author: TAMILIA, Judge:

text:
    633 A.2d 218
    Ronald KELLY, v. Diane KELLY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 4, 1993.
    Filed Nov. 19, 1993.

      Patricia M. Dugan, Philadelphia, for appellant.
    Ronald Kelly, appellant, pro se.
    Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
   TAMILIA, Judge:

Diane Kelly, mother, appeals the February 5, 1993 Order denying her exceptions to the recommendation of the permanent hearing officer requiring her to pay $30 per week support to Ronald Kelly, father, for the care of their son, Ryan, born June 29, 1975.

Father received custody of Ryan on June 24, 1988 and, on April 12, 1991, filed a petition seeking support. On July 2, 1991, the hearing officer recommended dismissal of father’s petition finding that mother, at the time of the hearing, was staying home to care for her three-year old child born of a subsequent marriage and as a nurturing parent should not be required to pay support. The recommendation was based on findings that mother had not worked since 1987, however she did work as a bank branch manager for a period of approximately five years, her gross income in 1987 being approximately $19,000. Father’s exceptions to the recommendation were dismissed by the trial court on April 1, 1992. Although the trial court accepted the hearing officer’s findings of fact, it held that, at some point, mother should be required to meet her responsibility to provide support for Ryan. As such, the trial court remanded the case for a new hearing to determine when mother could return to work to otherwise provide support for Ryan.

The new hearing was held on November 17, 1992, and the officer determined mother had an earning capacity of $231 per week. As such, the officer recommended mother pay $30 per week support, effective July 1, 1991. From the trial court’s denial of mother’s exceptions to this recommendation, she now appeals to this Court.

Mother argues the trial court erred in assigning an earning capacity to her, thereby ordering her to make support payments. She contends the nurturing parent doctrine should continue to apply and should not cease simply because her child reached the age of three. She indicates she has made several attempts to find suitable day care for her child but has been unsuccessful. Further, mother argues she was the major source of income in her prior household, and she has an extensive work history, which exhibits the fact that she is not shirking employment. However, she has been unemployed for several years and has no training other than as a bank manager. Moreover, she argues that she was able to remain home to nurture the four children from her previous marriage and should be able to do the same with her youngest child.

The scope of appellate review in child support cases, is very narrowly defined. O’Connell v. O’Connell, 409 Pa.Super. 25, 597 A.2d 643 (1991). This Court will not disturb a child support Order absent an abuse of discretion, which is not made lightly and rests upon a showing of clear and convincing evidence. Id. This Court has held an abuse of discretion occurs if insufficient evidence exists to sustain an award or if the trial court overrides or misapplies existing law. Blaisure v. Blaisure, 395 Pa.Super. 473, 577 A.2d 640 (1990). It is also well established that both parents are equally responsible for support of their children. DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987). In determining a parent’s ability to provide support, the focus is on earning capacity rather than on the parent’s actual earnings. Akers v. Akers, 373 Pa.Super. 1, 540 A.2d 269 (1988).

In appropriate cases, however, the earning capacity of a parent who elects to stay home with a young child need not be considered when calculating support. Atkinson v. Atkinson, 420 Pa.Super. 146, 616 A.2d 22 (1992). This nurturing parent doctrine excuses the parent from contributing support. When applying the doctrine, a trial court must consider “the age and maturity of the child, the availability of others who might assist the child, the availability of others who might assist the parent, the adequacy of financial resources at home, and finally, the parent’s desire to stay home and nurture the child.” Hesidenz v. Carbin, 354 Pa.Super. 610, 616, 512 A.2d 707, 710 (1986).

The trial court obviously considered this doctrine since reference was made to the child’s age, however, mother contends the court chose this age as a “magical number that stops all other considerations.” Rather, the trial court merely distinguished the present case from similar situations in Hesidenz and Atkinson, in which the doctrine was applied. In Hesidenz, the child was six months old and the mother was nursing three times per day. In Atkinson, the child was only eighteen months old.

Mother further argues the trial court incorrectly affirmed the hearing officer’s recommendation in light of this Court’s decision in Atkinson. In Atkinson, this Court affirmed the decision of the trial court, which held that a mother who was unemployed and remained at home to care for her child from a second marriage was not required to pay child support for the child of a first marriage who was living with his father. The trial court in Atkinson held, in determining whether the nurturing parent doctrine should apply, the issue was not for whose child the mother was caring, but whether under the facts of the case what her earning capacity should be.

Although the family situation in Atkinson is quite similar to the present case, we find the legal arguments clearly distinguishable. This Court, in Atkinson, based its decision on the fact that mother had no work record whatsoever and, therefore, imputing earning capacity to her would simply shift the burden of supporting the wife’s child of the first marriage to her second husband.

Presently, mother had a gross income of $19,000 while employed as a bank manager. According to the record, she held this position for approximately five years. In calculating her earning capacity, the hearing officer and subsequently the trial court took into account her time away from the field by attributing to her an earning capacity of $231 gross income per week, which is far less than $19,000 per year. This calculation also appears to take into account day care costs or similar expenses. Further, we find that $30 per week is not an excessive amount for the support of one’s child. As such, we find sufficient evidence exists to affirm the trial court’s Order.

Order affirmed.


source: Caselaw Access Project

author: CIRILLO, Judge.

license: Public Domain

text:
    633 A.2d 605
    Dawn ARMSTRONG and Thomas J. Armstrong, h/w v. PAOLI MEMORIAL HOSPITAL, Appellant.
    Superior Court of Pennsylvania.
    Argued May 19, 1993.
    Filed Sept. 20, 1993.
    Reargument Denied Dec. 22, 1993.

      R. Bruce Morrison, Philadelphia, for appellant.
    Eric Zajak, Philadelphia, for appellees.
    Before WIEAND, CIRILLO and CERCONE, JJ.
   CIRILLO, Judge.

In this appeal we are asked to consider whether the trial court erred when it ruled that a jury award of $1,000 on a claim of negligent infliction of emotional distress warranted a new trial on the damages question alone and whether the trial court erred when it refused to enter a judgment non obstante veredicto (j.n.o.v.). On both questions, we reverse.

As she was dressing her young son for a birthday party one morning, Dawn Armstrong received a telephone call from Paoli Memorial Hospital, Paoli, informing her that her husband had been in an accident and asking her to come to the hospital.

The hospital had summoned Mrs. Armstrong because a critically injured accident victim named Thomas Armstrong had been brought in unconscious by ambulance. Following a hospital policy to notify the next-of-kin as quickly as possible, an emergency room employee asked information for a telephone number of Thomas Armstrong in Chester. Based on that information, she called Dawn Armstrong.

Once at the hospital, Dawn Armstrong met with a neurosurgeon and examined X-rays of a man with a crushed cranium. She was not allowed to see the patient. Only after she had been at the hospital for more than an hour did her sister see the accident victim’s driver’s license. Then, it was clear the accident victim was not Dawn Armstrong’s husband, Thomas J. Armstrong, but Thomas H. Armstrong, also of Chester. Dawn Armstrong testified that when she heard the injured man was not her husband, “I just lost it. I urinated, defecated, and I just lost it completely.”

As a result of the misidentrfication, Dawn Armstrong testified she suffers from depression, nightmares, insomnia and unreasonable fears about the safety and whereabouts of her husband and son for which she has undergone psychological counseling.

The Armstrongs filed suit against Paoli Memorial Hospital, alleging negligent infliction of emotional distress, intentional infliction of emotional distress and asking for compensatory and punitive damages. The count of intentional infliction of emotional distress and the request for punitive damages were dismissed by the trial judge at the close of testimony. Only the question of negligent infliction of emotional distress went to the jury. The claims for intentional infliction of emotional distress and punitive damages were not revived in post-trial motions. In response to post-trial motions the trial court entered a single order granting a new trial as to damages, calling a verdict of $1,000 “inadequate, indeed supremely embarrassing,” and denying the hospital a j.n.o.v.

In this appeal, Paoli Memorial Hospital asks us to consider whether:

1) The trial court erred when it denied the hospital’s motion for judgment n.o.v.;
2) The trial court erred when it admitted evidence of subsequent remedial measures;
3) The trial court abused its discretion when it ordered a new trial on damages only.

Because of our disposition of the first issue, we need not reach the second or third question and so shall not, except to note that Pennsylvania has recognized a rule against the admission of evidence of subsequent repairs since 1902 because admitting such evidence “punishes a prudent and well-meaning defendant who guards against the recurrence of an accident he had no reason to anticipate ...” Baron v. Reading Iron Co., 202 Pa. 274, 284, 51 A. 979, 980 (1902). However, two Pennsylvania cases have admitted evidence of subsequent repairs in cases in which the feasibility of avoiding an inherent danger was not in issue. See Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971) (warning label with antibiotic strengthened after child’s death); Hyndman v. Pennsylvania R.R. Co., 396 Pa. 190, 152 A.2d 251 (1959) (warning sign erected after child died of burns after touching transformer).

In this case, the trial court admitted evidence of the hospital’s policy for notifying next-of-kin, a policy which was adopted after Dawn Armstrong was mistakenly summoned to the hospital. The trial judge permitted questioning of a defense witness regarding deviation from the conduct outlined in the hospital’s subsequent policy. Thus, the record reveals that the policy was used not to demonstrate the feasibility of avoiding error, but to define a standard of care from which the jury might infer negligence. When a trial court allows evidence of subsequent remedial measures to be introduced to demonstrate prior negligence, as it did here, it abuses its discretion. Baron, supra.

