Falls worked in the sub shop from 10 p.m. until 12:30 a.m. He was unable to testify as to the time when appellee might have been in the shop, nor could he state how long appellee might have remained there. (N.T. at 68, 69). He testified, however, that he could not “say definitely” whether appellee had been in the shop on the evening of the crime at 10:06 p.m. His testimony was:

Q. But you don’t know whether [appellee] was in the sub shop?
A. I can’t say definitely. I think he was, but, you know, as far as that goes, you know.
Q. As far as goes what?
A. Well, I don’t — I can’t say for sure, you know. I think— I think he was, but then again I can’t state definitely he was.

(N.T. at 68). This testimony also falls short of that which is required to warrant an alibi charge.

“Alibi is ‘a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.’ ” Commonwealth v. Roxberry, 529 Pa. 160, 163, 602 A.2d 826, 827 (1992) (citations omitted). If the defendant presents evidence which covers the time period when the crime was committed and which puts him at a different location than that of the crime scene, he has presented an alibi. See Commonwealth v. Jones, 529 Pa. 149, 150-54, 602 A.2d 820, 821-22 (1992) (acknowledging alibi charge to jury as accurately stating the law: “whether the testimony given covers the entire time the offense is shown to have been committed and whether it precludes the possibility of defendant’s presence at the scene”). The evidence presented, taken as true, must make it impossible for defendant to have committed the crime. Id., 529 Pa. at 152-54, 602 A.2d at 822 (alibi evidence considered “totally apart from its credibility”).

Our review of the record discloses that the testimony of appellee’s witnesses does not establish an alibi for the time or place of the crime. Their testimony did not necessarily put appellee at a different location than that of the crime scene, nor did it necessarily cover the time period during which the crime was committed. The trial court construed the facts related by Mrs. Repací and Mr. Falls as follows:

[Appellee’s] wife testified that [appellee] was at home with the exception of the short time he left to go uptown to get “munchies.” The wife’s testimony placed the [appellee] outside the home for only about one-half hour. Mr. Falls’ testimony placed the [appellee] in Doreen’s Sub Shop for about one-half hour, giving the inference that during the time the [appellee] was not in his residence, he was at Doreen’s Sub Shop.

(Trial Opinion at 2-3). It is extremely unclear whether the wife’s testimony could be construed to place appellee out of his home for one-half hour, but even if this were possible, Mr. Falls’ testimony does not “place” appellee in the sub shop at 10:06 p.m.

Evaluation of evidence for an alibi requires a court to take all pertinent testimony as true. It does not however require us to treat testimony, which is offered with uncertainty, as if it were certain. If Mr. Falls had testified that he had seen appellee in the sub shop between 10 p.m. and 10:30 p.m., it would be the trial court’s and our responsibility to view that evidence as if it were true, in order to determine if that version of the facts would preclude the possibility that appellee was the guilty party. But, if we are to take Mr. Falls’ actual testimony as true, then we must believe that Mr. Falls was uncertain whether appellee was in the sub shop, for that is what he testified to. Such testimony does not preclude the possibility that appellee was the perpetrator. Furthermore, as the Commonwealth notes, the trial court itself stated that “[by appellee’s] own witness’ testimony, [appellee] could have been at the scene of the crime at 10:06 p.m.” Trial Opinion at 1.

The trial court states that the “impossibility” requirement for an alibi does not need to be strictly construed, citing two cases in support of its proposition. First, the court cites Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), in which the victim was killed between 6 a.m. and 7 a.m. and the defendant testified that he had slept in his car one mile from the crime scene, then drove to his mother’s home, thereby accounting for his time until 8 a.m. Second, the court cites Commonwealth v. Roxberry, supra, in which a woman was raped between 11 p.m. and 1 a.m. and the defendant testified that he had been at a bar less than one-half mile from the crime scene from 8 p.m. until 1 a.m. In the cases the trial court cites, the defendants were clearly entitled to alibi instructions.

In both cases, the facts pertinent to the alibi defense, if taken as true, would necessarily preclude the possibility that the defendants were the guilty parties. The defendants definitely placed themselves at different locations than the respective crime scenes during time periods which covered the hours when the crimes were committed. In this respect, the courts strictly construed the “impossibility” requirement, giving no leeway for speculative allegations of times and locations.

The liberal construction of “impossibility” which the trial court claims Pounds and Roxberry stand for, is applicable to a different issue, that of geographic impossibility. For example, in Roxberry, the Commonwealth argued that even though the defendant testified that he had been at a bar less than one-half mile from the crime scene at the time the crime was committed, it would not have been impossible for him to have left the bar, committed the crime, and returned to the bar. Our Supreme Court responded to that argument:

The Commonwealth asks us to create a requirement that an alibi defense must allege a certain minimum distance from the scene of the crime, and to hold that four blocks, or one-half mile is not enough____ Judge Popovich, dissenting below, wrote: ... he could have easily left the bar, robbed, raped and released the victim before 12:45 a.m., and then returned to the bar prior to its 1:00 a.m. closing time---[We hold that t]here is no minimum or threshold quantum of physical separation necessary for a defense to constitute an alibi, so long as the separation makes it impossible for the defendant to have committed the crime.

Roxberry, 529 Pa. at 164, 602 A.2d at 827-28. The liberal construction of geographic impossibility is not applicable here.

Accordingly, because evidence was not presented that, even if believed, would have precluded the possibility that appellee was the guilty party, the trial court erred in finding that trial counsel was ineffective for failing to request an alibi instruction. Appellee Repaci’s claim that an alibi instruction was necessary has no arguable merit, and trial counsel cannot be found to have been ineffective on this basis. For this reason, appellee Repaci’s petition for post conviction relief in the form of a new trial was improperly granted.

Order reversed. Case remanded for sentencing. Jurisdiction relinquished.

      . 42 Pa.C.S.A. § 9543(a)(2)(ii).


source: Caselaw Access Project

author: HESTER, Judge.

license: Public Domain

text:
    615 A.2d 799
    Joanne NONNENMAN, Appellant, v. Enshrah M. Nour ELSHIMY, guardian of Ahmed N.H. Elshimy.
    Superior Court of Pennsylvania.
    Submitted Sept. 21, 1992.
    Filed Nov. 9, 1992.

