author: CERCONE, Judge:

text:
    500 A.2d 431
    FIDELITY FUND, INC. v. Joseph DI SANTO and Schiff Terhune Incorporated of Pa. Appeal of SCHIFF TERHUNE INCORPORATED OF PENNSYLVANIA, Appellant. FIDELITY FUND, INC. v. Joseph DI SANTO and Schiff Terhune Incorporated of Penna. Appeal of Joseph DI SANTO Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1984.
    Filed Sept. 20, 1985.
    Reargument Denied Nov. 19, 1985.

      Michael H. Egnal, Philadelphia, for appellee (at 132) and for appellant (at 133).
    Walter W. Rabin, Philadelphia, for Fidelity, appellee.
    Before McEWEN, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal by defendants Joseph Di Santo and Schiff-Terhune Incorporated of Pennsylvania (“Di Santo”, “Schiff-Terhune” or “defendants”) from the denial by the lower court of their Exceptions to the lower court’s Adjudication and the affirmance of the Decree Nisi as a Final Decree. Specifically, defendants appeal from that part of the decree which orders defendants to account for all commissions received from insureds whose insurance needs were served by plaintiff through defendant Di Santo while he was employed by plaintiff and from that part of the decree which enjoins them, for two years, from soliciting the same insureds.

Di Santo also appeals from Conclusion of Law No. 7 set forth in the lower court’s Adjudication which states that, “defendant Di Santo is entitled to no continuing share of commissions received by plaintiff after his resignation from plaintiff’s employ, in insurance coverages sold by him during such employment.”

Based on the reasoning which is set forth herein, we affirm in part and reverse in part and remand for further disposition consistent with this opinion.

The plaintiff, Fidelity Fund, Inc. (“Fidelity”), is in the insurance brokerage business. Defendant Joseph Di Santo was, for over 20 years, engaged in the insurance business as a broker or agent specializing in the production of large commercial accounts. During his working years, Di Santo developed a large number of contacts with commercial customers. In 1975, Di Santo sold his insurance agency and left the insurance business for a period of three years pursuant to a written noncompete agreement with the purchaser.

In July, 1978, plaintiff sought to expand its commercial insurance department. To facilitate this expansion, it hired Di Santo for the specific purpose of soliciting and obtaining commercial customers and to establish contacts with insurance companies through which to write the commercial policies. Di Santo was employed based upon an oral contract. There is no evidence or claim that the parties had agreed to an oral covenant not to compete. The plaintiff admitted that the employment contract made no provision as to whether, upon his termination of employment, Di Santo would forfeit commissions subsequently occurring and received by plaintiff on insurance coverages written by Di Santo during his employment.

Although Fidelity did not require or condition Di Santo’s employment on his ability to persuade his previous clients to write insurance through Fidelity, a vice president of plaintiff testified that it was expected and hoped that Di Santo might do so. It is undisputed that Di Santo did in fact write some commercial insurance policies through Fidelity for clients he had developed prior to his employment there and for clients he subsequently developed independently of any information or leads imparted to him by Fidelity.

Upon termination of his employment with Fidelity, Di Santo began working for Schiff-Terhune Incorporated of Pennsylvania, a direct competitor of plaintiff. According to the findings of fact of the court below, in addition to employing Di Santo, Schiff-Terhune negotiated with him to purchase a list of customers for whom Di Santo had written policies while in plaintiffs employ. The lower court did not determine which of these customers had been serviced by defendant Di Santo prior to his employment with plaintiff, which he had developed by his own contacts while in the employ of plaintiff, or which were customers developed by leads given to Di Santo by the plaintiff. While still employed by plaintiff, defendant Di Santo wrote insurance policies designating himself or Schiff-Terhune, rather than the plaintiff, as broker.

The issues on appeal are (1) whether the trial court’s order is overbroad based on its misconstruction of the law of trade secrets and its application to the facts of this case and (2) whether the lower court erred by holding that Di Santo was not entitled to continue receiving his share of commissions received by plaintiff on insurance coverages sold by Di Santo during his employment with plaintiff.

In entering a verdict and judgment for the plaintiffs, the court below based its opinion on several conclusions of law. The holdings which are relevant to this appeal are:

1. Defendant, Di Santo is entitled to no proprietary right to his relationship with his insurance customers previous to his employment with plaintiff, or in his knowledge of their insurance needs, such as to keep the coverages he sold them during that employment from becoming plaintiff’s trade secrets.
2. Defendant Di Santo violated the terms of his employment by plaintiff in every instance of his procuring cancellation of insurance policies for which any insurer carried plaintiff as broker of record, and substituting for such cancelled policies other coverages as to which he had himself named broker of record.
3. Defendant Di Santo violated the terms of his employment by plaintiff in every instance of his placing coverage with any insurer, and having himself named broker of record, regardless of such insurer being one not ordinarily available to plaintiff.
4. Defendant Di Santo had no authority to endorse and appropriate for his own use insurance brokerage commission checks made payable to plaintiff, regardless of whether the insurer from whose coverage such commission derived was one ordinarily available to the plaintiff.
5. Defendant Di Santo was entitled to no greater share of commission deriving from coverage placed with an insurer not ordinarily available to plaintiff than of commission deriving from any other coverage placed by him during his employment by plaintiff.
6. Plaintiff is entitled to
(1) an accounting by defendant Di Santo,
(2) discovery in accordance with Rules of Civil Procedure in aid of such accounting, and
(3) reimbursement by Di Santo as to
(4) all commissions paid directly to him as broker of record on insurance coverages described in Conclusions of Law (2) and (3) above, as well as to
(5) the proceeds of any commission checks endorsed by him and appropriated to his own use as described in Conclusion of Law (4) above.
7. Defendant Di Santo is entitled to no continuing share of commissions received by plaintiff after his resignation from plaintiffs employ, on insurance coverages sold by him during such employment.
9. Plaintiff is entitled to recover from defendant Schiff-Terhune any commission received by it as broker of record on any insurance coverage placed for a customer whose insurance needs were served by plaintiff or defendant Di Santo during his employment by plaintiff.
10. Plaintiff, as to all commissions described in Paragraph 9 above, is entitled to
(1) an accounting by defendant Schiff-Terhune
(2) discovery in accordance with Rules of Civil Procedure in aid of such accounting
(3) reimbursement by defendant Schiff-Terhune
11. Plaintiff is entitled to a mandatory injunction requiring defendants Di Santo and Schiff-Terhune to countermand with any insurer any designation of either as broker of record on any insurance coverage described in Conclusions of Law 2 and 3 above, and to request the designation of plaintiff as broker of record on any such coverage.
12. Plaintiff is entitled to an injunction for a reasonable period of future time against defendants Di Santo and/or Schiff-Terhune soliciting or serving insurance needs of any insured whose needs were served by plaintiff by defendant Di Santo during the time of his employment by plaintiff.

Implicit in the above conclusions of law by the lower court is its finding, in discussion, that “the material Di Santo purveyed to his new employer, the corporate defendant, i.e., his knowledge of the names of the insureds in policies placed by plaintiff as broker and the expiration dates of those policies constituted plaintiffs trade secrets over which plaintiff is entitled to protection by a court of equity.”

The trial court’s application of the law of trade secrets is central to the first issue on appeal. If that court misconstrued the law or misapplied it to the facts, as we find that it did, then the enumerated conclusions of law must be adjusted accordingly.

To reiterate our scope of review, it is fundamental that the findings of fact of a chancellor will not be disturbed on appeal if there is adequate evidence in the record to sustain the findings. On the other hand, it is equally well established that the chancellor’s conclusions, whether of law or fact, being no more than his reasoning from the underlying facts, are reviewable. See Van Products Co. v. General Welding & Fabricating Co., 419 Pa. 248, 257, 213 A.2d 769 (1965).

We find that the lower court erred in concluding that the facts established a misappropriation of legally protected trade secrets, at least as it applies to those customers with whom defendant Di Santo had a professional relationship prior to his employment with plaintiff and as to those customers Di Santo developed by his own individual efforts while employed by plaintiff. The decree, therefore, must be reversed in part.

The seminal Pennsylvania case which outlines the prerequisites to recovery upon a cause of action alleging misappropriation of trade secrets is Macbeth-Evans Glass Co. v. Schnelbach, 239 Pa. 76, 88 A. 688 (1913), where the court stated:

To be entitled to equitable relief the burden was on (the employer) to show (1) that there was a trade secret, or, as in the case at bar, a secret process of manufacture; (2) that it was of value to the employer and important in the conduct of his business; (3) that by reason of discovery or ownership the employer had the right to the use and enjoyment of the secret; and (4) that the secret was communicated to (the employee) while he was employed in a position of trust and confidence under such circumstances as to make it inequitable and unjust for him to disclose it to others, or to make use of it himself, to the prejudice of his employer.

