author: MONTGOMERY, Judge: POPOVICH, Judge,

text:
    572 A.2d 700
    Richard E. LOWRY, Appellant, v. STATE FARM INSURANCE COMPANIES, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1989.
    Filed Feb. 23, 1990.
    Reargument Denied April 30, 1990.

      Raymond S. Woodard, Franklin, for appellant.

      Gordon R. Miller, Meadville, for appellee.
    Before McEWEN, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This appeal arises from an Order of the trial court which granted a motion for judgment non obstante veredicto in favor of the Defendant-Appellee, State Farm Insurance Companies (hereinafter “State Farm”). Further, the trial court’s Order denied a motion for a new trial which was submitted by Plaintiff-Appellant Richard E. Lowry. After careful review, we have concluded that the trial court’s grant of judgment n.o.v. must be reversed, and the verdict of the jury reinstated.

The procedural background of this case shows that the Plaintiff instituted this action seeking two types of recoveries from the Defendant, based upon Defendant’s insurance coverage of a vehicle owned by the Plaintiff. In the first Count of his Amended Complaint, Mr. Lowry sought to recover under the so-called comprehensive coverage of the policy, for damages to the vehicle which occurred during an incident which will be more fully described later in this Opinion. Count Two of the Amended Complaint sought a recovery of triple damages under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (Act of December 17, 1968, P.L. 1224 No. 387, § 1 et seq., as amended, 73 P.S. 201-1 et seq.) The case was tried before a jury, which rendered a verdict in favor of the Plaintiff for $21,-100.00, the stipulated amount of damages which had occurred to the vehicle. Prior to the submission of the case to the jury, the trial judge had granted a defense motion for compulsory nonsuit as to Count Two of the Amended Complaint. After the verdict, the court granted the State Farm motion for judgment n.o.v. The Plaintiff’s request for new trial was submitted in connection with the trial court’s rejection of the triple damages claim set forth in Count Two of the Complaint. As noted above, the trial court rejected the motion for a new trial.

In the review of the record in an appeal from an order of a trial court which has granted judgment n.o.v., we are required to consider the evidence and all reasonable inferences therefrom in the light most favorable to the verdict winner. Northwest Savings Association v. Distler, 354 Pa.Super. 187, 511 A.2d 824 (1986). We shall apply that principle in the analysis of this case.

The record shows that the Plaintiff was semi-retired and spent the winter months in Florida. He owned several vehicles which he used in Pennsylvania only during the warmer weather months of the year. Among these seasonal vehicles was a 1985 Chevrolet Corvette.

In the winter of 1986-1987, the Plaintiff had the Corvette parked at the residence of his son, Richard E. Lowry, Jr. The license plate was removed from the vehicle while it was stored there. On March 29, 1987, Richard E. Lowry, Jr. was away from home on a business trip and had an acquaintance, Steven M. Bell, staying at his residence as a “house sitter”.

Without authorization to do so, Bell took a license plate from a truck that was parked on the property, and put it on the Corvette. He also located the keys for the Corvette, and took the Corvette for a drive. He wrecked the vehicle, causing the stipulated damages of $21,100.00. It was agreed that while Bell had no permission to drive the vehicle, he took it with an intent to return it to the Lowry residence.

At the time of the loss, the vehicle was not covered by so-called “collision” coverage, but only by comprehensive coverage. The latter provided protection for a loss resulting from a “theft” of the vehicle, but did not cover loss from the “unauthorized use” of the automobile. It was on this basis that State Farm eventually refused to pay the claim of Lowry, leading to the filing of this action. State Farm maintained that the conduct of Bell amounted to an “unauthorized use” of the Corvette, and not a “theft”.

The Plaintiff testified regarding the circumstances which resulted in his lack of collision coverage on the Corvette at the time of the loss. He related that he had relied completely upon the advice of State Farm’s selling agent in providing for his coverages. Because of his habit of storing the Corvette and other vehicles in Pennsylvania while he lived in Florida each winter, and the fact that neither he nor any other person was expected to or authorized to drive them on the roads during this time, it was arranged by the State Farm agent that the collision coverage on such vehicles would be cancelled during the winter, and automatically reinstated on April 1 of each year. Although he never read his policy, the Plaintiff recalled that the insurance agent had assured him that the comprehensive coverage that remained in effect during these winter months would provide protection against losses arising from theft, larceny, malicious mischief and vandalism. The winter cancellation of the collision protection policy provisions was designed to save Mr. Lowry some premium charges when the stored vehicles, including the Corvette, were not expected to be used.

At the conclusion of the Plaintiff’s case, the Defendant sought a compulsory non-suit on both Counts of the Amended Complaint. In denying the motion for non-suit as to Count One, the trial judge remarked that the comprehensive provisions of the policy regarding “theft” were ambiguous, and that he thought that a layperson purchasing comprehensive insurance would believe he had coverage for the loss which resulted in the circumstances of this case. After initially denying the defense motion as to Count Two, the court subsequently granted non-suit as to the Plaintiff’s claim for triple damages under the Unfair Trade Practices and Consumer Protection Law.

The trial court, in its charge, provided the jurors with a dictionary definition of theft, discussed the Crimes Code definition of theft, and informed the jury that the taking of the vehicle by Steven Bell without permission was an unlawful taking, without regard to whether or not he intended to return it. After the jury rendered its verdict for the Plaintiff in the stipulated amount of the damage to the vehicle, both parties filed their post-trial motions.

In his Opinion, the trial judge explained his rationale for granting judgment n.o.v. for State Farm. He noted that the insurance policy provided coverage for theft, larceny, malicious mischief and vandalism under its comprehensive coverages. He said that the basic issue in the case was the meaning of “theft”. Further, he stated that almost any insured would believe that Steven Bell was a “thief” the moment he removed the vehicle from the premises, and that the insured would conclude he had coverage under the comprehensive policy provision covering theft, whether or not the taking of the auto was intended to be temporary or permanent. However, the trial court concluded that under Pennsylvania law, a common-law definition of theft had to be applied in the construction of an insurance policy theft provision in cases such as the instant one. Thus, the court ruled that in our Commonwealth, the insured must prove that the taker had the criminal intent to permanently deprive the owner of his property in order to recover under a policy providing for theft coverage. In that regard, the trial court relied upon Penn-Air, Inc. v. Indemnity Insurance Co. of North America, 439 Pa. 511, 269 A.2d 19 (1970); Hilliard Lumber Company v. Harleysville Mutual, 175 Pa.Super. 94, 103 A.2d 436 (1954); Gillespie v. Export Insurance Company, 114 Pa.Super. 398, 174 A. 602 (1934); and Seither v. Pennsylvania Manufacturers Association, 104 Pa.Super. 260, 159 A. 53 (1932).

While it is not difficult to see why the trial court felt itself bound by these precedents, we do not find that these decisions provide current support for the trial court’s rejection of the jury’s verdict in favor of the Plaintiff. All of those old cases relied upon the then-current criminal common-law definition of theft in the civil analysis of insurance policy references to that term. Under such an analysis, the theft coverage of a policy was found to be applicable only in the circumstances where the taker intended to permanently deprive the insured of the covered vehicle or other asset.

Such an approach is illogical under the current law of our Commonwealth, in which the common-law definition of “theft” is no longer applied, even in our criminal courts. The codification of “theft” and related offenses in our 1972 Crimes Code changed the common-law definitions of the same terms. See the Act of December 6, 1972, P.L. 1482, No. 334, § 1 et seq., 18 Pa.C.S.A. § 101 et seq., effective June 6, 1973. The Crimes Code includes separate definitions of theft offenses, including theft by unlawful taking or disposition [18 Pa.C.S.A. § 3921(a)], and unauthorized use of automobiles and other vehicles [18 Pa.C.S.A. § 3928(a)]. In 18 Pa.C.S.A. § 3902, the Code provides: “Conduct denominated theft in this chapter constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter____” The Supreme Court has held that § 3902 was specifically made a part of the Crimes Code section dealing with theft and related offenses to avoid the types of technicalities which previously distinguished different varieties of that general category of offense. See Commonwealth v. Rosenzweig, 514 Pa. 111, 121, 522 A.2d 1088, 1094 (1987). Thus, if the trial court felt compelled to apply a criminal law analysis to the resolution of what the terms of the insurance policy meant in this case, it should have applied the criminal law which was effective when the subject insurance contract was entered into, rather than common-law definitions which have not been a part of the law in our Commonwealth for almost twenty years.

The jurors were supplied with an adequate instruction as to the meaning of the term “theft”, and applied their reasoning and broad discretion to conclude that the insurance policy comprehensive theft provision afforded coverage to the Plaintiff in the circumstances presented in this case. The verdict could only be overturned by applying an outdated common-law definition of theft, in reliance upon precedents which pre-dated the enactment of the Crimes Code in our Commonwealth. We find no justification for such a strained and overly-technical analysis of the insurance contract in this case. Accordingly, we will reverse the grant of judgment n.o.v., and reinstate the jury’s verdict for the Plaintiff.