      Amy R. Stem, Ambler, for appellant.
    Mark B. Dischell, Lansdale, for appellee.
    Before OLSZEWSKI, FORD ELLIOTT and HESTER, JJ.
   HESTER, Judge.

Appellant, Joanne Nonnenman, appeals from the order of the Court of Common Pleas of Montgomery County granting preliminary objections filed by appellee and dismissing her cause of action. For the reasons which follow, we are constrained to reverse and remand.

This matter arose pursuant to the petition for custody filed by appellant. Appellee is the wife and guardian of Ahmed Elshimy, an incompetent. Appellant and Ahmed are the natural parents of eleven-year-old Mohamed Chad Elshimy, who was born to the parties on May 6, 1981. Appellee and Ahmed have been married since before Chad’s birth.

On March 17, 1992, the Court of Common Pleas of Montgomery County granted appellee’s preliminary objections and dismissed appellant’s petition for custody. In light of the fact that we reverse the trial court and remand for proceedings consistent with this opinion, we will not address appellant’s contention that the preliminary objections were untimely and should not have been entertained by the trial court.

Initially, we examine our scope of review. “When sustaining a preliminary objection would result in dismissal of an action, the objection should be sustained only in cases which are free from doubt.” Engle v. Engle, 412 Pa.Super. 425, 430, 603 A.2d 654, 657 (1992). Further, we review the evidence in the light most favorable to the non-moving party. Id.

We glean the following facts from the pleadings, the opinion of the trial court, and the briefs. As noted previously, Joanne Nonnenman bore a child to Ahmed Elshimy on May 6, 1981. At that time, and to this day, Ahmed has been married to Enshrah Elshimy. The child, Chad, apparently enjoyed a close and loving relationship with his father, Ahmed, but always has resided with his mother, Joanne. On October 3, 1989, Ahmed was shot and seriously injured during the course of his employment as a security guard. On February 12,1990, Ahmed was adjudged an incompetent, and his wife, Enshrah Elshimy, appellee herein, was appointed as his legal guardian. Since the date of Ahmed’s injury, Enshrah has refused to permit Chad to visit with his father. Appellant instituted this action to establish visitation between Chad and his father after Chad happened to see his father at a local sporting event, and Ahmed hugged and kissed him and appeared delighted to see the child.

In concluding that the petition to determine custody should be dismissed, the trial court stated, “[T]he Court has little doubt that were it Mr. Elshimy’s decision, he would probably desire to see his son.... While recognizing the desires of the minor child, the Court must also consider the rights of the Guardian-Wife.” Trial court opinion, 6/9/92, at 3. These statements demonstrate three misperceptions about the factors to be evaluated under the circumstances in this case.

First, this is an action requesting visitation between a father and his child, who previously enjoyed a close relationship. “[I]t has long been against our public policy to limit or destroy the relationship between parent and child, and except in unusual circumstances the estrangement of a child from either parent will not be sanctioned---- Every parent has the right to develop a good relationship with the child, and every child has the right to develop a good relationship with both parents.” Pamela J.K. v. Roger D.J., 277 Pa.Super. 579, 593, 419 A.2d 1301, 1309 (1980); see also 23 Pa.C.S. § 5301 (“It is the public policy of this Commomvealth, when in the best interest of the child, to assure a reasonable and continuing contact of the child with both parents____”).

Second, in matters of custody and visitation, the ultimate consideration for the court is a determination of what is in the best interest of the child, and all other considerations are deemed subordinate to the child’s physical, intellectual, moral, and spiritual well-being. Lee v. Fontine, 406 Pa.Super. 487, 594 A.2d 724 (1991); Zummo v. Zummo, 394 Pa.Super. 30, 574 A.2d 1130 (1990). Thus, the trial court was required to focus on the best interest of eleven-year-old Chad, not the best interest of either parent or, in this case, the incompetent parent’s guardian.

Third, the guardian’s rights are not at issue in this setting. The guardian is simply the court’s “bailiff or agent in protecting [the incompetent] and his estate.” In re Guardianship of Palmer, 170 Pa.Super. 289, 292, 85 A.2d 669, 670 (1952); see also In re Sigel, 372 Pa. 527, 94 A.2d 761 (1953). As we stated in In re Terwilliger, 304 Pa.Super. 553, 559-60, 450 A.2d 1376, 1380 (1982):

Although a court-appointed “guardian” is vested with the “care and management of the person ... under legal disability,” 46 P.S. § 601(47) (1969); see Daniels v. Metropolitan Life Insurance Co., 135 Pa.Super. 450, 5 A.2d 608 (1939), the appointee, being an officer of the court, is always under the court’s control and is subject to its directions as to the person of the ward. See generally Beaver’s Estate, 121 Pa.Super. 159, 182 A. 744 (1936)....

Thus, if the best interest of the child is the paramount concern, and all other interests are subordinate, including any interests of the parents, certainly, the guardian’s rights, which “exist solely for the ward’s benefit,” Commonwealth ex rel. Children’s Aid Society v. Gard, 162 Pa.Super. 415, 421, 58 A.2d 73, 76 (1948), are subordinate to the best interest of the child.

The court stated that the compelling evidence presented in favor of granting the petition “must be weighed against the substantial inconvenience and emotional stress granting the Petition will visit upon Mrs. Elshimy____” Trial court opinion, 6/9/92, at 3. Thus, it is clear that the trial court focused primarily upon the best interest of the guardian, which conflicted with that of the child and the incompetent. Meanwhile, the inquiry should have been what was in the interest of the incompetent and his child. All might sympathize and agree that the guardian has been confronted with “her husband’s physical and intellectual infirmities, as well as the fact that he fathered a child with another woman while married to her.” Id. However, our primary consideration herein is whether it is in Chad’s best interest to continue a relationship with his father in light of Mr. Elshimy’s disability.

