author: WIEAND, Judge:

text:
    660 A.2d 66
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant v. Frederick M. MARTIN, April J. Martin, Barry Livergood, Richard and Catherine Capper, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 15, 1995.
    Filed May 8, 1995.
    Reargument Denied July 17, 1995.

      Marianne Corr, Warminster, for appellant.
    Jonathan J. Russell, Doylestown, for Capper, appellees.
    Before WIEAND, BECK and BROSKY, JJ.
   WIEAND, Judge:

The issue in this appeal is whether State Farm Mutual Automobile Insurance Company is liable to indemnify its insured, Frederick Martin, for damages caused by intentional acts under a policy providing liability coverage for bodily injury and property damage “caused by accident.” The facts were stipulated by the parties and submitted to the court in an action for declaratory judgment. The trial court held that, even if the insured had acted intentionally and criminally, the damages were accidental from the perspective of the injured claimants; and, therefore, the insurer was required to provide coverage. After careful review of the law in this Commonwealth, we reverse.

Frederick Martin was the owner of a Ford pickup truck insured by State Farm pursuant to a policy providing liability coverage for bodily injury and property damages “caused by accident.” Martin and his wife, April, were separated when, on July 23, 1991, Martin drove to the rental home where his wife was living in Warrington, Bucks County. Arriving about midnight, Martin found his wife’s sons standing beside his wife’s car. Martin twice drove his truck into the rear of his wife’s vehicle; and when his wife emerged from the house, he mounted the lawn with his truck and struck his wife. When the truck became stuck on a brick wall, the sons were able to pull April Martin away from the truck and into the house. Thereafter, Martin drove the truck into the wall of the house three times, causing damage to the property of the landlords, Richard and Catherine Capper, in the amount of $6,294.10. Finally, he drove the truck into collision with a vehicle owned by his wife’s boyfriend. When police were called, he told them he had aimed at his wife but hoped she was alright. His speech was slurred, and he smelled of alcohol. A blood test disclosed that Martin had a blood alcohol level of .26 percent. The trial court based its decision on the assumption that “Frederick Martin intended specifically to injure all of the claimants ... both as to bodily injury and property damage.”

¡, [2] In Pennsylvania, whether bodily injury or damage to property is caused by accident must be determined from the perspective of the insured. Thus, a willful and malicious assault, being an intentional tort, is not an accident. Gene’s Restaurant, Inc. v. Nationwide Ins. Co., 519 Pa. 306, 548 A.2d 246 (1988). As such, it is not covered by a policy agreeing to indemnify against damages caused by accident. Indeed, in such cases, the insurer does not even owe a duty to defend its insured. Id. As the Supreme Court observed in Urian v. Equitable Life Assurance Society, 310 Pa. 342, 165 A. 388 (1933),

[o]ur cases have uniformly held that where the cause of injury or death was an act of the insured, the means which caused the result, to be accidental, must be undesigned and unintentional, that accidental injury or death is an unintended and undesigned result arising from acts done, while injury or death by accidental means is a result arising from acts unintentionally done.

Id. at 346,165 A. at 390. In this Commonwealth the rule is so firmly established that the Superior Court has said it is “irrelevant whether or not [the insured] intended to be bound by the [policy’s] exclusion for intentional torts, since it is against the public policy of this Commonwealth to provide insurance coverage for intentional acts.” Nationwide Mut. Ins. Co. v. Hassinger, 325 Pa.Super. 484, 489, 473 A.2d 171, 173 (1984).