Our standard of review of an order denying j.mo.v. is whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemanne-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 4, 564 A.2d 1244, 124689149752 (1989). The standard of review for an appellate court is the same as that for a trial court: j.mo.v. will be entered only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Pirozzi v. Penske-Olds-Cadillac-GMC, 413 Pa.Super. 308, 312, 605 A.2d 373, appeal denied, 532 Pa. 665, 616 A.2d 985 (1992). An appellate court will reverse a trial court ruling only if it finds there was not sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every favorable inference reasonably drawn from the evidence. McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982).

When we review an order granting a new trial, we must consider whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, 425, 521 A.2d 413, 420-21 (1987). We presume the trial court was justified in granting a new trial even if the stated reason is insufficient. Commonwealth ex rel. Meyers v. Stern, 509 Pa. 260, 264, 501 A.2d 1380, 1382 (1985). When the trial court, as here, enumerates reasons for its decision to grant a new trial, appellate review is focused upon the legal adequacy of the reasons given for the new trial. Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 445, 625 A.2d 1181, 1187 (1993); see also, Westinghouse Elevator Co. v. Herron, 514 Pa. 252, 255, 523 A.2d 723, 725 (1987).

Not every wrong constitutes a legally cognizable cause of action. Lubowitz v. Albert Einstein Med. Center, 424 Pa.Super. 468, 472, 623 A.2d 3, 5, (1993) (false report of exposure to AIDS is not a legally cognizable injury). The law cannot be expected to compensate for every minor psychic shock incurred in the course of everyday living. D'Ambra v. United States, 114 R.I. 643, 653, 338 A.2d 524, 529 (1976), cited with approval in Sinn v. Burd, 486 Pa. 146, 168, 404 A.2d 672, 683 (1979). Not every loss constitutes a legal injury for which compensation is available. Prosser on Torts, 4th ed. § 1 (1971).

The fundamental question underlying this appeal is whether Pennsylvania recognizes an independent tort of negligent infliction of emotional distress.

When we consider the alleged cause of action in this case we must first consider what it is not. This is not a case of intentional infliction of emotional distress, the tort of outrage, in which the test for recovery is the outrageousness of the conduct and the degree to which the emotional distress has created medically-documented physical symptoms. That count was properly dismissed at the close of testimony when the trial judge found that there was no evidence to support the level of outrage and intent or recklessness required to support a cause of action for intentional infliction of emotional distress. Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987).

This case is, however, one of negligence, negligently inflicted emotional distress for which the test as outlined in the Restatement (Second) of Torts § 313 is one of reasonable foreseeability. Is the injury a reasonably foreseeable result of the defendant’s negligence?

The tort of negligent infliction of emotional distress has evolved almost exclusively in the context of those who observe injury to close family members and are as a consequence of the shock emotionally distressed. To state a cause of action for negligent infliction of emotional distress the plaintiff must demonstrate that she is a foreseeable plaintiff and that she suffered a physical injury as a result of the defendant’s negligence. Restatement (Second) of Torts, §§ 313, 436A, supra.

Physical injury must be averred to sustain a cause of action for negligent infliction of emotional distress. See Covello v. Weis Markets, Inc., 415 Pa.Super. 610, 610 A.2d 50 (1992), appeal denied, 533 Pa. 644, 622 A.2d 1376 (1993), (policeman who was unable to extricate a child from a trash compactor failed to allege physical harm to himself); Abadie v. Riddle Memorial Hospital, 404 Pa.Super. 8, 589 A.2d 1143 (1991) (demurrer sustained for failure to state a cause of action when plaintiff failed to allege physical harm from a raucous hospital staff birthday celebration while she was being treated); Wall by Lalli v. Fisher, 388 Pa.Super. 305, 565 A.2d 498, allocatur denied, 526 Pa. 636, 584 A.2d 319 (1989) (mother who witnessed a dog bite her child failed to aver physical injury to herself); Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981) (plaintiff who was charged with murder after hospital records were altered to blame him for a death and to conceal malpractice failed to aver physical harm and, thus, stated no cause of action for negligent infliction of emotional distress).

The requirement that physical harm must accompany emotional distress to state a cause of action is based on the Restatement (Second) of Torts § 436A, supra. Temporary fright, nervous shock, nausea, grief, rage, and humiliation if transitory are not compensable harm; but, long continued nausea or headaches, repeated hysterical attacks or mental aberration are compensable injuries. This court applied the Restatement standards to a case in which the plaintiff averred “headaches, shaking, hyperventilation, nightmares, shortness of breath, lack of control over the bowels, and tightening of the muscles in the neck, back and chest” and found that she had stated a cause of action for negligent infliction for emotional distress when her employer wrongfully coerced her to enter an abusive substance abuse program. Crivellaro v. Pennsylvania Power and Light, 341 Pa.Super. 173, 491 A.2d 207 (1985). Relying on Comment c to § 436A, a panel of this court held that “symptoms of severe depression, nightmares, stress and anxiety, requiring psychological treatment, and ... ongoing mental, physical and emotional harm” sufficiently stated physical manifestations of emotional suffering to sustain a cause of action. Love v. Cramer, 414 Pa.Super. 231, 606 A.2d 1175 (1992). Cases which the Crivellaro court collected from other jurisdictions cite depression, nightmares, nervousness, insomnia and hysteria as physical symptoms warranting recovery. Crivellaro, 341 Pa.Super. at 180, 491 A.2d at 210.

In this case, Armstrong’s allegation of loss of continence when she learned the accident victim coupled with her claim of depression, nightmares and insomnia meet the requirement of allegation of physical injury.

While physical injury is necessary to recovery, it is not sufficient. Armstrong must still demonstrate that she was a foreseeable plaintiff towards whom the hospital acted negligently.

The requirement that a plaintiff allege physical injury is intrinsic to the question of who is a foreseeable plaintiff. The original test for whether a tortfeasor was liable for the emotional distress of another was the “impact rule.” There was no recovery for emotional disturbance unless it was accompanied by physical injury or physical impact. Knaub v. Gotwalt, 422 Pa. 267, 270, 220 A.2d 646, 647 (1966). The impact rule yielded to a zone of danger test in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). When Niederman’s “zone of danger” rule became unworkable, Pennsylvania adopted the foreseeability test of Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).

The test adopted in Sinn v. Burd is that the infliction of emotional distress is reasonably foreseeable when the plaintiff was located near the scene of the accident; when the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident; and when the plaintiff and victim were closely related. Id.; Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 276, 516 A.2d 672, 677 (1986).

In Sinn v. Burd the mother who watched from the front porch of her home as a car struck and killed her child was found to be a foreseeable plaintiff and to have a cause of action for mental distress and its effects. Since Sinn v. Burd, the debate has centered on the meaning of “sensory and contemporaneous observance.” Sinn v. Burd, 486 Pa. at 171, 404 A.2d at 685. In Yandric v. Radic, 495 Pa. 243, 433 A.2d 459 (1981), the state supreme court held that a father who arrived on the accident scene after his son had been taken to the hospital had not stated a cause of action. Five years later the court reached the same conclusion in Mazzagatti, regarding a mother who arrived on the scene minutes after the accident and saw her child’s body in the street. Mazzagatti, 512 Pa. at 280, 516 A.2d at 679. The court reasoned that where the close relative is not present at the scene of the accident, but instead learns of the accident from a third party, the close relative’s prior knowledge of the injury to the victim serves as a buffer against the full impact of observing the accident scene. By contrast the relative who contemporaneously observes the tortious conduct has no time in which to brace his or her emotional system. The negligent tortfeasor inflicts upon this bystander an injury separate and apart from the injury to the victim. Id. at 279-80, 516 A.2d at 679.

In Brooks v. Decker, 512 Pa. 365, 516 A.2d 1380 (1986), our Supreme Court held that a father who followed an ambulance to the scene of an accident and saw his injured son in the street failed to state a cause of action. And, in Bloom v. Dubois Regional Medical Center, 409 Pa.Super. 83, 597 A.2d 671 (1991), this court denied recovery to a husband who found his wife hanging by her neck in a hospital room, allegedly due to the failure of the hospital and her doctor to treat her suicidal tendencies. The panel held that the husband had not witnessed the tortious conduct, only its aftermath.

The next year, a panel of this court allowed recovery by a woman whose mother died in her arms after a doctor failed to diagnose or treat a serious heart ailment. The daughter had taken her mother for treatment and was present when the doctor was dismissive of the woman’s symptoms. Love v. Cramer, supra (Cirillo, J., dissenting). This court has also allowed a wife to recover when she saw a speeding vehicle heading for her husband’s car, heard the collision, and immediately realized her husband had been struck. Neff v. Lasso, 382 Pa.Super. 487, 555 A.2d 1304, allocatur denied, 523 Pa. 636, 565 A.2d 445 (1989). Most recently, this court en banc allowed recovery for negligently inflicted emotional distress to a mother who was standing at the head of a supermarket checkout line near a plate glass window when her children were terribly injured by a drunken driver just outside the window. Krysmalski v. Tarasovich, 424 Pa.Super. 121, 622 A.2d 298 (1993) (Cirillo, J., dissenting).