In this regard, the record is woefully inadequate. There was no testimony presented upon which such a finding could be based. The trial court must be apprised, by expert testimony, of the extent of Mr. Elshimy’s disability and of the effects, if any, of visitation with Chad upon his condition. Moreover, Mr. Elshimy’s wishes concerning visitation with Chad must be ascertained, if possible. For support, we rely upon our language in a decision addressing the right of a guardian to consent to sterilization of an incompetent. “Despite the fact that the individual may be labelled an ‘incompetent person,’ does not mean that his or her apparent preferences can be totally ignored.” In re Terwilliger, supra, 304 Pa.Super. at 566, 450 A.2d at 1383. Similarly, Mr. Elshimy, if he is able, must be given the opportunity to express his own views on the subject.

The trial court noted that at a conference in chambers, the parties were afforded an opportunity to place anything on the record, and they declined to do so. Thus, the court proceeded to render its decision based only upon the pleadings. Given the incomplete state of the record, we cannot rule on the substantive issues raised. We previously stated:

In custody and visitation cases, the paramount concern is the best interests of the child. Bucci v. Bucci, 351 Pa.Super. 457, 506 A.2d 438 (1986). A determination of where those interests lie can only be made on the basis of a reasonably complete record, and the “hearing judge must by his opinion give the reviewing court the benefit of a thorough analysis of that record.” In re Long, 313 Pa.Super. 47, 52, 459 A.2d 403, 405 (1983).

Vanaman v. Cowgill, 363 Pa.Super. 602, 605-06, 526 A.2d 1226, 1227 (1987); see also Artzt v. Artzt, 383 Pa.Super. 23, 556 A.2d 409 (1989) (where record was incomplete, remand for evidentiary hearing was necessary). The trial court must proceed with a custody hearing to determine if it is in Chad’s best interest to continue a relationship with his father. All interests will be considered subordinate to his. Moreover, the existence of any animosity among the parties will not be permitted to override the pertinent inquiry into the best interests of the child.

Order reversed. Case remanded for a hearing consistent with this Opinion. Jurisdiction relinquished.

      . The trial court considered the petition as one for visitation, not custody. "The distinguishing factors between visitation and partial custody are the length, frequency, and place of visits and who has effective control of the child during the visits.” Bucci v. Bucci, 351 Pa.Super. 457, 467, 506 A.2d 438, 441 (1986). Any order entered subsequent to remand should set forth the precise nature of the relief afforded.


author: CIRILLO, Judge.

text:
    615 A.2d 802
    COMMONWEALTH of Pennsylvania v. James S. CHEATHAM, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1992.
    Filed Nov. 10, 1992.

      Wendell G. Freeland, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge, and CIRILLO and MONTGOMERY, JJ.
   CIRILLO, Judge.

James S. Cheatham appeals from a judgment of sentence entered by the Court of Common Pleas of Allegheny County after his conviction in a non-jury trial on charges of homicide by vehicle and aggravated assault. We affirm.

On August 3, 1990, Cheatham blacked out while driving on Whitaker Street in the Borough of West Mifflin and lost control of his car. The car left the eastbound lane, jumped the curb, and ran into three children sitting on a fence, killing one child and injuring the other two. There were no tire skid marks before the car hit the fence. Cheatham was found lying across the front seat of the car after the accident. He was described as “dazed” and “swaying” when he stood up.

Cheatham has a history of seizure disorder dating to October, 1988, for which he had been treated at Allegheny General Hospital since January, 1989. He was treated first with dilantin and then Tegretol and, finally, phenobarbital, to control seizures which he told his physician occurred as often as once a day without medication. While receiving medication Cheatham reported to his treating physician that he had seizures once a month.

Cheatham’s last reported seizure before the accident occurred on April 15, 1990, three and one-half months prior to the incident. Cheatham’s treating physician, Dr. Rehka Pa-war, testified that, prior to the accident, she had not seen Cheatham since April 19, 1990, but that his prescription for phenobarbital had been renewed by telephone. Dr. Pawar testified that Cheatham had missed some appointments with her, but she did not specify when. She also testified that she was “not sure that all the medications were being taken regularly.” She was not asked to elaborate. A blood test after the accident — the record is unclear as to exactly how many hours later — showed Cheatham had a level of phenobarbital in blood slightly under the therapeutic level.

Cheatham’s driver’s license was recalled in early 1989. A physician at Allegheny General notified the Commonwealth of Pennsylvania, pursuant to 75 Pa.C.S. 1518(b), on January 5, 1989, that Cheatham suffered from seizure disorder and Cheatham’s license was recalled. Both the physician and the state Department of Transportation notified Cheatham he was not entitled to drive; Cheatham himself complained before the accident to his treating physician about the recall of his license.

Cheatham raises two questions for our consideration:

1) Whether a seizure-induced blackout is criminal negligence within the standards of culpability applicable to homicide by motor vehicle;
2) Whether trial counsel was ineffective for stipulating that the injuries suffered by the victim of the aggravated assault charge were “serious bodily injuries.”

The first question presented by this appeal is whether the evidence established a level of culpability sufficient to sustain a criminal conviction. In reviewing a challenge to the sufficiency of the evidence, this court must ask whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the offense beyond a reasonable doubt. Commonwealth v. Thomas, 527 Pa. 511, 513-14, 594 A.2d 300, 301 (1991).

Cheatham argues that a seizure-induced blackout is an involuntary act without the mens rea necessary to raise the conduct from negligent to grossly negligent as required for a criminal conviction under Commonwealth v. Heck, 517 Pa. 192, 201, 535 A.2d 575, 580 (1987).

