text:
    655 A.2d 576
    COMMONWEALTH of Pennsylvania v. Stephen BUKSA, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 12, 1994.
    Filed March 7, 1995.

      Theodore J. Krol, Asst. Public Defender, Hollidaysburg, for appellant.
    Christian A. Fisanick, Asst. Dist. Atty., Barnesboro, for Com.
    Before WIEAND, HUDOCK and HESTER, JJ.
   WIEAND, Judge:

Stephen Buksa, Jr. was tried by jury and was found guilty of making terroristic threats, recklessly endangering another person and two counts of aggravated assault. Post-trial motions were filed, after which Buksa retained new counsel, who filed supplemental post-trial motions claiming ineffective assistance by trial counsel. Following an evidentiary hearing, the trial court denied post-trial relief. Buksa was sentenced to serve concurrent terms of imprisonment for not less than six (6) years nor more than twelve (12) years on the first count of aggravated assault and not less than one (1) year nor more than five (5) years for making terroristic threats. On direct appeal from the judgment of sentence, Buksa argues that (1) the trial court erred by allowing testimony that he told his alleged victim that he had done “time”; (2) the trial court erred by refusing to allow the defense to explore the potential motive or bias of the victim by cross-examining him about his being on probation as a result of having been convicted of a drug offense; (3) trial counsel provided constitutionally ineffective assistance by failing to request that the jury be charged on the defense of justification/self-defense; and (4) trial counsel were ineffective for failing to explore additional avenues of defense.

The evidence which led to appellant’s convictions was summarized in the post-trial opinion of the trial court in the following manner:

On December 30, 1992, at approximately 1:00 a.m., the victim, David Pejack, left Sebastian’s Tavern in Johnstown and began walking toward The Depot Lounge in the West End. As the victim was walking on Franklin Street, he was approached by a vehicle driven by the Defendant. The victim entered the Defendant’s vehicle. The two men made one stop at Charlotte’s Webb Bar on Ash Street in Johns-town. The victim entered the bar and returned to the Defendant’s vehicle with two cans of beer. It is at this point that the victim’s version and the Defendant’s version of what happened diverge.
The victim testified at trial that the Defendant stopped his vehicle and offered him a ride to wherever he was going. After stopping for beer, the victim told the Defendant he wanted to go to Benshoff Hill. On the way there, Defendant said he had to take a p[iss] and headed off the main road onto a dark, bumpy road in a wooded area.
The victim testified that the Defendant stopped the car and got out for approximately 30-60 seconds. The Defendant then re-entered the vehicle, put his arm around the victim’s neck, held a knife to the victim’s throat, and said “I did eight years in Western, now pull them pants down.”
The victim stated that he pulled his pants and underwear down to his upper thigh area and the Defendant then touched his genitals. At this point the victim opened the passenger side door and fell to the ground outside.
A scuffle took place outside of the car between the two men. The victim stated that he stuck his right thumb in the Defendant’s eye to block the knife which the Defendant was aiming at his head. Regardless, the knife cut the victim’s head twice.
The victim testified that the Defendant then pulled away, closed the knife, and gave him a rag with snow on it to press against his stab wound. The Defendant stated he would not hurt the victim. Reluctantly, the victim got back in the Defendant’s car and was driven by the Defendant to the emergency room at Lee Hospital.
At the time of trial, the Defendant’s version of what happened was different' than the victim’s version. The Defendant took the stand in his own behalf and testified that when he saw the victim on Franklin Street, the victim motioned for him to stop his car. When the Defendant stopped, the victim asked the Defendant if he knew whether there was anyplace open to buy beer. The Defendant testified that he offered the victim a ride. The Defendant drove to Charlotte’s Webb Bar and waited in the car while the victim went inside to buy beer. After stopping for beer, the Defendant said he would drive around until the victim finished his beer and then he would drop the victim off in the eighth ward.
The Defendant testified that they had a problem with the cassette player in his car as they headed up Dishong' Mountain. As a result of the fog and poor visibility, the Defendant testified that he had to pull over and stop the vehicle in order to get the tape out of the cassette player. The Defendant further stated that as he was leaning toward the cassette player in the middle of the vehicle, he looked over at the victim and noticed that he was holding a knife. The Defendant testified that the victim demanded his money, at which point the Defendant reached in his wallet and handed the victim all the money he had, totalling eleven dollars. The Defendant said the victim got furious due to the small amount of money given to him and kept demanding more money from the Defendant. According to the Defendant, the victim then moved toward him with the knife so the Defendant grabbed the victim’s right hand which was holding the knife. At this point, the Defendant said the victim started to back toward the passenger side door. The Defendant testified that he followed the victim over the console and passenger side seat and continued following him the whole way out of the passenger side door because he couldn’t take the chance of letting go of the knife.
Once outside of the car, the Defendant stated that he slipped and fell on his right shoulder. The Defendant testified that the victim fell to the ground as well and dropped the knife. The Defendant said he was able to recover the knife. It was the Defendant’s testimony at trial that the victim then stuck his thumb in the Defendant’s eye. Consequently, the Defendant said he raised his hands in the air and accidentally cut the victim because he was holding the knife in one hand.
The Defendant stated that he was then able to subdue the situation as he had the victim on the ground on his back. At this point the Defendant testified that he was no longer in fear of being injured so he threw the knife aside. The Defendant stated he got the victim a rag to apply to his wound and drove the victim straight to the hospital.
The jury chose to believe the victim’s version of the events that took place on December 30, 1992, finding the Defendant guilty beyond a reasonable doubt of terroristic threats, recklessly endangering another person, and two counts of aggravated assault.

Trial Court Opinion at pp. 3-7.

Appellant contends that the trial court erred by allowing the victim to testify that, during the assault, appellant said, “I did eight years in Western, now pull them pants down.” It is argued that this testimony impermissibly referred to a prior criminal record. We disagree. This testimony was admissible because it was about a statement made by the appellant to threaten and intimidate his victim. Evidence of distinct crimes is admissible in “situations where defendant’s prior criminal history [was] used by him to threaten or intimidate the victim.” Commonwealth v. Billa, 521 Pa. 168, 177, 555 A.2d 835, 840 (1989). See also: Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985).

Prior to trial, the Commonwealth had filed a motion in limine to prevent the defense from showing that the alleged victim was on probation for a drug offense. At the conclusion of a pre-trial hearing on the motion, the trial court ruled as follows:

As to the request of the defendant to be able to bring out that Mr. Pejack is on probation now and was on probation at that time therefore it would tend to in some way cause him to fabricate a statement, I’m going to deny that because the defendant was on probation at the same time. And I’m not going to allow it in for either one.

N.T. May 7, 1993, at p. 5. Appellant argues on appeal that this was error. Because the Commonwealth’s witness was on probation, he argues, the jury was entitled to know that he had a motive for giving testimony favorable to the Commonwealth and adverse to the defendant. There is merit in this argument.

“The scope and limits of cross-examination are largely within the discretion of the trial court and its actions pertaining thereto will not be reversed in the absence of a clear abuse of its discretion or error of law.” Commonwealth v. Buehl, 510 Pa. 363, 388, 508 A.2d 1167, 1179 (1986), cert. denied, 488 U.S. 871, 109 S.Ct. 187, 102 L.Ed.2d 156 (1988). See also: Commonwealth v. Wilson, 538 Pa. 485, 505, 649 A.2d 435, 445 (1994); Commonwealth v. Snoke, 525 Pa. 295, 305, 580 A.2d 295, 300 (1990). Nevertheless, “[cjriminal defendants have a constitutional right to confront witnesses against them, which includes the right to cross-examine. Cross-examination may be employed to test a witness’ story, to impeach credibility, and to establish the witness’ motive for testifying.” Commonwealth v. Robinson, 507 Pa. 522, 526, 491 A.2d 107, 109 (1985), citing Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968) and Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). It is well established “that a witness may be cross-examined as to any matter tending to show the interest or bias of that witness.” Commonwealth v. Nolen, 535 Pa. 77, 83, 634 A.2d 192, 195 (1993) (footnote omitted). See also: Commonwealth v. Butler, 529 Pa. 7, 14, 601 A.2d 268, 271 (1991); Commonwealth v. Williams, 524 Pa. 218, 228, 570 A.2d 75, 80 (1990); Commonwealth v. Coades, 454 Pa. 448, 452-453, 311 A.2d 896, 898 (1973). “It is particularly important that, where the determination of a defendant’s guilt or innocence is dependent upon the credibility of a prosecution witness, an adequate opportunity be afforded to demonstrate through cross-examination that the witness is biased.” Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992). See also: Commonwealth v. Lane, 533 Pa. 276, 279-280, 621 A.2d 566, 568 (1993); Commonwealth v. Reed, 435 Pa.Super. 36, 44-48, 644 A.2d 1223, 1227-1228 (1994) (plurality opinion).