The question as to whether certain information is a “trade secret” of the employer’s, thus restricting its use by the employee, is fraught with policy considerations which must be at the forefront of any analysis. The competing interests at stake have been laid out extensively elsewhere. Accord: Wexler v. Greenberg, 399 Pa. 569, 160 A.2d 430 (1960), and Spring Steels, Inc. v. Molloy, 400 Pa. 354, 162 A.2d 370 (1960). The problem of accommodating the competing policies can be stated thus: the right of a business person to be protected against unfair competition stemming from the usurpation of his or her trade secrets must be balanced against the right of an individual to the unhampered pursuit of the occupations and livelihoods for which he or she is best suited. A further consideration in support of protecting certain information is to encourage technological development by assuring the creator that he will be given the first chance to reap the benefits of his creation. We agree with a statement by the Supreme Court of Wisconsin:

Customer lists are the very periphery of the law of unfair competition, because legal protection does not provide incentive to compile lists, because they are developed in the normal course of business anyway.

Corroon & Black-Rutters & Roberts, Inc. v. Hosch, 109 Wis.2d 290, 296, 325 N.W.2d 883, 888 (1982) (footnotes omitted).

In asserting an equitable right to protection against the misuse of a trade secret, the burden is on the plaintiff to show that it held a trade secret and that the defendant had misappropriated it in violation of a confidential relationship. Spring Steel, supra, 400 Pa. at 360, 162 A.2d at 372; Pittsburgh Cut Wire Co. v. Sufrin, 350 Pa. 31, 34, 38 A.2d 33, 34 (1944). Based on the facts as found by the court below, the plaintiff, as a matter of law, has failed to meet this dual burden as to those customers with whom defendant Di Santo had contact prior to his employment with plaintiff and those customers he developed by his individual effort while employed by the plaintiff. Assuming, arguendo, that in certain situations customer lists and related information can be a trade secret, the plaintiff herein has failed to show it had the secret by reason of its own discovery or ownership or that the secret was communicated to the employee while he was employed in a position of trust and confidence. See Macbeth-Evans, supra.

We will discuss each of these elements so as to clarify the holding herein. The plaintiff did not assert, nor could it, that it had “discovered” the customers with which Di Santo had been previously affiliated. Neither did the plaintiff present evidence to prove that it “owned” the right to those customers by purchase of them from Di Santo. The trial court analyzed this issue by stating that the defendant did not own the right to service these customers to the exclusion of others. That is not the issue. The mere fact that defendant did not have that right does not mean that plaintiff does have such a right. The plaintiff must prove affirmatively that it has the right by discovery, ownership, or confidential communication. There are numerous cases reported where an employer had purchased a customer list or had hired an employee based on the proposition that the employer has the right to that employee’s customer contacts. Accord: Alexander & Alexander, Inc. v. Drayton, 378 F.Supp. 824 (E.D.Pa.1974). That is not the situation here. Plaintiff admitted that use of Di Santo’s customer contacts was not a condition of employment.

The gravaman of liability for disclosure of a trade secret is whether the secret was communicated to the employee while he was employed in a position of trust and confidence. Clearly, if the information was originally in the employee’s possession then it could not have been communicated to him by the employer so as to make it inequitable or unjust for the employee to disclose it to others.

If, as we conclude, plaintiff had no protectable interest in the names of customers previously known to the defendant or independently developed by him, the remaining issue is whether the policy expiration dates of which Di Santo purportedly came into possession from the plaintiff’s records, are protectable trade secrets. Such information certainly does not raise to the level of “trade secret” as it is easily ascertainable by other legal methods. See Bettinger v. C. Berk Associates, Inc., 455 Pa. 100, 314 A.2d 296 (1974). Here defendant would merely need to contact the customers to get such information. It is clearly the law of Pennsylvania that, unless enjoined by a restrictive covenant or by the misuse of confidential information peculiar to the employer’s business, an employee may, upon termination of employment, engage in a rival business and acquire some of the former employer’s customers. To enjoin such behavior, the plaintiff must prove illegal activity. The plaintiff herein has failed to show such illegality.

Based on the preceding reasoning, customers developed by Di Santo individually, and not as a result of “leads” given by plaintiff, during the course of his employment with plaintiff are not plaintiffs trade secrets. Here, too, plaintiff cannot prove that it had a protectable interest in the business of such customers previous to Di Santo’s contacts with them. A similar situation was at issue in Wexler v. Greenberg, supra. There the defendant, a qualified chemist, was employed by plaintiff as its chief chemist. The defendant developed various new secret formulas. After eight years of employment, defendant entered into employment with a competitor of the plaintiff and sold the secret formula to the competitor. The court held that the chancellor erred in enjoining the defendants from using the formulas for primarily three reasons: (1) the alleged trade secrets had not been disclosed to defendant, (2) there was no express covenant restricting defendant’s use of the formulas, and (3) plaintiffs had failed to show circumstances which implied a pledge of secrecy.

Since it is conceptually impossible, however, to elicit an implied pledge of secrecy from the sole act of an employee turning over to his employer a trade secret which he, the employee, has developed, as occurred in the present case, the appellees must show a different manner in which the present circumstances support a permanent cloak of confidence cast upon Greenberg by the chancellor.

Wexler v. Greenberg, 399 Pa. at 578, 160 A.2d at 434.

As in Wexler, we can find no special circumstances which would indicate that the customers developed by Di Santo were of great concern or the result of special concentration by plaintiff. Di Santo's knowledge of the value of such customers and the harmful effects that competition could bring is insufficient, in itself, to support a finding that he was never to compete.

In support of its conclusion that defendants had misused plaintiff's trade secret, the lower court relied primarily on three cases: Alexander & Alexander, Inc. v. Drayton, supra; United Insurance Co. of America v. Dienno, 248 F.Supp. 553 (E.D.Pa.1965); and Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957). Each of these cases is clearly distinguishable on the facts and, therefore, does not affect our holding. In Alexander, supra, the customer list in question had been purchased by the plaintiff and had been given to the defendant for use within the scope of his employment with the plaintiff. In United Insurance, supra, the defendant had been given the names of the plaintiff’s existing customers as well as other valuable information which was necessary for the proper servicing of those customers. In Morgan’s Home Equipment, supra, each defendant/salesman had been given a confidential route of customers coupled with a non-compete agreement in which each employee explicitly agreed not to disclose the names and addresses of plaintiff’s customers. In Denawetz v. Milch, 407 Pa. 115, 121, 178 A.2d 701 (1962), the court noted that the customer lists in Morgan could only be assembled with great difficulty and were the direct result of the solicitor’s efforts and experience.

Accordingly, we hold that appellants Di Santo and Schiff-Terhune had violated no trust or confidential relationship in contacting customers developed individually by Di Santo while in plaintiff’s employ or customers known to Di Santo prior to his employment with plaintiff. We do find, however, that the lower court properly restrained defendants from soliciting insureds covered by Fidelity who were made known to Di Santo from leads provided by Fidelity, for two years.

The second issue on appeal is whether the lower court erred in denying Di Santo’s counterclaim for unpaid commissions and in forfeiting all commissions occurring as a result of insurance policies written by him prior to the termination of his employment with plaintiff. The court below denied Di Santo’s counterclaim on the theory that since the employment agreement was silent, he had no contractual right to the commissions.

Fidelity asserts two responses to the counterclaim. The first is that Di Santo failed to raise the issue in his Exceptions and, therefore, has failed to preserve it on appeal. Such a statement by appellee is not supported by the record. Defendant’s Exception No. 12 excepts the chancellor’s Conclusion of Law No. 7. Di Santo did not fail to preserve this issue for appeal. Fidelity further argues that the chancellor properly denied Di Santo’s counterclaims stating, “It is hornbook law that one who breaches a contract cannot seek to recover under its terms. The prior breach [by Di Santo] relieves the innocent party [plaintiff] of any further obligations under the contract.”

In determining whether appellant Di Santo is entitled to receive the disputed commissions, we are faced with conflicting policies under the law. Di Santo is seeking restitution. Restitution is a common form of relief in contract cases. It has as its objective not the enforcement of contracts through the protection of a party’s expectation or reliance interests but the prevention of unjust enrichment through the protection of his restitution interest. See Restatement (Second) Contracts § 344 (1981). When determining whether a party is entitled to restitution, the courts must weigh several factors, including the materiality of the breach, by the party seeking restitution, as in this case, see Restatement (Second) Contracts § 241, and whether the forfeiture is disproportionate to the benefit to be received by the party against whom restitution is claimed. See Restatement (Second) Contracts § 229, comment b.