Thus, the impact rule, Knaub, supra, became the zone of danger test, Niederman, supra, and finally the three-part test of Sinn v. Burd, supra. In the evolution, the change was not in the need to allege physical harm but in the expansion of the proximate cause of the harm. Originally the law required that the harm be caused by the impact; today we recognize that the shock of apprehending an injury to a loved one can cause physical manifestation of emotional disturbance.

In the case at hand, Dawn Armstrong fails to meet the bystander test of Sinn v. Burd because she was not related to the accident victim and she did not have a contemporaneous perception of the accident. She posits her theory of recovery on a separate and independent tort, that which was allegedly committed when she was mistakenly summoned to the hospital.

Only two appellate cases in Pennsylvania have held that the question of negligent infliction of emotional distress in a context other than bystander recovery should go to the jury. In Stoddard v. Davidson, 355 Pa.Super. 262, 513 A.2d 419 (1986), the question was whether there was sufficient “impact” to allow recovery when the plaintiff was emotionally distressed after he ran over the body of a woman whom the defendant killed and left lying in the roád. The plaintiff alleged that his distress arose when he had to hold a cover over the corpse for three hours during the police investigation of the victim’s death. The panel, with one concurrence and one dissent, found sufficient impact alleged to allow a jury to decide if there was negligent infliction of emotional distress. Id. at 267, 513 A.2d at 422.

In the second case, Crivellaro, supra, the question was whether an employee who was coerced by her employer into entering an controversial drug and alcohol rehabilitation program has alleged sufficient physical manifestation of her injury to recover. A panel of this court found that she had.

This case asks us to expand the tort of negligent infliction of emotional distress beyond the fact situations of liability to close family members who actually witness an accident, something which, with the exception of Stoddard, supra, and Crivellaro, supra, Pennsylvania has consistently refused to do.

Among the cases in which this court has refused to recognize an independent tort of negligent infliction of emotional distress is Lubowitz, supra, in which a false report of exposure to AIDS was insufficient to support a cause of action for negligent infliction of emotional distress. Lubowitz followed the reasoning of the asbestos cases in Pennsylvania in which this court has found that fear of disease is not a compensable wrong. See Ottavio v. Fibreboard Corp., 421 Pa.Super. 284, 617 A.2d 1296 (1992) (en banc); see also Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). In Salerno v. Philadelphia Newspapers Inc., 377 Pa.Super. 83, 546 A.2d 1168 (1988) this court found that in an action for defamation and libel that there was no independent cause of action for negligent infliction of emotional distress when the newspaper article was not defamatory. This court again declined to find a cause of action for negligent infliction of emotional distress when the mishandling of a body was merely negligent and not intentional. Hackett v. United Airlines, 364 Pa.Super. 612, 528 A.2d 971 (1987), appeal denied, 518 Pa. 649, 544 A.2d 961 (1988). This court twice declined to extend Section 46 of the Restatement (Second) of Torts, the tort of outrage, intentional infliction of emotional distress, to cases in which the infliction of emotional distress was merely negligent. See Jackson v. Sun Oil Co. of Pennsylvania, 361 Pa.Super. 54, 521 A.2d 469 (1987) (supervisor neglected to tell burner service technician teenager had recanted her charge that he made unwelcome sexual advances); Pierce v. Penman, 357 Pa.Super. 225, 515 A.2d 948 (1986) (refusal to turn over copies of medical records; “[sjection 46 does not recognize liability for mere negligent infliction of emotional distress. However, reckless conduct causing emotional distress renders an actor liable as if he had acted intentionally.” (citation omitted)). This court affirmed the dismissal of a cause of action for negligent infliction of emotional distress on the grounds that the defendant owed the plaintiff no duty to talk to her in timely fashion in Reimer v. Tien, 356 Pa.Super. 192, 514 A.2d 566 (1986). When a plaintiff was reprimanded by a club secretary for failing to conform to club rules, this court found no cause of action for negligent infliction of emotional distress. Lazor v. Milne, 346 Pa.Super. 177, 499 A.2d 369 (1985). When Bell Telephone Company disclosed to an abusive husband from whom his wife was hiding the place of origin of telephone calls made by the wife, this court found no cause of action for negligent infliction of emotional distress because “liability therefor must be founded upon one’s personal observation of physical injury negligently inflicted by another on a third person.” Nagy v. Bell Telephone Co. of Pennsylvania, 292 Pa.Super. 24, 27, 436 A.2d 701, 703 (1981).

In the line of cases in which this court found that the plaintiff had failed to state a cause of action for negligent infliction of emotional distress because he or she had failed to allege physical harm, the court declined to reach the question of whether the underlying wrong would have sustained a cause of action for negligent infliction of emotional distress had physical harm been alleged. See Banyas, supra (murder charge against plaintiff allowed to stand to conceal medical malpractice); Abadie, supra (hospital staff held a party while patient waited in pain).

When we summarize the Pennsylvania cases, we find only two anomalous cases which were not brought by bystanders meeting the test of Sinn v. Burd in which an independent cause of action for negligent infliction of emotional distress has been sustained. Those two cases are Crivellaro, supra, and Stoddard, supra.

To understand why Armstrong v. Paoli Memorial Hospital will not be a third anomalous case in Pennsylvania, and indeed why at least one of the two apparent anomalies is actually not, we must look to the development of the tort of negligent infliction of emotional distress in other jurisdictions.

New if any jurisdictions recognize an independent cause of action for negligent infliction of emotional distress. D. Crump, Evaluating Independent Torts Based Upon “Intentional” or “Negligent” Infliction of Emotional Distress: How Can We Keep the Baby from Dissolving in the Bath Water, 34 Ariz.L.Rev. 439 (Fall, 1992). More often the tort of negligent infliction of emotional distress is premised on the violation of a pre-existent duty based on a contractual or implied contractual relationship. Id.; cf. Crivellaro, supra, (pre-existent employer-employee relationship).

California experimented with allowing recovery on an independent tort of negligent infliction of emotional distress. The Armstrongs argue that Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 (1980), is persuasive. In Molien, the California Supreme Court held that a general duty to refrain from inflicting serious mental distress was based on the foreseeability of the plaintiff. The Molien case allowed a husband to recover for his mental distress after his wife was wrongly diagnosed as having syphilis. Only a few years later, the same court expressed reservations about the “limitless exposure to liability.” Thing v. LaChusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, 821 (Cal.1989). A second California appellate court decision found that Molien created a “quagmire of novel claims.” Andalon v. Superior Court, 162 Cal.App.3d 600, 208 Cal.Rptr. 899, 903 (1984). By 1992, California had abolished negligent infliction of emotional distress as an independent tort and had narrowed its scope to include only those cases in which a contractual relationship existed, Burgess v. Superior Court, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (1992), or those in which a bystander witnessed an injury to a loved one. Andalon, supra.

Several other states have also abolished an independent tort of negligent infliction of emotional distress, in some cases to avoid limitless recoveries under the “pay any sums” clauses of homeowner’s insurance policies. See, e.g., Harpy v. Nationwide Mut. Fire Ins. Co., 76 Md.App. 474, 545 A.2d 718, 724 (1988) (no independent tort of negligent infliction of emotional distress to allow a sexually abused daughter to collect from her father on his homeowner’s insurance policy); Horace Mann Ins. Co. v. Leeber, 180 W.Va. 375, 376 S.E.2d 581, 587 (W.Va.1988) (homeowner’s insurance policy not required to pay for teacher-insured’s abuse of a male student).

Other states have declined to find an independent cause of action for negligent infliction of emotional distress to avoid a tidal wave of litigation. Connecticut, for instance, declined “to open up a wide vista of litigation in the field of bad manners.” Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988), quoting, Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harvard Law Review 1083 (1936).

Missouri uses duty as the threshold inquiry before entertaining a cause of action for negligent infliction of emotional distress. Asaro v. Cardinal Glennon Memorial Hospital, 799 S.W.2d 595 (Mo.1990) (en banc) (no negligent infliction of emotional distress when medical malpractice forces a mother to watch her son suffer); Turner v. General Motors Corp., 750 S.W.2d 76 (Mo.App.1988) (no negligent infliction of emotional distress after security guards filmed and then showed to coworkers an employee’s son masturbating).

In 1976 Washington state allowed recovery for negligent infliction of emotional distress in Hunsley v. Giard, 87 Wash.2d 424, 553 P.2d 1096 (1976). There, the court allowed recovery when a car which crashed into a house putting a woman in fear for the life of the driver of the car and her husband who was in a nearby room. But, by 1990, the Washington court had limited recovery to bystander cases. Gain v. Carroll Mill Co., 114 Wash.2d 254, 787 P.2d 553 (1990) (no recovery to the brother and father who saw a state trooper’s death on television).

The few cases in which an independent cause of action for negligent infliction of emotional distress was found to lie include Finn v. City of New York, 76 Misc.2d 388, 350 N.Y.S.2d 552 (1973), in which a city hospital was found to have violated a statutory duty to notify the police of a death. The failure delayed notification to the next of kin for a week, a week during which the family had been searching for the victim. A finding of a breach of duty also determined the outcome of Whalley v. Sakura, 804 F.2d 580 (10th Cir.1986), in which lack of post-operative care was grounds for a cause of action for negligent infliction of emotional distress. An underlying duty also lead to the recovery by a California man for negligent infliction of emotional distress after his attorney’s incompetence led to a conviction on murder charges. In a subsequent trial he was acquitted and then sued his attorney for malpractice, winning a verdict of $400,000 on grounds of negligent infliction of emotional distress. The California appellate court held that the plaintiff need not show physical injury to bring the action, that the invasion of his liberty interest sufficed. Holliday v. Jones, 215 Cal.App.3d 102, 264 Cal.Rptr. 448 (1989).