In Hassinger, the insured had driven his vehicle over the curb and across the sidewalk where he had struck and killed a pedestrian. Similarly, in Esmond v. Liscio, 209 Pa.Super. 200, 224 A.2d 793 (1966), an insured had opened his car door for the purpose of hitting a pedestrian, an act found by the trial court to be an intentional assault. The liability insurance policy provided coverage for bodily injury caused by accident. The Court held that there was no coverage for the insured’s conduct because “a person should not be indemnified by insurance against the consequences of his willful, criminal assault.” Id. at 209, 224 A.2d at 798. See also: Germantown Ins. Co. v. Martin, 407 Pa.Super. 326, 595 A.2d 1172 (1991) (no coverage where insured under homeowner’s policy went on shooting spree at home of former girlfriend, causing death and injury to others); Kraus v. Allstate Ins. Co., 258 F.Supp. 407 (W.D.Pa.1966), aff'd, 379 F.2d 443 (3rd Cir.1967) (intentional detonation of dynamite in automobile). Compare: Roque v. Nationwide Mutual Ins. Co., 502 Pa. 615, 467 A.2d 1128 (1983).

When the trial court attempted to find coverage by looking to the perspective of injured third persons, therefore, it ran afoul of precedential decisions holding that whether an act is accidental or intentional must, for purposes of determining coverage, be determined from the viewpoint of the insured. A policy of liability insurance is a contract intended to protect and benefit the insured from liability resulting from unintentional conduct. It is in that context in which the term “caused by accident” must be read. If the bodily injury is caused by an intentional assault and not by accident, the policy does not provide coverage.

Appellees argue that the insured’s conduct was unintentional (and, therefore, accidental) because he was under the influence of alcohol. It is correct that Martin’s speech was slurred, he smelled of alcohol, and a blood test disclosed an alcoholic blood content of .26 percent. However, “while voluntary intoxication may so cloud the mind as to deprive it of the power of pre-meditation and deliberation [ ], it will not prevent the formation of the general intent necessary for the commission of an assault and battery.” Esmond v. Liscio, supra at 208, 224 A.2d at 797. See also: Nationwide Mut. Ins. Co. v. Hassinger, supra, 325 Pa.Super. 484, 473 A.2d 171.

The Cappers argue also that even if Martin intended to injure his estranged wife, he did not intend to injure them. Intent, however, may be transferred from an intended victim to another. Nationwide Mut. Ins. Co. v. Hassinger, supra; Germantown Ins. Co. v. Martin, supra at 333, 595 A.2d at 1175. Therefore, Martin’s act under the circumstances of this case must be deemed an intentional act for which there was no coverage under his policy of liability insurance.

For these reasons, we conclude, after careful review, that the trial court misapplied the established law in this Commonwealth. Its judgment, therefore, must be reversed.

The order entering declaratory judgment in favor of appellees is reversed.

      . For decisions from other jurisdictions, see 72 A.L.R.3d 1090, et seq.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    660 A.2d 68
    COMMONWEALTH of Pennsylvania, v. Kevin THOMPSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1995.
    Filed May 9, 1995.
    Reargument Denied July 10, 1995.

      John T. Drost, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, JOHNSON, and BROSKY, JJ.
   OLSZEWSKI, Judge:

In the evening of August 14, 1991, Charles Jones witnessed a robbery taking place in the alley behind his Walnut Street home in Philadelphia. Stepping out onto his second-story porch, Mr. Jones noticed an old man lying face down in the alley, and a younger man standing over him, striking him with a piece of brick. Mr. Jones cried out, and the assailant looked up and fled. The victim turned out to be his 84-year-old, neighbor Morris Dailey. Mr. Jones’s wife called the police.

Mr. Jones gave a description of Mr. Dailey’s assailant to the police, and then went to the hospital to check on his neighbor. The rather generic description (black male, about 5' 10" or 11", around 140 to 150 pounds, wearing blue pants and shirt) went out on police radio. Half an hour later,.a patrol car found a man who fit the description less than a block away from the alley where the incident occurred. The police picked up the suspect, appellant Kevin Thompson, handcuffed him and put him in the back of their patrol car. They drove to the hospital and brought Mr. Jones down to the parking lot for a one-on-one presentation. While an officer shined his flashlight on the suspect in the back of the car, Mr. Jones looked through the glass and positively identified Thompson as the man he had seen hitting Mr. Dailey with the brick. Thompson was charged with robbery.