Plaintiff is seeking a forfeiture against Di Santo of those commissions. The employment contract contained no provision for forfeiture under any circumstances. Therefore, we must look to equitable principles. Equity, it has been said, abhors forfeiture and is greatly hesitant to enforce one. See, Sgarlat v. Griffith, 349 Pa. 42, 48, 36 A.2d 330, 333 (1944); Shaw v. New Amsterdam Casualty Co., 310 Pa. 213, 216, 164 A.2d 916, 917 (1932); Straup v. Times Herald, 283 Pa.Super. 58, 68, 423 A.2d 713, 718 (1980). Although a forfeiture may be sustained in equity in some circumstances, equity should scrutinize the transaction to assure that all of the rights of the party from whom forfeiture is sought have been respected. Barraclough v. Atlantic Refining Co., 230 Pa.Super. 276, 281, 326 A.2d 477, 479 (1974), citing Murray v. Iron Hall of Baltimore City, 9 Pa.Super. 89 (1898).

Finally, the law of agency takes a very severe approach to situations such as the one at hand. The Restatement (Second) of Agency § 469 (1958) states:

An agent is entitled to no compensation for conduct which is disobedient or which is a breach of duty of loyalty, if such conduct constitutes a wilful and deliberate breach of his contract of service. He is not entitled to compensation even for properly performed services for which no compensation is apportioned.
Comment b. A serious violation of a duty of loyalty or seriously disobedient conduct is a wilful and deliberate breach of the contract of service by the agent, and, in accordance with the rule stated in Section 456, the agent thereby loses his right to obtain compensation for prior services, compensation for which has not been apportioned.

We must weigh all of these principles and policies to reach our conclusion. In the case sub judice, defendant Di Santo intentionally and purposefully engaged in a course of conduct designed to deprive plaintiff of commissions which rightfully belonged to it. This is not a case, as in Barraclough v. Atlantic Refining Co., supra, where the literal fulfillment of the contract was prevented by oversight or uncontrollable circumstances and where the inadvertant breach was promptly remedied. Di Santo was hired by plaintiff for the explicit purpose of soliciting and obtaining commercial customers for plaintiff. Di Santo’s compensation was based on a percentage commission on policies sold by him. Under the terms of the employment agreement, Di Santo was forbidden from selling insurance for anyone other than for plaintiff as broker. He breached this condition and wrote certain policies naming himself or Schiff-Terhune as broker of record. Although not explicitly stated in the findings of fact below, we can infer that it was the intention of the parties that plaintiff would benefit from this employment relationship by being named broker and would receive the broker’s commission. Di Santo’s breach clearly goes to the essence of the contract. Finally, although we may order defendants to repay all broker commissions illegally received, we have no way of gauging or compensating plaintiff for loss of customer good will which has occurred throughout these years of litigation.

We find no facts which weigh in favor of defendant Di Santo. Before he left plaintiff’s employ, Di Santo intentionally committed numerous acts in violation of his employment relationship, and indeed, converted funds belonging to plaintiff. These acts were unconscionable and weigh against Di Santo on the scales of equity.

Accordingly, as to the order of the court below, we affirm in part and reverse in part, that is, plaintiff is entitled to recover from the defendants any commission received by either as broker of record on any insurance coverage placed for a Fidelity customer while defendant Di Santo was employed by plaintiff. We concur with the lower court’s finding that Di Santo’s cancellation of policies and rewriting them as his own as broker constituted a clear breach of fiduciary duty and was contrary to the terms of employment. We further concur with the lower court insofar as it determined that, by his actions, Di Santo forfeited any commissions due to him on those policies written during his course of employment with plaintiff in which he listed himself or Schiff-Terhune as broker. However, we do not find that Di Santo forfeited any commissions which might be owed to him on policies properly written by him.

Affirmed in part; reversed in part; and remanded for further disposition and accounting consistent with this opinion.

      . The text of the Decree Nisi, pertinent to this appeal, reads:
      (1) Defendants Di Santo and Schiff-Terhune, as to any insurance coverages placed by either up to the date of this Decree for insureds whose insurance needs were served by plaintiff through defendant Di Santo during the period July, 1978 to February 4, 1982 are required and directed
      (a) to account to and reimburse plaintiff for any insurance brokerage commissions received by either
      (b) to countermand with any insurer any designation of either as broker of record or as otherwise entitled to brokerage commissions
      (c) to request of any insurer the designation of plaintiff as broker of record or as otherwise entitled the brokerage commission for the term of any such policy.
      (2) Defendants Di Santo and Schiff-Terhune are enjoined for two years from the date of this Decree from soliciting the purchase of any form of insurance coverage, except life insurance, by any insured whose insurance needs were served by plaintiff or by defendant Di Santo during the period July 1978 to February 4, 1982, or from otherwise serving the insurance needs of any such insured.

      . In Spring Steel, supra, 400 Pa. at 363, 162 A.2d at 375, our Supreme Court specifically adopted comment "e" of section 393 of the Restatement Second of Agency as the prevailing law of this Commonwealth:
      At the termination of his agency, in the absence of a restrictive agreement, the agent can properly compete with his principal as to matters for which he has been employed. See subsection 396. Even before the termination of the agency, he is entitled to make arrangements to compete, except that he cannot properly use confidential information peculiar to his employer’s business and acquired therein. Thus, before the end of the employment, he can properly purchase a rival business and upon termination of employment immediately compete ...

      . "Forfeiture”, as used in the Restatement (Second) Contracts, refers to the denial of compensation that results when the obligee loses his right to the agreed upon exchange after he has substantially relied on it and has substantially performed. See Restatement (Second) Contracts § 229, comment b.

      . We look to § 469 for guidance only. We are not hereby adopting that section in its entirety as the law of this Commonwealth.


source: Caselaw Access Project

license: Public Domain

text:
    500 A.2d 440
    COMMONWEALTH of Pennsylvania v. Tyrone CLARK, Appellant.
    Superior Court of Pennsylvania.
    Argued March 25, 1985.
    Filed Sept. 27, 1985.
    Reargument Denied Nov. 18, 1985.

      John L. Walker, Beaver, for appellant.
    Ahmed T. Aziz, Assistant District Attorney, Sewickley, for Com., appellee.
    Before McEWEN, CERCONE and HANDLER, JJ.

       Judge Earl R. Handler of the Court of Common Pleas of Indiana County, Pennsylvania is sitting by designation.

   CERCONE, Judge:

Appellant, Tyrone Clark, was sentenced to life imprisonment following his conviction before a jury of second degree murder. In this direct appeal he raises a number of issues, one of which we find to have merit. Therefore, we reverse and grant a new trial.

The issue which was raised and properly reserved as error was the trial court’s admission of the testimony of appellant’s former wife into evidence as part of the Commonwealth’s case in chief. Her testimony consisted of her husband’s communications to her prior to and after his commission of an armed robbery of a gas station which resulted in the death of the attendant.

Mrs. Clark testified that on the night in question, she picked up her husband at work at 11 p.m. They drove to their home nearby, but her husband, appellant, left a short while after, carrying a shotgun. He told her that he was going to rob a gas station. About twenty minutes later he returned with the shotgun and told Mrs. Clark that he thought he shot and killed somebody and to call the police. He said that the man he was holding up at the gas station had grabbed at the gun, causing it to go off accidentally. Mrs. Clark reported the incident anonymously to police after which she accompanied appellant to a location where he broke the shotgun in half and disposed of the pieces.

Although they were married at the time of the incident on August 23, 1977, they were divorced in January 1980. At trial in August 1980, counsel for appellant objected to Mrs. Clark’s testifying on the grounds that such testimony would violate the privilege protecting confidential communications between spouses. This common law privilege is codified in 42 Pa.C.S.A. § 5914:

Confidential communications between spouses Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.

This evidentiary rule that a husband and wife may not testify as to confidential communications made to one another during the marriage remains in force even after death or divorce. Commonwealth v. Peluso, 240 Pa.Superior Ct. 330, 361 A.2d 852 (1976).

The communications made by appellant to his wife minutes after the within criminal incident were indeed of a confidential nature. While the trial court so held, it concluded that because appellant at a later time and while incarcerated related substantially the same communication to two fellow inmates, appellant waived any privilege against disclosure of the confidential communication to his wife. Thus, the question for our determination is whether such a privilege may be waived by a spouse by subsequently relating the substance of the confidential communication to third parties.

Appellant could have waived the privilege if he had not objected to Mrs. Clark’s testimony at trial. 42 Pa.C.S.A. § 5914. See also Commonwealth v. Wilkes, 441 Pa. 246, 199 A.2d 411 (1964) (Confidential communications may not be divulged by either spouse without the consent of the other.) Moreover, utterance of the communication in the presence of third parties destroys its confidentiality. Commonwealth v. Borris, 247 Pa. Superior Ct. 260, 372 A.2d 451 (1977).

However, what happened in this case is different from a confidential communication which is spoken to the wife in the presence of a third person; it was also spoken to third persons after having been initially told to a spouse immediately after the murder was committed in the privacy of their marital relationship.