A quasi-contractual relationship giving rise to a duty also existed between a Maine man and the hospital and funeral home which delivered to him a severed human leg instead of the personal belongings of his deceased father. The appeals court said in this case that the plaintiff need not allege or prove physical injury to maintain a cause of action for negligent infliction of emotional distress. Gammon v. Osteopathic Hospital of Maine, Inc., 534 A.2d 1282 (Maine 1987). In an Alaska case, however, when a claim for breach of contract was disallowed, the Alaska Supreme Court reversed damages for negligent infliction of emotional distress on the grounds that Alaska did not recognize an independent tort of negligent infliction of emotional distress. Hancock v. Northcutt, 808 P.2d 251 (Alaska 1991). The Hancock court found that failure to construct a house on time did not give rise to liability for negligent infliction of emotional distress.

Duty also informs the jurisprudence of negligent infliction of emotional distress developing under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60. The Third Circuit Court of Appeals found that protracted exposure to stressfully injurious working conditions can lead to employer liability for negligent infliction of emotional distress under FELA. Carlisle v. Consolidated Rail Corp., 990 F.2d 90 (3d Cir.1993). In Gottshall v. Consolidated Rail Corp., 988 F.2d 355 (3d Cir. 1993), the Third Circuit for the first time upheld recovery under the FELA for negligent infliction of emotional distress without proof of any physical impact, under circumstances where the emotional distress was accompanied by physical manifestations.

The Third Circuit affirmed a finding by the jury that Conrail breached its well-established duty under FELA to provide a safe workplace, that such injuries were the foreseeable result of Conrail’s negligence, and that Carlisle’s demanding and dangerous workplace caused the plaintiffs his emotional and physical injuries. Carlisle, supra. Cf. Sano v. Pennsylvania R.R. Co., 282 F.2d 936, 937 (3d Cir.1960) (FELA imposes on railroads a clear duty to provide their employees with a safe workplace).

In Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987), the Supreme Court declined to decide whether wholly emotional injuries arising from work conditions were compensable under FELA. The Seventh Circuit has reaffirmed its earlier holding that purely emotional injuries are not compensable under the FELA, while the Ninth Circuit continues to operate under a pre-Buell holding allowing full recovery under the FELA for emotional injuries. See Ray v. Consolidated Rail Corp., 938 F.2d 704 (7th Cir.1991), cert. denied,-U.S.-, 112 S.Ct. 914, 116 L.Ed.2d 813 (1992); Taylor v. Burlington N.R.R., 787 F.2d 1309, 1313 (9th Cir.1986); Pierce v. Southern Pac. Transp. Co., 823 F.2d 1366, 1372 n. 2 (9th Cir.1987). The First, Fourth, Fifth and Sixth circuits have declined to decide whether emotional injuries without injury or accident are compensable under the FELA, ruling in each case that the plaintiff failed to make a requisite threshold showing. See Moody v. Maine Cent. R.R., 823 F.2d 693 (1st Cir.1987); Elliott v. Norfolk & Western Ry., 910 F.2d 1224 (4th Cir.1990); Plaisance v. Texaco, 966 F.2d 166 (5th Cir.1992) (en banc); Adams v. CSX Transp., Inc., 899 F.2d 536 (6th Cir.1990).

In one of the few cases nationwide in which negligent infliction of emotional distress was allowed as an independent cause of action without a prior duty either by contract or by statute, the South Dakota Supreme Court held that it was for ■a jury to decide if swallowing part of the slimy remains of a decomposed mouse in a soft drink was sufficiently injurious to warrant recovery. Wright v. Coca Cola Bottling Co., 414 N.W.2d 608 (S.D.1987).

Cases in which the courts have not recognized independent claims for negligent infliction of emotional distress include distress caused by clumsy firing, Havens v. Tomball Community Hospital, 793 S.W.2d 690 (Tex.App.1990) (nurse who was fired for reporting an improper procedure by a doctor did not state a cause of action); a frightening airplane emergency, Eastern Airlines, Inc. v. King, 557 So.2d 574 (Fla.1990) (no cause of action for passengers who saw airplane lose three of four engines, restarting one only at the last minute); fear of disease, Burns v. Jaquays Mining Corp., 162 Ariz. 186, 781 P.2d 1373 (1986) (neighbors of asbestos mine have no cause of action without actual injury); Cathcart, supra (no cause of action for fear of contracting a disease).

In the employment context, for instance, employees who feel wrongfully discharged routinely bring suit for negligent infliction of emotional distress. In one of the most egregious examples a thief sued her victim for reporting the theft to the police. Wal-Mart v. Medina, 814 S.W.2d 71 (Tex.App.1991). Although the jury found Wal-Mart had not acted maliciously in reporting a suspected theft to the police, it found negligent infliction of emotional distress and the trial court awarded substantial damages. The appellate court reversed, finding that Wal-Mart had not breached a duty of care to Medina and had in fact fulfilled a public policy in favor of the prosecution of crime.

Parents who received mistaken notification that their daughter was dead were denied recovery for negligent infliction of emotional distress because the Supreme Court of Kansas said they had failed to prove their injuries stemmed from the mistaken notification and not from coping with her actual injuries. Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 662 P.2d 1214 (1983).

When we look at Pennsylvania appellate cases against the backdrop of the development of the law of negligent infliction of emotional distress in other states, it becomes clear that Pennsylvania allows recovery for negligent infliction of emotional distress under two circumstances. First, and most commonly, in cases in which there is liability to a bystander, Sinn v. Burd, supra, and its progeny. Second, Pennsylvania also recognizes recovery in situations in which there is a contractual or fiduciary duty. Crivellaro, supra; Hackett, supra. A Pennsylvania plaintiff may be able to recover when the infliction of emotional distress is intentional, Kazatsky, supra, or sufficiently reckless to amount to intent. Pierce v. Penman, supra; Chuy v. Philadelphia Eagles Football Club, Inc., 595 F.2d 1265 (1979). Damage awards for emotional distress are also routinely included in damages awarded on other completed torts. Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174 (1992).

With the exception of the Stoddard case, Pennsylvania has never recognized an independent tort of negligent infliction of emotional distress. The Stoddard case is an anomaly. In the three-judge panel decision one judge concurred in the result and the third wrote a persuasive dissent. The dissenting judge argued that if the plaintiff were emotionally distressed, his distress was caused by the police officer who induced or coerced him into holding a cover over a corpse for three hours and was not caused by the defendant who left the corpse in the road. Stoddard, supra (Johnson, J., dissenting).

The law is not the guarantor of an emotionally peaceful life. Tort law cannot protect any of us from the emotional slings and arrows of daily living. Not every mistake that happens will be legally cognizable. Were we to allow Dawn Armstrong to collect, we would risk opening the floodgates of litigation in Pennsylvania, something we decline to do.

Factually, Dawn Armstrong is in a particularly perilous position. Had the telephone call from Paoli Memorial Hospital been accurate, she could not have stated a cause of action for any emotional distress she suffered learning of her husband’s injuries. Consequently, Dawn Armstrong is forced to argue that she was injured when she learned it was not her husband who was injured, information which foreseeably would cause relief, not distress. Indeed, Armstrong testified that it was when she learned it was not her husband in the hospital that she “lost it.”

Our review of the law of Pennsylvania and our sister states makes it clear that to state a cause of action for negligent infliction of emotional distress, Dawn Armstrong must demonstrate that she is a bystander who meets the criteria of Sinn v. Burd, supra, or that the defendant, Paoli Memorial Hospital, owes her a pre-existing duty of care, either through contract or fiduciary duty. Crivellaro, supra; Hackett, supra. This she cannot do. Dawn Armstrong was not a bystander who witnessed an injury to a close family member, nor did Paoli Memorial Hospital owe her a pre-existing duty of care.

Since we find that the Armstrongs have not stated a cause of action, we reverse the trial court’s denial of a j.n.o.v. and order judgment in favor of the defendant. The trial court’s order of a new trial on damages alone is also reversed.

Order reversed and jurisdiction relinquished.

      . The tort of outrage, intentional infliction of emotional distress, based on Section 46 of the Restatement (Second) of Torts has not been adopted nor made part of the law of Pennsylvania. Kazatsky, supra. See also Johnson v. Caparelli, 425 Pa.Super. 404, 625 A.2d 668 (1993); Kelly v. Resource Housing of America, 419 Pa.Super. 393, 399, 615 A.2d 423, 426 (1992).

      . Section 313 Emotional Distress Unintended
      (1) If the actor unintentionally causes emotional distress to another, he is subject to liability to the other for resulting illness or bodily harm if the actor
      (a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of a third person, and
      (b) from facts known to him should have realized the distress, if it were caused, might result in illness or bodily harm.
      (2) The rule stated in Subsection (1) has no application to illness or bodily harm of another which is caused by emotional distress arising solely from harm or peril to a third person, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the other.
      Restatement (Second) of Torts, § 313.