Thus, in Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), the Pennsylvania Supreme Court declared:

[W]henever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it.
The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise a doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury’s determination of the case.

Id. at 224-225, 512 A.2d at 631-632 (footnote omitted). See also: Commonwealth v. Gentile, 433 Pa.Super. 381, 387-389, 640 A.2d 1309, 1313-1314 (1994); Commonwealth v. Rhodes, 405 Pa.Super. 570, 573-575, 592-A.2d 1360, 1361-1362 (1991). Similarly, the Superior Court has observed:

As a general rule, defense counsel must be permitted to cross-examine a Commonwealth witness on possible favorable treatment or expectations of such favorable treatment in exchange for testimony for the prosecution. Failure to allow cross-examination to reveal possible bias of this nature is error and will require a new trial unless the error can be shown to have had no impact on the outcome of the case. See Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986); Commonwealth v. Jennings, 405 Pa.Super. 590, 592 A.2d 1370 (1991); Commonwealth v. Blassingale, 391 Pa.Super. 395, 571 A.2d 426 (1990). The principle upon which this rule is premised is that the jury should have the opportunity to consider information concerning possible ulterior motives on the part of the witness in order accurately to assess the witness’ credibility.

Commonwealth v. Culmer, 413 Pa.Super. 203, 212, 604 A.2d 1090, 1094-1095 (1992). See also: Commonwealth v. Battiato, 422 Pa.Super. 285, 296-297, 619 A.2d 359, 364-365 (1993).

In its post-trial opinion, the trial court asserted that cross-examination of the victim regarding his probationary status would not have been permissible under the general rule established in Commonwealth v. Evans, supra 511 Pa. 214, 512 A.2d 626. This is so, the trial court concluded, because, once the victim had been sentenced to a term of probation, there was a final disposition of his prior drug conviction; and, therefore, the victim no longer had any motive to testify favorably for the prosecution, as the Commonwealth no longer exercised any control over the victim’s sentence. As we shall see, however, the trial court’s reasoning in this regard was flawed.

An order placing a criminal defendant on probation does not constitute a final disposition of a criminal case against him. “It is rather an interlocutory judgment, in the nature of a conditional order placing the defendant under the supervision and control of the court, in a system of tutelage designed for his reformation, to be followed by a final judgment of discharge, if the conditions of his probation are complied with, or by a final judgment of sentence on his being brought before the court following a violation of the terms of his probation .... ” Commonwealth ex rel. Paige v. Smith, 130 Pa.Super. 536, 543, 198 A. 812, 815 (1938) (citations omitted). See: Commonwealth v. Nicely, 536 Pa. 144, 150-152, 638 A.2d 213, 216-217 (1994). “Probation is a suspended sentence of incarceration served upon such terms and conditions as imposed by the sentencing court.” Fleegle v. Commonwealth, Board of Probation, and Parole, 110 Pa.Commw. 227, 230, 532 A.2d 898, 899 (1987). “[T]he basic objective of probation is to provide a means to achieve rehabilitation without resorting to incarceration. When it becomes apparent that the probationary order is not serving this desired end the court’s discretion to impose a more appropriate sanction should not be fettered.” Commonwealth v. Kates, 452 Pa. 102, 115, 305 A.2d 701, 708 (1973). As such, a “court may revoke an order of probation upon proof of the violation of specified conditions of the probation.” Commonwealth v. Perry, 342 Pa.Super. 355, 356, 492 A.2d 1158,1159 (1985). See also: Commonwealth v. Pierce, 497 Pa. 437, 440, 441 A.2d 1218, 1219 (1982). “Upon revocation of probation, the trial court possesses the same sentencing alternatives which were available at the time of the initial sentencing.” Commonwealth v. Anderson, 434 Pa.Super. 309, 317, 643 A.2d 109, 113 (1994). See also: Commonwealth v. Miller, 358 Pa.Super. 219, 224, 516 A.2d 1263, 1266 (1986).

Because it is clear that an order of probation constitutes a non-final disposition of a criminal case, a defendant must be permitted to cross-examine a Commonwealth witness regarding the witness’s probationary status under the rule of Commonwealth v. Evans, supra 511 Pa. 214, 512 A.2d 626, to explore motive and potential bias of the witness. In this regard, the Pennsylvania Supreme Court has declared “that ‘the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness’ probationary status as a juvenile delinquent.’ ” Commonwealth v. Murphy, 527 Pa. 309, 311, 591 A.2d 278, 279 (1991), quoting Davis v. Alaska, 415 U.S. 308, 309, 94 S.Ct. 1105, 1107, 39 L.Ed.2d 347, 349 (1974). See: Commonwealth v. Case, 322 Pa.Super. 24, 31, 469 A.2d 162, 165 (1983) (“The logical connection between the fact that the witness was on probation, and the inference to be drawn, that the witness might be biased toward the state, is clear and direct.”). See also: Commonwealth v. Walker, 384 Pa.Super. 562, 566-568, 559 A.2d 579, 581-582 (1989) (plurality opinion); Commonwealth v. Cauto, 369 Pa.Super. 381, 387-388, 535 A.2d 602, 605-606 (1987); Commonwealth v. Gay, 369 Pa.Super. 340, 342-345, 535 A.2d 189, 190-191 (1988). Cf. Commonwealth v. Ocasio, 394 Pa.Super. 100, 103-104, 574 A.2d 1165, 1167-1168 (1990) (trial court committed reversible error by refusing to allow defendant to cross-examine Commonwealth witness as to possible bias resulting from witness’s admission into ARD).

In Commonwealth v. Simmon, 521 Pa. 218, 555 A.2d 860 (1989), the Supreme Court explicitly held “that a prosecution witness’s juvenile probationary status is relevant to show bias regardless of whether the person appears as the victim/complainant.” Id. at 224, 555 A.2d at 863 (footnote omitted). In so holding, the Court observed:

The Commonwealth’s assertion that Hood was the victim of the assault and therefore her probationary status was not endangered merely states a conclusion. Such inverted logic denies the reality of the vulnerable status of a probationer. The threat of revocation, no matter how subtle, based on a violation of a probation condition (i.e. not engaging in assaultive behavior) always can be used by the prosecution to ensure cooperation. Indeed, it might precede the prosecutor’s involvement by providing the motivation for the complainant to report that she had been assaulted. Were Hood the aggressor and Simmon the victim, assuming she were on probation, it would benefit Hood to report her wound as though she were the victim, thus deflecting any inquiry that might jeopardize her probation.

Commonwealth v. Simmon, supra at 224 n. 4, 555 A.2d at 863 n. 4.

The same rationale is controlling in the instant case. Here, appellant claimed that the victim had been the aggressor in an attempt to rob him. It was relevant, therefore, for appellant to show the victim’s probationary status and argue that it provided a potential motive for the victim to lie about appellant’s being the aggressor. We conclude, therefore, that the trial court erred by refusing to permit appellant’s cross-examination of the victim regarding his being on probation.

With respect to appellant’s claims of ineffective assistance by his trial counsel, the Superior Court has stated the applicable law in the following manner:

“Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant.” Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). The standard used to evaluate claims of ineffective assistance of counsel has been stated by the Pennsylvania Supreme Court in the following manner:
The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). In order to demonstrate prejudice under this standard, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). See: Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Horton, 434 Pa.Super. 478, 485-486, 644 A.2d 181, 185 (1994).