We do not find fault with the trial court’s rejection of the Plaintiff’s claims under Count Two of the Amended Complaint. In short, we agree with the trial court’s determination that admissable evidence was not presented to establish the type of misrepresentation the Plaintiff alleged in his Amended Complaint, to prove deceptive or unfair practices which would entitle him to a recovery under the Unfair Trade Practices and Consumer Protection Law. We can discern no error in the trial court’s rulings regarding the evidence on that issue, and regarding the Plaintiff’s effort to amend his Amended Complaint at trial. Therefore, we reject the Plaintiff’s contentions that a new trial should have been granted as to his claims under Count Two of the Amended Complaint.

The trial court’s Order granting judgment non obstante veredicto is reversed and the jury’s verdict in favor of the Plaintiff-Appellant is reinstated. In all other regards, the Order of the trial court is hereby affirmed.

POPOVICH, J. files a dissenting Opinion.

POPOVICH, Judge,

dissenting:

I cannot join in the Majority’s reversal of the trial court’s grant of the defendant’s (State Farm Insurance Companies’) motion for judgment non obstante veredicto and denying the plaintiff’s (Richard E. Lowry’s) motion for a new trial.

Since the verdict was in the plaintiff’s favor, and all conflicts having been resolved in his favor as well, he is entitled to have the evidence supporting his verdict considered and all the rest rejected. Valentine v. Philadelphia Transp. Co., 167 Pa.Super. 592, 594, 76 A.2d 471, 472-73 (1950). Reviewing the evidence in the light most favorable to him and giving him the benefit of every doubtful or obscure fact and the reasonable inferences that a jury might deduce therefrom, as is required, id., the following facts were established by the verdict: On March 29, 1987, Steven Bell, an acquaintence of Richard E. Lowry, Jr., was “house sitting” Lowry’s premises while Lowry was out-of-town on business.

Parked in the driveway of Lowry’s home was a 1985 Chevrolet Corvette. It had no license plate, the doors were locked and the alarm system on the vehicle was activated. The vehicle belonged to Lowry and his father/plaintiff, the latter of whom had title in his name and insurance coverage with State Farm Insurance Companies (“State Farm”).

During the trial, the parties stipulated that if Bell were to appear, he would admit to taking the keys to the Corvette, placing them in the vehicle’s lock and deactivating the alarm. Then, Bell removed a set of plates from another of Lowry’s vehicles, put them on the Corvette and drove it, albeit intending to return the vehicle to its rightful owner at all times. Nonetheless, while in Bell’s possession, the Corvette was “totalled” in a single vehicular accident.

Once the plaintiff was informed of the incident, he contacted his insurance agent (Don Rugh) at State Farm and was told “there is no problem, you have coverage” under the “comprehensive” provisions of your policy. Thereafter, a Mr. Gracik advised the plaintiff that State Farm would not cover the loss unless the police would change the charge brought against Bell from “unauthorized use to theft”, since the plaintiff had coverage for “theft” only.

The plaintiff’s response was the filing of a two-count complaint alleging, in count one, that the Corvette was “unlawfully” taken by Bell against Lowry’s express instructions. As a result, State Farm’s denial of coverage under the “comprehensive” provision of the insurance policy was claimed by the plaintiff to be a breach of contract resulting in $29,163.49 in damages.

In count two, particularly paragraph 13(a), the plaintiff asserted that:

The conduct of State Farm in refusing to pay the claim of the plaintiff ... was, if committed or performed with such frequency as to indicate a business practice, an unfair “claim settlement or compromise practice” within the meaning of the Pennsylvania Unfair Insurance Practice Act and, specifically, the defendant’s conduct constituted the following unfair claim settlement or compromise practices, as defined in the Act:
(a) “Misrepresenting pertinent facts or policy or contract provisions relating to coverages at issue” (40 P.S. § 1171.5(a)(10)(i))----

As such, the plaintiff charged State Farm with violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. (Supp. 1989-90) (“UTPCPL”), and sought treble damages thereunder.

In reply, State Farm filed preliminary objections in the nature of a demurrer to count two, claiming no “factual” allegations were contained therein evidencing that it engaged in a “business practice”, “fraudulent conduct” or “conduct” likely to confuse the plaintiff. Further, a motion to strike paragraph 13 of count two was made for containing no “clear and precise statements of facts, but rather [only] ... legal conclusions” considered to be improper fact-pleading.

By order dated October 23, 1987, the demurrer to count two was sustained as it applied to plaintiff’s Unfair Insurance Practices Act claims. The court found administrative procedures existed to remedy the allegations raised.

As to the motion to strike count two, with respect to alleged violations of UTPCPL, the court afforded the plaintiff the opportunity to amend his complaint. As herein relevant, the plaintiff did so in the following manner:

[Paragraph 13]
In refusing to pay the claim of the plaintiff, as set forth in the preceding paragraphs of this Complaint, the defendant, State Farm Insurance Companies, engaged in fraud-lent [sic] conduct creating a likelihood of confusion and misunderstanding, and unfair or deceptive acts or practices within the meaning of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. Section 201-2(4), and in particular, the defendant engaged in such conduct by:
(a) Misrepresenting the coverages of the insurance policy at the time the insurance contract was entered into, in that the defendant represented that the comprehensive coverage of the policy would provide coverage for losses caused by “theft”, “larceny”, “malicious mischief” and “vandalism”, and that such losses would be paid for by the defendant, and yet the defendant failed to pay for the covered loss of the plaintiff after the car was taken from him by Steven Bell[.]

In answer to count one, the defendant averred that the Corvette was not “unlawfully taken” so as to constitute a “theft” or “larceny” since Bell “always intended to return the motor vehicle and never intended to deprive the owner ... of the use of it.” (Paragraph 6) Consequently, the defendant denied coverage because the “loss” did not come within the “comprehensive” coverage provision “as there was no theft or larceny of the vehicle by Bell”. (Paragraph 9)

In response to count two of the amended complaint, the defendant asserted:

13. ... The defendant refused to pay the claim of the plaintiff simply because the loss did not occur by reason of the causes set forth in the Comprehensive Coverage of the policy. The loss to the corvette was not caused by theft or larceny but was caused by the negligence of Steven Bell who was not authorized to use the motor vehicle.
The defendant did not engage in fraudulent conduct, did not confuse or mislead the plaintiff and did not engage in unfair of deceptive acts or practices within the meaning of the Pennsylvania Unfair Trade Practices Consumer Protection Law (Act) 73 P.S. § 201-2(4).
The defendant:
(a) Did not misrepresent the coverages of the policy but issued a standard automobile insurance policy. The policy did provide comprehensive coverage for losses caused by theft, larceny, malicious mischief and vandalism. The loss in this instance was not covered by any of these terms.

A motion for partial judgment on the pleadings (as to the liability of the defendant) was filed by the plaintiff claiming that no issues of fact existed after the defendant’s submission of its answer. Only a question of law as to whether the policy provided for coverage for the loss incurred as a result of the conduct of Bell, assuming that he did not intend to permanently deprive the plaintiff of the Corvette, was left to be decided. Following argument, the motion was denied. Thereafter, a trial was conducted in which, after the plaintiff testified, his counsel made a motion to amend paragraph 13(a) of the complaint to read that the plaintiff “was told by Mr. Rugh that the car was not driven and [he] could save money by carrying only collision coverage, and [counsel] would [have] like[d] to recall [the plaintiff to testify about these matters.”

Counsel for the defendant objected to permitting the plaintiff to testify to such matters because the apparent misrepresentation made when the policy was sold was not known by the defendant and, more importantly, “[t]hat was never pled.” Moreover, the defendant urged that Rugh was retired in Florida and could not be produced at trial without a continuance. The motion, upon consideration by the trial court, was denied.

On rebuttal, the plaintiff recounted how Rugh stated that if the police would alter the charge against Bell from unauthorized use to theft, then coverage would exist. However, the plaintiff did testify that Rugh never admitted that the accident should have been covered.

With the instructions to the jury having been read, the defendant took exception to the trial court defining theft as not requiring that Bell have intended to deprive the plaintiff of the Corvette permanently upon taking it. In fact, the jury returned on two occasions to obtain clarification of the theft definition and whether the “permanent deprivation” element was necessary to constitute theft under the policy. On both occasions, the trial court stated such need not be the case and each time defendant’s counsel objected to the instruction.

The jury returned a verdict in favor of the plaintiff and against the defendant in the amount of $21,100.00, a figure stipulated to by the parties in open court. Post-trial motions were filed and resulted in the trial court granting the defendant’s judgment n.o.v. motion but denying the plaintiff’s request for a new trial for its refusal to allow him to testify to his conversations with Rugh, i.e., relating to representations supposedly made by Rugh at the time the policy was purchased, and not allowing the complaint to be amended to state specifically the details of the conversations. This appeal ensued with the entry of the order upon the docket of the Court of Common Pleas of Venango County.

The first issue to be addressed is whether the policy of insurance, which provided coverage for theft, larceny, malicious mischief and vandalism, encompassed the taking of the vehicle in question by Bell without the permission of the plaintiff, notwithstanding the fact he (Bell) had no intention of depriving the plaintiff of the vehicle permanently.

My discourse begins with the observation that the interpretation of policies of insurance, inasmuch as such policies are contracts, is governed by the principles applicable to the interpretation of contracts generally. Mohn v. American Cas. Co., 458 Pa. 576, 326 A.2d 346 (1974). These principles include the requirement that the intention of the parties be determined from the words of the instrument, and that the contract of insurance must be read in its entirety, giving its unambiguous terms their plain and ordinary meaning. Pa. Manufacturers Ass’n Ins. Co. v. Aetna Cas. & Security Ins. Co., 426 Pa. 453, 233 A.2d 548 (1967).