Our starting point is a consideration of the purpose behind the privilege for confidential communication between spouses. The public policy sought to be enhanced by the privilege is the preservation of marital harmony and the resultant benefits to society from that harmony. Hunter v. Hunter, 169 Pa. Superior Ct. 498, 83 A.2d 401 (1951). As one commentator reflected, courts that recognize this purpose have consistently refused to waive the privilege even though the particular marriage at issue has ended. The privilege that protects information privately disclosed between husband and wife in the confidence of the marital relationship was once described by the United States Supreme Court as “the best solace of human existence.” Stein v. Bowman, 13 Pet. 209, at 223, 10 L.Ed. 129 (1839) in Trammel v. U.S., supra, 446 U.S. at 51, 100 S.Ct. at 913.

Given this stated purpose, then, for protecting such communications between spouses, we must decide whether the nature of the communications changes once the speaker spouse reveals their substance to third parties. Clearly, the substance of the latter communications cannot be considered confidential just because it was once that. Third parties were free to testify against appellant. But, keeping the purpose of the privilege uppermost, we are not convinced that the confidentiality that inhered in the initial conversation can be wiped away when the speaker for whatever reason, talks to the third parties about the same matters. Especially is this apparent when the speaker objects to his former spouse’s testimony at trial, as in this case, which is the only waiver opportunity specified in the statute.

Our perusal of case law revealed a reference in Commonwealth v. Peluso, supra, 240 Pa.Super. at 337, 361 A.2d at 856, to Whitehead v. Kirk, 104 Miss. 776, 61 So. 737 (1913) for the proposition that a subsequent declaration in the presence of others does not remove the confidentiality of what was first disclosed privately. The Supreme Court of Mississippi explained:

When the husband and wife are alone, everything said and done is under the protection of the rule and the declarations and conduct of both are presumed to be confidential. That similar acts occur and similar words are used in the presence of others raises no presumption that the presumably confidential declarations and conduct have been thereby released, and that those things said and done in privacy then become public property. Of course, many things are said and done by husband or wife, which upon their face bear no semblance of confidence; but ordinarily what a wife says to her husband alone is said because he is her husband, and because she can speak freely, undisturbed by the possibility that he will repeat what she says. For this reason, we think, when communications between husband and wife can be reasonably construed as confidential, the rule of public policy applies, and, no matter what may happen in particular cases, the courts will not permit a disclosure. Id. at 813-14, 61 So. at 738.

Despite the increased rate of divorce and other societal customs that have been revolutionized since Justice Cook commented on the same privilege which is our concern, his words ring true. Despite what a speaker spouse chooses to utter at a later time, his original confidence remains intact not merely for his benefit, but for the good of marriage as an institution. It is the relationship that existed at the moment of communication which society seeks to protect by the privilege, not the substance of the message itself. Thus, no proscription lies against the third parties’ testimony and regardless of what transpires later with the relationship, whether death or divorce, the privilege survives.

This all leads us, then, to conclude that the trial court erred in permitting Mrs. Clark to testify against her former husband, appellant herein, as to the confidential communications made by him to her during the time surrounding the criminal incident.

A further question arises as to whether her observations of appellant washing the shotgun and disposing of it also fall within this privilege. While there is no Pennsylvania case law regarding this issue, it would be anomalous to exclude acts done at the time the confidential oral communications were made from the protection of the privilege. The marital relationship gave rise to both the statements and the actions surrounding the gun. Thus, Mrs. Clark should not have testified as to the statements or to appellant’s simultaneous acts, as both resulted from the marital relationship.

For the above reasons, judgment of sentence reversed and case remanded for a new trial. Jurisdiction is relinquished.

McEWEN, J., concurs in the result.

      . A related privilege is that prohibiting spouses from testifying against each other, that is, regarding competency. See 42 Pa.C.S.A. § 5913. This privilege has been deteriorating with the addition of refinements and exceptions. See Trammel v. U.S., 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (witness spouse is holder of privilege). However, the incompetency of one spouse to testify against the other cannot be waived and disappears upon death or divorce, unlike the privilege with which we are concerned in this case.

      . See 47 Missouri L.Rev. 888, 896 (1982).


author: BECK, Judge:

text:
    500 A.2d 443
    COMMONWEALTH of Pennsylvania v. Byron G. HATHAWAY, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued March 20, 1984.
    Filed Oct. 4, 1985.

      John Alden, Wayne, for appellant.
    Dennis C. McAndrews, Assistant District Attorney, Wayne, for Com., appellee.
    Before SPAETH, President Judge, and BECK and TAMILIA, JJ.
   BECK, Judge:

After a five day jury trial appellant Byron Hathaway was convicted on December 11, 1981 of the first degree murder of his wife, Bernadette, and possession of firearms without a license. Appellant timely filed motions for a New Trial and in Arrest of Judgment which the trial court overruled. Appellant subsequently filed a writ of Habeas Corpus alleging ineffectiveness of counsel and the trial court deferred the holding of a hearing on the Writ until the appellate court disposed of appellant’s direct appeal. Upon review of appellant’s post-verdict motions and the record, we find that the trial court properly denied his motions and that appellant’s allegations of ineffectiveness of counsel are meritless. We deny his request to remand for a hearing.

After a brief description of the facts, we will turn to the discussion of appellant’s post-verdict motions, and then his allegations of ineffectiveness of counsel.

On April 28, 1981, at approximately 8:45 a.m. at the Church of the Holy Apostle on Remington Road in Haver-ford Township, appellant met his estranged wife as she was leaving the Martessan School, conducted by the Church, having dropped off her and the defendant’s son. After appellant and his wife talked for a short period of time appellant pulled out a .32 caliber pistol. Mrs. Hathaway attempted to run away, but the defendant pursued her and fired several shots at her, causing her to fall to the ground. Appellant walked over to the wife’s body, reloaded the gun, placed the gun at her head and fired several more shots. Appellant returned to his car and drove several blocks until the police apprehended him.

At trial the issue of whether appellant shot his estranged wife was not in dispute. Rather, the issue of appellant’s mental state at the time of the killing was contested. Appellant presented extensive psychiatric testimony to support his defense that as a result of intoxication and mental disturbances, he had a diminished capacity and thus, the inability to form the specific intent to commit first degree murder. The jury rejected his defense, and found him guilty of first degree murder.

Appellant’s post-verdict motions consist of six trial court errors. We find them all to be baseless.

Appellant’s first contention is that the trial court erred in denying his requests to voir dire prospective jurors about their possible bias concerning psychiatrists and psychiatric defenses, the use of handguns, prior service as jurors or witnesses in criminal trials and about a married or separated daughter who was the victim of violence at the hands of her spouse.

The single goal in permitting questioning of prospective jurors is to provide the accused with a competent, fair, impartial and unprejudiced jury. Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977). However, it is not intended to provide appellant with a better basis upon which to utilize his peremptory challenges. The inquiry should be strictly confined to disclosing qualifications or lack of qualifications and should focus on whether a juror has formed a fixed opinion as to an accused’s guilt or innocence. Id. Furthermore, the scope of voir dire rests in the sound discretion of the trial judge and his or her decisions will not be reversed unless palpable error is established. Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977).

More specifically, appellant argues that the trial court erred in not permitting appellant to voir dire the jury on the subject of psychiatrists, psychiatric testimony, insanity or diminished capacity defense, state of mind, and psychological testing. It is in the trial judge’s discretion to preclude questions probative of prospective juror’s attitude toward the insanity defense, Commonwealth v. Biebighauses, 450 Pa. 336, 300 A.2d 70 (1973) and psychiatric testimony. Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973). The trial court did ask the jurors questions concerning their biases against psychiatrists and psychiatric testimony. He inquired into whether they could follow the law on the application of psychiatric testimony. Since the court found that the jurors indicated they would not be biased in this regard, the court did not abuse its discretion in refusing to ask the more specific questions requested by appellant.

Appellant next argues that the trial court erred in refusing to permit voir dire regarding the prospective jurors’ ownership of handguns or membership in an organization opposed to the ownership of handguns. A trial court’s ruling on the scope of voir dire must always be considered in light of the factual circumstances of the particular case. Commonwealth v. Fulton, 271 Pa.Super. 430, 413 A.2d 742 (1979). Since appellant admitted he killed his wife with a handgun these issues were not in dispute and thus not to be decided by the jury. Therefore, the potential biases which the defendant alleges he was unable to ascertain as a result of the trial court’s refusal were not significant in this case. The alleged bias could potentially only affect the jurors’ decision on appellant’s guilt or innocence and since the jurors did not have to decide whether appellant shot his wife, the trial judge’s refusal did not prejudice appellant.