As a general rule, matters of trial strategy are left to the determination of counsel, and a defendant is not entitled to appellate relief simply because a chosen strategy is unsuccessful. See: Commonwealth v. Tippens, 409 Pa.Super. 536, 542, 598 A.2d 553, 556 (1991) (en banc). “ ‘[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.’ ” Commonwealth v. Lee, 401 Pa.Super. 591, 600-601, 585 A.2d 1084, 1089 (1991), quoting Strickland v. Washington, 466 U.S. 668, 690-691, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 695 (1984). “The decision not to present a particular defense is a tactical one and will not be deemed ineffective stewardship if there is a reasonable basis for that position.” Commonwealth v. Blair, 491 Pa. 499, 506, 421 A.2d 656, 660 (1980). See, e.g.: Commonwealth v. McGrogan, 449 Pa. 584, 297 A.2d 456 (1972) (strategy seeking acquittal rather than one seeking verdict of manslaughter was effective assistance); Commonwealth v. Garcia, 370 Pa.Super. 132, 535 A.2d 1186 (1988) (counsel’s decision to forego alternative theory of voluntary manslaughter and rely solely upon theory of self-defense was not ineffective assistance). Accordingly,

“[bjefore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant’s interests. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Thus, counsel’s assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis designated to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349 (1967).

Commonwealth v. Harper, 419 Pa.Super. 1, 11, 614 A.2d 1180, 1185 (1992), quoting Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983).

Appellant’s principal claim of ineffective assistance pertains to counsels’ failure to request that the jury be instructed on principles involving the defense of justification/self-defense. The law is well settled that “[a] trial court is not obligated 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 [requested] and the evidence presented at trial.” Commonwealth v. Tervalon, 463 Pa. 581, 593, 345 A.2d 671, 678 (1975). See also: Commonwealth v. Crews, 536 Pa. 508, 532, 640 A.2d 395, 407 (1994); Commonwealth v. Bryant, 524 Pa. 564, 573, 574 A.2d 590, 595 (1990). However, “ ‘[a] defendant is entitled to an instruction on any recognized defense which has been requested, which has been made an issue in the case, and for which there exists evidence sufficient for a reasonable jury to find in his or her favor.’ ” Commonwealth v. Borgella, 531 Pa. 139, 142, 611 A.2d 699, 700 (1992), quoting Commonwealth v. Weiskerger, 520 Pa. 305, 312-313, 554 A.2d 10, 14 (1989). See also: Commonwealth v. Lightfoot, 538 Pa. 350, 355, 648 A.2d 761, 764 (1994).

At trial, appellant was represented by Attorneys Lisa Lazzari and Donald Carosella. During the post-trial evidentiary hearing, both Lazzari and Carosella were questioned regarding their decision not to request a jury instruction on self-defense. Both expressed the view, on direct examination, that an instruction on self-defense would have been inappropriate and inconsistent with appellant’s claim that the stabbing was accidental. During the cross-examination, however, Attorney Lazzari testified as follows:

Q. To put it bluntly wasn’t there an indication made both to you by Mr. Buksa in conversation with him as well as the trial that any injuries or that that were obtained were basically received by the victim in the defendant’s attempt to defend himself?
A. Well you could look at it in two respects. It was my opinion from what Mr. Buksa told me was it was an attempt by Mr. Buksa to get the knife out of the car so that neither would be injured.
Q. Well, in your closing argument to the jury didn’t you say about the defendant that “and rather than being a helpless victim, he defends himself against Mr. Pejack.” I ask you to look at page ten of . the transcript of May 10th and I underlined it. Didn’t you indicate “rather than being a helpless victim, he defends himself [against] Mr. Pejack.” Didn’t you make reference to that to the jury?
A. Yes.
Q. And to move down a little further we have a description somewhat similar but somewhat vastly apart of the struggle that ensued and you made mention of the struggle that ensued; did you not?
A. Yes.
Q. And then, of course, you said that you made mention of your client being injured but unfortunately the victim was hurt worse?
A. Yes.
Q. So it wasn’t any mystery that you were making some assertions that what happened here was only as a result of him defending himself; is that correct?
A. What happened was a result of the initiation by Mr. Pejack, not by Mr. Buksa.
Q. Right, I mean you did use the words he defends himself; is that correct?
A. Yes, I did.
Q. And you indicated that to the jury. What was the strategy in not asking for an instruction on self-defense?
A. I don’t believe it met the legal requirements. There was no retreat.
Q. Well doesn’t he have to be able to retreat with complete safety?
A. He could have got out of the vehicle.
Q. But couldn’t you argue for your client—
A. Yes.
Q. — that because the guy pulled the knife on him and all of a sudden he wants more money and it happened so quick that there was no time to retreat? Couldn’t you argue that?
A. Yes.
Q. And then therefore that the jury believes hey in order to retreat safely you first have to have that opportunity. And if you don’t, then wouldn’t that self-defense instruction fit?
A. Yes.
Q. And isn’t it up to the jury to determine basically up to your argument on behalf of your client as to whether or not there was an ability or duty to retreat?
A. Yes.
N.T. October 14, 1993, at pp. 46-49.
Attorney Carosella was cross-examined also and testified as follows:
Q. And don’t you agree the incident about cutting the head, that occurred during this struggle and the tumbling that occurred out of the car according to Mr. Buksa; is that correct?
A. Yes.
Q. I believe you also said while he was defending himself; is that right?
A. If you want to use those words, yes.
Q. And generally, Attorney Carosella, when your client testifies that these things occurred while I’m defending myself and your co-counsel argues to the jury that these occurred while he is defending himself, struggling, those type of things, you don’t believe in your mind it wouldn’t prompt you to request a self-defense instruction from the Court?
A. We didn’t at the time, no.
Q. What was the tactical advantage of not doing that?
A. The idea at least in my mind was that it was strictly an accident. We didn’t want to call too much more attention to the idea that it was so much necessary to defend as it was simply an accident that occurred in the course of the struggle. It’s a call.

N.T. October 14, 1993, at pp. 68-69.

Several cases have considered whether a defendant is entitled to a jury charge on self-defense where there is evidence indicating that an accidental injury or death was caused by the defendant while he was attempting to defend himself from attack. In Commonwealth v. Webster, 490 Pa. 322, 416 A.2d 491 (1980), the Supreme Court rejected a claim of ineffective assistance based upon counsel’s failure to object to the absence of a jury instruction on self-defense. The Webster Court reasoned as follows:

The Commonwealth’s witnesses testified that appellant pointed the gun at the victim. Only appellant claimed the victim pointed the gun at him. He testified that as he struggled to wrestle the pistol free, it discharged. At best appellant’s explanation suggests that the killing may have been accidental. However, it also destroys the second element of self-defense; that appellant reasonably believed that he was in imminent danger of death or great bodily harm. When appellant was specifically asked upon cross-examination if he had been acting in self-defense, appellant conceded that he had not. At no time was there any testimony that appellant intentionally fired the gun in an attempt to defend himself.
The jury was presented with the possible explanation of accidental death; the judge’s charge adequately explained that a finding of not guilty of any degree of homicide was required if the jury chose to believe appellant’s story.
Clearly, appellant’s trial counsel realized that an assertion of self-defense was not supported by, nor compatible with the testimony. It would have been an empty gesture for defense counsel to object to the court’s charge.

Id. at 326, 416 A.2d at 492-493 (footnote omitted) (emphasis added).

In Commonwealth v. Mayfield, 401 Pa.Super. 560, 585 A.2d 1069 (1991) (en banc), the defendant testified that he had pulled out a knife because the victim had “said he was going to kill me,” but he denied having actually stabbed the victim. The defendant admitted, however, that he had been struggling with the victim and that he had bit the victim in the chest in response to being choked. The Superior Court concluded that such testimony constituted

a sufficient showing that he used deadly force in defense of himself to at least allow for an instruction on self-defense. Appellant at no time denied that he produced the deadly weapon with intent to use it in his oum defense.
It remains the province of the jury as to whether appellant was free of provocation, as to whether he had a duty to retreat, as to whether his belief that he was in danger of serious bodily harm or death was reasonable, and as to whether his use of deadly force was excessive under the circumstances.