However, rules of construction become germane when the meaning of the writing is ambiguous. Ehrlich v. U.S. Fidelity & Guaranty Co., 356 Pa. 417, 51 A.2d 794 (1947). In this Commonwealth, the test to be applied to determine whether an insurance policy provision is ambiguous is whether reasonably intelligent men, on considering the provision in the context of the policy as a whole, would honestly differ as to its meaning. Patterson v. Reliance Ins. Companies, 332 Pa.Super. 592, 481 A.2d 947 (1984). Further, where technical terms are used in a policy, they are to be construed in their technical sense unless a contrary intention clearly appears. Blue Anchor Overall Co. v. Pa. Lumbermens Mut. Ins. Co., 385 Pa. 394, 123 A.2d 413 (1956).

The relevant provisions of the policy in question provided for “comprehensive” coverage and “collision” coverage, the former of which was the only one carried by the plaintiff on the Corvette at the time of the accident. As such, a review of the applicable sections of the policy is in order to determine when reimbursement by the insurer was required under the terms of the document; to-wit:

COMPREHENSIVE— ... You have this coverage ...
1. Loss to Your Car. We will pay for loss to your car EXCEPT Loss by COLLISION but only for the amount of each such loss in excess of the deductible amount, if any.
Breakage of glass, or loss caused by missiles, falling objects, fire, theft, larceny, explosion, earthquake, windstorm, hail, water, flood, malicious mischief or vandalism, riot or civil commotion, is payable under this coverage. Loss due to hitting or being hit by a bird or an animal is payable under this coverage.
2. ...
COLLISION— ...
We will pay for loss to your car caused by collision____ Collision — means your car upset or hit or was hit by a vehicle or other object. (Emphasis in original)

All parties, as well as the court below, have focused their attention on the interpretation to be given to the term “theft” within the insurance. The defendant and the court below have concluded that “permanent deprivation” of the vehicle had to have been an intention of Bell at the time he took possession of the Corvette to come within the ambit of the policy. On the other hand, the plaintiff proffers that no such requirement is called for to bring Bell’s conduct within the framework of the policy. My review of the treatises and case law on the topic lends credence to the position espoused by the defendant and the trial court. For example, at 5 Appleman, Insurance Law and Practice, § 3210 (1970), it is written:

Recovery for damages to an automobile cannot be had under a theft policy unless the taking legally constituted theft. It is essential, in order for the insured to recover upon a contract of theft insurance, to show that he has been deprived of his automobile feloniously.
Under these expressions, it has been held that a judgment cannot be recovered for damages caused to an automobile by taking it without the owner’s consent, but without intent to steal. To constitute theft, it is essential that the person taking must have an intention to convert the automobile and to deprive the owner permanently of possession. If the person intended to return it within a reasonable time, this would preclude recovery. Recovery could not be had for merely driving the automobile without the owner’s consent, when no intent to keep the automobile permanently is shown. Wrongful possession alone is insufficient____
Under these rules, the taking of an automobile by a friend of the owner’s son for the purpose of taking a girl home when such son was too drunk would not constitute “theft”. Nor would the taking of the automobile for the purpose of getting a woman and returning to the place where the owner had been left amount to theft, the car being wrecked on the road back. Taking for a joy ride would be similarly classified____

Upon a review of the cases cited in footnotes 79 and 81 in 5 Appleman, supra, it is obvious to this writer that Pennsylvania law is clear in requiring that where an insurance policy provides for recovery under its “comprehensive” provision listing “theft” as a ground for recoupment for a “loss”, theft is to be interpreted to require that the owner be “deprived” of his property permanently as an elemental aspect of the actor’s intention in taking the vehicle. Exemplary of such a belief is the Supreme Court’s ruling in Penn-Air, Inc. v. Indemnity Ins. Co. of North America, 439 Pa. 511, 269 A.2d 19 (1970), wherein it approved of the Superior Court’s earlier decisions in theft-of-automobile cases requiring payment for a “loss” sustained by the owner provided the vehicle was damaged as a result of a “theft”. This tenet was adopted to deny recovery to an insured where his employee/mechanic was a passenger (along with the plane’s owner’s pilot, neither of whom had authority to be present in the plane) at the time an aircraft was taken for a flight and crashed. The insured’s efforts to recover under his aircraft policy (for any monies due the owner of the plane stored with him and due a mechanical checkup) was denied because the loss was not sustained within the coverage afforded him by the policy since there was no evidence that the plane was taken with animus furandi. The Court stated the point thusly:

The Superior Court has had occasion to apply these principles to policies insuring against loss caused by theft of automobiles: Hilliard Lumber Co. v. Harleysville Co., supra; Seither v. Pa. Mfg. Ass’n. Cas. Ins. Co., 104 Pa.Super. 260, 159 A. 53 (1931); Slomowitz v. Union Ins. Co. of Canton, 90 Pa.Super. 366 (1927). In all of these cases there was loss or damage following unauthorized taking; in all of them it was recognized that whether or not such taking was a theft depended on the plaintiff showing by a preponderance of the evidence that there was a felonious intent, “an intent to steal.” In Slomowitz the insured’s car was taken for an unauthorized ride by a discharged chauffeur of the insured, wrecked and abandoned; the jury found in favor of the insured, the Superior Court found no error, and affirmed. In Seither the jury found in favor of the insured, the Superi- or Court found no evidence of felonious intent, held that it was error to have submitted the case to the jury, and reversed. In Hilliard the jury found for the insured, the court below entered judgment n.o.v., the Superior Court held that there was circumstantial evidence from which the jury might have found the requisite criminal intent and reversed.
The facts in Seither are similar to those in the case at bar in that the converter was a mechanic into whose custody the insured had delivered his car for the purpose of having repairs made. When the work was finished the mechanic took the car, with his family in it, for a ride, and collided with a pole, causing serious personal injuries and extensive damage to the car. There was some evidence that the mechanic had been drinking at the time. In the opinion of the court, by Trexler, P.J., it was said 104 Pa.Super. at p. 264, 159 A. at p. 54:
“We have not gone so far in Pennsylvania that any unlawful taking is covered by the word ‘theft’ * * * “There must be some fact about the transaction from which it may be found that the matter was done animo furandi. We fail to find one.
“The sum and substance of the evidence presented by the plaintiff is that Wachter without right took the car to afford his relatives the pleasure of a ride. If there were the least evidence that the purpose was to flee with the car, or to dispose of it, or any act inconsistent with the intention to return it to the garage after the ride was completed, there might be something for the jury to consider, but as the case was presented, we find nothing that should have been submitted to them for their decision.”
In Hilliard, the person who took the automobile, at night and without permission, was the 26 year old son of the insured owner’s employee, who did not live with his father in a family relationship. The car was wrecked 25 miles from where it had been taken. Upon discovering that the car was missing and that his son also was missing, the father had called the police because he “wanted to find out before he [the son] got into any trouble to get the truck back if I could.” The son did not appear as a witness at trial. The court recognized that to constitute theft “There must be a criminal intent permanently to deprive an owner of his property”, but felt that these facts were sufficiently different from those in Seitker to permit the case to go to the jury.

439 Pa. at 520, 269 A.2d at 23.

It cannot be denied that there are jurisdictions which, in analyzing insurance policies listing “theft” as a criterion for the insurer’s liability when the insured’s vehicle is taken by a third party, do not equate “theft” with its common law or penal code definitions. See 5 Appleman, supra at §§ 3209, 3210. Nonetheless, I find precedent in this Commonwealth, despite its vintage, emanating from the Superior and Supreme Courts endorsing a definition of theft with “permanent deprivation” in the context of insurance policies. See 5 Appleman, supra. In other words, unlike the Majority, I believe we are bound by stare decisis, and we should leave it to the Supreme Court to decide whether it is time to modify the stance taken in the insurance arena with regard to whether the term “theft” should continue to require proof of animus furandi on the part of the party taking an insured’s vehicle in order to hold the insurer liable for a loss incurred by the insured to his vehicle. See generally Blum v. Merrell Dow Pharmaceuticals, 385 Pa.Super. 151, 163-66, 560 A.2d 212, 218-19 (1989), quoting Mohn v. Hahnemann Medical College and Hospital of Philadelphia, 357 Pa.Super. 173, 176, 515 A.2d 920, 922 (1986).

Moreover, contrary to the Majority, I read the Crimes Code of Pennsylvania, effective in 1973, to have perpetuated the distinction between theft and unauthorized use of a vehicle, such that a “theft” occurs where one exercises unlawful control over the movable property of another with the intent to “deprive” the owner thereof “permanently”. See 18 Pa.C.S. §§ 3901, 3902.

The offense of unauthorized use, at id. § 3928, has retained its identity as a separate and distinct crime from “theft”, as appears in 18 Pa.C.S. §§ 3921-3927, 3929-3932. See generally Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986); Commonwealth v. Pemberth, 339 Pa.Super. 428, 489 A.2d 235 (1985).

The Majority points to § 3902 (“Consolidation of theft offenses”) in support of its proposition that the conduct of Steven Bell would be considered a “theft” under the 1973 Crimes Code, which it postulates abrogates the previous appellate decisions that hold to the contrary. With this I do not agree.