The statute under which Cheatham was charged, homicide by vehicle, provides in relevant part:

Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth ... is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

75 Pa.C.S. § 3732.

Cheatham was charged with violating section 1543(a) of the Motor Vehicle Code, operating a motor vehicle while his operating privileges were suspended. On the face of it, the charges against Cheatham appear to satisfy the elements of the statute. His violation of the law, driving while his license was recalled, caused the death of Ryan Maszle. Our analysis, however, does not end here. We must go on to consider whether driving without a license supplies the requisite but-for causation link to find Cheatham guilty of a criminal charge. 75 Pa.C.S. § 3732. If we find that his violation of the law caused the death, then we must continue our analysis to determine whether the act which caused Ryan Maszle’s death was sufficiently reckless to supply the mens rea necessary to justify a criminal conviction. Only if we establish both cause and the necessary mental state may we convict Cheatham of a criminal charge. See 75 Pa.C.S. § 3732, supra; see also 18 Pa.C.S. § 302(a); Heck, supra.

With that standard in mind, we turn first to the statutory-requirement that the violation of the law cause the death to impose culpability. We ask whether Cheatham’s violation of the law, driving while his license was recalled, caused the death of seven-year-old Ryan Maszle.

Causation is an essential element of the offense of homicide, which the Commonwealth must prove beyond a reasonable doubt. Commonwealth v. Webb, 449 Pa. 490, 296 A.2d 734 (1972). Tort theory of causation, the proximate cause, is insufficient to impose criminal responsibility. Commonwealth v. Root, 403 Pa. 571, 575, 170 A.2d 310, 311 (1961). In Root, the Pennsylvania Supreme Court held that participating in a drag race on a two-lane road was insufficient cause to convict one of the racers in the death of the other. Using tort principles of proximate cause to convict someone of a criminal charge is “too harsh to be just,” the Root court held. Id., 403 Pa. at 576, 170 A.2d at 312.

In Commonwealth v. Rementer, 410 Pa.Super. 9, 598 A.2d 1300 (1991), this court considered the problem of causation and held that criminal culpability requires a more direct causal connection than does tort liability. Id., 410 Pa.Super. at 22, 598 A.2d at 1306 (citation omitted). The Rementer court defined a two-step analysis to find criminal culpability: first that the death would not have occurred but-for the antecedent act by the defendant and, second, that the fatal result not be so extraordinary, remote or attenuated that it would be unfair to hold the defendant criminally responsible for it. Id., 410 Pa.Super. at 22-23, 598 A.2d at 1306. This court held in Rementer:

[Defendant's conduct must bear a direct and substantial relationship to the fatal result in order to impose criminal culpability. Put another way, if the fatal result was an unnatural or obscure consequence of the defendant’s actions, our sense of justice would prevent us from allowing the result to impact on the defendant’s guilt.

Id., 410 Pa.Super. at 22-23, 598 A.2d at 1306-07.

In Rementer a woman was killed when she was run over by a passing car while trying to escape an attacker. The court had no trouble finding the evidence sufficient to sustain the attacker’s conviction for third-degree homicide. Causation in Rementer can be distinguished from that in Commonwealth v. Colvin, 340 Pa.Super. 278, 489 A.2d 1378 (1985) in which this court found there was insufficient evidence of causation to sustain an involuntary manslaughter conviction. Colvin involved two stone throwing incidents. In the first, a stone thrown at a house by an unknown miscreant broke a window. A week later, Colvin threw a stone which hit the house with a thump. A son in the family heard the thump and woke his parents to report it. On hearing the news the mother collapsed and died. Colvin was convicted of involuntary manslaughter. This court found no direct causal relationship between the act and the death and vacated the judgment of sentence.

Using those precepts, we turn to the instant case and ask whether Cheatham’s act of driving while his license was recalled caused the death of Ryan Maszle.

The failure to have a valid driver’s license does not meet the level of causation required by Rementer, supra, and Root, supra. To find causation we must look further, to the act of driving itself. There we find the violation of the law which rises to the level of criminal responsibility. Cheatham was barred from driving because he had not gone seizure-free for a year. Cheatham’s illegal act, driving when he was not seizure-free, bears the direct and substantial relationship to the fatal result demanded by Rementer, supra, and Root, supra. When Cheatham had his seizure while driving it was not an unnatural or obscure result which would exempt him from criminal culpability. Rementer, supra; Colvin, supra. His seizure was foreseeable and, perhaps, likely.

Our next inquiry is directed to the mental element necessary to make a person criminally culpable for the fatal result which his acts cause, the mens rea. The framework in which to examine mens rea in homicide by vehicle is supplied by Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575 (1987). In Heck, the accused had turned left into the path of an oncoming motorcyclist who was killed in the collision. He was convicted of homicide by vehicle. When Heck turned left he did so in violation of the Motor Vehicle Code’s requirement that a vehicle turning left yield to oncoming traffic. This court held that a statute imposing criminal liability for an act of simple negligence denied the defendant due process of law. Commonwealth v. Heck, 341 Pa.Super. 183, 491 A.2d 212 (1985).

The Pennsylvania Supreme Court rehabilitated the statute by adding a mens rea requirement to what is, on its face, a strict liability statute. Heck, 517 Pa. at 200, 535 A.2d at 579. The court held that “ordinary negligence will not sustain a conviction for the offense of homicide by vehicle. The applicable mens rea requirements of culpability are those enumerated in 18 Pa.C.S. § 302(a).” Id. Section 302(a) establishes four degrees of culpability: “intentionally, knowingly, recklessly or negligently as the law may require, with respect to each material element of the offense.” 18 Pa.C.S. § 302(a). “Negligently” is intended to be criminal negligence which is defined as “a gross deviation from the standard of care that a reasonable person would observe.” Heck, 517 Pa. at 201, 535 A.2d at 580.

The question becomes: Do the facts of the case at hand present a “gross deviation?” Cheatham asks us to frame the question as: Whether an epileptic seizure while driving constitutes a gross deviation. The Commonwealth, on the other hand, asks whether driving when one knows or has reason to believe one is subject to seizures constitutes a gross deviation from the standard of care. For the reasons that follow, we believe the Commonwealth’s formulation of the question is most appropriate.