Appellant’s voir dire questioning regarding previous service on a jury panel was also properly rejected. It is well established that there is no reasonable correlation between the juror’s prior jury service and his ability to render a fair and just verdict. Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973). Furthermore, the trial court properly found no logical relationship and we find no cases holding that a relationship exists, between a juror’s prior participation in a criminal case as a witness and potential bias concerning appellant’s guilt or innocence.

Appellant’s claim that the trial court erred in refusing to voir dire prospective jurors if they had a married or separated daughter who had been the victim of violence by her husband is equally meritless. The trial court asked whether any juror or member of his family or close friend had ever been a victim of violence (N.T.Vol. I 312a). This question is broader in scope than the question requested by appellant and obviously covers his concern about this type of bias or prejudice. Since the trial court then queried those jurors who answered positively to identify the victim’s relationship to the juror, and none of the jurors responded that it was his or her daughter, the court did not need to ask the question requested by appellant.

Appellant’s second contention deals with the manner in which the trial judge conducted the voir dire examination. He asked questions to the vernirepersons collectively after both counsel submitted proposed questions to him. Appellant complains that he was entitled to individualized voir dire to have his counsel, rather than the trial judge, ask the questions. Since the trial court has the discretion to determine in non-capital cases who will ask the questions and whether the jurors will be asked individually or collectively, appellant’s assertions are baseless.

Pa.R.Crim.P. 1106 further allows the trial judge to determine whether to question the venirepersons collectively or individually and the appellate courts in Pennsylvania have consistently approved the practice of collective voir dire. See Commonwealth v. Dolhancryk, 273 Pa.Super. 217, 417 A.2d 246 (1979); Commonwealth v. Herron, 243 Pa.Super. 319, 365 A.2d 871 (1976).

Furthermore, nothing in the record indicates that the juror’s answers were influenced by the answers of the other prospective jurors. Appellant’s assertion to the contrary is mere speculation.

This case differs significantly from Commonwealth v. Johnson, 440 Pa. 342, 343, 269 A.2d 752 (1979) where our Supreme Court found that the trial court abused its discretion in collectively questioning the jurors because in that case inflammatory pretrial publicity created the possibility that the jurors could be prejudiced. Id., 440 Pa. at 350, 269 A.2d 752. There had been numerous newspaper articles and television broadcasts which contained details of the crime, appellant’s name, picture and prior criminal arrest record, inflammatory remarks by the District Attorney and the Mayor of Pittsburgh, and subsequent criminal charges filed against appellant. By questioning the jurors collectively, the trial judge could ask the jurors only if they had heard any publicity about the case and not what they had heard because this information would infect the jurors who had not heard that part of the pre-trial publicity. As a result, appellant was unable to ascertain the degree of bias which arose as a result of the pervasive pre-trial publicity, and this information could have been easily ascertained if the trial court had questioned the jurors individually.

It must be stressed, however, that the existence of some pre-trial publicity does not mandate individual voir dire. Commonwealth v. Smith, 290 Pa.Super. 33, 434 A.2d 115 (1981), Commonwealth v. Herron, supra.

In the case before us, the record does not reflect the degree of pre-trial publicity which surrounded the appellant as in Commonwealth v. Johnson, supra, and we find no prejudice arising from the collective voir dire of the venirepersons.

Appellant’s third contention is that the trial court erred in refusing to allow defense counsel to question Dr. Gerald Cooke, a psychiatrist and defense witness, about appellant’s ability to control his actions at the time of the crime. We find the trial court properly excluded the following question which the defense asked Dr. Cooke:

Based upon your interviews, observations and tests are you able to say with reasonable medical certainty whether or not Byron Hathaway was able to control his actions on April 28, 1981 at about 8:45 a.m. while he was with this weapon at the Holy Apostles Church? (emphasis added)

The question clearly relates to the irresistible impulse defense, a species of the insanity defense, Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976), which is not recognized in Pennsylvania.

Appellant was attempting to prove the diminished capacity defense and the question was not relevant to that defense. The diminished capacity defense assumes the defendant is sane but lacks the ability to form a specific intent to kill, and thus reduces the charge of first degree murder to third degree murder. Commonwealth v. Walzack, supra. The irresistible impulse defense is an insanity defense and involves considerations distinct from the diminished capacity doctrine. Therefore the judge properly found the question not to be relevant, Commonwealth v. Walzack, supra, and excluded it.

Appellant’s fourth contention is that the court erred in refusing to charge that diminished capacity is a defense to third degree murder. In his charge he limited the applicability of the defense of first degree murder and voluntary manslaughter. Since diminished capacity is a defense to crimes of specific intent, Commonwealth v. Walzack, supra., and murder of third degree is not a specific intent crime, Commonwealth v. Hicks, 483 Pa. 305, 396 A.2d 1183 (1979), the defense of diminished capacity is inapplicable, and the trial court’s refusal was proper.

Appellant’s fifth contention is that the court improperly charged the jury on the issue of malice. The appellant argues unpersuasively that the trial court’s instruction that “malice may be either expressed by appellant or inferred from his words or conduct” shifts the burden of proof on the element of intent to appellant. This argument is baseless.

The use of the permissive inference in general and the inference of malice from the intentional use of a deadly weapon on a vital part of the body in particular, have been repeatedly upheld by the Pennsylvania’s appellate courts. Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068 (1978) cert. denied 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663, Commonwealth v. Mason, 483 Pa. 409, 397 A.2d 408 (1979) . Even though the trial court’s charge contained a permissive inference, the instruction did not negate the Commonwealth’s burden of proving the element of intent beyond a reasonable doubt. It should be stressed that on numerous occassions the court instructed the jury that the burden of proof on the issue of intent remained with the Commonwealth. (N.T.Vol. Ill at 822a, 825a, 826a, 828d, 829a).

Appellant’s sixth contention is that the trial court erred by refusing to instruct the jury during its charge that they may return a sympathy verdict of voluntary manslaughter whether or not the accused presents such a defense. Voluntary manslaughter is a permissible verdict whether or not evidence of provocation is introduced by either party. However, the trial court is not required to invite a jury to return this verdict merely out of sympathy. Commonwealth v. Brown, 273 Pa.Super. 468, 417 A.2d 743 (1979). Since the trial court was not required to instruct the jury on a sympathy verdict, they did not err in declining to do so.

We now turn to appellant’s allegations on the effectiveness of counsel. Appellant requests that we remand this case for a hearing on this issue. Since we can fully rule on appellant’s allegations of ineffectiveness of counsel from the record in its present state, we deny his request for an evidentiary hearing. Furthermore, counsel will not be deemed ineffective for failing to raise baseless or frivolous issues. It is only when the claim which has been foregone is of arguable merit that further inquiry is made into the basis for counsel’s decision not to pursue the matter. Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983). In addition, appellant must show he was prejudiced by trial counsel’s action or inaction. Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984). The appellant’s allegations of ineffectiveness of counsel are plentiful. The purported instances of ineffectiveness are listed “A” — “R”. We find the allegations meritless.

(A) Appellant contends that his counsel was ineffective in failing to introduce a medical doctor to explain to the jurors the meaning of the defense’s stipulation that eight hours after the killing, appellant had a blood alcohol level (BAC) between .16 and .28. As a result, appellant argues the jury could not properly consider appellant’s defense of diminish-' ed capacity. Appellant’s trial counsel introduced a medical doctor, Dr. Harvey Bartle, Jr., who testified as to the effect of BAC between .16 and .28 on appellant. (N.T.Vol. I p. 190a). Further, Dr. Morgenstern testified that appellant could not have formed the specific intent at the time of the shooting because appellant was quite inebriated (N.T.Vol. I 163a through 164a). Thus, his counsel did introduce evidence of the meaning of BAC and this contention is baseless.

(B) Appellant’s second contention is that his counsel was ineffective in failing to object to the trial judge’s instruction to the jury on the elements of possession (sic) and provocation in his charge of voluntary manslaughter. The trial judge in charging the jury on voluntary manslaughter defined the crime as an act committed by appellant intentionally without the specific intent to kill. (N.T. Vol. I p. 121a). The trial court did not indicate that voluntary manslaughter requires proof that the killing was done in the heat of passion. Appellant claims that his counsel was ineffective in not objecting to this charge. Since there was no evidence that appellant killed in the heat of passion, he was not prejudiced by the courts failure to charge on this element and his trial attorney’s failure to object to it.

(C) Appellant’s third contention is that his trial counsel was ineffective for not objecting to the assistant district attorney’s statement that appellant walked two blocks to his car after the killing instead of, as appellant testified, to the wrong car. This misstatement, argues appellant, would lead the jury to believe the appellant knew exactly what he was doing because he was cognizant enough to walk to his own car. The assistant district attorney’s statement is supported by the testimony of eyewitnesses who testified that after the killing appellant walked to his own car. (N.T.Vol. I p. 389a and 408a). Although appellant did not testify that he walked to a car parked two blocks away, appellant had testified that prior to the killing he parked his car several blocks away. (N.T. Vol. I (218a). The statement made by the assistant district attorney was substantiated by the evidence. A witness also testified that appellant walked to the wrong car first. However the assistant district attorney’s failure to mention this in his closing did not mislead the jury. Appellant’s attorney failed to object not because of ineffectiveness but because he had no basis for an objection.