§ 3902 reads in pertinent part:

Conduct denominated theft in this chapter constitutes a single offense. An accusation of theft may be supported by evidence that would be committed in any manner that would be theft under this chapter....

18 Pa.C.S. § 3902.

In each of the crimes defined under Chapter 39 (“Theft and related offenses”) at subchapter B of the Crimes Code, a reading thereof is illuminating as to the symmetry of elements required to constitute a violation. For instance, to be guilty of “Theft by unlawful taking”, the actor must have had the “intent to deprive” the owner of his/her property (18 Pa.C.S. § 3921(a)). “Theft by deception” also requires proof that the accused “intentionally obtained] or withh[e]ld[] property of another by deception ...” (Id. at § 3922(a)).

The element of “intent” in obtaining or withholding the property of another needs to be established to constitute a violation of § 3923 (“Theft by extortion”), as is the case with “Theft of property lost, mislaid, or delivered by mistake” (Id. at § 3924), i.e., “intent to deprive the owner thereof”.

Continuing, to be in violation of § 3925 (“Receiving stolen property”) the actor must “intentionally” be in possession knowing the item is stolen, or believing it was probably stolen. The caveat being whether the actor intended to restore it to the owner.

The remaining offenses, denominated “Theft” under sub-chapter B, require that the actor “intentionally” engage in conduct in acquiring, retaining or disposing of another’s property. See Id. at § 3926 (“Theft of Services”); § 3927 (“Theft by failure to make required disposition of funds received” — “intentionally deals with the property obtained as his own and fails to make the required payment or disposition”); § 3929 (“Retail theft” — “intention of depriving the merchant” of the possession, use or benefit of such merchandise without paying, etc.); § 3929.1 (“Library theft” — “intention of converting ... material to his own use”); § 3930 (“Theft of trade secrets — “intent” to obtain or wrongfully appropriate another’s trade secret).

Only § 3928 (“Unauthorized use of automobiles and other vehicles”) dispenses with the element of “intent” to deprive the owner of the property taken to establish a violation of the respective offense. In other words, all of the remaining offenses in subchapter B are “denominated” with the use of the term “theft” in describing the offense save for § 3928. Thus, because § 3928 does not constitute “conduct denominated theft” so as to “constitute[ ] a single offense” under a reading of § 3902,1 find that § 3928 was not intended by the Legislature to be subsumed by Chapter 39 and be enumerated a “theft” offense given that the caption for Chapter 39 reads: “Theft and Related Offenses”. The Legislature could have very easily labelled “unauthorized use” a “theft” offense but chose to keep it an offense related to theft but not its equivalent. This is evident by the fact that theft and unauthorized use have retained their separate identity for purposes of charging an accused with separate crimes which do not merge for sentencing purposes. See Campbell, supra; Pemberth, supra.

Unlike the Majority, I do not read the present Crimes Code to have rendered the various common law offenses of theft to have eradicated the distinct crime of unauthorized use under the broad nomenclature of “theft”. If such were the case, § 3928 (“Unauthorized use”) would have been identified with some phraseology incorporating “theft” in its caption and/or definition as referred to in § 3902. This did not occur. Accordingly, there being a retention of “theft” in the Crimes Code (requiring an intention to deprive the owner of his/her property on a permanent basis) as a separate and distinct crime from “unauthorized use” (in which intent to deprive the owner of his/her property is not mandated), I cannot join in the Majority’s ruling which merely dismisses and ignores all the pre-1970 case rulings requiring animus furandi in “theft” cases, as well as reading too broadly the present 1973 Crimes Code to meld theft and unauthorized use into one category in assessing the insurance contract under scrutiny here.

The evidence is abundantly clear that the plaintiff, who worked for over thirty (30) years in the automobile parts, salvage and repair business and dealt with insurance companies “pretty steadily” in insuring “thousands” of his vehicles since 1957, admitted to being cognizant of the difference between “comprehensive” and “collision” coverages in his policy of insurance with State Farm. See Notes of Testimony at 37. The fact that he may not have read the terms of the insurance policy and relied upon his agent to protect his interests, see Notes of Testimony at 27, is to no avail in exculpating him from knowledge of the unambiguous language in the policy excluding liability for a “loss” under “comprehensive” coverage except for a “loss” resulting from a “theft”, “larceny”, “vandalism” or “malicious mischief”. See Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 303, 469 A.2d 563, 565 (1983). Accordingly, I would hold that the plaintiffs initial claim is found wanting and I would deny it.

Involved in the second contention of the plaintiff, the Majority’s resolution with which I do not disagree, is his protestation that the trial court erred in refusing him the chance to amend his complaint at paragraph 13(a) so as to refer to the insurance agent’s purported remarks that the discontinuance of “collision” coverage, and merely retaining “comprehensive”, would not diminish the plaintiff’s insulation from “loss” incurred from other than the insured’s use of the vehicle by placing it on the road.

The general proposition in this Commonwealth is that an amendment to a pleading which is otherwise proper may be made at any time during the pendency of the action unless it violates the law, prejudices the rights of parties or introduces a cause of action barred by the statute of limitations. See 29 P.L.E. Pleading, § 158.

Instantly, the plaintiff was accorded the opportunity to plead with specificity the basis for his unfair trade practices claim in count two of his original complaint. He later sought to exercise the same right during the pendency of the trial. Truly, in light of the proposed substance of the plaintiff’s (second) amendment and testimony to buttress it at trial, it would have prejudiced the defendant by the inability to rebut such testimony with the agent (Rugh) who allegedly made such statements as to the scope of the insurance policy after discontinuance of the “collision” clause. See Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966). The reason for the prejudice is Rugh’s absence from the Commonwealth.

Moreover, in the amended complaint the plaintiff specifically made reference to the “misrepresentation” made to him by Rugh, i.e., “the defendant represented that the comprehensive coverage of the policy would provide coverage for losses caused by ‘theft’, ‘larceny’, ‘malicious mischief’ and ‘vandalism’.” The defendant, at no time during the trial or in its pleadings denied that such coverage existed. Rather, the dispute was over whether Bell’s conduct rose to the level of “theft”, given that he always intended to return the vehicle to its owner.

Thus, I would find that even the plaintiff’s amended complaint did little to elaborate on what he intended to prove as an ultimate fact. See 29 P.L.E. Pleading, §§ 1, 17. In light of the time afforded the plaintiff to crystalize what he intended to prove at trial, as evidenced by the court’s allowance of an amendment during the pleading stage to focus on his objective as to the proof side of his case, I fail to detect an abuse of discretion on the part of the trial court in denying the plaintiff’s oral request in the midst of trial to inject fact-pleading (via the amendment route) that would undoubtedly have “prejudiced” the defendant with the absence of the witness/Rugh from this jurisdiction. Id. at § 158.

For the reasons stated herein, I would affirm the order of the court below granting judgment n.o.v. to the defendant and denying the plaintiff’s request for a new trial.

      . Accord Mannix v. Lamberton, 167 Pa.Super. 393, 395, 74 A.2d 515, 516 (1950); Holland v. Kohn, 155 Pa.Super. 95, 97, 38 A.2d 500, 501-02 (1944) (Verdict winner is entitled to the benefit of the testimony favorable to him on both sides, not merely his own).

        Pa. — Seither v. Pennsylvania Mfrs.’ Ass’n Casualty Ins. Co., 1932, 159 A. 53, 104 Pa.Super. 260; Hilliard Lumber Co. v. Harleysville Mut. Cas. Co., 1954, 103 A.2d 436, 175 Pa.Super. 94; Allcorn v. Com. Mut. Fire Ins. Co., 1954, 102 A.2d 179, 174 Pa.Super. 489 (semi-trailer converted by employee).

       And see: Pa. — Penn-Air, Inc. v. Indemnity Ins. Co. of North America, 1970, 269 A.2d 19, 439 Pa. 511 (aviation insurance). [Footnotes omitted]

      . Because vandalism and malicious mischief, as construed in insurance policies, require proof of an actual purpose, design or intent to injure, damage or destroy, or an act done willfully and intentionally, Bell’s stipulated testimony of his intention to return the Corvette after using it in an undamaged state discounts the plaintiffs ability to have recovered under such language in the insurance policy. See 5 Apple-man, supra at § 3208.

      . As noted by the trial court in its opinion to us, had the plaintiff indicated at an earlier stage of the proceedings what he intended to testify to with regard to the insurance contract, this would have allowed the defendant the chance either to depose Rugh or have him subpoenaed for trial, if need be, to rebut the plaintiffs testimony.
      With the trial not yet commenced and the fact-pleading not completed between the parties, the plaintiff had the occasion to remedy his defective paragraph 13(a). He failed to comply with the Rules of Civil Procedure in setting forth the facts which he intended to prove at trial on two occasions. Thus, this writer is not sympathetic to the position fostered by the plaintiff on appeal seeking a reversal of the trial court's denial of his request to amend his complaint.


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    572 A.2d 711
    COMMONWEALTH of Pennsylvania v. Kenneth Joseph FROMAL, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1990.
    Filed March 22, 1990.