An epileptic seizure while driving and an ensuing fatal accident is an example law school textbooks use to distinguish cases in which there is no criminal culpability from those in which there is criminal responsibility. See S. Kadish and S. Schulhofer, Criminal Law and its Processes, p. 195 (Little, Brown and Co. 1989). The case most often cited is People v. Decina, 2 N.Y.2d 133, 157 N.Y.S.2d 558, 138 N.E.2d 799 (1956). In that case, Decina killed four children when he lost control of his car during an epileptic seizure. The question before the Decina court was whether the evidence was sufficient to indict. Decina argued the state had no evidence of the mens rea required to indict for involuntary manslaughter. The New York court held that, assuming the truth of the indictment as it must on demurrer, Decina knew he was subject to epileptic seizures. That knowledge and the choice to drive, the court said, amounted to culpable negligence. The court distinguished Decina’s behavior from that of a person for whom the seizure was unexpected. An unexpected attack, the court reasoned, is altogether different, suggesting a lack of criminal culpability. Cf. Malcolm v. Patrick, 147 So.2d 188, cert. denied 148 So.2d 278 (Fla.App.Div.1962) (tort liability depends on foreknowledge of epilepsy).

The defining difference between the epileptic who drives with the knowledge that he or she is seizure prone and the unsuspecting epileptic who drives is choice. One chooses to take the risk; the other does not know he is taking the risk. The Pennsylvania Supreme Court defined criminal culpability in terms of choice in Commonwealth v. Hicks, 502 Pa. 344, 466 A.2d 613 (1983), as pertaining to drivers who know or should know that death is a probable consequence of their violations of the Motor Vehicle Code and who “should reasonably anticipate that their conduct is likely to produce death.”

In this case, Cheatham knew the frequency of his seizures even with medication, he knew that he had not had medical attention for three months, he knew that his seizures came on without warning, and he knew that the Commonwealth of Pennsylvania required that he be seizure-free for one year before being licensed to drive. Despite that knowledge, Cheatham chose to drive. That choice to drive raises Cheat-ham’s conduct to the level of a gross deviation from the standard of care that a reasonable person would observe. 18 Pa.C.S. § 302(a); Heck, supra.

We find for the foregoing reasons that Cheatham’s violation of the law, driving while his license was suspended, caused the death of Ryan Maszle and that Cheatham’s disregard for the safety of others was sufficiently reckless and wanton to rise to the level of criminal culpability. 75 Pa.C.S. § 3732 supra; Rementer, supra; Heck, supra.

We turn now to Cheatham’s second argument that he received ineffective assistance of counsel when counsel stipulated to the injuries received by Aaron Delandro. Cheatham argues on appeal this ineffective assistance caused him to receive a harsher sentence than he would have for an assault which did not cause serious bodily harm.

Our standard of review when evaluating a claim of ineffective assistance of counsel is well settled, presumes that trial counsel is effective, and places on the defendant the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 230, 570 A.2d 75, 81 (1990). We are first required to determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991). If the claim is without merit, our inquiry ends because counsel will not be deemed ineffective for failing to pursue an issue which is without basis. Id. Even if the underlying claim has merit, the appellant still must establish that the course of action chosen by his counsel had no reasonable basis designed to effectuate the client’s interests and, finally, that the ineffectiveness prejudiced his right to a fair trial. Id.; Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d 504, 505 (1989).

This court will not counter counsel’s strategic decisions, made in the interests of his client, during trial so long as the strategy has a reasonable basis. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967). In this case, stipulating to the injuries to Aaron Delandro was clearly a trial strategy designed to lessen the emotional impact of testimony, a reasonable strategy under the facts of this case and one which we will not second guess. Maroney, supra.

Judgment of sentence affirmed.

      . Cheatham was convicted of homicide by vehicle, 75 Pa.C.S. § 3732; involuntary manslaughter, 18 Pa.C.S. §§ 2501 and 2504; aggravated assault, 18 Pa.C.S. § 2702(a)(1); two counts of recklessly endangering another person, 18 Pa.C.S. § 2705; carrying a firearm without a license, 18 Pa.C.S. § 6106, and four summary violations of the Motor Vehicle Code. Only the convictions for homicide by vehicle and aggravated assault are at issue in this appeal.

      . A therapeutic level of phenobarbital is 15 to 40 milligrams per liter. His blood measured 14.47 milligrams per liter.

      . Section 1518(b) requires:
      All physicians and other persons authorized to diagnose or treat disorders and disabilities defined by the Medical Advisory Board shall report to the department, in writing, the full name, date of birth and address of every person over 15 years of age diagnosed as having any specified disorder or disability within ten days.
      Epilepsy is a disability defined at 67 Pa.Code 83.4:
      A person suffering from epilepsy may not drive unless their personal licensed physician reports that the person has been free from seizure for a period of at least 1 year immediately preceding, with or without medication.

      . Section 1519(c) of the Motor Vehicle Code provides:
      The department shall recall the operating privilege of any person whose incompetency has been established ... for an indefinite period.
      75 Pa.C.S. § 1519(c).

      . Section 1543(a) of the Motor Vehicle Code provides:
      [A]ny person who drives a motor vehicle on any highway or traffic-way of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operation privilege and before the operating privilege has been restored is guilty of a summary offense
      75 Pa.C.S. § 1543(a).

      . Criminal homicide, murder, voluntary and involuntary manslaughter, is defined as follows: A person is guilty of criminal homicide if he intentionally, knowingly, recklessly, or negligently causes the death of another human being. 18 Pa.C.S. § 2501(a).

      . Cheatham’s treating physician was asked if she was "trying to put enough phenobarbital in his system to make seizures unlikely?” She answered, "For some people you can’t completely control the seizures. I was trying to cut down the seizures, not make it [sic] unlikely. That would be good if it was unlikely, but I was trying to control them ... [the purpose of the medication] was to control the seizures.”

      . Choice is the defining element of intent. B. Cardozo, What Medicine Can Do for Law, Law and Literature and other Essays and Addresses 99-100 (1931).


author: CERCONE, Judge:

text:
    615 A.2d 1316
    COMMONWEALTH of Pennsylvania v. Jon E. YOUNT, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1992.
    Filed Sept. 21, 1992.
    Reargument Denied Nov. 23, 1992.

      See also 455 Pa. 303, 314 A.2d 242.