Commonwealth v. Mayfield, supra at 578-579, 585 A.2d at 1078 (emphasis added).

Subsequently, in Commonwealth v. McFadden, 402 Pa.Super. 517, 587 A.2d 740 (1991), the Court found arguable merit in a contention that counsel had been ineffective for failing to request a jury instruction on self-defense where the defendant testified that her ex-husband had been shot accidentally while struggling with her over a shotgun. The defendant’s testimony was that she had borrowed the gun to protect herself from her abusive ex-husband, and that the shooting had occurred while he had been hitting her and after he had grabbed the gun. The McFadden Court declared “that a self-defense charge is appropriate in cases involving accidental injury when ‘the circumstances of the case allow that the accidental injury or death occurred within the course of the actor defending himself.’ ” Id. at 522, 587 A.2d at 742, quoting Commonwealth v. Mayfield, supra at 572, 585 A.2d at 1074. The Court further reasoned that:

The testimony of appellant did not “negate any element of self-defense” that would preclude the necessity to submit the issue to the jury on request of the defendant. See: Commonwealth v. Mayfield, supra, 401 Pa.Superior Ct. at 571, 585 A.2d at 1074. Moreover, the testimony of appellant that she feared for her life and did not remember where she pointed the gun, or whether her finger was on the trigger, if believed by the jury, would have justified a finding that appellant acted in self-defense. See e.g., Commonwealth v. Gonzales, 334 Pa.Super. 603, 607-608, 483 A.2d 902, 904 (1984). While the Commonwealth continues to argue that a self-defense charge was not required because appellant refused to admit that she had fired the weapon purposefully, the submission of a self-defense charge does not require such an admission. Commonwealth v. Gonzales, supra 334 Pa.Super. at 609, 483 A.2d at 905. See: Commonwealth v. Mayfield, supra, 401 Pa.Super. at 576-577, 585 A.2d at 1077.

Commonwealth v. McFadden, supra at 525-526, 587 A.2d at 744.

Finally, in Commonwealth v. Wilson, 433 Pa.Super. 28, 639 A.2d 1194 (1994), allocatur granted, 539 Pa. 245, 652 A.2d 281 (1994), the refusal by a trial court to instruct the jury on self-defense was held to be reversible error where the defendant had testified that he accidentally shot the victim while struggling to prevent the victim from shooting him. In so holding, the Superior Court opined:

[W]e conclude that there was in appellant’s testimony nothing to negate any of the elements of self-defense. Rather, appellant’s testimony was that while struggling over a gun which the victim had pointed at him, the gun had accidently discharged when he fell and hit his elbow on the ground. From this testimony, a reasonable jury could have concluded that the shooting, although accidental in nature, occurred while appellant was defending himself. Under these circumstances, the decided cases suggest, appellant was entitled to a jury instruction on self-defense. See: Commonwealth v. McFadden, supra 402 Pa.Super. 517, 587 A.2d 740; Commonwealth v. Mayfield, supra 401 Pa.Super. 560, 585 A.2d 1069.
The instant case is distinguishable from Commonwealth v. Webster, supra, where the defendant, during cross-examination, specifically denied that he had acted in self-defense. In the instant case, as we have observed, appellant’s testimony did not negate any of the elements of self-defense and did not refute the possibility that he was struggling for the gun to protect himself. Upon request, therefore, appellant was entitled to have the jury instructed upon the law pertaining to self-defense. When the trial court denied appellant’s request for such an instruction, it committed reversible error. Consequently, a new trial is necessary.

Commonwealth v. Wilson, supra 433 Pa.Super. at 37-38, 639 A.2d at 1199.

In the instant case, appellant testified that it was the victim who had pulled the knife and had attempted to rob him. Appellant described a struggle during which he was able to gain control of the knife. The victim, however, continued the struggle by striking appellant in the eye with his thumb. This, according to appellant, caused him to bring his hands up to his face, thereby stabbing the victim, who was standing over him. Thus, there was nothing in appellant’s testimony to negate any of the elements of self-defense. Rather, the circumstances described by appellant were that the victim had been accidentally injured while the defendant had been defending himself against the victim’s aggression. Under such circumstances, the decided cases hold that a defendant is entitled to have the jury instructed upon the law pertaining to self-defense. See: Commonwealth v. Wilson, supra 433 Pa.Super. 28, 639 A.2d 1194; Commonwealth v. McFadden, supra 402 Pa.Super. 517, 587 A.2d 740; Commonwealth v. Mayfield, supra 401 Pa.Super. 560, 585 A.2d 1069.

The decision by appellant’s trial counsel not to request a jury instruction on self-defense under the circumstances of this case was so unreasonable that no competent lawyer would have employed the same strategy. Counsels’ decision was based upon their erroneous belief that a claim of an accidental stabbing was inconsistent with self-defense, even where evidence suggested that the accidental injury had occurred while the defendant was defending himself against attack. Counsels’ decision was especially unreasonable in light of the closing argument which stressed appellant’s defense of himself and contended that the injury to the victim had occurred while appellant was attempting to “ward off’ the victim’s attack. Because the issue of self-defense was placed squarely before the jury by defense argument and because there existed sufficient evidence, which, if believed by the jury, would have permitted a finding of self-defense, the failure of trial counsel to request that the jury be properly instructed regarding principles of self-defense constituted constitutional ineffectiveness. Their failure to do so failed to serve any interest of the client.

Appellant has also argued that his trial counsel were ineffective because they:

(1) failed to have the preliminary hearing testimony transcribed;
(2) failed to cross-examine the alleged victim adequately;
(3) failed to call two material witnesses for the defense; and
(4) failed to present physical evidence which would have corroborated appellant’s version of events.

After reviewing the record and the opinion of the trial court, however, we are satisfied that these arguments are lacking in merit.

Because the trial court erred by refusing to allow cross-examination of the alleged victim regarding his probationary status, and because trial counsel were constitutionally ineffective for failing to request a jury instruction on self-defense, the judgment of sentence will be reversed and the case remanded for a new trial.

The judgment of sentence is reversed, and the case is remanded for a new trial. Jurisdiction is not retained.

      . Sentence was suspended on Buksa's convictions for the second count of aggravated assault and for recklessly endangering another person.

      . The amended notice of appeal in this case incorrectly identifies this appeal as being from the order of the trial court which denied post-trial relief. However, because Buksa initially filed his appeal within thirty days of the imposition of the judgment of sentence, we will treat the appeal as having been properly taken from the judgment of sentence.

      . At the conclusion of the victim’s testimony on direct examination, the trial court cautioned the jury as to the limited purpose for which appellant’s statement to the victim was to be considered. A similar cautionary instruction was included in the court’s final charge to the jury-

      . The fact that the victim in Simmon was on juvenile probation while the victim in the instant case was on adult probationary status is of no significance.

      . In her closing statement to the jury at appellant's trial, Attorney Lazzari had argued as follows:
      And now Mr. Buksa is not only frightened, but now he is getting mad. And rather than being a helpless victim, he defends himself against Mr. Pejack. Physically he offers no threat to my client. With a knife, that's a different story. So he grabs the knife. And we have heard two [descriptions], somewhat similar, but somewhat vastly apart of the struggle that proceeds after Mr. Buksa grabs the knife from David Pejack — or his wrist, I should say. They tumble out of the car. They end up on the ground. Mr. Buksa’s eye is injured in the struggle. Mr. Pejack is unfortunately injured to a greater degree. With or without the knife, there is no way Mr. Pejack could have overpowered my client. And based on that fact, I tell you that [if] Mr. Buksa’s original intentions were to assault this man, sexually or physically, he would have succeeded in what he set out to do. But what happened instead? They tumbled out of the car. He got the knife. And in an attempt to ward off Mr. Pejack, Mr. Pejack was then cut. My client subdues him, realizes there is no more danger, tosses the knife away, and then sees the degree to which Mr. Pejack is injured. Immediately he realizes something has to be done.
      N.T. May 10, 1993, at pp. 10-11 (emphasis added).