      . Whether the act is negligent or not is judged by section 313; the injury is measured by the standards set forth in section 436A:
      § 436A. Negligence resulting in Emotional Disturbance Alone If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.
      Restatement (Second) of Torts § 436A.

      . Pierce collected $2,500 in compensatory damages and $10,000 in punitive damages on a suit originally brought in equity to gain a copy of her medical records. Pierce v. Penman, 357 Pa.Super. 225, 515 A.2d 948 (1986). The panel found that the doctor’s conduct in first withholding and then claiming that the records were stolen in a burglary was sufficiently outrageous to warrant recovery under the tort of intentional infliction of emotional distress. That decision was rendered a year before the state supreme court in Kazatsky, supra, opined in 1987 that the tort of outrage had not been incorporated into the law of Pennsylvania.


author: JOHNSON, Judge.

text:
    633 A.2d 615
    COMMONWEALTH of Pennsylvania v. Alonzo MOSTELLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 20, 1993.
    Filed Nov. 4, 1993.

      Alonzo Mosteller, appellant, pro se.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before DEL SOLE, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge.

Alonzo Mosteller appeals from the trial court order denying his Post-Conviction Relief Act (PCRA) Petition pursuant to 42 Pa.C.S. § 9541 et seq. We reverse.

On November 5,1986, Mosteller entered an open guilty plea to murder and possessing instruments of crime. This guilty plea arose from an August 4,1985, incident in which Mosteller shot his former paramour, while she was seated in an automobile with her mother, and then fled the scene. On October 11, 1985, the victim died, having developed bronchial pneumonia as a result of the gunshot wounds to her arm, hand, torso and thigh. Prior to sentencing, Mosteller’s motion to withdraw his guilty plea was heard and denied. A sentence of life imprisonment for first degree murder was imposed on Mosteller along with a concurrent sentence of two and one-half to five years of incarceration for possession of an instrument of crime. An appeal to this Court was filed but subsequently dismissed due to the failure of Mosteller’s counsel to file a brief. On January 19, 1989, after Mosteller filed a pro se PCRA petition, PCRA counsel was appointed, and on July 16, 1990, PCRA counsel filed a no-merit letter stating that the issues raised in Mosteller’s PCRA petition were “wholly frivolous” and “without merit.” In the no-merit letter, PCRA counsel maintained that there were no additional issues which could be raised in an amended petition. In an amended Finley letter, Common wealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988), filed on July 1, 1992, PCRA counsel asserts that the record supported the propriety of the trial court’s April 13, 1987, denial of Mosteller’s motion to withdraw his guilty plea. This amended letter also contends that any further appeal of Mosteller’s ineffectiveness claim would be frivolous. On July 30, 1992, at a hearing on the Finley “no-merit” letter, with neither PCRA counsel nor Mosteller present, the Commonwealth informed the trial court that the Finley “no-merit” letter was defective in that it failed to list the claims that were raised in the pro se PCRA petition. On November 20, 1992, the court dismissed the PCRA petition, permitting PCRA counsel to withdraw on the basis of the July 16, 1990, “no-merit” letter attached to the trial court opinion. This appeal followed.

Mosteller raises two questions for our consideration:

1. Did the trial court err by dismissing the Post-Conviction Relief Act Petition pursuant to counsel’s “no-merit” letter that failed to comport with appellate standards governing withdrawal of counsel’s representation in post-direct appeal proceedings?
2. Should appointed counsel have filed a “no-merit” letter without ever communicating with Appellant since counsel’s appointment, and especially where a meritorious issue was clearly present after direct appeal to Superior Court was dismissed due to direct appeal counsel’s failure to file a timely brief?

In Commonwealth v. Finley, supra, this Court restated the procedures to be followed when counsel seeks to withdraw in post-conviction proceedings. See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). In Turner, our supreme court endorsed an independent review by the court of the record as a follow-up to counsel’s “no-merit” letter. The independent review necessary to secure a withdrawal request by counsel requires proof that:

1. PCRA counsel, in a “no-merit” letter, has detailed the nature and the extent of his review;
2. PCRA counsel, in the “no-merit” letter, lists each issue the petitioner wishes to have reviewed;
3. PCRA counsel must explain, in the “no-merit” letter, why petitioner’s issues are meritless;
4. The PCRA court must conduct its own independent review of the record; and
5. The PCRA court must agree with counsel that the petition is meritless.

See, Finley, 379 Pa.Super. at 393, 550 A.2d at 215.

In addition, this assessment by the PCRA court is, of course, subject to appellate scrutiny to assure that these constraints are followed. See, Turner, supra.

Our review of this record reveals that counsel’s no-merit letter failed to substantially comply with the first three requirements above, and, as a consequence, the PCRA court erred in dismissing this matter on the basis of the no-merit letter. The nature and extent of PCRA counsel’s review can only be described as cryptic. In the July 16, 1990, letter relied upon by the PCRA court, trial counsel states: “[t]hat after a review of the entire record and upon completion of my investigation ...” but fails to explain what it was that he reviewed or investigated. The final page of the “no-merit” letter indicates that counsel reviewed specific notes of testimony, however, this review was irrelevant to several of the issues raised in the PCRA petition. Mosteller complained in his PCRA petition that trial counsel had failed to investigate the case; failed to call available witnesses to support the defense; and had failed to spend any appreciable time with him prior to the proceedings. Further, Mosteller, in his PCRA petition contends, among other things, that he was denied his right to appeal and that exculpatory evidence had become available since the time of trial. These matters were not mentioned in the “no-merit” letter. Mosteller also asserts that it was not until he received the PCRA order dismissing his petition that he was aware of the identity of his counsel.

Moreover, the letter of PCRA counsel also lacked a listing of the issues Mosteller wished to have reviewed. Even the Commonwealth pointed out to the court that the “no-merit” letter was deficient in this regard. N.T. 7/30/92, at 3. Lastly, the“no-merit” letter did not explain why the issues raised were meritless. Here, PCRA counsel presumed that the sole issue raised was the constitutional soundness of the guilty plea colloquy. This presumption by PCRA counsel resulted in the failure to provide an issue-by-issue explanation detailing why each issue itself was meritless. Having' failed to list all the issues raised by Mosteller in his PCRA petition, or to discuss these issues, PCRA counsel could not have provided the PCRA court with a full explanation of why each issue was deemed meritless. Hence, we conclude that the trial court erred in failing to reject PCRA counsel’s “no-merit” letter because it neglected to satisfy the Finley requirements.

Next, Mosteller maintains that PCRA counsel should not have filed a “no-merit” letter because an arguably meritorious issue was present on the face of the record. We agree.

In this case, after conviction, a timely notice of appeal was filed with our Court. However, when counsel on the direct appeal failed to file a timely appellate brief, we dismissed the appeal, and, on December 4, 1987, ordered fees, if any, for court-appointed counsel, to be withheld, “without prejudice to Appellant’s rights under the Post Conviction Hearing Act.”

We have noted, in the past, that the dismissal of post-verdict motions or a criminal appeal on the basis of procedural default “improperly places the entire burden of counsel’s errors on the powerless client, rather than the offending counsel.” Commonwealth v. Ciotto, 382 Pa.Super. 458, 461 n. 1, 555 A.2d 930, 931 n. 1 (1989) (emphasis in original). Thus, “[w]hen a defendant establishes that counsel’s ineffective assistance denied him entirely his right to a direct appeal, he is entitled to a direct appeal nunc pro tunc without regard to his ability to establish the merit of the issues which he seeks to raise on direct appeal.” Id. at 461, 555 A.2d at 931 (emphasis in original).

In Commonwealth v. Hoyman, 385 Pa.Super. 439, 444, 561 A.2d 756, 759 (1989), quoting Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980), we stated:

[A]n accused has an absolute right to appeal, Pa. Constitution, Article V, § 9, and counsel can be faulted for allowing that right to be waived unless the accused himself effectively waives the right, i.e. for not protecting the accused’s right in the absence of an effective waiver.

Where counsel fails to file a timely appellate brief, resulting in the dismissal of an appeal, counsel has waived the right of the accused in the absence of an effective waiver by the accused; counsel cannot be said to have been effective.

Accordingly, based on the foregoing reasons, we reverse the order of the PCRA court dated November 20, 1992. We remand for the appointment of new counsel and proceedings not inconsistent with this Opinion.

Order reversed. Case remanded. Jurisdiction relinquished.


author: WIEAND, Judge:

text:
    633 A.2d 618
    COMMONWEALTH of Pennsylvania v. Norman Wayne MANCHAS, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1993.
    Filed Oct. 28, 1993.

      Cynthia Cline, Uniontown, for appellant.
    Ralph C. Warman, Dist. Atty., Uniontown, for Com., appellee.
    Before ROWLEY, P.J., and WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

Norman Wayne Manchas was tried by jury and was found guilty of third degree murder in connection with the killing of Frances Layne at her home in Uniontown on April 3, 1991. Post-trial motions were denied, and Manchas was sentenced to serve a term of imprisonment for not less than ten (10) years nor more than twenty (20) years. On direct appeal from the judgment of sentence, Manchas contends that: (1) his conviction was not supported by the evidence; (2) the jury’s verdict was contrary to the weight of the evidence; (3) the trial court erred by denying a defense motion in limine based upon allegedly flagrant violations of discovery rules by the district attorney; and (4) the trial court erred by refusing a defense request for an accomplice charge with respect to the testimony of Donald Powell, a Commonwealth witness. We will consider these issues seriatim.