      Jon E. Yount, appellant, pro se.
    George P. Smeal, Clearfield, for appellee.
    Before CIRILLO, KELLY and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order of the Court of Common Pleas of Clearfield County which dismissed appellant’s petition for relief under the Post Conviction Relief Act. For the reasons that follow, we affirm.

The trial court concisely summarized the lengthy procedural history of this case as follows:

Jon E. Yount was convicted in 1966 of First Degree Murder and Rape following trial by jury. On direct appeal, the Pennsylvania Supreme Court reversed on the basis that Yount had not received adequate warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Following retrial in which the rape charge was dropped, Yount was again convicted of First Degree Murder and sentenced to life imprisonment. This conviction was affirmed by the Supreme Court of Pennsylvania in 1974. 455 Pa. 303, 314 A.2d 242.
In 1981 Yount filed a Petition for Writ of Habeas Corpus in the U.S. District Court claiming that his conviction was obtained in violation of his 5th and 14th Amendment rights to a fair trial by an impartial jury. All other claims were deleted from Yount’s Petition after the District Court determined that they had not been presented to state courts for initial consideration. The matter was appealed through various Federal Courts until finally the conviction was affirmed by the U.S. Supreme Court in 1984. Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847.
In 1985 Yount filed a Post Conviction Hearing Act Petition raising the several issues deleted from his Federal Habeas Corpus Petition. The Post Conviction Hearing Act Court ruled after hearing that the issues had been waived by Yount. New counsel was appointed and Yount filed a Notice of Appeal from this decision, but shortly thereafter he escaped from Rockview State Correctional Institution. The Commonwealth filed a Motion to Dismiss the appeal while Yount was still at large which the Court granted pursuant to Commonwealth v. Tomlinson, 467 Pa. 22, 354 A.2d 254 (1976).
Following his recapture, Yount filed a second Post Conviction Hearing Act Petition claiming ineffective assistance of counsel and at the same time filed a Motion to Recuse the presiding judge, Honorable John K. Reilly, Jr., President Judge, and Honorable John A. Cherry, Senior Judge. The Post Conviction Hearing Act Court dismissed the Petition for the reason that the issues raised therein had already been disposed of on appeal to the Superior Court. Yount appealed this decision claiming that first, the Court erred in holding that the issues raised in the Petition were disposed of by the Superior Court; second, that the Order of the lower court dismissing his Petition was void because of documented prejudice of the Court; third, that Post Conviction Hearing Act counsel was ineffective in failing to petition for the recusal of the judge and other alleged instances of incompetence; fourth, that Post Conviction Hearing Act appellate counsel was ineffective for failing to seek a continuance in the Superior Court after Yount became a fugitive; fifth, that the Court erred in dismissing the issues without a hearing at which Yount could be represented by counsel; and sixth, that the Court erred in refusing to recuse Judges Reilly and Cherry.
On October 23, 1989, the Superior Court affirmed the Order of the trial court dismissing Yount’s second Petition for Post Conviction Collateral Relief and thereafter, Yount appealed for [allocatur] to the Supreme Court of Pennsylvania, which was denied.
On March 22,1991, Yount filed a third Petition under the Post Conviction Relief Act again raising the claim of ineffective assistance of counsel. He also claims that the imposition of sentence of life imprisonment without any explicit or implied minimum sentence precluding parole eligibility is an illegal sentence under Pennsylvania law.

Trial Court Opinion dated October 18, 1991 at 1-3. The trial court held that appellant had waived his claim of ineffective assistance of counsel, but addressed the merits of appellant’s argument concerning the legality of his sentence. Once again, the trial court denied appellant’s petition for post conviction relief and this timely appeal followed.

Appellant raises the following issues for our review:

I. Did the Post Conviction Relief Court err in denying appellant’s claim that his sentence of life imprisonment, as imposed by the court without a discretionary minimum term and the parole eligibility it engenders, is an illegal sentence requiring modification to a sentence of “one day to life imprisonment”?
II. Did the Post Conviction Relief Court err in denying appellant’s claim that his sentence of imprisonment for life, as imposed by the court absent the legality and individualized treatment inherent in a minimum term and engendered parole eligibility required by statute, is unconstitutional thus requiring amending to a sentence of “one day to life imprisonment”?

We will address these issues in order.

First, appellant contends that the trial court illegally sentenced him to life imprisonment. At the outset, we note that a claim challenging the legality of a sentence is one that can never be waived. Commonwealth v. Diamond, 376 Pa.Super. 485, 546 A.2d 628, 631 n. 3 (1988). See, e.g., Commonwealth v. Hollawell, 413 Pa.Super. 42, 604 A.2d 723, 725 (1992) (trial court possesses the inherent power to correct a lawful sentence at any time); Commonwealth v. Ragoli, 362 Pa.Super. 390, 402 n. 7, 524 A.2d 933, 939 n. 7 (1987) (“The issue of the propriety and manner in which the sentence was imposed is one which may be raised sua sponte by an appellate court.”).

The essence of appellant’s argument is that a sentence of “life imprisonment” is illegal under Pennsylvania statute because it fails to impose a minimum term. Interestingly, appellant alternately focuses his analysis on the statutes which governed at the time of his sentencing, and the statutes in their present form. Although the current statutes were not in effect at the time of appellant’s sentencing, we note that they are strikingly similar to their repealed counterparts.

Appellant was convicted of first degree murder. The statute under which appellant was sentenced provided, in pertinent part:

Whoever is convicted of the crime of murder of the first degree is guilty of a felony and shall be sentenced to suffer death in the manner provided by law, or to undergo imprisonment for life at the discretion of the jury trying the case, which shall, in the manner hereinafter provided, fix the penalty[.]

18 P.S. § 4701. This statute was repealed and recodified at 18 Pa.C.S.A. § 1102. The statute now reads as follows:

(a) Murder of the first degree. — A person who has been convicted of a murder of the first degree shall be sentenced to death or to a term of life imprisonment in accordance with section 1311(d) [now 42 Pa.C.S.A. § 9711] of this title (relating to sentencing procedure for murder of the first degree).