The assault left Mr. Dailey with some nasty lacerations and two subdural hematomas. Still, Mr. Dailey recovered sufficiently to be discharged from the hospital five days after his assault. He testified at Thompson’s preliminary hearing that a man tried to take his wallet, and beat him with a brick when he refused. Mr. Dailey did not identify Thompson at the preliminary hearing, however. Soon afterward, Mr. Dailey’s health began to decline, and he went to live with relatives in Ohio. By the late autumn of 1991, he contracted pneumonia and died. The Butler County, Ohio, coroner opined that Mr. Dailey’s decline in health and eventual death were a direct result of the subdural hematomas caused by Thompson’s assault.

Thompson’s charge was amended to include homicide. He was tried and found guilty of second-degree murder and robbery by a jury in May of 1992. After his post-verdict motions were denied and he had been sentenced to the mandatory term of life in prison, Thompson’s privately retained counsel withdrew and present counsel was appointed for this appeal.

I.

Thompson raises two issues, and we will address the second one first. Thompson argues that the Commonwealth failed to prove beyond a reasonable doubt that he caused Morris Dailey’s death. Since Mr. Dailey did not immediately die from the assault, the Commonwealth must prove that his being bludgeoned with the brick started an unbroken “chain of causation” which led to his death. Commonwealth v. Rementer, 410 Pa.Super. 9, 598 A.2d 1300 (1991), alloc. denied, 533 Pa. 599, 617 A.2d 1273 (1992).

The Commonwealth proved causation with the testimony of two expert medical witnesses. Dr. Richard Kauder, who treated Mr. Dailey after the assault, testified that in addition to lacerations and multiple fractures, the beating left Mr. Dailey with two subdural hematomas — blood clots on the surface of his brain. Over time, the hematomas would allow blood to collect and exert pressure on Mr. Dailey’s brain, which would in turn result in a decline in health and other complications. Mr. Jones testified that after the attack, Mr. Dailey’s health did indeed deteriorate to the point where he could no longer care for himself.

At this point, Mr. Dailey’s sister came to take him back to Ohio, where he soon died of pneumonia. Dr. Richard Burkhardt, the Ohio coroner who autopsied Mr. Dailey, testified that Mr. Dailey’s pneumonia resulted from his debilitated condition, which in turn resulted from the subdural hematomas left by Thompson’s assault with the brick. The jury, as fact-finder, was entitled to believe this properly admitted expert medical testimony and find causation. See Commonwealth v. Paquette, 451 Pa. 250, 253, 301 A.2d 837, 839 (1973) (jury may find, upon proper expert medical testimony, that subdural hematoma caused victim’s pneumonia and eventual death). We have no basis for invading the exclusive province of the fact-finder, and Thompson suggests no reason for disturbing its decision.

II.

Thompson’s other claim is that his trial counsel ineffectively represented him by failing to object to the prosecutor’s improper and inflammatory remarks during her closing argument. To appreciate the context of these remarks, we must first review the development of this case.

The sum of the evidence against Thompson consisted of a single presentation identification, when the police brought Mr. Jones to their patrol car, pointed to the handcuffed suspect inside and asked, “Is this the man?” The Commonwealth produced testimony from Mr. Jones, the police officers who picked up Thompson, and the statement of Mr. Dailey at Thompson’s preliminary hearing that the person who had beaten him with the brick was trying to rob him.

Thompson presented numerous alibi and character witnesses, including his boss, Roosevelt Cochran, who ran a contracting business. During cross-examination, the prosecutor revealed that Cochran had a previous robbery conviction and lacked a Philadelphia contractor’s license. Thompson also took the stand in his own defense. Thompson testified that he was in the area of the crime that day because he was working on a stucco job for Cochran. He contended that he was the victim of mistaken identification.