(D) Appellant’s fourth contention is that trial counsel was ineffective in failing to object to assistant district attorney’s closing argument when he said “the victim is not here to speak for herself. She can’t be cross-examined.” (N.T.Vol. II 808a). Appellant alleges that the statement was inflammatory and only obscured the appellant’s defense.

When the statement is read in its proper context, it is clear that the assistant district attorney was pointing out that decedent was not present to challenge the defense’s assertion that she spoke falsely at a recent custody hearing. The assistant district attorney urged the jury not to believe the accusation against the decedent at the custody hearing. In doing so he was asking the jury to consider whether appellant’s failure to get custody had such a devastating impact on him that he could not form a specific intent to kill. If the defense counsel had objected, he would have just called further attention to the death of the victim. Since there was no basis for the objection, this claim is also frivolous.

(E) Appellant’s fifth contention is that his trial attorney failed to object to the assistant district attorney’s assertion that another man was living with the victim and intended to marry her and thus provided the basis for the jury to find a motive for the killing. Since appellant testified to the assertion, (N.T.Vol. II 538a) it was proper for the assistant district attorney to refer to it and the defense counsel did not err in not objecting to it.

(F) Appellant’s sixth contention is that trial counsel was ineffective for failing to call two witnesses who would have testified that appellant bought the handgun he used to kill his wife. Since appellant himself testified to this and the witnesses, if called, would have testified on the basis of what appellant told him, the testimony would have been hearsay and cumulative. Therefore, there was no reason to call these witnesses.

(G) Appellant’s seventh contention is that his trial counsel was ineffective for retaining Dr. Heller as an expert since he was ill-prepared to testify. Upon review of the expert’s testimony, Dr. Heller appears to have been well-prepared, knowledgable about the appellant and thorough in his psychiatric examination of appellant. His testimony was not valueless, as the defendant asserts, and Dr. Heller was far from unprepared to testify.

Appellant’s eighth contention is that his trial counsel was ineffective for not objecting to the testimony of Dr. Kenneth Kool, a Commonwealth witness. Dr. Kool testified that he based his opinion upon the reports of Drs. Bartle, Heller, Cooke and Urban, his interview of the appellant’s daughter and her boyfriend, who saw the appellant shortly before the incident, the transcript of the custody hearing of the appellant’s son, the police report of the incident and his observation of the appellant during the trial. (N.T.Vol. II 734a). A witness may base his opinion upon his personal observations. Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902 (1976). A medical expert may base his opinion upon facts which are in the record and reports of others which are not in medicine but are customarily relied upon in the practice of medicine, including observations by lay persons. Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971); Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978). Since Dr. Kool’s testimony was based upon his personal observation of the reports customarily relied upon which included observations by lay persons, reports of medical doctors who testified at trial, and other reports which are part of the record, there was no basis upon which defense counsel could object and he properly did not do so.

(I) Appellant’s ninth contention is that trial counsel was ineffective for failing to object to the court’s charge on diminished capacity. Since the trial court’s charge on diminished capacity was legally correct, there was nothing to which trial counsel could have objected.

(J) Appellant’s tenth contention is that trial counsel failed to object to the admission into evidence of the report of Dr. Edward Urban. Since the report, C-30, was never admitted into evidence, there was nothing to which the trial counsel could have objected.

(K) Appellant’s eleventh contention is that his trial counsel was ineffective for failing to request that the court charge that any inference of malice or intent which may be drawn from the use of a deadly weapon upon a vital part of the body was only a permissible inference and could be rejected or accepted by the jury. The court so charged, although not in the exact phraseology used by the appellant so this contention is baseless.

(L) Appellant’s twelfth allegation is that his trial counsel was ineffective for bringing to the jury’s attention the fact that the Lower Merion police denied his application to possess a firearm and his trial counsel should have requested a point for charge that this fact had no meaning. Appellant ignores the fact that he was charged with possession of a firearm without a license and the Commonwealth properly introduced into evidence appellant’s possession of a firearm without a license. (N.T. 489a). A request for a point for charge that the Lower Merion police denied his application would have been frivolous.

(M) Appellant’s thirteenth contention is that trial counsel was ineffective for failing to call Dr. Robert Sadoff (sic) as a witness because he would have added greater weight to appellant’s defense. Since appellant does not allege that Dr. Sadoff (sic) would have testified differently from the other defense witnesses, the evidence would have been cumulative. Therefore, this assertion is meritless.

(N) Appellant’s fourteenth contention is that trial counsel was ineffective for not alleging in the post verdict motions that the verdict was against the weight of the evidence when the evidence showed the appellant did not have the required frame of mind to form the specific intent necessary for first degree murder. The Commonwealth offered substantial evidence that appellant had the requisite specific intent while appellant offered extensive evidence to the contrary. Since the trial court looks at the evidence in the light most favorable to the verdict winner when ruling on post verdict motions, Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980) and there was an abundance of evidence to support the verdict, a motion on this basis would have been frivolous and trial counsel was not ineffective for failing to raise it.

(0) Appellant’s fifteenth contention is that trial counsel should have objected to the introduction of any evidence of the custody action in Montgomery County because at the custody hearing appellant did not have the opportunity to rebut the decedent’s testimony. It was appellant who introduced the custody action into the trial. He testified about it at length and used it to support his defense that he was so mentally distraught about the statements decedent made at the custody action and the subsequent award of custody to his wife that he was unable to form the specific intent. (N.T.Vol. II 367a-370a, 700a-704a, Vol. I 211a, 265a-266a, 281a). This contention is meritless.

(P) Appellant’s sixteenth contention is that counsel was ineffective for failing to object to testimony of a Commonwealth witness that appellant remained silent when arrested. Appellant claims he is constitutionally entitled to remain silent and the jury drew the inference from appellant’s silence that he was guilty.

There is no basis for this contention, and the allegation of the jury’s inference is pure unsubstantiated speculation. Appellant’s defense was that he was intoxicated and mentally distraught at the time he killed his wife. Remaining silent would have been consistent with this defense, and thus there was no reason for counsel to object to it. Appellant has failed to assert any prejudice arising from the failure of his counsel to object.

(Q) Appellant’s seventeenth contention is that trial counsel was ineffective for not challenging the arresting officer’s testimony regarding a statement appellant made at his arrest that appellant would not hurt anybody else. Appellant alleges that at the time he made a statement the radio in his car was on loudly and thus, the police officer could not have heard the statement. The officer testified that he heard the statement as he removed appellant from the car (N.T. 427a) and his hearing was not impaired by the car radio. There was no basis on which trial counsel could object.

(R) Appellant’s eighteenth contention is that counsel was ineffective in failing to object to the assistant district attorney’s reference that the victim was lying in a “pool of blood.” Appellant claims the statement only inflamed the jury, was prejudicial, and was not founded on evidence adduced at trial. The record established that Mrs. Hathaway bled profusely from the head wounds. (N.T.Vol. I see e.g. 350a, 414a, 469a-471a). It is axiomatic that the prosecutor may refer to the facts of record and all logical inferences drawn therefrom, Commonwealth v. Bullock, 284 Pa.Super. 601, 426 A.2d 657 (1981). Therefore, his statement was a logical inference. Trial counsel had no reason to object.

Appellant’s post-verdict motions were meritless, as well as his allegations of ineffectiveness of counsel. We affirm the trial court.

Judgment of sentence affirmed.

SPAETH, President Judge, concurs in the result.


author: CIRILLO, Judge:

text:
    500 A.2d 453
    COMMONWEALTH of Pennsylvania v. George H. SIRBAUGH, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1984.
    Filed Oct. 25, 1985.

      Robert P. Petyak, Ebensburg, for appellant.
    Ralph F. Kraft, Assistant District Attorney, Johnstown, for Commonwealth, appellee.
    Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
   CIRILLO, Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Cambria County. We affirm.

On January 17, 1980 appellant was arrested by the Johns-town police pursuant to an arrest warrant. The warrant was issued as a result of the department’s investigation of numerous burglaries that were committed in the Johnstown area. Following a waiver of his right to an attorney, appellant voluntarily made statements concerning fifty-five sites that he and his accomplice had burglarized. Consequently, appellant was charged and tried on multiple counts of burglary, theft, receiving stolen goods, criminal attempt, and conspiracy.