On April 3, 1991, at or about 4:15 a.m., police received a report of a disturbance at 191 North Gallatin Street in the City of Uniontown. Upon arrival at the scene, the police found the body of Frances Layne on the sidewalk in front of her home. Layne’s throat had been cut, with the jugular vein having been completely severed and the carotid artery and windpipe partially severed. There was also a cut on Layne’s right thumb, lacerations and bruises about her face, a broken nose and bruises in the area of her right breast. Semen was present in Layne’s mouth. During their investigation of the killing, police were able to identify fingerprints belonging to appellant on a beer can and a butcher knife found in the living room of Layne’s home. When appellant was first interviewed by police on the afternoon of April 3, 1991, he denied having been present in Layne’s home. When he was again interviewed by police on April 10, 1991, appellant gave several accounts of when he had last visited Layne’s home. When confronted with the presence of his fingerprints, however, appellant admitted that he had visited Layne on the morning of her death. He said that Layne had been alive when he left at approximately 4:30 or 5:00 a.m. On April 15,1991, knowing that he was being sought by police, appellant went to the home of Marie Rose and asked her to allow him to hide there and give him a ride to Masontown at nightfall. Appellant was arrested by police in Rose’s attic.

Donald Powell, a friend of appellant, testified that after a night of drinking he had accompanied appellant to Layne’s home at approximately 3:30 a.m. on the morning of April 3. Upon arrival, Layne had allowed them to come into her home, where they sat in the living room, talked and drank beer for about thirty minutes. Powell then excused himself to go to the bathroom. From there, he heard Layne scream. After Powell exited the bathroom, he observed appellant and Layne standing on the front porch, saw appellant make a swinging motion in the direction of Layne’s head and heard Layne say “Stop it.” When appellant re-entered the house, Powell thought he saw blood on appellant’s hand. Powell then went out onto the porch to see if Layne was all right. He received no response to a verbal inquiry, but saw Layne sitting on the steps covered with blood. Powell then began running down a nearby alley, but upon realizing that he had left his coat in Layne’s home, he returned. By this time Layne was prone on the sidewalk and again did not respond to an inquiry by Powell about her condition. After retrieving his coat, Powell found appellant still inside Layne’s home and urged him to flee. Powell and appellant ran from the house, down an alley and across town to appellant’s apartment. When they arrived at appellant’s apartment, Powell observed that a carpet knife, which he had seen on appellant’s television prior to their going to Layne’s house, was no longer there. Police found a carpet knife in a creek near Layne’s house, and when they showed the knife to Powell, he identified it as being similar to the one he had seen at appellant’s apartment.

Testimony was also given by Edna West, a neighbor of Frances Layne, who said she had been awakened by a scream and, upon going to her living room window, had seen Layne sitting along the wall of her front steps. West then had seen a person matching appellant’s description enter Layne’s house. West subsequently saw Donald Powell come out of Layne’s house, ask Layne if she was all right, and start to run down the alley between Layne’s house and her own house. After Powell had begun to run down the alley, West saw Frances Layne move to the bottom of her steps, sit down and begin to rock back and forth while holding her neck. West then observed Layne fall backwards, as if she had passed out. Thereafter, West saw Powell return to Layne’s house and then re-emerge holding a coat. At this point, fearing for Layne’s safety, West left the window in order to awaken her boyfriend. When she returned to the window, West heard Powell calling to someone and then she saw Powell and appellant flee down the alley.

Testimony was also given by William McMurray, who had once lived in the same apartment house as appellant. He related that, approximately seven or nine months prior to trial, he had encountered appellant on a street in Uniontown. McMurray said that he had remarked to appellant about his trouble with police and then asked appellant what had happened. In response, appellant told McMurray that he had cut Layne’s throat. McMurray said that he was so shocked by appellant’s reply that he could recall no further details of the conversation which he had had with appellant.

Finally, appellant testified on his own behalf and admitted that he had been at Layne’s house at the time of her death, but denied that he had killed her. He testified that, while Donald Powell had been in the bathroom, Layne had answered a knock at the front door. After a brief conversation with the unidentified caller, Layne had stepped onto her porch, closing the door behind her. Appellant said he then had heard Layne scream and he had gone outside to check on her. There, he had found Layne dead on the sidewalk. Appellant said he had discovered a knife laying next to Layne’s body, which he had picked up and then threw down. He said he had observed an unidentified man running away from Layne’s house. According to appellant, he then had gone back into Layne’s house, where Powell had approached him and urged him to flee because the police would think that they had been involved in the killing. As he and Powell had left the house, appellant said, he stopped to pick up the knife because he realized that he had touched it. Subsequently, he threw the knife into a creek near Layne’s house, where it was later found by police.

In challenging both the sufficiency and the weight of the evidence to sustain the conviction, appellant makes the following assertions: (1) the testimony of Donald Powell was inconsistent with the testimony of other witnesses and inconsistent with Powell’s testimony at appellant’s preliminary hearing and at the first trial; (2) the testimony of Edna West and William McMurray was incredible; and (3) the Commonwealth’s evidence was wholly circumstantial, without any evidence of a motive or malice or any ill will by appellant toward the victim.

“The proper procedure to challenge the sufficiency of the evidence is by a post-verdict motion in arrest of judgment.” Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1229 (1984). In reviewing a challenge to the sufficiency of the evidence, an appellate court must determine “whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). “When conflicts and discrepancies arise, it is within the province of the jury to determine the weight to be given to each [witness’s] testimony and to believe all, part or none of the evidence as [it] deem[s] appropriate.” Commonwealth v. Verdekal, 351 Pa.Super. 412, 419-420, 506 A.2d 415, 419 (1986). Therefore, the facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the jury unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

“A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence.” Commonwealth v. Taylor, supra 324 Pa.Super. at 425, 471 A.2d at 1230. The decision whether to grant a new trial on this basis rests within the discretion of the trial court. Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989). “A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and [make] the award of a new trial [ ] imperative so that right may be given another opportunity to prevail.” Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155-1156 (1986). “The role of an appellate court in reviewing the weight of the evidence is very limited.” Commonwealth v. Sanders, 426 Pa.Super. 362, 367, 627 A.2d 183, 185 (1993). “The purpose of that review is to determine whether the trial court abused its discretion and not to substitute [the reviewing] Court’s judgment for that of the trial court.” Commonwealth v. Murray, 408 Pa.Super. 435, 440, 597 A.2d 111, 114 (1991) (en banc). Accordingly, “[w]here the evidence is conflicting, the credibility of the witnesses is solely for the jury, and if its finding is supported by the record, the trial court’s denial of a motion for new trial will not be disturbed.” Commonwealth v. Larew, 289 Pa.Super. 34, 37, 432 A.2d 1037, 1038 (1981).

After careful review, we are satisfied that sufficient evidence was presented to sustain appellant’s conviction for third degree murder. When the evidence is viewed in the light most favorable to the Commonwealth, it becomes apparent that appellant was not only present at the victim’s home at the time of the murder, but he had a clear opportunity to commit the crime and possessed a knife capable of causing the fatal injuries. Donald Powell testified that appellant and the victim had been on the porch together after he had heard the victim’s scream. Powell also saw appellant make a swinging motion in the direction of the victim’s head. Shortly thereafter, when appellant re-entered the victim’s house, Powell found the victim sitting on her front steps covered with blood. Powell saw no other persons in the vicinity of the victim’s house. He also had observed in appellant’s apartment, prior to the crime, a knife which was similar to the one removed from the crime scene by appellant, but the same knife was not seen by Powell in appellant’s apartment after the killing. Testimony by a forensic pathologist established that this knife was capable of causing the fatal injuries to the victim’s throat. When these circumstances are considered in light of the testimony of the victim’s neighbor, which corroborated Powell’s testimony in several respects, and appellant’s admission to William McMurray that he had cut the victim’s throat, it seems clear that there was sufficient evidence to enable a jury to conclude beyond a reasonable doubt that appellant was the person who had killed Frances Layne. Consciousness of guilt, moreover, could be inferred from appellant’s having fled the scene, from his attempt to dispose of the knife which he said he had found next to the victim’s body, from his false and contradictory statements to police, and from his attempt to conceal his whereabouts to avoid being arrested. These actions on appellant’s part, a jury could find, cemented the guilt which could be inferred from the testimony of other Commonwealth witnesses. See: Commonwealth v. Pestinikas, 421 Pa.Super. 371, 387-388, 617 A.2d 1339, 1347-1348 (1992) (en banc).

Appellant’s contention that the testimony of Commonwealth witnesses was inconsistent and incredible provides no basis for concluding that appellant’s conviction was not supported by sufficient evidence. Such a contention is more properly addressed to the weight of the evidence. As we have already observed, it was solely for the jury to evaluate the credibility of the witnesses and to resolve any conflicts in the testimony. Here there was ample evidence from which a jury could find appellant guilty.