      . As for Attorney Lazzari’s suggestion that appellant had failed to retreat, it clearly would have been for the jury to determine whether appellant had had the opportunity to retreat safely prior to the time the victim was stabbed. See: Commonwealth v. Mayfield, supra, 401 Pa.Super. at 579, 585 A.2d at 1078.


source: Caselaw Access Project

author: JOHNSON, Judge: OLSZEWSKI, Judge, concurring and dissenting.-

license: Public Domain

text:
    655 A.2d 587
    Dorothy A. POLITO v. Robert V. POLITO, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1994.
    Filed March 13, 1995.

      Norman Perlberger, Bala Cynwyd, for appellant.
    James S. Sorrentino, Lancaster, for appellee.
   JOHNSON, Judge:

Robert V. Polito (Husband) appeals from the order directing him to pay $225 per week in alimony to' Dorothy A. Polito (Wife). In this appeal, we are asked to determine whether the trial court erred in directing that an alimony order be entered in favor of Wife after she had obtained a divorce decree in a foreign jurisdiction that did not provide for such orders.

Husband and Wife were married in 1978 in Lancaster County, Pennsylvania. In January, 1981, Husband and Wife entered into a property settlement agreement (the Agreement) indicating that they had been separated for six months and stating their intention to make arrangements for the settlement of their property rights.

Paragraph three of the Agreement states:

3. SUPPORT. ROBERT V. POLITO agrees to pay to DOROTHY A. POLITO and DOROTHY A. POLITO agrees to receive from ROBERT V. POLITO the sum of Two Hundred Twenty Five Dollars ($225.00) a week for her support and maintenance. The parties hereto are contemplating a divorce under the Ño-Fault Divorce Code of the Commonwealth of Pennsylvania effective July 1, 1980. The parties hereto agree that if a divorce is instituted between the parties, that this sum shall be entered as alimony in that proceeding and shall be subject to all the incidences thereof. The entry of that Order as alimony shall supersede any further provisions of this paragraph.

Wife then traveled to the Dominican Republic to obtain a divorce. On 'February 16, 1981, the Court of First Instance of the Judicial District of Santo Domingo, Dominican Republic, issued a decree of divorce. The pertinent portion of the divorce decree states:

SECOND: That the agreement entered into between the parties dated the 28th day of January of 1981, shall survive and shall not be merged in this Judgment of divorce and that the parties are hereby ordered and directed to comply with each and every provision of the said agreement.

It is undisputed that the law of the Dominican Republic does not provide for alimony following divorce. Accordingly, no order directing Husband to pay alimony was entered.

Nevertheless, Husband paid Wife $225 per week until December 1, 1992. In February, 1993, after Husband ceased making weekly payments, Wife filed a Petition for Relief under 23 Pa.C.S. § 3105 (Effect of agreement between parties). Wife then filed an Amended Petition for Relief under 23 Pa.C.S. § 3705 (Enforcement of foreign decrees). Following a hearing, the trial court issued an order awarding alimony to Wife. Husband now appeals.

On appeal, Husband, in essence, asserts that the trial court erred when it (1) interpreted the Agreement; (2) awarded alimony even though the law of the Dominican Republic does not provide for post-divorce alimony; (3) asserted subject matter jurisdiction over the alimony claim; and, (4) entered an award for alimony rather than limiting Wife to contractual remedies.

It is well-established that “[t]he role of an appellate court in reviewing alimony orders is limited; we review only to determine whether there has been an error of law or abuse of discretion by the trial court.” Lee v. Lee, 352 Pa.Super. 241, 245, 507 A.2d 862, 865 (1986). Such “[a]n abuse ... does not necessarily imply a willful abuse, but if, in reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error.” Id.

First, Husband argues that the trial court erred in its interpretation of the Agreement. Husband asserts that the language of the Agreement required that an alimony order be entered in the divorce proceeding. However, because the Dominican court was not authorized to enter such an order, Husband argues that the trial court could not have entered an alimony order pursuant to the Agreement. We disagree.

“The paramount goal of contract interpretation is to ascertain and give effect to the parties’ intent.” Laudig v. Laudig, 425 Pa.Super. 228, 233, 624 A.2d 651, 653 (1993). It is clear from the language of the Agreement that the parties intended that Wife receive alimony. In fact, Husband made payments in the agreed-upon amount for eleven years following the parties’ divorce. Therefore, we find no error in the trial court’s interpretation of the Agreement.

Second, Husband asserts that the trial court erred in awarding Wife alimony because the law of the Dominican Republic does not provide for post-divorce alimony. In making this argument, Husband relies on Doyle v. Doyle, 355 Pa.Super. 384, 513 A.2d 483 (1986). In Doyle, the parties entered into a property settlement agreement (PSA) in Texas and were divorced in that state. Although Texas law does not provide for alimony, the PSA, which included an agreement to pay alimony, was incorporated into the divorce decree. The parties then moved to Pennsylvania, where Wife filed a petition to enforce, register and adopt a foreign divorce decree. Our Court reasoned that, because Texas did not provide a method for enforcement of support obligations other than through a suit in contract, we could not transform the parties’ contract into an alimony award enforceable under the Divorce Code.

However, Doyle is distinguishable from the present case. Doyle is limited to situations in which we are asked to enforce an agreement entered into in a foreign jurisdiction and incorporated in a foreign decree where that jurisdiction’s law does not allow for the terms of the agreement. Here, the parties entered into the Agreement in Pennsylvania, in contemplation of a Pennsylvania divorce. In their Agreement, the parties expressly provided for the entry of an order for support and maintenance consistent with the public policy of this Commonwealth. Thus, because the agreement was entered into in Pennsylvania, it remains enforceable here.

Third, Husband asserts that the trial court erred in asserting jurisdiction over the alimony claim. In pertinent part, 23 Pa.C.S. § 3104 provides:

§ 3104. Bases of Jurisdiction
(a) Jurisdiction. The courts shall have original jurisdiction on cases of divorce ... and shall determine, in conjunction with any decree granting a divorce ... the following matters, if raised on the pleadings, and issue appropriate decrees or orders with reference thereto, and may retain continuing jurisdiction thereof:
(1) The determination and disposition of property rights and interests between spouses, including any rights created by any antenuptial, postnuptial, or separation agreement and including ... the order of any spousal support, alimony, alimony pendente lite, counsel fees or costs authorized by law.
% % í-4 5¡S íH
(d) Foreign Forum. After the dissolution ... of a marriage in a foreign forum where a matter under subsection (a) has not been decided, a court in this Commonwealth shall have jurisdiction to determine a matter under subsection (a) to the fullest extent allowed under the Constitution of the United States.

The trial court found, and we agree, that the Dominican court did not decide the issue of alimony. While the Dominican court declared that the parties’ Agreement “shall survive and shall not be merged in this Judgment of divorce” and ordered the parties to “comply with each and every provision of the said agreement,” it did not, and indeed could not, enter an order of alimony or specifically direct Husband to pay alimony. Therefore, the trial court had jurisdiction to adjudicate the issue of alimony and enter an appropriate order. The parties expressly agreed that should they divorce, an alimony order would be entered in favor of Wife in the amount of $225 per week. The trial court, without any modification of the parties’ agreement, directed that an alimony order be entered. Accordingly, we cannot find that the trial court abused its discretion when it effectuated the clear intent of the parties.

Finally, Husband asserts that, because the Agreement was executed prior to 1988, it cannot be enforced under 23 Pa.C.S. § 3105(a), but must be enforced through contractual remedies. The trial court properly directed that an alimony order be entered. Husband concedes in his Brief that “[i]n the court below, [Wife] did not offer any argument for the application of § 3105(a); nor did the trial court mention or base its decision on this section.” Accordingly, we need not consider nor determine whether § 3105 is applicable in this case.

Based on the foregoing, we affirm the trial court order directing Husband to pay alimony to Wife in the sum of $225 per week.

Order Affirmed.

OLSZEWSKI, J., files a concurring and dissenting opinion.

OLSZEWSKI, Judge, concurring and dissenting.-

We concur in part, as we agree that the law of the support agreement should control rather than the law of the divorce decree, and that the trial court therefore had the power to enforce the agreement as if it were a court order for alimony.