Prior to trial, the court deleted portions of many of the statements made by appellant during his time in police custody. Appellant objected to receiving the statements in their deleted form and petitioned for complete transcripts. The trial court denied these requests as well as appellant’s request for a change of venue before consolidating the charges against appellant and his co-defendants into three groups and holding jury trials for each.

Appellant was convicted of sixteen counts of burglary, six counts of theft, nine counts of theft by unlawful taking, fifteen counts of receiving stolen property, one count of attempted burglary, and four counts of criminal conspiracy. Following his conviction, appellant filed timely motions for a new trial and arrest of judgment. The trial court denied these motions.

The following issues are raised on this appeal: 1) did the trial court err by denying appellant’s motion for change of venue due to pre-trial publicity; 2) did the trial court improperly delete materials from statements made by appellant and co-defendants prior to releasing those statements to defense counsel for inspection; 3) did the trial court err in failing to suppress the confession of the appellant; 4) did the trial court improperly consolidate the charges and the several defendants for trial; 5) did the trial judge err in failing to disqualify himself from trying the case after appellant’s motion for recusal; 6) did the trial court err by failing to instruct the jury properly on the insanity defense; 7) did the trial court err in refusing appellant’s request to charge the jury that after a return of a verdict of not guilty by reason of insanity, there is a possibility of psychiatric treatment and committment of the appellant; 8) did the trial court err by failing to charge the jury on corroboration of the testimony of accomplices as requested by appellant; 9) did the trial court err in refusing to permit the jury to determine from the evidence that appellant was insane at the time of the crimes; 10) did the trial court err by striking psychiatric testimony concerning circumstances which might have affected the voluntariness of appellant’s confession; and 11) was the sentence imposed by the trial court excessive.

Before we begin our analysis of the substantive issues presented in this appeal, we must note our disapproval of the length of appellant’s brief which is in excess of sixty pages. Appellant presents fourteen separate issues covering nearly three pages, thereby violating Pa.R.A.P. 2116(a). We call attention to the remarks of Aldisert, J., quoted in the case of United States v. Hart, 693 F.2d 286, 287 n.1 (3rd Cir.1982).

With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two errors. I have said in open court that when I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.

See also Commonwealth v. Klinger, 323 Pa.Super. 181, 470 A.2d 540 (1983).

I

Appellant alleges that various pre-trial media references to himself and his co-defendants as the “pillow-case” gang created a hostile community atmosphere and made the impanelling of an impartial jury impossible. Appellant asserts that his motion for a change of venue should have been granted under these circumstances.

The mere existence of pre-trial publicity does not warrant a presumption of prejudice. Commonwealth v. Keeler, 302 Pa.Super. 324, 448 A.2d 1064 (1982). Similarly, a possibility that prospective jurors will have formed an opinion based on news accounts will not suffice. Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984); see also Commonwealth v. Arnold, 331 Pa.Super. 345, 480 A.2d 1066 (1984). The burden is on the moving party to show actual and unyielding prejudice among jurors. Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209, cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973); Commonwealth v. Arnold, supra. It is a matter committed to the sound discretion of the trial court to grant a motion for change of venue and its decision will not be disturbed absent an abuse of that discretion. Commonwealth v. Jackson, supra; Commonwealth v. Hamm, 325 Pa.Super. 401, 473 A.2d 128 (1984) (allocatur denied). See also Commonwealth v. Keeler, 302 Pa.Super. 324, 448 A.2d 1064 (1982). In reviewing the trial court’s decision, the only legitimate inquiry is whether any juror formed a fixed opinion of the defendant’s guilt or innocence as a result of the pre-trial publicity. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976); Commonwealth v. Jackson, supra.

Appellant argues that the mere volume of publicity and its “slanted nature” rendered it impossible to assemble an impartial jury. This case involved lengthy pre-trial hearings concerning publicity during which the trial court conducted its own voir dire examination. The jury members indicated that they were not familiar with the terms used by the media. Publicity will only necessitate a change of venue when it is so overwhelming that it saturates the community and is so close in time to the trial that the possible prejudice to prospective jurors could not have dissipated. Short of such prejudice, we will not find an abuse of discretion in denying a motion for a change of venue. Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978). Accordingly, we find no merit in appellant’s assertion that the publicity was inherently inflammatory and appellant did not meet the burden of showing actual prejudice.

II

Appellant next argues that the trial court improperly deleted materials from statements of co-defendants inculpating appellant. Appellant bases his argument on Pa.R. Crim.P. Rule 305(B), which provides for disclosure of evidence to a defendant by the Commonwealth. However, Rule 305(B) is subject to Rule 305(F) which allows the trial court to issue protective orders:

Upon a sufficient showing, the court may at any time order that the discovery or inspection be denied, restricted or deferred, or make such other order as is appropriate. Upon motion of any party, the court may permit the showing to be made, in whole or in part, in the form of a written statement to be inspected by the court in camera. If the court enters an order granting relief following a showing in camera, the entire text of the statement shall be sealed and preserved in the records of the court to be made available to the appellate court(s) in the event of an appeal.

Pa.R.Crim.P. 305(F).

In Commonwealth v. Bonasorte, 337 Pa.Super. 332, 486 A.2d 1361 (1984), this Court held that it is within the discretionary power of the trial court to determine whether or not to order production of an informant. Id. The case at bar presents similar circumstances. Here the trial court in camera edited certain portions of the statements in order to protect, 1) co-defendants who were not being tried at the time; 2) other named individuals who were not yet charged with specific crimes; 3) the names of those people still under investigation; and 4) the names of investigating officers who may have been involved in the investigation itself. The Supreme Court of the United States has held:

The problem is one that calls for balancing the public interest in protecting the flow of information against the individuals right to prepare his defense. Whether a proper balance renders non-disclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the testimony and other relevant factors.

Rovario v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

In the case sub judice the trial court was merely acting within its discretion in order to protect certain individuals. The full record, which was sealed and preserved in accordance with 305(F), indicates that the deleted portions of the statements did not prejudice appellant particularly since the statements were eventually suppressed.

Ill

Appellant also asserts that certain statements made by him after his arrest were involuntary and should not have been admitted as evidence because: (1) the statements were psychologically coerced from appellant through implied and direct promises of the arresting detective; and (2) the arrest of appellant was illegal in that the arrest warrant was not supported by probable cause.

It is the responsibility of the suppression court to determine the credibility of witnesses and the weight accorded their testimony. Commonwealth v. Reynolds, 300 Pa.Super. 143, 146, 446 A.2d 270, 272 (1982); Commonwealth v. Butch, 257 Pa.Super. 242, 390 A.2d 803 (1978).

The suppression court, which hears and evaluates the testimony, is required to make findings of fact and conclusions of law ... The court must determine whether the Commonwealth has established by a preponderance of the evidence that the confession was voluntary and that the waiver of constitutional rights was knowing and intelligent ... Our responsibility on review is “to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” .. In making this determination, this Court will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Kichline, 468 Pa. 265, 279, 361 A.2d 282, 290 (1976) (cites omitted). We will consider all of the attendant circumstances to determine if it was sufficiently demonstrated that appellant’s decision to speak was the product of a free and unconstrained choice and that the waiver of his constitutional rights was a knowing, intelligent and voluntary choice.

Commonwealth v. Lark, 316 Pa.Super. 240, 462 A.2d 1329 (1983), affirmed 505 Pa. 126, 477 A.2d 857 (1984).

The Pennsylvania Rules of Criminal Procedure 323(i), Suppression of Evidence provides:

(i) At the conclusion of the hearing, the judge shall enter on the record, a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought.

The trial court complied with Rule 323(i) before denying appellant’s motion to suppress in making the following findings: 1) whether the officers gave the proper Miranda warnings to appellant; 2) the time involved in taking the statement; 3) whether appellant was in any way confused by the proceedings; and 4) the condition of appellant’s detention.

The suppression court listened to testimony given by both sides and reached its decision based on that testimony; the court determined appellant’s statements were made without coercion. The fact-finder is free to believe all, or part, or none of a defendant’s testimony. Commonwealth v. Hinchcliff, 479 Pa. 551, 388 A.2d 1068 (1978) cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978). We have no reason to dispute those findings. Accordingly, we hold that the trial court was correct in not suppressing the statements made by appellant after his arrest. Furthermore, we find no merit in appellant’s argument that his statements were the product of an illegal arrest.

Probable cause to arrest exists where “ ‘the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information, were sufficient in themselves to warrant a man of reasonable caution in the belief’ that the suspect had committed or is committing a crime.” Commonwealth v. Lewis, 484 Pa. 206, 208, 398 A.2d 1016, 1018 (1979), quoting McCray v. Illinois, 386 U.S. 300, 304, 87 S.Ct. 1056, 1058, 18 L.Ed.2d 62 (1967); Commonwealth v. Wise, 298 Pa.Super. 485, 444 A.2d 1287 (1982). See also Commonwealth v. Pytak, 278 Pa.Super. 476, 420 A.2d 640 (1980).