A. Credibility of Witnesses '

At closing arguments, the defense reviewed the character and alibi witnesses who had testified for Thompson, and submitted the possibility of misidentification to the jury. Defense counsel specifically did not challenge Charles Jones’s credibility as a "witness, but only questioned the accuracy of his identification. “I’m not saying [Mr. Jones] is not a believable witness. I'm only saying is he an accurate witness?” N.T. 5/11/92 at 132. Defense counsel also argued that just because a witness offers an alibi for defendant does not necessarily make the witness less credible. With regard to Thompson’s mother and sister, who offered a partial alibi for Thompson, defense counsel stated:

True, these witnesses were related to the defendant in many respects, but when you deliberate, I’d like you to consider the honesty or lack of honesty concerning these alibi witnesses.
sjs ij: % ^
Now true, these are relatives, mother, sister, no question about that. But as you watch them, as you heard them, did they appear to you to be trying to hide something? Did they have a certain believability about them?

Id. at 125, 140.

The Commonwealth mischaracterizes these remarks as attempts to destroy Mr. Jones’s credibility, and bolster the alibi witnesses’ credibility. As the Commonwealth puts it:

... Counsel then directly suggested that Jones was not “an accurate witness” ([N.T. 5/11/92 at 132]).
Defense counsel went on to contrast Jones’ supposedly poor believability with what he believed was the “certain believability” of defendant’s mother and sister (id., 140) and the [sic] “the honesty” of his alibi witnesses (id., 125).

Commonwealth’s letter brief at 11.

Having taken defense counsel’s remarks entirely out of context, the Commonwealth contends that these remarks “opened the door” on the issue of witness credibility, so that the prosecutor was entitled to reply in kind. Id. In her own remarks which followed, the prosecutor argued:

And I submit to you that all of you have listened to the testimony in this case when you heard Charles Jones describe what happened on August 14th, and you heard his words and you watched him testify, and you saw his face and you saw the way he acted. You knew the words were real, you knew he was giving you the truth.
I submit to you, in your heart,, in your mind, when you listened to it, you knew it was real and you knew it was true. When you heard the testimony of Dr. Burkhardt say to you that there was no doubt in his mind that the reason why Morris Dailey is dead today is because of the chain of events that started it. Yes, he died from pneumonia. But the reason why he was in the hospital to get pneumonia was because he had been hit in the head with a brick. The words were real. They were true. Your common sense told you it made sense.
I submit to you further, that when you have listened to the testimony that came from the stand on the behalf of the defendant, it made no sense. It did not have the ring of truth. If you hear that testimony and those people said those things to you in your homes or at work, you would not believe what they said to you. Because your ears could not believe what you were hearing. The defense in this case makes no sense.

N.T. 5/11/92 at 150-153.

It is well settled that the prosecution may not express her personal belief as to witnesses’ credibility, but may only argue that the evidence presented supports an inference that a witness did or did not tell the truth. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991). A prosecutor may not insulate an otherwise improper remark merely by prefacing it with the words, “I submit to you.” Id. at 126, 588 A.2d at 1307. Of course, a prosecutor is entitled to respond to credibility comments of defense counsel. Commonwealth v. Barren, 501 Pa. 493, 497, 462 A.2d 233, 235 (1983) (credibility comments permissible when motivated by defense’s prior attacks on Commonwealth’s witnesses’ credibility); Johnson, supra (prosecutor will be given more latitude in closing remarks in order to respond to defense counsel’s arguments).

There can be no question that any improper prosecutorial remarks cannot be justified as a fair response to similar arguments by the defense. Here, the defense made no claims about who was credible or who was telling the truth, despite the Commonwealth’s specious attempt to put that spin on the record. Rather, we must address the prior question of whether the prosecutor improperly injected her personal beliefs when she bluntly told the jury that they should believe her witnesses and not Thompson’s, because her witnesses were telling the truth and Thompson’s were not.

We must disagree with Thompson that such an argument is tantamount to the prosecutor expressing her personal beliefs. The prosecutor began by arguing that Charles Jones was worthy of belief because his demeanor on the stand comported with a person telling the truth. So long as the prosecutor’s credibility comments are based on observable events at trial, such as testimony and other evidence, they will be permitted. Barren, supra.