The fact that no motive for the killing was established does not constitute a fatal flaw in the Commonwealth’s case. While proof of a motive for the commission of a crime is always relevant, it is not an essential element and is not necessary to warrant a conviction. 10A P.L.E., Criminal Law, § 401, at 135 (1970). See: Commonwealth v. Brantner, 486 Pa. 518, 522-523, 406 A.2d 1011, 1013 (1979); Commonwealth v. DePetro, 350 Pa. 567, 572, 39 A.2d 838, 840 (1944); Commonwealth v. LaRosa, 283 Pa.Super. 264, 268, 423 A.2d 1247, 1249 (1980).

We also reject appellant’s contention that there was no evidence of malice or ill will between appellant and the victim. It is well settled that “[t]he Commonwealth may prove third degree murder by reasonable inferences drawn from the circumstances of the killing.” Commonwealth v. Bigelow, 416 Pa.Super. 449, 454-455, 611 A.2d 301, 304 (1992). “One such circumstance is the use of a deadly weapon.” Commonwealth v. Hunter, supra 381 Pa.Super. at 613, 554 A.2d at 553. Indeed, “the inference [arising] from the use of a deadly weapon upon a vital part of the body alone is sufficient to establish malice.” Commonwealth v. Torres, 396 Pa.Super. 499, 503, 578 A.2d 1323, 1325 (1990). See also: Commonwealth v. Carbone, 524 Pa. 551, 562-563, 574 A.2d 584, 590 (1990); Commonwealth v. Lee, 426 Pa.Super. 345, 351-353, 626 A.2d 1238, 1241-1242 (1993). The evidence here was sufficient to establish that appellant had acted with the requisite malice necessary to sustain a conviction for third degree murder.

Our review of the record in this case discloses no basis for concluding that the trial court abused its discretion by refusing to award appellant a new trial on grounds that the jury’s verdict of guilty was contrary to the weight of the evidence. The trial court considered appellant’s arguments more specifically as follows:

Defendant also contends that the verdict was against the weight of the evidence because of contradictory testimony given by Commonwealth witnesses Donald Powell and Edna West. Defendant states that Powell testified Layne sat on the stairs after Defendant reentered the house and West stated that Layne sat on the wall along the stairs, rocking back and forth. Describing their flight from the house, Powell indicated that Defendant ran out of the house with him and then d'own an alley, while West testified that she saw only Powell emerge from the house and a second person come from around the far side of the porch. West also said that the porch light was on while she was observing the scene, but the first police officer to arrive a few minutes later testified that the light was not on.
Defendant additionally argues that Powell contradicted himself by giving different versions under oath at the preliminary hearing, the June mistrial and the September retrial. Defendant claims that Powell testified at the preliminary hearing that he saw nothing unusual about Defendant’s appearance when Defendant reentered the house, while saying in June that he saw blood on him but could not say where and then testifying at the retrial that he saw blood on Defendant’s hands. Defendant also points to Powell’s testimony at the preliminary hearing that he heard nothing while he was in the bathroom but testified at both trials that he heard a scream.
Defendant further alleges contradictions between Powell’s evidence that he saw Defendant make one swinging motion toward Layne while they were standing on the porch but did not see Defendant touch her, and the evidence offered by the expert pathologist who opined that Layne’s throat wound could not have been made with just one slashing movement but instead would have required at least two forceful, deliberate cuts. The pathologist also offered his opinion that a fall down the stairs (presumably after she had been slashed) could not account for all of the victim’s bruises.
Defendant’s argument on this issue as set forth in his brief appears to be that the foregoing discrepancies among the Commonwealth witnesses, coupled with his own testimony that an unknown person summoned Layne to her porch while Powell was in the bathroom and Defendant found her at the foot of the stairs when he went out to the porch in response to her screams while noticing someone running away in the next block, rendered the verdict purely speculative.
The Court initially must point out that it is common for witnesses to be inconsistent and not all inconsistencies are necessarily contradictions. The mere existence of conflict in the prosecution’s case is not fatal since the Commonwealth is not bound by everything its witnesses say. Commonwealth v. Smith, 502 Pa. 600, 467 A.2d 1120 (1983). It is within the province of the jury to reconcile inconsistent testimony, if possible, or to resolve inconsistencies from prior testimony in favor of that offered at trial, Commonwealth v. Bowermaster, 297 Pa.Super. 444, 444 A.2d 115 (1982), and to believe all, part or none of the evidence, assigning to it whatever weight it deems appropriate. Commonwealth v. Cardwell, 357 Pa.Super. 38, 515 A.2d 311 (1986).
The fact that the jury apparently disbelieved Defendant’s version of events and may have believed all of one Commonwealth witness’s testimony but only part or even none of other Commonwealth witnesses is not shocking to the Court’s sense of justice. See Commonwealth v. Ables, 404 Pa.Super. 169, 590 A.2d 334 (1991).

Trial Court Opinion at pp. 14-17. The jury’s verdict, thus, did not shock the trial court’s conscience, and this Court can find no basis for disagreement.

Prior to the start of trial, appellant moved to dismiss the prosecution or, in the alternative, to exclude the testimony of Commonwealth witness William McMurray on grounds that the district attorney had failed to disclose timely the existence of the witness and had failed entirely to disclose the fact that the witness had been convicted and was awaiting sentencing for aggravated assault. The trial court found that there was no excuse for the district attorney’s failure to disclose mandatory discovery information with respect to William McMurray’s testimony. However, the court also concluded that, because appellant had not been prejudiced by the district attorney’s violation of the discovery rule, neither a dismissal of the prosecution nor preclusion of McMurray’s testimony was warranted.

Review of the record discloses that William McMurray originally gave a statement to police on June 15,1992, in which he related the inculpatory statement which appellant had made to him. The existence of McMurray as a Commonwealth witness and the substance of his testimony, however, had not been disclosed by the Commonwealth until September 8, 1992, six days prior to the scheduled start of trial. Despite the Commonwealth’s tardy disclosure, defense counsel, prior to trial, was permitted to interview McMurray. Moreover, through her own independent investigation, counsel had been able to learn that McMurray had been convicted of aggravated assault and that his sentencing therefor had been continued three times at the request of the Commonwealth. This information was fully utilized at trial to attempt to impeach McMurray’s testimony.

Pa.R.Crim.P. 305 B provides, in pertinent part, as follows:

B. Disclosure by the Commonwealth
(1) Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
(a) Any evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the attorney for the Commonwealth;
(b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made, which is in the possession or control of the attorney for the Commonwealth ....

Pa.R.Crim.P. 305 B(l)(a) and (b). “In some circumstances, evidence tending to impeach the credibility of a witness, if possessed by the Commonwealth, may be material and subject to discovery under Rule 305B(1).” Commonwealth v. Gelormo, 327 Pa.Super. 219, 231, 475 A.2d 765, 771 (1984). See: Commonwealth v. Jenkins, 476 Pa. 467, 383 A.2d 195 (1978); Commonwealth v. Melendez, 326 Pa.Super. 531, 544, 474 A.2d 617, 623 (1984). “The purpose of the discovery rules is to permit the parties in a criminal matter to be prepared for trial. Trial by ambush is contrary to the spirit and letter of those rules and cannot be condoned.” Commonwealth v. Moose, 529 Pa. 218, 236, 602 A.2d 1265, 1274 (1992). See also: Commonwealth v. Thiel, 323 Pa.Super. 92, 470 A.2d 145 (1983).

With respect to violations of Rule 305 B(l), the Superior Court has made the following observations:

“When a party has failed to comply with Rule 305, the trial court has broad discretion in choosing an appropriate remedy.” Commonwealth v. Palmer, 319 Pa.Super. 56, 58, 465 A.2d 1050, 1052 (1983). See also: Commonwealth v. Cannady, 404 Pa.Super. 215, 221, 590 A.2d 356, 359 (1991); Commonwealth v. Feflie, 398 Pa.Super. 622, 635, 581 A.2d 636, 643 (1990). In this regard, Pa.R.Crim.P. 305 E states:
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.
In Commonwealth v. Johnson, 310 Pa.Super. 385, 456 A.2d 988 (1983), the Superior Court said:
Pa.R.Crim.P. 305 E gives the trial court broad discretion in formulating remedies for a failure to comply with discovery requirements. In many cases, ordering a continuance will be an adequate remedy. This will be so where the undisclosed statement or other evidence is admissible and the defendant’s only prejudice is surprise. E.g., Commonwealth v. Parente, 294 Pa.Superior Ct. 446, 440 A.2d 549 (1982); Commonwealth v. Bey, 294 Pa.Superior Ct. 229, 439 A.2d 1175 (1982). Sometimes, however, the prejudice will go beyond surprise; if the prejudice is so great that the fairness of the trial has been affected, a new trial should be ordered. Commonwealth v. Jenkins, 476 Pa. 467, 383 A.2d 195 (1978).
Id. 310 Pa.Super. at 395, 456 A.2d at 993. “[I]n order to be awarded a new trial, [a defendant] must prove that the evidence was exculpatory and material to his case, and that the Commonwealth’s failure to disclose the evidence was prejudicial.” Commonwealth v. Hudgens, supra 400 Pa.Super. [79] at 96, 582 A.2d [1352] at 1361 [ (1990) ]. See also: Commonwealth v. Murphy, 493 Pa. 35, 45-46, 425 A.2d 352, 357 (1981); Commonwealth v. Woodell, 344 Pa.Super. 487, 491-492, 496 A.2d 1210, 1212-1213 (1985).