18 Pa.C.S.A. § 1102. Because the death penalty was not in effect at the time of appellant’s sentencing, the trial court sentenced appellant to life imprisonment.

On the date of appellant’s sentencing, the courts were also required to specify the maximum and minimum sentence imposed for a crime punishable by imprisonment in a state penitentiary. 19 P.S. § 1057 (repealed). Section 1057 provided, in pertinent part:

“[T]he court, instead of pronouncing upon such convict a definite or fixed term of imprisonment, shall pronounce upon such convict a sentence of imprisonment for an indefinite term: Stating in such sentence the minimum and maximum limits thereof; and the maximum limit shall never exceed the maximum time now or hereafter prescribed as a penalty for such offense; and the minimum shall never exceed one-half of the maximum sentence prescribed by any court.”

Id. The substance of this statute may now be found in Title 42 of the Pennsylvania Consolidated Statutes which provides, in part:

§ 9756. Sentence of total confinement
(a) General rule. — In imposing a sentence of total confinement the court shall at the time of sentencing specify any maximum period up to the limit authorized by law and whether the sentence shall commence in correctional or other appropriate institution.
(b) Minimum sentence. — The court shall impose a minimum sentence of confinement which shall not exceed one half of the maximum sentence imposed.

42 Pa.C.S.A. § 9756(a) and (b). Both the repealed and current statutes require (1) the stating of a minimum penalty; and (2) the imposition of life imprisonment for first degree murder. Therefore, appellant’s arguments and our analysis thereof, are pertinent to both the repealed and current versions of the statutes.

Our extensive research reveals only one case in which a first degree murderer argues that the trial court’s failure to impose a minimum sentence constituted error. In Commonwealth v. Manning, 495 Pa. 652, 435 A.2d 1207 (1981), the appellant, sentenced to life imprisonment pursuant to 18 Pa.C.S.A. § 1102(a), alleged that the trial court erred in not imposing a minimum sentence. The Pennsylvania Supreme Court, without detailing appellant’s argument, disposed of appellant’s claim as being “without merit.” Because our Supreme Court provided no further elaboration regarding the specific arguments raised by appellant, or the rationale behind the dismissal of appellant’s contention, we must treat the question as one of first impression.

Appellant contends that the trial court improperly and illegally failed to state a minimum sentence and cites our Supreme Court’s holding in Commonwealth v. Ulbrick, 462 Pa. 257, 341 A.2d 68 (1975) in support. In Ulbrick, the defendant was convicted of two counts of second degree murder. At that time, the legislature had divided murder into two classifications:

All murder perpetrated by poison or lying in wait, or any wilful, deliberate or premeditated murder or murder which is committed in the perpetration of certain felonies is murder in the first degree. Every other kind of murder is murder in the second degree.

Commonwealth v. Bowden, 456 Pa. 278, 283, 309 A.2d 714, 717 (1973). For a first offense, the penalty for murder in the second degree was a term of imprisonment not exceeding twenty years and/or a fine of not more than ten thousand dollars ($10,000). Act of June 24, 1939, P.L. 872, § 701, as amended, 18 P.S. § 4701 (repealed). The trial court sentenced Ulbrick to twenty years imprisonment. Our supreme court held that this sentence, without a stated minimum, implied a minimum sentence of one day. Commonwealth v. Ulbrick, 462 Pa. at 258-59, 341 A.2d at 69.

Appellant would suggest that under Ulbrick, a trial court seeking to impose a minimum of life imprisonment must sentence a first degree murderer to “not less than” life imprisonment, “nor more than” life imprisonment. Without these “magic words,” a minimum sentence of one day is presumed. We find only one similarity between the Ulbrick case and the case at bar. In both cases, the trial court did not impose a minimum sentence pursuant to 19 P.S. § 1057 (repealed). However, the sentencing provisions in Ulbrick vastly differ from the provisions applicable to appellant’s crime of first degree murder.

The rules of statutory construction have not changed since appellant’s sentencing. It is black letter law that a court must construe the words of a statute according to their plain meaning. 46 P.S. § 533 (repealed and recodified at 1 Pa. C.S.A. § 1903(a)); Commonwealth v. Kimmel, 523 Pa. 107, 110, 565 A.2d 426, 427 (1989); Commonwealth v. Stanley, 498 Pa. 326, 335, 446 A.2d 583, 587 (1982). When the words of a statute are unambiguous, they are not to be disregarded under the pretext of pursuing the spirit of the statute. 46 P.S. § 551 (repealed and recodified at 1 Pa.C.S.A § 1921(a)). Additionally, it is equally well-settled that the legislature does not intend a result that is absurd, contradictory or unreasonable. 46 P.S. § 552(1) (repealed, now 1 Pa.C.S.A. § 1922(1)); Commonwealth v. Zdrale, 530 Pa. 313, 608 A.2d 1037 (1992); Commonwealth v. Kates, 452 Pa. 102, 110, 305 A.2d 701, 705 (1973).

The sentencing statute in Ulbrick mandated only that the sentence not exceed twenty years imprisonment thereby allowing the trial court discretion in imposing a minimum sentence. The statute under which appellant was sentenced, 18 P.S. § 4701 (repealed), is both clear and unambiguous. The statute provided that a person “convicted of the crime of murder of the first degree ... shall be sentenced to ... undergo imprisonment for life____” 18 P.S. § 4701 (emphasis added). The statute, by its express terms, mandates life imprisonment for first degree murderers.

Contrary to appellant’s arguments, the mandatory nature of the penalty is affirmed by the language employed by the legislature in 42 Pa.C.S.A. § 9756(c), which provides as follows:

(c) Prohibition of parole. — Except in the case of murder of the first degree, the court may impose a sentence of imprisonment without the right to parole only when:
(1) a summary offense is charged;
(2) sentence is imposed for nonpayment of fines or costs, or both, in which case the sentence shall specify the number of days to be served; and
(3) the maximum term or terms of imprisonment imposed on one or more indictments to run consecutively or concurrently total less than 30 days.