After discussing why she thought Mr. Jones’s demeanor made him a credible witness, the prosecutor continued to make assertions about the truth value of testimony, although now without even trying to base them on the evidence. The prosecutor’s assertions, however, were just that — bald assertions. They were not statements of her personal opinion. The prosecutor did not try to prove the truth of certain testimony by telling the jury that she believed it was true, since the jury would likely credit the Commonwealth’s attorney as a persuasive authority on such matters. Rather, the prosecutor argued that her witnesses were telling the truth because their testimony corresponded with reality. Of course, the question of what really happened was for the jury to decide. In asserting the truth of her own witnesses’ testimony and the falsity of Thompson’s, the prosecutor was merely stating an obvious point which she had implicitly argued all along, and upon which the entire trial hinged: that the Commonwealth’s version of events was true, and Thompson’s version was not. The tautological bluntness of such an argument may be surprising, but it is not improper.

B. Inflammatory Remarks

The prosecutor ended her summation thus:

Morris Dailey cannot rise from the grave and say to you what happened to him. The only person who can speak for him to you is me. And I am his voice. And I ask you for justice. I ask you to answer for his death, to make the man who did this responsible. He lived in this city with no family. The only family he had was Charles Jones, who did what any son or brother would do. We are his family now. You are his brothers, you are his sisters, and you are his grandchildren. He is the grandfather that we knew growing up. And I ask, ladies and gentlemen, to hold this man here accountable ...

N.T. 5/11/92 at 170.

Thompson argues that these remarks served only one purpose: to inflame the passions of the jury. The defense in this case never tried to downplay the gravity of the crime, or its brutal nature. Thompson’s defense was mistaken identification. Hence, Thompson contends that the prosecutor’s references to the victim, to herself as the victim’s voice, and her plea that the jurors consider the victim as a close relative were a wholly unwarranted and improper appeal to the jury’s emotions. See Commonwealth v. Bricker, 506 Pa. 571, 585, 487 A.2d 346, 353 (1985).

In its appellate brief, the Commonwealth offers two spurious excuses for the prosecutor’s choice of rhetoric. It contends that the prosecutor did not focus her improper rhetoric on the defendant because she only asked the jury “to make the man who did this responsible.” Commonwealth’s brief at 25. Of course, only six sentences later in her summation, the prosecutor asked the jury “to hold this man here accountable,” just as she had previously in the closing argument. See, e.g., N.T. 5/11/92 at 149.

The Commonwealth also argues that the remark “that the jurors were now [the victim’s] family was a proper reply to defendant’s attempt — entirely unsupported by the evidence— to blame the victim’s death on his family (id., 138).” Commonwealth’s brief at 23. As with the earlier remarks on credibility, a review of defense counsel’s closing reveals that he said no such thing:

Now, the man died from bronchial pneumonia. No question he was in a weak condition. Is there clear enough evidence that you can prove beyond a reasonable doubt that he died late November of 1991 as a result of the attack that took place three months earlier? If he had been a younger man, it might have been more understandable. But amongst the elderly, a lot of things could have happened that his family didn’t know about when he was in his home, when he was trying to take care of himself.
So you’ve got to conclude, you’ve got to conclude, after having heard the medical testimony, whether it was clear cut enough for you to determine beyond a reasonable doubt that the man died as a result of this attack. Because the death certifícate has the primary cause of left bronchial pneumonia.

N.T. 5/11/92 at 137-38. As the record reveals, defense counsel was only questioning the sufficiency of the Commonwealth’s causation evidence. He never tried to blame Morris Dailey’s death on his family. The prosecutor’s closing rhetoric was not a response to any argument proffered by defense counsel, despite the Commonwealth’s attempts to distort the record. Thus, the “I am his voice” and “you are his grandchildren” lines must stand or fall on their own.