      Vincent J. Quinn, Chief Public Defender, Lancaster, for appellant.
    John A. Kenneff, Asst. Dist. Atty., Millerville, for Com., appellee.
    Before CIRILLO, President Judge, and WIEAND and BROSKY, JJ.
   CIRILLO, President Judge:

Kenneth J. Fromal appeals from a judgment of sentence entered on May 30, 1989 in the Lancaster County Court of Common Pleas. Fromal was sentenced to a term of seven and one half to fifteen years for robbery. 18 Pa.C.S. § 3701(a)(l)(ii). We affirm.

Fromal was charged with robbery in connection with the theft of $18,994.00 from the Quarryville branch of the Bank of Lancaster County (“Bank”) on November 20, 1987. Following the disposition of pre-trial motions and a suppression hearing, a jury trial commenced which resulted in a guilty verdict. Fromal’s trial counsel filed post-verdict motions and supplemental post-verdict motions. Additionally, Fromal himself filed a lengthy letter with the trial court. Fromal’s formal motions and those raised in his pro se letter were denied, and this timely appeal followed.

Fromal advances the following issues for our consideration: 1) whether the evidence was sufficient to prove his identity as the perpetrator of the crime, 2) whether the verdict of the jury was against the weight of the evidence when the Commonwealth’s evidence establishing identity was based on surmise and conjecture, 3) whether the suppression court properly denied Fromal’s motion to suppress his statements made to the police after his arrest, 4) whether the suppression court erred when it refused to suppress certain physical items seized from Fromal’s vehicles pursuant to search warrants, 5) whether trial counsel was ineffective for: a) failing to object to the prosecutor’s improper remarks during his closing argument concerning Fromal’s right against self-incrimination, and his alleged intent to move to Florida, b) failing to object to the trial court’s failure to instruct the jury as to the defense of alibi, c) failing to preserve for appellate review the issue of whether a mistrial was warranted because the Commonwealth failed to disclose certain exculpatory evidence to the defense, and d) failing to object to the admission of a handgun seized from Fromal’s vehicle, and the records of Trump Castle concerning Fromal’s gambling activities.

Fromal initially contends that the evidence was insufficient to support the jury verdict because the Commonwealth failed to prove beyond a reasonable doubt the identity of the robber.

Our standard of review when evaluating the sufficiency of the evidence is well settled:

[W]hether, viewing the evidence in the light most favorable to the Commonwealth [as verdict winner], and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt____ The Commonwealth may sustain its burden by means of wholly circumstantial evidence____ Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered____

Commonwealth v. Hunter, 381 Pa.Super. 606, 610, 554 A.2d 550, 551 (1989) (quoting Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986)). Additionally, the circumstantial evidence need only produce a moral certainty beyond a reasonable doubt in order to sustain a conviction; it need not be absolutely incompatible with innocence. Commonwealth v. Feinberg, 211 Pa.Super. 100, 113, 234 A.2d 913, 919 (1967). The Commonwealth concedes that the evidence utilized to establish the identity of the robber is wholly circumstantial. The evidence, read in the light most favorable to the Commonwealth, is as follows:

During the afternoon of November 20, 1987, a masked gunman entered the Bank and announced his intention to rob it. He was masked so that only his eyes were visible and he was clothed such that only his hands were in sight. The robber then directed Jean Aukamp, the head teller of the Bank, to remove the money from the teller drawers and place it in a white plastic bag which had red printing on it. According to a Bank audit, $18,994.00 was taken in denominations of ones, fives, tens, twenties and fifties. Some of the bills were packaged with rubber bands while others were packaged with paper clips. The robber remained in the Bank for approximately five to ten minutes. Aukamp testified that she was certain she recognized the voice, but was unable to identify it until later, at approximately 2:00 a.m., when she concluded that the voice belonged to Fromal. Fromal had been a frequent customer of the Bank for two years prior to the robbery. During those visits, Aukamp had numerous opportunities to converse with Fromal.

Aukamp testified that she was ninety percent certain that the voice of the robber was that of Fromal. Further, Aukamp testified that the robber’s hands were similar to Fromal’s, and that the robber was between 5'3" and 5'6" tall with a build resembling that of Fromal. Another teller, Bonnie Kauffman, also testified that Fromal’s height was similar to the robber’s height.

Three eye witnesses testified that they observed the robber leaving the scene in a late model, four-door, maroon or burgundy automobile with a vinyl top. At the time of his arrest, Fromal was driving and owned a maroon Oldsmobile sedan. One of the witnesses to the robbery, Robert Hall, viewed a photograph of Fromal’s vehicle taken by police and stated that it looked “exactly” like the one which he saw the robber driving.

Subsequent to Fromal’s arrest, the police searched a van parked at FromaFs residence which contained a box with two toy handguns. Prior to trial, the police showed the toy handguns and two authentic handguns to Aukamp, who identified one of the toy handguns as similar to the one used in the robbery. Further, a search of the van also revealed a white plastic bag containing $5,000.00 in twenties and fifties. A search of FromaFs automobile disclosed $3,910.00 in fives, tens, twenties and fifties fastened with paper clips.

After Fromal was arrested and administered his Miranda warnings, he made certain statements to the police. Specifically, he told them that he was in Atlantic City, New Jersey on the date of the robbery gambling at two casinos, Resorts and Trump Castle. Fromal contended that he was at Trump Castle between 2:30 p.m. and 3:00 p.m. on the date of the robbery, and that he was playing at a one hundred dollar table. Apparently, the management of Trump Castle records the names of players at such tables. It should be noted that Fromal himself did not testify; this evidence was introduced through the testimony of the arresting officer, Trooper Raymond E. Solt.

The Commonwealth went to great lengths to refute FromaFs statement that he was in Atlantic City when the robbery occurred. Beth Quirk, a “casino analyst,” employed by Trump Castle, explained that certain players in order to receive “comps” such as free rooms, desire to be “rated” by the casinos. When a person is rated, the casino records the gambling activities of that person, the time period during which the gambler played, the amount gambled, and the amount won and lost. Floor personnel initially compile such data, and then it is forwarded to Quirk’s department where it is eventually recorded and stored in a computer. Although a rated player’s activities are only recorded if that player affirmatively requests such recordation, a player who makes wagers of one hundred dollars or more automatically has his or her name recorded regardless of that player’s wishes, unless the recording employee does not know the name of that player and that player does not provide it.

The above records indicated that Fromal gambled at Trump Castle on October 20, and 21, 1987, and on November 22, 1987, but not on November 20, 1987, the date of the robbery. Fromal indicated to police that the money in his possession was the proceeds from the recent sale of his home. The Commonwealth introduced evidence of Fromal’s recent banking and gambling activities to disprove this contention. On October 19, 1987 Fromal’s checking account had a balance of $173.13. Fromal had sold his home for $19,506.19, and on October 20, 1987, he made a deposit of $15,000.00 while taking the remaining $4,506.19 in cash. Fromal made an additional deposit of $3,623.00 between October 20, 1987 and November 20, 1987. Fromal withdrew $3,625.00 in cash and wrote checks to third parties totalling $15,190.00. On November 20, 1987, Fromal had a balance of $808.00 in his checking account. The casino records reflect that Fromal purchased $6,000.00 worth of betting chips, $3,000.00 of which he lost, for use on table games on November 22, 1987. Between October 20, 1987 and November 22, 1987, Fromal purchased additional gambling tokens in the amount of $9,100.00 for use in slot machines, $1,875.00 of which he lost.

The Commonwealth maintains that Fromal did not have sufficient “legitimate” funds capable of providing him with $6,000.00 on November 22, 1987 to purchase betting chips, and to still have $8,900.00 in his possession at the time of his arrest.

Fromal contends that the direct evidence of Aukamp’s voice identification, coupled with the circumstantial evidence presented to bolster it, was insufficient to establish his identity beyond a reasonable doubt. We disagree. It is settled law that “[a] witness may testify to a person’s identity from his voice alone.” Commonwealth v. Woodburg, 329 Pa.Super. 34, 40, 477 A.2d 890, 893 (1984) citing Commonwealth v. Reid, 448 Pa. 288, 292 A.2d 297 (1972). Moreover, evidence of identification need not be positive and certain to sustain a conviction. Woodbury, 329 Pa.Super at 40, 477 A.2d at 893 (quoting Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973)). Additionally, the weight to be accorded voice identification testimony is a question for the trier of fact. Id.

In Woodbury, this court, presented with a sufficiency of the evidence challenge to a murder conviction, found that a voice identification alone by a witness, who was familiar with the appellant’s voice and had a “long existing acquaintanceship” with him, was sufficient to identify the appellant as the person who committed the murder. Woodbury, 329 Pa.Super. at 40, 477 A.2d at 893. Here, like the witness in Woodbury, Aukamp was familiar with Fromal’s voice by virtue of his frequent visits to the Bank. Additionally, unlike the witness in Woodbury, Aukamp’s testimony was not limited merely to a voice identification; she also testified that the robber’s hands were similar to Fromal’s, and that the robber’s physical build resembled that of Fromal. Further, there was a significant amount of evidence offered by the Commonwealth which, if believed, would lead a jury to conclude that Fromal was the perpetrator of the robbery.

Although the evidence recited above is not overwhelmingly conclusive, when viewing it in the requisite light, and drawing all reasonable inferences therefrom, it is sufficient to establish beyond a reasonable doubt that Fromal was the perpetrator of the robbery of the Bank. Hunter, supra.