We would hold, however, that the trial court erred in reaching out to transform the parties’ agreement into an alimony order. By affirming that improper and unnecessary action, the majority would disregard the precedent which requires our courts to respect the private contractual nature of such agreements, and we respectfully dissent on this point.

The section of the contract which is at issue reads as follows:

[Husband] agrees to pay [Wife] ... the sum of [$225 per week] for her support and maintenance. The parties hereto are contemplating a divorce under the No-Fault Divorce Code of the Commonwealth of Pennsylvania effective July 1, 1980. The parties hereto agree that if a divorce is instituted between the parties, that the sum shall be entered as alimony in that proceeding and shall be subject to all the incidences thereof. The entry of that Order shall supersede any further provisions of this paragraph.

(Emphasis supplied.)

Clearly, the parties originally intended to be divorced according to the Pennsylvania Divorce Code. The underlined provision became impossible to fulfill, however, when Wife sued for divorce in the Dominican Republic: Wife concedes that the law of that sovereign does not recognize post-divorce alimony. Having failed to take effect “in that proceeding,” the provision became void.

In its divorce decree, the foreign court incorporated the parties’ agreement with the following language:

That the agreement entered into between the parties ... shall survive and shall not be merged in this Judgement of divorce and that the parties are hereby ordered and directed to comply with each and every provision of the agreement.

Civil Decree No. 228/81 at 3-4. The effect of language rejecting merger of the agreement into the decree is clear: the agreement “remains a contract between the parties, in which the court has no involvement.” McMahon v. McMahon, 417 Pa.Super. 592, 602, 612 A.2d 1360, 1365 (1992). Absent proper authorization on the face of the agreement, therefore, a court may not unilaterally modify an unmerged agreement for spousal support in the same manner as it would modify an alimony order. Id.; Brower v. Brower, 413 Pa.Super. 48, 55-57, 604 A.2d 726, 730 (1992); accord 23 Pa.C.S.A. § 3105(c).

In considering the paragraphs quoted above, the trial court found that the foreign court had given effect to the underlined provision by directing the parties to “comply with each and every provision of the agreement.” In other words, the court found that the foreign court had ordered the parties to go to another forum and have an alimony order entered. See opinion, 3/14/94 at 4, 6. This interpretation has no basis in either fact or law. Having failed to take effect “in that proceeding,” the provision no longer contained any obligation with which a court could order compliance. The trial court’s rationale would suggest that the foreign court modified the agreement, and then ordered the parties to comply with its modification. A review of the above-quoted language, however, reveals that the foreign court nowhere purported to modify the parties’ agreement.

Explaining its rationale, the trial court declared that the ■foreign court had “imputed knowledge” of the substance of the parties’ agreement, and that by directing compliance it had merely given effect to their clearly expressed intent: Id. at 7. Obviously, what really happened is that the trial court, and not the foreign court, attempted to modify the parties’ obligation by reinterpreting their agreement.

In upholding the trial court’s misreading of the documents quoted above, the majority simply notes that “[t]he paramount goal of contract interpretation is to ascertain and give effect to the parties’ intent.” This principle is inapplicable here on two grounds. First, the intent of the parties is irrelevant to the trial court’s recharacterization of the foreign court’s decree. Second, the majority ignores the primary rule of contract analysis: look to the plain meaning of the words. The plain meaning of the words of a support agreement, like those of any contract, cannot be ignored under the guise of interpretation. E.g., Valant v. Valant, 437 Pa.Super. 635, 640, 650 A.2d 1087, 1089 (1994). When the provision failed to take effect at the required time, it dropped out of the contract. Our review of that document reveals neither an ambiguity nor an authorization by the parties that might excuse the trial court’s unilateral modification of this private contract.

While we would therefore find the court’s action improper, we also note that it was entirely unnecessary. The Domestic Relations Code provides in Section 3105 that “an agreement regarding matters within the jurisdiction of the court under this part” may be enforced as an order, unless the agreement provides to the contrary. 23 Pa.C.S.A. § 3105. While a Pennsylvania court may not modify an unmerged agreement for spousal support, it may still enforce such an agreement as if it were its own alimony order, provided that the agreement does not forbid such enforcement.

In defining the scope of jurisdiction, the Code states in Section 3104 that our courts may determine a matter related to a foreign divorce decree where the matter “has not been decided.” 23 Pa.C.S.A. § 3104. We agree with the majority that the case of Doyle v. Doyle should ultimately be distinguished, but find that it remains relevant in part. In that case, the foreign court did not decide the matter of alimony because the parties had decided that matter for themselves. On their own, they decided to create an obligation to pay alimony — not the court, which had no power to impose such an obligation. When the wife sought to enforce that agreement in Pennsylvania as an order, however, we refused because such enforcement was against the terms of the agreement, which we interpreted according to Texas law. 355 Pa.Super. at 388-90, 513 A.2d at 485.

Like Doyle, the case at bar involves an agreement which has taken the matter of alimony out of the foreign court’s consideration. Looking to the terms of the agreement, then, we find that unlike the contract at issue in Doyle, this agreement does provide for the extra enforcement mechanisms, as the parties intended Pennsylvania law to control.

We stress the importance of this distinction: the matter of alimony has been reserved here (and therefore our courts have jurisdiction to consider it) not because the foreign court issued no explicit ruling on the question, but rather because the parties removed the matter from that court’s consideration. If the parties in Doyle had obtained the same decree, but had not entered into any support agreement, then we would still have refused to consider a request for an alimony order — but in that case because of a lack of jurisdiction, not because of a choice of law. Because the parties had not acted to remove that matter from the foreign court’s jurisdiction, that court would necessarily have decided it sub silentio as part of the decree. No explicit ruling would have been necessary, because the question could have had only one answer in a Texas court: no court-ordered alimony. Therefore, we would have no jurisdiction to consider the issue any further.

On the contrary, the majority apparently holds that the reason the foreign court did not decide the matter in the case at bar was because it had no power to order alimony. Slip op. at 6. Under this reasoning, any divorce decree from a state that does not recognize alimony is subject to review and modification by our courts. We believe that the principles of comity and full faith and credit do not allow such a result.

Finding this approach more tenable, and more conforming to the principles of comity and our own precedent than the interpretation that the majority has adopted, we respectfully dissent from that portion of the opinion which affirms the trial court’s transformation of the parties’ private contract into a unilaterally modifiable order.

      . We also note that because Husband entered an appearance in the foreign proceeding, the doctrine of "divisible divorce” could not apply in this case. When applicable, this doctrine allows the parties’ marital status to be adjudicated in a different forum than the economic aspects of the divorce. See Sohmer v. Sohmer, 318 Pa.Super. 500, 505-07, 465 A.2d 665, 668 (1983) (holding that the doctrine of "divisible divorce” is limited to cases of foreign ex parte divorces).

      . Neither Wife nor the trial court have attempted to suggest that the case at bar could be considered part of the same "proceeding” as the foreign suit which ended fourteen years ago.

      . Husband argues that Section 3105, which was enacted in 1988, may not be retroactively applied to the parties’ 1981 agreement. We have already rejected this argument in Jackson v. Culp, where we found such application to be proper and held that "the amendment neither adds to nor subtracts from the substantive rights of the parties under their [agreement]; rather, it merely provides an additional procedural vehicle for the enforcement of their respective rights under their [agreement].” 400 Pa.Super. 519, 523, 583 A.2d 1236, 1238 (1990), alloc. denied, 529 Pa. 621, 600 A.2d 537 (1991); see also Ashbaugh v. Ashbaugh, 426 Pa.Super. 589, 599, n. 6, 627 A.2d 1210, 1215 n. 6 (1993).


author: KELLY, Judge:

text:
    655 A.2d 592
    COMMONWEALTH of Pennsylvania, v. Quentin C. WALCZAK, Appellant, COMMONWEALTH of Pennsylvania, Quentin C. WALCZAK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 31, 1994.
    Filed March 14, 1995.