Commonwealth v. Ulen, 414 Pa.Super. 502, 519-520, 607 A.2d 779, 788 (1992), allocatur granted, 533 Pa. 624, 620 A.2d 491 (1993).

Instantly, review of the record demonstrates that appellant was not prejudiced by the Commonwealth’s discovery violations. Defense counsel was fully prepared at trial and was able to cross-examine Commonwealth witness McMurray effectively with respect to his prior criminal record and the postponement of his sentencing until the conclusion of appellant’s trial.

Appellant’s reliance upon the decision of the Pennsylvania Supreme Court in Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992), is misplaced. In Smith, the Court held that the double jeopardy clause of the Pennsylvania Constitution may bar retrial of a defendant in cases where the prosecutor has intentionally undertaken to deprive the defendant of a fair trial. However, Smith did not “create a per se bar to retrial in all cases of intentional prosecutorial misconduct.” Commonwealth v. Rightley, 421 Pa.Super. 270, 279, 617 A.2d 1289, 1293-1294 (1992). Instantly, the misconduct of the prosecutor involved the failure to comply fully with the rules of discovery. The proper remedy for such a violation was vested in the discretion of the trial court pursuant to Pa.R.Crim.P. 305 E. Where, as here, the failure of the prosecutor to fully comply with the discovery rules did not deny the defendant a fair trial, neither dismissal of the charges nor the grant of a new trial was required. Moreover, because appellant demonstrated no prejudice whatsoever as a result of the discovery violations in this case, the trial court did not abuse its discretion by refusing to exclude the testimony of Commonwealth witness William McMurray. Defense counsel was not surprised at trial by the substance of McMurray’s testimony and was fully able to cross-examine McMurray regarding any expectation of leniency he may have had with respect to his pending sentencing for aggravated assault.

Finally, appellant contends that the trial court committed reversible error when it refused to include an accomplice charge in its jury instructions with respect to Commonwealth witness Donald Powell. Appellant asserts that such a jury instruction was required because Powell had been initially suspected by police of being involved in the murder of Frances Layne and, in fact, had been arrested and charged. It was only after he had agreed to cooperate with police and testify against appellant at the preliminary hearing that the charges against Powell were dropped. Under these circumstances, appellant’s argument continues, a jury could infer that Powell’s testimony came from a “corrupt and polluted source.” Alternatively, appellant asserts that the police may have arrested Powell, even though they knew him to be innocent, in order to force him to inculpate appellant; and, therefore, the Commonwealth should be estopped from objecting to an accomplice charge.

“It is the rule in Pennsylvania that the testimony of an accomplice of a defendant, given at the latter’s trial, comes from a corrupt source and is to be carefully scrutinized and accepted with caution; it is clear error for the trial judge to refuse to give a charge to this effect after being specifically requested to do so.” Commonwealth v. Sisak, 436 Pa. 262, 265, 259 A.2d 428, 430 (1969). “The justification for the instruction is that an accomplice witness will inculpate others out of a reasonable expectation of leniency.” Commonwealth v. Watts, 348 Pa.Super. 224, 228, 501 A.2d 1152, 1154 (1985). See also: Commonwealth v. Gainer, 397 Pa.Super. 348, 357, 580 A.2d 333, 337 (1990) (en banc). “An accomplice charge is necessitated not only when the evidence requires an inference that the witness was an accomplice, but also when it permits that inference.” Commonwealth v. Upshur, 488 Pa. 27, 32, 410 A.2d 810, 812 (1980). Thus, “[i]f the evidence is sufficient to present a jury question with respect to whether the prosecution’s witness was an accomplice, the defendant is entitled to an instruction as to the weight to be given to that witness’s testimony.” Commonwealth v. Thomas, 479 Pa. 34, 37-38, 387 A.2d 820, 822 (1978). “Where, however, there is no evidence that would permit the jury to infer that a Commonwealth witness was an accomplice, the court may conclude as a matter of law that he was not an accomplice and may refuse to give the charge.” Commonwealth v. Smith, 343 Pa.Super. 435, 448, 495 A.2d 543, 549 (1985). See also: Commonwealth v. Franklin, 397 Pa.Super. 265, 282, 580 A.2d 25, 34 (1990). This is so because “[a] trial court is not obliged to instruct a jury upon legal principles which have no applicability to the presented facts. There must be some relationship between the law upon which an instruction is required and the evidence presented at trial.” Commonwealth v. Tervalon, 463 Pa. 581, 593, 345 A.2d 671, 678 (1975). See also: Commonwealth v. Coleman, 344 Pa.Super. 481, 485, 496 A.2d 1207, 1209 (1985); Commonwealth v. Santarelli, 334 Pa.Super. 589, 601, 483 A.2d 895, 901 (1984), cert. denied, 476 U.S. 1116, 106 S.Ct. 1973, 90 L.Ed.2d 656 (1986).

With respect to whether a person is an accomplice in the commission of a crime, the Superior Court has summarized the applicable law as follows:

An accomplice is one who “knowingly and voluntarily cooperates with or aids another in the commission of a crime.” Commonwealth v. Carey, 293 Pa.Super. 359, 373, 439 A.2d 151, 158 (1981). See: 18 Pa.C.S. § 306. See also: Commonwealth v. Jones, 213 Pa.Super. 504, 508, 247 A.2d 624, 626 (1968). To be an accomplice, “one must be an active partner in the intent to commit [the crime].” Commonwealth v. Fields, supra 460 Pa. [316] at 319-320, 333 A.2d [745] at 747 [ (1975) ]; Commonwealth v. McFadden, 448 Pa. 146, 150, 292 A.2d 358, 360 (1972). “An [accomplice] must have done something to participate in the venture.” Commonwealth v. Flowers, 479 Pa. 153, 156, 387 A.2d 1268, 1270 (1978). “[A] showing of mere presence at the scene of a crime is insufficient to support a conviction: evidence indicating participation in the crime is required.” Commonwealth v. Keblitis, 500 Pa. 321, 324, 456 A.2d 149, 151 (1983). See also: Commonwealth v. Smith, 490 Pa. 374, 416 A.2d 517 (1980); Commonwealth v. Blankenbiller, 362 Pa.Super. 477, 524 A.2d 976 (1987); Commonwealth v. Johnson, 355 Pa.Super. 372, 513 A.2d 476 (1986). “Even presence at the scene of a crime in the company of its perpetrator has been held to be insufficient to sustain a conviction.” In re Hawthorne, 374 Pa.Super. 104, 107, 542 A.2d 167, 169 (1988). See also: Commonwealth v. Roscioli, supra 454 Pa. [59] at 63-64, 309 A.2d [396] at 399 [ (1973) ]; Commonwealth v. Garrett, 423 Pa. 8, 12-13, 222 A.2d 902, 905 (1966); In re Amos, 287 Pa.Super. 446, 449, 430 A.2d 688, 690 (1981).

Commonwealth v. Brady, 385 Pa.Super. 279, 284-285, 560 A.2d 802, 805 (1989). Pursuant to these principles, “an accomplice instruction is only warranted when the evidence shows the witness was an active partner in the intent to commit the crime.” Commonwealth v. Phillips, 411 Pa.Super. 329, 341, 601 A.2d 816, 822 (1992), allocatur granted, 530 Pa. 665, 610 A.2d 45 (1992). See also: Commonwealth v. Johnson, 419 Pa.Super. 625, 653-654, 615 A.2d 1322, 1336 (1992); Commonwealth v. Howard, 375 Pa.Super. 43, 50, 543 A.2d 1169, 1172-1173 (1988).

Our review of the testimony at appellant’s trial discloses no evidence from which the jury could have inferred that Powell had been an active participant in the killing of Frances Layne. Neither the Commonwealth’s evidence nor that of the defense implicated Powell in the killing. Rather, the evidence at trial established that Powell was merely present with appellant in Layne’s home at the time of the murder. Even appellant’s testimony was that Powell had not been involved in the killing of Layne. Therefore, it is abundantly clear that the trial evidence did not require an accomplice instruction with respect to Powell. The mere fact that Powell had at one time been arrested and charged in connection with the crime did not give rise to an inference that he was an accomplice where there was no evidence presented at trial to indicate that he, in any way, had aided in the murder. Nor do we find any evidence in the record which suggests that the police acted in bad faith or abused their power by arresting Powell merely to coerce him to give evidence against appellant. It appears, rather, that the arrest of Powell had been based upon a mistaken conclusion by police that he had been involved in the killing. In any event, in the absence of evidence at trial that Powell had been an accomplice in the murder of Frances Layne, appellant was not entitled to the benefit of a jury instruction that Powell’s testimony had come from a “corrupt source.” The trial court did not err by refusing appellant’s request that such an instruction be given.

Having found no basis to disturb the verdict of the jury, the judgment of sentence is, as it must be,

AFFIRMED.

      . Manchas had been tried previously for the same homicide, but the trial had ended in a mistrial after the jury became deadlocked and unable to reach a unanimous verdict.

      . Neither Edna West nor William McMurray had testified at appellant's first trial.

      . Whether or not the district attorney’s violation of discovery rules was intentional is not necessarily controlling. “It is the effect on the right to a fair trial, not the prosecutor’s state of mind, that results in the reversible error.” Commonwealth v. Jenkins, supra 476 Pa. at 474, 383 A.2d at 198.