The test for probable cause to arrest is not one of certainties, but rather of probabilities dealing with the considerations of everyday life. It is not equivalent to the ‘proof beyond a reasonable doubt’ standard applied in a criminal trial. Commonwealth v. Jenkins, 288 Pa.Super. 232, 431 A.2d 1023 (1981), citing Commonwealth v. Dickerson, 468 Pa. 599, 364 A.2d 677 (1976). A reviewing court should consider this when reviewing the sufficiency of an officer’s information. Commonwealth v. Pytak, supra.

In the case at bar, the police had a warrant for appellant’s arrest. The warrant was obtained pursuant to a burglary investigation by Johnstown police. During the course of the investigation, police received information from the Washington, D.C. police that appellant had been arrested there, and a large sum of money had been confiscated from his car. The money found in appellant’s car matched that which was taken from a home in Johnstown, specifically old coins and paper money. Based on the evidence contained in the record sub judice, we find that the Commonwealth did have probable cause to obtain a warrant and subsequently arrest appellant.

IV

Appellant’s arguments against consolidation are so similar that we will consider them together. Appellant strenuously opposed the consolidation of the cases for trial, maintaining that the burglaries were individual and distinct acts. We disagree. Where informations arise from the same criminal episode or transaction, consolidation is compulsory. Commonwealth v. Tarver, 467 Pa. 401, 357 A.2d 539 (1976); Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984). The determinative element is whether separate charges are based on the same conduct or arise from the same criminal episode. Commonwealth v. Shirey, supra. A “criminal episode” has been defined as “an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger more comprehensive' series.” Commonwealth v. Campana, 452 Pa. 233, 248, 304 A.2d 432, 439 (1973). See also Commonwealth v. Green, 232 Pa.Super. 134, 335 A.2d 493 (1975).

The rules for consolidation have been adopted to protect a defendant from governmental harassment that might result in subjecting a defendant to successive trials for the same event; it is a matter of judicial administration and economy to assure finality without unduly burdening the judicial process by repititious litigation. Commonwealth v. Tarver, supra, 467 Pa. at 408, 357 A.2d at 542. A review of the record shows that the offenses committed by appellant were part of an ongoing series of planned incidents carried out by appellant and his co-defendants. Accordingly, we find consolidation proper.

V

Appellant next argues that the trial judge erred in failing to recuse himself from the case after presiding over the suppression hearing. The mere participation by the trial judge in an earlier stage of the proceeding neither suggests the existence of actual impropriety nor provides a basis for a finding of the appearance of impropriety. Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982), citing, United States v. Lawry, 77 F.Supp. 301 (E.D.Pa. 1948) affirmed 172 F.2d 226 (1948). Here, appellant fails to show that any particular event at the suppression hearing would or could reasonably give rise to impropriety. This Court has stated, that while it may be better practice to have a different judge preside over trial than the judge who has presided over pre-trial proceedings, such practice is not constitutionally required and has not been made the basis for setting aside a verdict reached in an otherwise proper trial. Commonwealth v. Lewis, 314 Pa.Super. 298, 304, 460 A.2d 1149, 1152 (1983); Commonwealth v. Baxter, 282 Pa.Super. 467, 422 A.2d 1388 (1980). Judicial fact-finders are capable of disregarding prejudicial evidence. Commonwealth v. Council, 491 Pa. 434, 421 A.2d 623 (1980); Commonwealth v. Lewis, supra.

Furthermore, appellant was tried before a jury which exercised sole responsibility for evaluating the evidence and arriving at a verdict. Commonwealth v. West, 270 Pa.Super. 301, 411 A.2d 537 (1980). Consequently, the integrity of the fact-finding process was insulated from any predispositions held by the trial judge who, therefore, was properly qualified to conduct appellant’s trial. Commonwealth v. West, supra; Commonwealth v. Griffith, 249 Pa.Super. 252, 376 A.2d 253 (1977).

VI

Appellant next assigns as error several issues concerning his insanity defense. At trial appellant argued that due to a voluntary ingestion of drugs and alcohol, he was insane at the time he committed the acts for which he was eventually convicted. Appellant asserts that the trial judge failed to properly instruct the jury on the test for insanity, and the consequences of an acquittal should he be found insane. Appellant also contends that the court erred in refusing to admit certain evidence relating to appellant’s insanity defense.

We find that appellant improperly asserted the insanity defense. 18 Pa.C.S. § 308 states:

Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative the element of intent of the offense, except that evidence of such intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.

See also Commonwealth v. Hicks, 483 Pa. 305, 396 A.2d 1183 (1979).

We find that the trial court acted properly in refusing to admit certain evidence relating to appellant’s “insanity” defense. The trial court makes the threshold determination as to whether evidence, from whatever source, is sufficient to raise the issue of insanity. Commonwealth v. Thompson, 274 Pa.Super. 44, 417 A.2d 1243 (1979). Cf. Commonwealth v. Merrick, 338 Pa.Super. 495, 488 A.2d 1 (1985). The trial court did not abuse its discretion.

VII

Appellant next argues that the trial court erred in refusing his requested jury charge; specifically, the exclusion of the phrase: “Where two accomplices testify against a confederate defendant, the one accomplice’s testimony cannot be considered corroboration of another accomplice’s testimony.”

The trial judge’s charge to the jury was in pertinent part as follows:

Now, in considering the testimony of the accomplices, Charles Yingling and Lester Sirbaugh, experience often shows that being caught in the commission of a crime, a person may falsely blame others because of some corrupt or wicked motive.
On the other hand, sometimes such a person may tell the truth about he [sic] and others conimitted the crimes together. In deciding whether or not to believe Charles Yingling and Lester Sirbaugh, you should be guided by the following principles which apply specially to their testimony.
The testimony of Charles Yingling and Lester Sirbaugh should be looked upon with disfavor as coming from a corrupt or polluted source. Secondly, you should closely examine the testimony of Charles Yingling and Lester Sirbaugh and accept the testimony of each only with caution and care. Thirdly, you should consider separately whether the testimony of each is supported in whole or in part by other evidence aside from his own testimony for, it is for — if it is supported by independent — it is more dependable.
However, you may not consider the testimony of Charles Yingling as supporting the testimony of Lester Sirbaugh. The testimony of each must be considered separately. You may find the Defendant guilty based on the testimony of Charles Yingling alone or on the testimony of Lester Sirbaugh alone. And, even though the testimony of the witness on whom you rely is not supported by any independent evidence.
And so, to summarize, even though Charles Yingling and Lester Sirbaugh are accomplices, the testimony of one or the other standing alone or of both standing alone is sufficient evidence on which to find the Defendant guilty, if after following the principle which I layed out you are convinced beyond a reasonable doubt that Charles Yingling and Lester Sirbaugh were telling the truth or that both were telling the truth.

Where an accomplice implicates a defendant, the judge should inform the jury that “the accomplice is a corrupt and polluted source whose testimony should be viewed with great caution.” Commonwealth v. Fodero, 273 Pa.Super. 278, 283, 417 A.2d 648, 650 (1979). In the case at bar, the trial judge properly informed the jury of the taint associated with testimony by an. accomplice.

Appellant’s requested point for charge was based on our holding in Commonwealth v. Bennett, 220 Pa.Super. 378, 283 A.2d 724 (1971). However, it is well settled that “a trial judge is not required to accept a requested instruction verbatim ... the court is free to select its own form of expression, so long as the issue is adequately, accurately, and clearly presented to the jury.” Commonwealth v. Fodero, supra, 273 Pa.Super. at 282, 417 A.2d at 650, quoting Commonwealth v. Gardner, 246 Pa.Super. 582, 590, 371 A.2d 986, 989 (1977). Where the basic charge covers a requested point, it is not error for a trial judge to refuse to give additional instructions. Commonwealth v. Gardner, supra. We find no error in the trial judge’s charge to the jury.

VIII

Appellant’s final claim alleges that the trial judge’s imposition of sentence was excessive. It is well settled that sentencing is within the discretion of the trial court and will not be disturbed absent an abusé of that discretion. Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985); Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984). Considering the entire record in this case, including appellant’s convictions on fifty-one counts of various offenses, the gravity of the offense, the circumstances of the crimes, appellant’s individual background, and the need to protect society, we find that appellant’s sentence was individualized and fair.

Judgment of sentence affirmed.

      . Appellant merely argues that the sentence was excessive and as an afterthought adds that the trial judge did not meet the standards of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977): we find appellant waives that issue. "[A] Riggins issue is not preserved by merely claiming that the sentence was excessive.” Commonwealth v. Martin, supra, 328 Pa.Super. at 505, 477 A.2d at 559. We find that the trial court adequately stated on the record its reasons for the sentence imposed and thereby complied with the mandates of Riggins.