      Joseph A. Dente, Wilkes-Barre, for appellant.
    Jeffrey B. Snyder, Dist. Atty., Montrose, for Com., appellee.
    Before DEL SOLE, KELLY and HOFFMAN, JJ.
   KELLY, Judge:

In this appeal, we are called upon to determine whether the Common Pleas Court correctly ruled that appellant’s prior acquittal of the offenses of speeding and passing in a no-passing zone by a district justice were nullities where the district justice elicited evidence from appellant but conducted the hearing in the absence of the state trooper who issued the summary traffic citations. We hold that appellant’s subsequent retrial by the Common Pleas Court for the same traffic offenses violated appellant’s double jeopardy rights. Hence, we reverse judgment of sentence and direct that appellant be absolutely discharged.

The relevant facts and procedural history of this case are as follows. On December 26, 1990, appellant was cited by State Trooper Barry L. Stankus for alleged violations of Sections 3307(b) and 3362(a)(2) of the Pennsylvania Motor Vehicle Code pertaining to no-passing zones and speeding. Appellant entered a plea of not guilty to these charges and a hearing was scheduled on January 22, 1991 at 9:30 a.m. before District Justice Watson J. Dayton. On January 7, 1991, a notice of the trial date was sent to both Trooper Stankus and appellant.

At 9:30 a.m., on January 22, 1991, appellant presented himself without counsel before District Justice Dayton. Shortly before appellant’s appearance, at 9:15 a.m., District Justice Dayton received a telephone call from Pennsylvania State Police Sergeant Joseph Fawcett indicating that Trooper Stankus was on a call and would not be able to be at the District Justice Dayton’s courtroom at 9:30 a.m., but he did not think that Trooper Stankus would be too long with whatever he was doing. District Justice Dayton then asked appellant whether he wanted a continuance or whether he was willing to wait for Trooper Stankus. Appellant requested that District Justice' Dayton dismiss the case. District Justice Dayton informed appellant that he would not dismiss the case and that appellant’s only two .choices were to either wait for Trooper Stankus or accept a continuance. Appellant elected to wait for Trooper Stankus.

District Justice Dayton then asked Sergeant Fawcett to call him as soon as Trooper Stankus was available. At 10:00 a.m., while appellant was waiting in the hall, District Justice Dayton called Sergeant Fawcett to check on Trooper Stankus’ status. Sergeant Fawcett informed District Justice Dayton that Trooper Stankus had not yet returned. District Justice Dayton then asked Sergeant Fawcett to call him back because appellant was sitting in the hall waiting for his hearing. During the next hour, District Justice Dayton did not receive a call from Sergeant Fawcett. At approximately 11:00 a.m., District Justice Dayton oncé again called Sergeant Fawcett and was informed that Trooper Stankus had finished with the incident and would arrive at his courtroom at 11:25 a.m.

At 11:25 a.m., when Trooper Stankus did not appear at the courtroom, District Justice Dayton called the case for trial. District Justice Dayton informed appellant that he was going to accept the officially filed traffic citations as proof that he had been charged with speeding and passing in a no-passing zone and that if Trooper Stankus appeared during the trial, he would be permitted to testify. Appellant then testified as to his version of the events that transpired on December 26, 1990 and offered one exhibit in support of his testimony. At the conclusion of appellant’s case, District Justice Dayton found him not guilty based upon the evidence. District Justice Dayton then circled the not guilty adjudication space on each citation and signed them.

On February 7, 1991, the Commonwealth filed an appeal to Common Pleas Court from District Justice Dayton’s acquittal of appellant. On April 16, 1991, appellant filed a motion to quash the Commonwealth’s appeal to the Common Pleas Court and President Judge Kenneth W. Seamans issued a rule on the Commonwealth to show cause why the motion should not be granted. On April 25, 1991, President Judge Seamans denied appellant’s motion to quash the Commonwealth’s appeal, ruling that because District Justice Dayton did not hear the Commonwealth’s evidence before the defendant’s testimony, he was without jurisdiction to acquit appellant of the two summary offenses. President Judge Seamans then directed the case be continued until 10:00 a.m. on June 27, 1991.

On May 16, 1991, appellant filed an appeal to this Court from President Judge Seamans’ order denying his motion to quash the Commonwealth’s appeal. President Judge Seamans subsequently directed appellant to file a concise statement of matters complained upon appeal pursuant to Pa.R.A.P. 1925(b). Additionally, President Judge Seamans issued an order setting a hearing pursuant to Pa.R.A.P. 1701(b)(4) for the purpose of preserving testimony. Appellant filed his concise statement of matters complained of on appeal on June 7, 1991. On June 10, 1991, a hearing was held before President Judge Seamans. At this hearing, District Justice Dayton testified for the purposes of making a record for this Court that all parties had received notice for the January 22, 1991 hearing at his district justice office. District Justice Dayton also testified that he had convened a proper trial, received evidence and acquitted appellant based upon that evidence. President Judge Seamans then issued an order staying all action in appellant’s case pending the outcome of his appeal. On May 27, 1992, this Court quashed appellant’s appeal. See Commonwealth v. Walczak, 421 Pa.Super. 652, 613 A.2d 31 (1992).

On March 17, 1993, the trial court conducted a bench trial. At this trial, appellant renewed his motion to quash the Commonwealth’s appeal based on his contention that jeopardy attached in the proceeding before District Justice Dayton on January 22, 1991 in which he was acquitted; thus Commonwealth’s appeal from the verdict violated the constitutional prohibition against double jeopardy. President Judge Sea-mans denied appellant’s motion, but directed that District Justice Dayton’s prior testimony be made part of the record.

The trial then commenced. The Commonwealth presented the testimony of Trooper Stankus. Appellant did not testify in this proceeding. The trial court then found appellant guilty of both summary charges. Post-verdict motions for an arrest of judgment or a new trial were argued and denied. Appellant then filed an appeal to this Court which was subsequently quashed by this Court as interlocutory and the case was remanded to the trial court because judgment of sentence had not yet been imposed at the time the appellant’s appeal was filed. See Commonwealth v. Walczak, 435 Pa.Super. 628, 644 A.2d 810 (1994). Upon remand, the trial court sentenced appellant to pay a fine of $66.50 for the passing in a no-passing zone conviction and a fine of $121.50 for the speeding conviction. This timely appeal followed.

On appeal, appellant raises the following issues for our review:

1. WHETHER THE COMMONWEALTH OF PENNSYLVANIA HAS THE RIGHT TO APPEAL AN ADVERSE SUMMARY DECISION MADE BY A DISTRICT JUSTICE CONCERNING VIOLATIONS OF THE PENNSYLVANIA VEHICLE CODE, 75 Pa. C.S.A. § 101, ET SEQ.?
2. WHETHER THE RETRIAL, CONVICTION AND SENTENCING OF APPELLANT VIOLATED HIS RIGHTS AGAINST DOUBLE JEOPARDY AS CONTAINED IN THE UNITED STATES AND PENNSYLVANIA CONSTITUTIONS?
3. WHETHER THE COMMONWEALTH’S APPEAL OF THE NOT GUILTY VERDICT ENTERED BY MAGISTRATE DAYTON WAS FRIVOLOUS, THEREBY ENTITLING APPELLANT TO AN AWARD OF ATTORNEYS’ FEES PURSUANT TO RULE 2744 OF THE PENNSYLVANIA RULES OF APPELLATE PROCEDURE, Pa.R.A.P., RULE 2744, 42 Pa.C.S.A.?

(Appellant’s Brief at 3).

In his first two issues on appeal, appellant contends that the Commonwealth is barred by the principle of double jeopardy from appealing a verdict of not guilty rendered in a properly convened summary trial before a district justice in which evidence was offered by the defendant. Appellant argues that as District Justice Dayton elicited evidence at the January 22, 1991 summary proceeding in which Trooper Stankus, despite notice, failed to appear and acquitted him on the basis of that evidence, the Commonwealth should have been barred from appealing his acquittal to the Common Pleas Court for a trial de novo. Thus, appellant asserts that the trial court committed error by denying his motion to quash the Commonwealth’s appeal based upon its ruling that the January 21, 1991 proceeding before District Justice Dayton was a nullity due to the failure of the Commonwealth’s witness, Trooper Stankus, to appear at this proceeding. Therefore, appellant maintains that the trial court’s verdict of guilt concerning the two summary violations must be reversed and District Justice Dayton’s verdicts of not guilty must be reinstated. We agree.