42 Pa.C.S.A § 9756(c) (emphasis added). Appellant graciously acknowledges that “at first blush, [this section] appears to deny the right to parole to those serving life sentences for that particular offense[.]” Appellant’s Brief at 25. Appellant contends, however, that the uniqueness of the sentence for first degree murder requires further study. Appellant insists that because first degree murder carries a penalty of “death” as an alternative, section 9756(c) recognizes only the absurdity of parole from a death sentence. Under appellant’s analysis, the exception “in the case of murder of the first degree,” prohibits parole only for those sentenced to death.

Again, applying the rules of statutory construction, the parole statute is clear and unambiguous. The statute clearly provides an exception “in the case of murder of the first degree.” 42 Pa.C.S.A § 9756(c). Despite appellant’s arguments to the contrary, we conclude that the statute unequivocally bars all parole for first degree murderers whether the sentence is life or death.

The Commonwealth Court has considered a similar argument raised in the context of an application for summary relief against the Board of Probation and Parole. In Castle v. Pennsylvania Board of Probation and Parole, 123 Pa.Cmwlth. 570, 554 A.2d 625 (1989), allocatur denied, 523 Pa. 650, 567 A.2d 653 (1989), the appellant challenged the life sentence imposed pursuant to 18 Pa.C.S.A. § 1102(b) for second degree murder. Although not binding on this court, we are guided by the sound reasoning espoused by the Honorable Madeline Pallidino.

The petition in Castle argued that the life sentence for second degree murder is a “flat maximum sentence and that, in the absence of a statute fixing a minimum term for second degree murder, a minimum of one day should be implied.” Id., 123 Pa.Cmwlth. at 573, 554 A.2d at 627. The petitioner contended that because 18 Pa.C.S.A. § 1102 did not employ the words “not less than” or “at least,” the section did not set a minimum term. The Commonwealth Court dismissed the petitioner’s argument and stated:

[ A] minimum sentence has been defined as the least severe sentence which may be imposed. Black’s Law Dictionary 898 (5th ed. 1979). As noted above, section 1102(b) states that the sentence of life imprisonment shall be imposed for the offense of second degree murder. A sentencing court may not sentence a second degree murderer to a lesser term. Accordingly, we conclude that the absence of the magic words “not less than” or “at least” does not render Petitioner’s sentence something other than a mandatory minimum.

Id., 123 Pa.Cmwlth. at 575-76, 554 A.2d at 628 (emphasis in original).

Similar to the sentence for second degree murder analyzed in Castle, the repealed 18 P.S. § 4701 and the current 18 Pa.C.S.A. § 1102 both mandate that a trial court not imposing the death penalty sentence a person convicted of first degree murder to life imprisonment. Under the clear wording of the statute, the sentencing court may not sentence a first degree murderer to a lesser term. Accordingly, we agree with our sister court and conclude that the absence of the magic words “not less than” or “at least” does not render appellant’s sentence something other than a mandatory minimum.

Appellant next challenges the constitutionality of the penalty of life imprisonment without opportunity for parole. Unfortunately, appellant’s argument is a series of unsupported and disjointed assertions. Appellant begins his argument by setting forth the relevant sentencing provisions as dispositive of the legislature’s intent to grant prisoners a liberty interest in “the consideration of his record and character, as well as the circumstances of the offense, when sentenced to life imprisonment.” Appellant’s Brief at 34. Our scrutiny of the sentencing statutes does not reveal such a legislative intent. The statutes, as set forth supra, clearly and unambiguously required the sentencing court to sentence appellant to life imprisonment, notwithstanding evidence of aggravating or mitigating circumstances.

Obviously anticipating our resolution of the first issue, appellant asserts that “[t]he judiciary has usurped the constitutionally-delegated authority of the legislature to create law, in this case, by interpreting laws which are fair on their face in a manner that engenders a discriminatory result not intended by the General Assembly.” Appellant’s Brief at 35. Again, in light of our analysis of the clear and unambiguous language of the sentencing statutes, appellant’s assertion is meritless. The language of the statute allows for no other interpretation.

Finally, appellant contends that the “guarantee of equal protection mandates that lifers cannot be denied the same protection of law enjoyed by offenders in other classes— that is, individualized treatment in sentencing[.]” Id. at 35. The selection of the penalty of life imprisonment, being a legislative determination, carries a strong presumption of validity, and of constitutionality. Commonwealth v. Middleton, 320 Pa.Super. 533, 544, 467 A.2d 841, 846 (1983). Arguably, the mandatory sentence of life imprisonment for first degree murderers not sentenced to death precludes the consideration of aggravating or mitigating circumstances. However, this court has upheld the constitutional validity of such a sentence under the United States and Pennsylvania Constitutions. Commonwealth v. Waters, 334 Pa.Super. 513, 483 A.2d 855 (1984), cert. denied, 471 U.S. 1137, 105 S.Ct. 2679, 86 L.Ed.2d 697 (1985).

The Eighth Amendment requirement for individualized consideration of offender and crime in capital cases has not been extended to noncapital cases. Id., 334 Pa.Super. at 525-26, 483 A.2d at 861. Accordingly, we fail to see how appellant has been denied his right to equal protection under the law. “The legislature, in enacting this statute, has given all offenders in noncapital first-degree murder cases the same punishment: the removal of the offender from society for the remainder of his life. This is constitutionally valid.” Id., 334 Pa.Super. at 526, 483 A.2d at 861-62. We find, therefore, that appellant’s sentence does not violate the equal protection clauses of either the United States or the Pennsylvania Constitution.

Order affirmed.

      . Applying the United States Supreme Court’s holding in Furman v. Georgia, 403 U.S. 952, 91 S.Ct. 2282, 29 L.Ed.2d 863 (1971), the Pennsylvania Supreme Court declared the Act of June 24, 1939, P.L. 872, § 701, as amended, 18 P.S. § 4701 unconstitutional. Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972). Subsequently, in order to meet the requirements of Furman, the Pennsylvania Legislature enacted 42 Pa.C.S. § 9711.