Fromal next argues that the jury verdict was against the weight of the evidence because the identification of Fromal was based on pure conjécture. We disagree. Whether to grant a new trial on the ground that the verdict was against the weight of the evidence is within the sound discretion of the trial court whose decision will not be disturbed absent an abuse of that discretion. Hunter, 381 Pa.Super. at 617, 554 A.2d at 555; Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982). Clearly, the weight of the evidence is exclusively for the finder of fact, Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), who is free to believe all, part, or none of the evidence, and determine the credibility of the witnesses. Commonwealth v. Dreibelbis, 493 Pa. 466, 469, 426 A.2d 1111, 1113 (1981). Moreover, in order for this court to grant a new trial on the ground that the verdict was against the weight of the evidence, it must be apparent from the record, “that the verdict was so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative.” Hunter, 381 Pa.Super. at 617, 554 A.2d at 555; Commonwealth v. Gamber, 352 Pa.Super. 36, 45, 506 A.2d 1324, 1329 (1986). Based upon our review of the evidence, we conclude that the verdict was not so contrary to the weight of the evidence as to shock our sense of justice. Accordingly, a new trial is not required.

Next, Fromal contends that the suppression court erred in not suppressing his statements that were the product of an unlawful warrantless arrest, because the arrest was made without the requisite probable cause. We disagree. In an appeal from the denial of a motion to suppress our role is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Reddix, 355 Pa.Super, 514, 518, 513 A.2d 1041, 1042 (1986). In making this determination, we may consider only the evidence of the prosecution’s witnesses and so much of the evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Id. When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from those factual findings. Reddix, 355 Pa.Super. at 518, 513 A.2d at 1042.

The arresting officer, Trooper Solt, did not himself have sufficient knowledge of the facts and circumstances of the case to have probable cause to arrest Fromal. However, Solt was instructed by Sergeant Harnish to arrest Fromal. Peter J. Chimienti, the chief investigating officer assigned to this case, was aware of all the items listed in the affidavit actually prepared in support of the arrest. Chimienti had related most of the information contained in the affidavit to Sergeant Harnish and Lieutenant Evanko. Specifically, Chimienti informed them that: 1) the head teller of the Bank, Aukamp, had identified the voice of the robber as that of Fromal, 2) the description of the robber’s physical statute provided by Aukamp matched Fromal’s physical stature, 3) the description of the robber’s automobile provided by several witnesses matched Fromal’s car, 4) Fromal had rented a moving van and loaded it with his personal belongings, and 5) Fromal had announced to his wife an intention to relocate to Florida in the immediate future.

An arresting officer is not required to have sufficient information to establish probable cause for the arrest so long as the officer ordering the arrest possessed sufficient information giving rise to probable cause. Commonwealth v. Kenney, 449 Pa. 562, 567, 297 A.2d 794, 796 (1972); see also Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971). Further, an arresting officer in executing a valid arrest may rely on radio broadcasts emanating from police authorities in one of the following instances: 1) when he is ordered or directed to perform the arrest by an officer in possession of facts justifying the arrest, 2) when he receives information over the radio justifying the arrest, or 3) when a combination of facts heard over the radio and acquired otherwise provides requisite probable cause. Reddix, 355 Pa.Super. at 519, 513 A.2d at 1043. Consequently, since Solt, the arresting officer, did not have sufficient knowledge to constitute probable cause justifying the arrest, the determinative issue is whether Sergeant Harnish possessed sufficient information to give rise to probable cause when he ordered the arrest of Fromal.

In Commonwealth v. York, 381 Pa.Super. 55, 552 A.2d 1092 (1989), this court stated: Id. 381 Pa.Super. at 61, 552 A.2d at 1095. Probable cause is demonstrated if the reasonably reliable information within the knowledge of the officer would warrant a man of reasonable caution to believe that the suspect had committed a crime. Kenney, 449 Pa. at 567, 297 A.2d at 796. Here, the information given to Sergeant Harnish was sufficient to believe that Fromal had committed the robbery. Since the arrest was based upon probable cause, it was lawful, and Fromal’s statements could not have been the product of an unlawful arrest. Therefore, the suppression court was correct in denying Fromal’s motion to suppress his post-arrest statements.

A lawful arrest may be made without a warrant if an officer, given all of the circumstances known to him and his practical common sense decision therefrom, had probable cause to believe that a crime was committed ...

Fromal next asserts that the suppression court erred when it refused to suppress certain physical items seized pursuant to search warrants which were based upon affidavits that did not contain probable cause to believe that the items would be in the location searched. We disagree.

Initially, we note that the issuing magistrate’s determination of probable cause should be afforded great deference by appellate courts. Commonwealth v. Frye, 242 Pa.Super. 144, 148, 363 A.2d 1201, 1203 (1976). Probable cause exists when the facts and circumstances set forth in the affidavit are sufficient to warrant a man of reasonable caution in believing that the contraband to be seized will be in the specified place. Id. In Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), our supreme court adopted the totality of the circumstances standard in analyzing whether probable cause existed for the issuance of a search warrant. Gray, 509 Pa. at 485, 503 A.2d at 926. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The task of the issuing magistrate is to make a common sense decision based upon all the circumstances before him as to whether there is a “fair probability that contraband or evidence of a crime will be found in a particular place. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. The duty of a reviewing court is to ensure that the magistrate had a “substantial basis for concluding that probable cause existed.” Id. at 238-239, 103 S.Ct. at 2332-33.

The facts set forth in the affidavit disclosed that Fromal was residing temporarily with his brother; that he intended to move to Florida; and that a small moving van was parked outside Fromal’s temporary residence into which he was loading his and his children’s belongings. In light of Fromal’s living situation immediately after the robbery, it would seem that the van and Fromal’s automobile would be the only logical places to keep the fruits of a crime. Based upon the information contained in the affidavit, there was a fair probability that contraband or evidence of a crime would be found in those vehicles. Since the magistrate had a substantial basis for concluding that probable cause existed to find the contraband in Fromal’s vehicles, the trial court did not err in denying the motion to suppress the evidence found pursuant to those warrants.

Fromal next asserts the first of a series of trial counsel ineffectiveness claims. It is well settled that when confronted with a claim of ineffective assistance of counsel we must first ascertain whether the issue underlying the charge is of arguable merit, and if so, we must then determine whether the course chosen by counsel had some reasonable basis designed to promote the client’s interests. Commonwealth v. Golson, 310 Pa.Super. 532, 535, 456 A.2d 1063, 1065 (1983). Additionally, one claiming ineffective assistance of counsel must demonstrate that he or she was prejudiced by the ineffectiveness by illustrating that counsel’s conduct had an adverse affect on the outcome of the proceedings. Commonwealth v. Pierce, 515 Pa. 153, 162, 527 A.2d 973, 977 (1987). The burden of proving ineffective assistance of counsel rests squarely upon the appellant. Commonwealth v. Westcott, 362 Pa.Super. 176, 203, 523 A.2d 1140, 1153 (1987), alloc. denied, 516 Pa. 640, 533 A.2d 712 (1987).

Fromal contends that trial counsel was ineffective for failing to object to the improper closing argument of the prosecutor which infringed upon Fromal’s constitutional right against self-incrimination by referring to Fromal’s post-arrest statements as testimony. Fromal asserts that the prosecutor’s comments constituted prosecutorial misconduct.

Fromal’s inventive argument is that by commenting on his statements made to the police as if they were testimony, the prosecutor intended for it to appear that Fromal testified and claimed an alibi defense. Fromal argues that the unfairness in commenting on his post-arrest statements as if they were testimony, is that he, in fact, did not testify and that he has a right not to have a prosecutor intimate that he did.

It is elemental that “a lawyer’s comments to a jury will not be reviewed in isolation, but will be assessed in the context in which they were spoken.” Commonwealth v. Sparks, 351 Pa.Super. 320, 326, 505 A.2d 1002, 1005 (1986). A prosecutor, as well as a defense attorney, must be afforded reasonable latitude in presenting a case to the jury, and must be allowed to present his or her arguments with logical force and vigor. Commonwealth v. D'Amato, 514 Pa. 471, 489, 526 A.2d 300, 309 (1987); Commonwealth v. Smith 490 Pa. 380, 387, 416 A.2d 986, 989 (1980). Further, counsel’s remarks to the jury may include fair deductions and legitimate inferences from the evidence presented. D'Amato, 514 Pa. at 489, 526 A.2d at 309; Commonwealth v. Stevens, 276 Pa.Super. 428, 419 A.2d 533 (1980). Moreover, “[comment's by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” D'Amato, 514 Pa. at 490, 526 A.2d at 309 (citations omitted) (quoting Commonwealth v. Carpenter, 511 Pa. 429, 439, 515 A.2d 531, 536 (1986)).

Initially, we must determine whether it was proper for the prosecutor to discuss Fromal’s post-arrest statements in his closing argument. The comments by the prosecutor that Fromal maintains infringed upon his constitutional right to remain silent, and not testify, concerned the statements made by Fromal after he was given his Miranda warnings. The prosecutor was free to comment on Fromal’s statements to the police, “because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent.” Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980) (per curiam); D’Amato, supra. Here, Fromal did not remain silent after receiving his Miranda rights, therefore, any comments concerning the subject matter of these statements did not implicate his right to remain silent at trial, but rather his choice not to remain silent after being so advised.