“It has long been well-settled that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prevents the prosecution from appealing a verdict of acquittal.” Commonwealth v. Maurizio, 496 Pa. 584, 586, 437 A.2d 1195, 1195-96 (1981). “ ‘The [prosecution] may not appeal from a verdict of ‘not guilty’ entered by the trial court in a criminal prosecution and this is so whether the prosecution be by indictment or by summary proceeding.’ ” Borough of West Chester v. Lal, 493 Pa. 387, 392, 426 A.2d 603, 605 (1981) (quoting Commonwealth v. Ray, 448 Pa. 307, 311, 292 A.2d 410, 413 (1972). “ ‘[T]he fact finder in a criminal case has been traditionally permitted to enter an unassailable but unreasonable verdict of “not guilty”.’ ” Commonwealth v. Tillman, 501 Pa. 395, 397, 461 A.2d 795, 796 (1983) (quoting Jackson v. Virginia, 443 U.S. 307, 317 n. 10, 99 S.Ct. 2781, 2788 n. 10, 61 L.Ed.2d 560, 572 n. 10 (1979)). “This rule is such a fundamental precept of double jeopardy jurisprudence that it has been explicitly extended to situations where an acquittal is based upon an “egregiously erroneous foundation.” Borough of West Chester v. Lal, supra 493 Pa. at 392, 426 A.2d at 605 (quoting Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43, 54 (1978). See also Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); Commonwealth v. Tillman, supra. As such, “[a] fact-finder’s verdict of not guilty is accorded absolute finality. It is completely insulated from appellate review.” Commonwealth, Department of Transportation v. Springbrook Transport, Inc., 390 Pa.Super. 308, 311, 568 A.2d 667, 669 (1990) (citations omitted).

Instantly, the trial court held that the proceeding before District Justice Dayton was a nullity because the Commonwealth’s witness failed to appear. The trial court stated that while Pennsylvania Rule of Criminal Procedure 84(a) specifically provides that “[i]f the defendant fails to appear for trial in a summary case, the trial may be conducted in the defendant’s absence,” no like rule exists providing for trial in the absence of the Commonwealth’s witness. We disagree.

Pa.R.Crim.P. 83(b) states: “... in all summary cases arising under the Motor Vehicle Code or local traffic ordinances, the law enforcement officer observing the defendant’s alleged offense may, but shall not be required to, appear and testify against the defendant. In no event shall the failure of the law enforcement officer to appear, by itself, be a basis for dismissal of the charges against defendant.” Thus, Trooper Stankus was not required by law to be present at the proceeding before District Justice Dayton.

Although the proceeding which took place before District Justice Dayton was of an unorthodox nature due to Trooper Stankus’ failure to appear, it was not a nullity. It is a well settled proposition of law that jeopardy attaches in a non-jury trial when the court begins to hear evidence. Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979), cert. denied, 445 U.S. 952, 100 S.Ct. 1602, 63 L.Ed.2d 787 (1980), reh. denied, 446 U.S. 947, 100 S.Ct. 2178, 64 L.Ed.2d 804 (1980); Commonwealth v. Lyons, 395 Pa.Super. 184, 576 A.2d 1105 (1990); Commonwealth v. Arelt, 308 Pa.Super. 236,. 454 A.2d 108 (1982). Thus, where a defendant has been found not guilty at trial, he may not be retried on the same offense. Commonwealth v. Tillman, supra at 398, 461 A.2d at 796-97.

On January 22, 1991, after waiting nearly two hours for Trooper Stankus to appear, District Justice Dayton commenced trial. In this proceeding, District Justice Dayton utilized the traffic citations contained in his files as proof of the allegations against appellant. District Justice Dayton then permitted appellant to testify concerning his version of the events that transpired on December 26, 1990. Based upon this evidence which District Justice Dayton found to be credible, appellant was acquitted of both summary citations. Accordingly, because appellant was acquitted by District Justice Dayton based upon the evidence he submitted, the Commonwealth was barred from filing an appeal for a trial de novo. The fact that Trooper Stankus failed to appear did not render this proceeding a nullity, as his attendance was not required. See Pa.R;Crim.P. 83(b); Commonwealth v. Mihaltian, 41 Pa.D. & C.3d 270, 271 (1986). Therefore, the subsequently held trial de novo should not have occurred and the adjudications of guilt rendered in this proceeding are nullities. Thus, we reverse these judgments of sentence and direct that the verdicts of not guilty handed down by District Justice Dayton in the January 22, 1991 proceeding be reinstated.

In his final issue on appeal, appellant seeks to be awarded attorney’s fees and costs pursuant to Pa.R.A.P. 2744 based upon his contention that the Commonwealth’s original appeal from the January 22, 1991 adjudication in appellant’s favor was frivolous and vexatious. Appellant contends that the Commonwealth should not have appealed the January 22, 1991 adjudications because its appeal ignored well-settled precedent and had no likelihood of success.

An appeal is “frivolous” for purposes of rule permitting the award of attorney’s fees on appeal where it lacks any basis in law or fact; simply because an appeal lacks merit does not make it frivolous. Marino by Marino v. Marino, 411 Pa.Super. 424, 443, 601 A.2d 1240, 1250 (1992); Murphy v. Murphy, 410 Pa.Super. 146, 159-60, 599 A.2d 647, 654 (1991), alloc. denied, 530 Pa. 633, 606 A.2d 902 (1992). In identifying a frivolous appeal, we must determine whether appellant’s arguments will likely succeed and whether continuation of the contest is reasonable. Commonwealth, Department of Transportation v. Springbrook Transport, Inc., supra, 390 Pa.Super. at 316, 568 A.2d at 671; In re Appeal of Affected and Aggrieved Residents, 325 Pa.Super. 8, 15, 472 A.2d 619, 623 (1984).

Instantly, we cannot hold that the Commonwealth’s appeal of the January 22, 1991 adjudications of not guilty for both summary citations lacked any basis in either fact or law. Firstly, we were unable to find in our research any appellate decisions which specifically approved the procedure employed by District Justice Dayton of allowing the trial to proceed in the absence of the Commonwealth’s witness when the Commonwealth’s witness had indicated his willingness to appear. Secondly, there are three Common Pleas Court decisions, one of which was written by our own President Judge Rowley while he was a member of the Beaver County Court of Pleas, in which the Common Pleas Courts have held that when a police officer fails to appear for a summary proceeding, the proper remedy is the dismissal of the citations. See Commonwealth v. Albright, 12 Pa. D & C 4th 326 (1990); Commonwealth v. Fiorini, 75 Pa. D & C 2d 9 (1975); Commonwealth v. Doe, 72 Pa. D & C 2d 570 (1975). Finally, in Commonwealth v. Fiorini, supra, Judge Rowley specifically permitted an “appeal” by the Commonwealth in a situation where the defendant was acquitted by a district justice in a proceeding in which the State Trooper failed to appear and remanded the case to the district justice for a rehearing. Accordingly, we cannot conclude that the Commonwealth’s appeal for a trial de novo lacked any basis in fact or law and that its continuation of the contest was unreasonable under these circumstances. Thus, appellant is not entitled to recover attorney’s fees and costs.

Based upon the foregoing, the judgments of sentence imposed upon appellant for the summary convictions of speeding and passing in a no-passing zone are reversed. The adjudications of not guilty entered as a result of the proceedings which took place before District Justice Dayton on January 22, 1991 are reinstated and appellant is absolutely discharged.

Judgment of sentence reversed; appellant is absolutely discharged.

      . 75 Pa.C.S.A. § 3307(b).

      . 75 Pa.C.S.A. § 3362(a)(2).

      . During this time period, Trooper Joe Scochin was present in District Justice Dayton's courtroom handling another traffic citation for Trooper McGladrie, who was unable to attend court that day.

      . We note that despite Sergeant Fawcett’s assurance that he was on his way, Trooper Stankus never arrived at District Justice Dayton’s office on January 22, 1991.

      . We note that in an appeal from a summary proceeding arising under the Motor Vehicle Code, the law enforcement officer who observed the violation is required to appear and testify. See Pa.R.Crim.P. 86(f).