Confronted with the realities of the above conclusion, Fromal maintains that it was improper for the prosecutor to comment on his post-arrest statements as if they were testimony. A review of the alleged improper portions of the prosecutor’s closing argument reveals a limited reference to Fromal’s statements as testimony. When viewing this reference in the context in which it was spoken, we do not find that it could lead the jury to conclude that Fromal had testified, or that he should have testified. The prosecutor commented frequently on Fromal’s post-arrest statements without labelling them testimony, specifically stating at one juncture, “... Mr. Fromal who spoke to you through Trooper Solt ...” Contrary to Fromal’s assertions, a slight transgression in a protracted summation does not give rise to prosecutorial misconduct. Therefore, this claim is of nd arguable merit, and counsel will not be deemed ineffective for failing to assert it. Commonwealth v. Silo, 509 Pa. 406, 410, 502 A.2d 173, 175 (1985).

Next, Fromal maintains that trial counsel was ineffective for failing to object when the trial court failed to instruct the jury on the defense of alibi. Defense counsel at trial did not affirmatively pursue an alibi defense. However, the Commonwealth raised the issue of alibi through the presentation of Fromal’s statements to the police after his arrest. Fromal, as mentioned previously, stated that he was in Atlantic City on the date of the robbery. Although we agree with Fromal that the defense of alibi was raised during the course of trial, we do not feel that a specific alibi instruction was necessary.

Alibi is defined as “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, 381 Pa.Super. 314, 319, 553 A.2d 986, 989 (1988) (quoting Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963)). Clearly, if Fromal’s statements were true he would have had a valid alibi defense since he would have been sufficiently removed from the scene of the crime.

Fromal, relying upon this court’s decision in Commonwealth v. Van Wright, 249 Pa.Super. 451, 378 A.2d 382 (1977), argues that since evidence of alibi was introduced, he was entitled to an alibi instruction. To illustrate why we disagree with Fromal’s argument and with the relevant portion of the Van Wright decision it is necessary to examine Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959), and the specific rule it espoused.

The primary purpose of Bonomo was to overrule prior cases which held that alibi was an affirmative defense that had to be proven by a preponderance of the evidence, and that failure to instruct the jury as such would constitute reversible error. Bonomo, 396 Pa. at 231, 151 A.2d at 446; see Commonwealth v. Stein, 305 Pa. 567, 158 A. 563 (1932); Commonwealth v. Andrews, 234 Pa. 597, 83 A. 412 (1912). The court in Bonomo stated:

It is the law that in a criminal case, unlike a civil case, no binding instruction may be given in favor of the prosecution. This is true whether the evidence upon which the prosecution rests is oral or documentary and is equally true no matter how strong the proof proffered by the prosecution may be. It is because of this never-shifting burden upon the Commonwealth to prove every essential element of the charge against the defendant that it cannot logically be said that the Commonwealth has the burden to prove the presence of such element while the defendant, at the same time, has the burden of proving its absence. Hence, whenever the prosecution relies upon proof that the defendant is present at the commission of the crime, it cannot be said with any show of reason that the defendant, who asserts he was absent, has any burden of proving it.

Bonomo, 396 Pa. at 230, 151 A.2d at 445-446.

An alibi instruction is necessary when an alibi defense is presented because of the danger that the failure to prove the defense will be taken by the jury as a sign of the defendant’s guilt. Commonwealth v. Pounds, 490 Pa. 621, 633-634, 417 A.2d 597, 603 (1980). The instruction on alibi is to emphasize that the defendant is not required to disprove any elements of the crime charged, but that the defense’s evidence of alibi, even if not wholly believed, may create a reasonable doubt.

Bonomo, in an attempt to clarify the defense of alibi, and when an instruction on it is required, explicitly set forth the rule which was to be followed in the Commonwealth:

The Commonwealth has the burden of proving every essential element necessary for conviction. If the defendant traverses one of those essential elements by evidence of alibi, his evidence will be considered by the jury along with all the other evidence. It may, either standing alone or together with other evidence, be sufficient to leave in the minds of the jury a reasonable doubt which, without it, might not otherwise exist. It will be the duty of the trial judge to carefully instruct the jury as to the relationship of the evidence of the prosecution and the evidence of the defendant as each bears upon the essential elements of the crime charged. This must be done without unfair disparagement although the trial judge must be left free to comment upon the evidence, as he has done heretofore, so long as he leaves the jury free to find its own true verdict.

Bonomo, 396 Pa. at 231-232, 151 A.2d at 446. (emphasis added). Bonomo unequivocally states that if the defendant traverses one of the essential elements by evidence of alibi, that evidence must be considered by the jury. Id. The sentence immediately following states, “[i]t may, either standing alone, or together with other evidence, be sufficient to leave in the minds of the jury a reasonable doubt ...” Id. “It” refers only to the defendant’s evidence of alibi. Consequently, if the defendant presents evidence of alibi, he or she should have the benefit of a jury instruction on such evidence.

In Van Wright, this court stated:

A defendant is not entitled to an [alibi] instruction under Commonwealth v. Bonomo, supra, unless there is some testimony in the record, introduced by either the defense or the Commonwealth, raising the possibility of an alibi defense.

Van Wright, 249 Pa.Super. at 457, 378 A.2d at 385 (emphasis added). The rule set forth in Bonomo did not state this. Van Wright incorrectly interpreted Bonomo to import that an alibi instruction is necessary whenever there is evidence introduced by the defense or the Commonwealth raising the possibility of an alibi defense. Van Wright, supra. Bono-mo, however, only requires an alibi instruction when the defense, not the Commonwealth, presents evidence of alibi. Bonomo, supra. In Van Wright, as in Bonomo, it was the defense who presented evidence of alibi.

Moreover, since the defense and not the Commonwealth presented the evidence of alibi in Van Wright, the above statement discussing Bonomo was not necessary to the disposition of that particular case, and therefore was merely dictum. In In re Trust Estate of Pew, 411 Pa. 96, 191 A.2d 399 (1963) (overruled on other grounds Estate of Tyler, 474 Pa. 148, 377 A.2d 157 (1977)), the supreme court stated that, “[g]eneral expressions in an opinion must be considered in the light of and cannot be dissevered from the facts of that case; what is actually decided and controlling is the law applicable to that particular case and while other statements and conclusions therein are entitled to great consideration they are not controlling.” Id., 411 Pa. at 103, 191 A.2d at 404.

The following passage from United States v. Booz, 451 F.2d 719 (3rd Cir.1972), cert. denied, 414 U.S. 820, 94 S.Ct. 45, 38 L.Ed.2d 52 (1973), summarizes the rationale for the necessity of an instruction on alibi when the defense pursues it, and illustrates why such an instruction is not needed when the Commonwealth introduces alibi:

[A] [defendant is entitled to a specific instruction on burden of proof on alibi issues because the jury is likely to become confused about the burden of proof when an appellant offers this type of evidence. When affirmative proof, best known by the defendant himself is offered, a likelihood exists that jurors would look to that proof for persuasion of its truth. But the correct approach is that such proof need only raise a reasonable doubt in the juror’s mind as to whether defendant was present at the scene.

Booz, 451 F.2d at 723-724 (emphasis added). Clearly, when the Commonwealth offers evidence of defendant’s alibi there is no danger of the jury confusing the burdens of proof because the defense has not sought to prove anything. Likewise, since Fromal has not attempted to persuade the jury of an alibi defense there is no risk that the jury could conclude he failed to satisfy a non-existent burden.

In sum, since the Commonwealth introduced the evidence of alibi, not the defense, the rule espoused in Bonomo, and the reasoning underlying its conclusions, did not warrant an alibi instruction. The Van Wright court’s indication to the contrary was the result of a misinterpretation of Bonomo’s rule, and was in no way necessary to the disposition of the case before it. Accordingly, this claim is meritless, and trial counsel, under the proceedings of this case, was not ineffective for failing to object to the absence of an alibi instruction. Silo, 509 Pa. at 410, 502 A.2d at 175.

Fromal next contends that trial counsel was ineffective for failing to object to portions of the prosecutor’s closing argument which were not included in the record. Specifically, Fromal maintains that the prosecutor improperly suggested that Fromal was intending to move Florida. Fromal argues that this suggestion prejudiced him by implying his flight after the commission of the robbery, from which the jury could infer his guilt.

The prosecutor made four references to Fromal’s intention to relocate to Florida:

1) If you’re getting ready to move to Florida and you have money that you want to take down to Florida with you, how do you take it?
2) Why is [Fromal] down there on the 22nd packing up his family, getting them ready to leave the area, move to Florida?
3) What happened here? Mr. Fromal separated, he got a windfall from his house, he was going to relocate to Florida.
4) I suggest to you that you can find from this evidence that Mr. Fromal squandered that nest egg. He made his preparations to go to Florida.

Although it is not apparent from the evidence that Fromal was intending to move to Florida, there was evidence of some imminent relocation. Moreover, the four references alluding to Fromal’s relocation were not made in the context of implying guilt through flight, but rather to illustrate that Fromal had squandered the proceeds of the sale of his home, and needed money in order to finance the impending move to Florida. It is clear that, “a lawyer’s comments to a jury will not be reviewed in isolation, but will be assessed in the context in which they were spoken.” Commonwealth v. Sparks, 351 Pa.Super. 320, 326, 505 A.2d 1002, 1005 (1986). When the prosecutor’s comments are viewed in the context in which they were spoken, it becomes apparent that they did not imply that Fromal was fleeing the crime. Further, since we cannot conclude that the “unavoidable effect of these comments would be to prejudice the jury, ... so that they could not weigh the evidence objectively and render a true verdict,” D'Amato, 514 Pa. at 490, 526 A.2d at 309 (citations omitted), this claim is of no arguable merit. Silo, supra.

Next, Fromal maintains that trial counsel was ineffective for failing to include in his post-verdict motions a challenge to the trial court’s denial of his motion for mistrial because the Commonwealth failed to disclose exculpatory evidence prior to trial. We disagree. Although defense counsel requested exculpatory evidence during pre-trial discovery, the Commonwealth did not disclose that Isabella Alexander, a teller at the Bank, had identified the voice of the robber as being similar to that of another Bank customer, Howard Mogul. Defense counsel discovered this evidence when he received a phone call while the case was in progress. Apparently, Peter Chimienti, the prosecuting state trooper, did not disclose this evidence to the district attorney’s office. Upon discovering this information, defense counsel moved for dismissal of the charges, and alternatively, a mistrial.

The trial court denied defense counsel’s requests, but did permit a brief continuance to allow him to prepare his case in light of the newly discovered evidence. Defense counsel did, in fact, call as witnesses Isabella Alexander and Howard Mogul, and was given an opportunity to cross-examine Chimienti regarding his omission of Alexander’s identification of Mogul’s voice from his police report.

The Supreme Court of the United States has held that suppression by the prosecution of evidence favorable to an accused which was requested by the accused can constitute a violation of due process if the evidence is material. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). See also Commonwealth v. Bonacurso, 500 Pa. 247, 455 A.2d 1175 (1983); Pa.R.Crim.P. 305. In Brady, the nondisclosed evidence was initially discovered by the defense after trial and sentencing. Here, the evidence was disclosed during trial, and the defense was afforded time to review the evidence and competently incorporate it into Fromal’s defense.

This is not a situation where the withheld information was discovered only after conviction but one where the evidence became available to the defense during trial. Moreover, the defense had the opportunity to effectively present this evidence before the jury. Under these circumstances, we find no justification for granting a new trial. The rationale for doing so in Brady ... was that the jury convicted without the benefit of the non-disclosed testimony. Such a purpose would not be served in this case where the jury did consider the evidence in question before reaching its verdict. We therefore hold that even if the evidence would be deemed to be exculpatory, where it is effectively presented at trial and the belated disclosure does not prejudice the defense, no due process violation has occurred.

Commonwealth v. Murphy, 493 Pa. 35, 45-46, 425 A.2d 352, 357 (1981). Here, like in Murphy, since the defense had the opportunity to effectively present this evidence before the jury, and the jury convicted Fromal with the benefit of the originally non-disclosed evidence, the delayed disclosure did not prejudice the defense. Because a post-verdict motion requesting a mistrial due to the non-disclosure of the exculpatory evidence would have proven futile, this claim is meritless. Silo, supra.

Lastly, Fromal contends that trial counsel was ineffective for failing to preserve for appellate review the trial court’s error in admitting into evidence a .32 caliber handgun and gambling records from Trump Castle. Fromal argues that the handgun and the records were prejudicial and irrelevant. We disagree.

Preliminarily, we note that “[t]he admission or exclusion of evidence is a matter specifically within the discretion of the trial judge, and we will not reverse his decision absent an abuse of that discretion.” Commonwealth v. Meadows, 381 Pa.Super. 354, 366, 553 A.2d 1006, 1012 (1989). This court has defined relevant evidence as follows:

Evidence is relevant if it tends to make more or less probable the existence of some fact material to the case, it tends to establish facts in issue or when it in some degree advances the inquiry and thus has probative value.

Commonwealth v. Shain, 324 Pa.Super. 456, 462-463, 471 A.2d 1246, 1249 (1984).

With the above principles in mind, we turn to the admissibility of the .32 caliber handgun. All that is required before a weapon may be introduced into evidence is a sufficient foundation demonstrating circumstances justifying an inference of the likelihood that the weapon was used in the course of the crime charged. Commonwealth v. Clark, 280 Pa.Super. 1, 4-5, 421 A.2d 374, 376 (1980); Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856 (1973). The Commonwealth is not compelled to establish that the particular weapon to be introduced was the actual weapon used in the commission of the crime. Clark, 280 Pa.Super. at 6, 421 A.2d at 376; Commonwealth v. Brown, 467 Pa. 512, 359 A.2d 393 (1974).

We find that the fact that Fromal possessed this weapon at the time of his arrest provided him with the means to accomplish the crime of robbery, and is therefore a relevant part of the Commonwealth’s case. Clark, supra. Thus, since the weapon was relevant, the admission into evidence of the .32 caliber handgun was not an abuse of discretion, and this claim is of no arguable merit. Silo, supra.

Fromal also contends that the records from the Trump Castle were not relevant since they only documented information of those who wished to be recorded. Fromal himself, however, informed police that a player who placed minimum wagers of one hundred dollars was automatically recorded. Quirk, the casino analyst, clarified Fromal’s statement by testifying that a person who placed minimum wagers of one hundred dollars was automatically recorded if his identity was known to the casino employee, or if he informed the casino employee of his identity. Since it was introduced into evidence that Fromal maintained he was at Trump Castle in Atlantic City on the date of the robbery, placing wagers of one hundred dollars, the records of his gambling activities at Trump Castle were relevant in that they tended to make more or less probable a fact material to the case: whether Fromal was in Atlantic City on the date of the robbery. Shain, supra. As the trial judge correctly noted, the arguments raised by Fromal’s defense counsel, which are essentially the same arguments raised by his subsequent counsel on appeal, concern the weight of the evidence, and not its admissibility. Clearly, the weight to be accorded evidence is for the finder of fact to determine. Brown, 489 Pa. at 306, 414 A.2d at 81. Because the records of Fromal’s gambling activities at Trump Castle were relevant, their admission did not constitute an abuse of discretion, and Fromal’s contention is meritless. Silo, supra.

Judgment of sentence affirmed.

      . In Fromal’s automobile, the police discovered $3910.00 in cash, a .32 caliber handgun, and eighteen rounds of ammunition. In Fromal’s van, the police found two plastic silver toy guns, two plastic bags, and $5,000.00 in cash.

      . The Commonwealth erroneously states that Fromal’s claims of ineffective assistance of counsel are governed by the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. It is clear that the PCRA is only concerned with collateral relief and is not relevant to a direct appeal from a judgment of sentence. See 42 Pa.C.S. § 9542 (“This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence ...”). Therefore, Fromal’s ineffectiveness claims are subject to the standard of review set forth above, not the more stringent standard found in the PCRA.

      . The statements made by the prosecutor which Fromal maintains infringed upon his constitutional right not to testify are as follows:
      ... I want to caution you that when you use the principle of reasonable doubt, you must remember that reasonable doubt is not created solely because two people say two different things. Mrs. Aukamp says it was Mr. Fromal who was in the bank. Mr. Fromal says I wasn’t in the bank. That doesn’t create reasonable doubt.
      You must first determine who is telling the truth. Is it Mrs. Aukamp or is it Mr. Fromal? And then apply the reasonable doubt standard to the person whose testimony you choose to believe. How do you go about evaluating the testimony of the people who have testified in this case? And in reality I think what you have is the testimony of two people.
      One, Mrs. Aukamp who testified that it was, in fact, Mr. Fromal. And Mr. Fromal who spoke to you through Trooper Solt and said I did not commit this crime, I was in Trump’s Casino in Atlantic City at the time the crime occurred.

      Is Mr. Fromal telling the truth or is Mrs. Aukamp telling the truth?
      ******
      ____ [I]f you feel that Mrs. Aukamp intentionally lied when she immediately said I recognized the voice, I know that voice, that’s something important. That’s something material. You can then disregard her testimony.
      If you feel that Mr. Fromal, when he told Trooper Solt I was in Atlantic City, if you feel he was intentionally lying, then you can disregard his testimony and his statements that I did not do this and look to Mrs. Aukamp, decide that she is being truthful and apply the reasonable doubt standard to her testimony. Additionally, Fromal maintains that three other statements made by the prosecutor infringed upon his constitutional right not to testify:
      1) Now let’s look at what Mr. Fromal has said.
      2) But even if you believe the second version of the story, what does that tell you about the truthfulness of Mr. Fromal’s version that he was in Atlantic City on the 20th [the date of the robbery],
      3) I am going to suggest to you that you go back again to what I started my summation with. Who is the believable person?

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In Pounds, the supreme court held that, "the testimony of the accused may, by itself, be sufficient to raise an alibi defense and entitle him to an appropriate jury instruction.” Pounds, 490 Pa. at 632, 417 A.2d 602. See Pennsylvania Standard Jury Instructions, Criminal, § 3.11.

      . Further, it appears that in all the relevant cases concerning the necessity of an alibi instruction, the defense has introduced evidence of alibi. See Commonwealth v. Pounds, supra; Commonwealth v. Bonomo, supra; Commonwealth v. Roxberry, supra; Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150 (1985); Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1984); Commonwealth v. Van Wright, supra.