We do not think, however, that such rhetoric crosses the bounds of permissible advocacy. It may well have been chosen by the prosecutor to play to the jury’s sympathy for the victim and secure a conviction. At the same time, we think it falls within the wide latitude which our high court has countenanced as acceptable rhetorical flair in a closing argument. Cf Commonwealth v. Marshall, 534 Pa. 488, 500-04, 633 A.2d 1100, 1106-07 (1993) (prosecutor’s plea that the jury “close the eyes of the dead” victims with their verdict held permissible).

C. Defense Strategy

Thompson also argues that the prosecutor improperly disparaged defense counsel’s strategy. After reviewing the record, we agree with Thompson that some of the prosecutor’s remarks were intemperate, e.g., “You should be insulated by that kind of defense tactic.” Id. at 168. We must acknowledge, however, that they were fair responses to the arguably inconsistent defense strategy of challenging both the commission of the crime and causation, and also to defense counsel’s implication that Morris Dailey was asked but failed to identify Thompson at his preliminary hearing. The defense is always entitled to argue in the alternative, but should expect that such a tactic will not go without some comment from the prosecution.

We now turn to two passages of the prosecutor’s closing which were wholly improper.

D. Character Witnesses

In the course of his defense, Thompson put numerous character witnesses on the stand. The best of these witnesses was Ms. Edith Goodman, a college-level math teacher. She testified that she had known Thompson since he was a baby, that he was not a violent person, and that he would often do handyman-type jobs for elderly people in the neighborhood for a few dollars. N.T. 4/8/92 at 41-44. On cross-examination, the prosecutor established Ms. Goodman did not know about Thompson’s doings outside of her neighborhood, and that she was not offering an alibi for him. Id. at 44-46. This was the extent of the short cross-examination.

In her closing, the prosecutor tried to undercut Ms. Goodman’s credibility by arguing that she did not know that Thompson worked for a contractor with a prior robbery conviction and no contractor’s license:

She’s a nice woman, but she doesn’t know anything about this man when he leaves that block, she doesn’t know who his friends are. She does not know what he was doing on August 14th. She does not know that he works for a man who’s been convicted of robbery. She does not know that he works for a man who has no license to work in Philadelphia.

N.T. 5/11/92 at 165.

Of course, the prosecutor had never asked Ms. Goodman if she knew anything about Thompson’s employer. Thus, while the first two sentences of the above remark were permissible, the last two sentences have no basis in the evidence. Supplying answers to unasked questions is not a proper method of challenging a character witness’s knowledge of the defendant.

We also note that the issue of Roosevelt Cochran’s criminal record and lack of a contractor’s license was relevant for the sole purpose of cross-examining him. In her closing argument, the prosecutor was entitled to mention Mr. Cochran’s record only when discussing his credibility. But the prosecutor seized this opportunity — her summation of the testimony from Thompson’s most persuasive character witness — to intentionally describe Thompson as someone who “works for a man who’s been convicted of robbery.” Thus, the prosecutor’s baseless attack on this character witness doubled as an improper attack on Thompson’s character as well. Such guilt-by-association tactics have been expressly condemned by our high court. Commonwealth v. Johnson, 516 Pa. 527, 533 A.2d 994 (1987).

Our review of the record also reveals yet another passage of the prosecutor’s closing which we believe was wholly improper. In addition to the several character witnesses who testified that Thompson helped out the elderly people on the block by doing odd jobs, Thompson’s mother testified that on the day of the incident, Thompson had come into her home, greeted her, gotten a drink and then left. Thompson’s sister, who cared for her mother, also noted Thompson’s brief visit that day. The prosecutor twisted this testimony into a totally baseless attack on Thompson’s character:

The defense has presented the defendant in this case as the man who takes care of all the elderly people. He takes care of strangers’ mothers and fathers, and he would do all the work for them. He’s just a wonderful son. Well, did you hear that from his mother? When you heard his mother testifying, you could tell from what she was saying who she counted on. She counts on her daughter. That’s who takes care of her.
And what did she describe the defendant doing on August 14th when he came in the house? He came in to get some juice, said hi, and walked out. Does that sound like a dutiful son to you? I submit to. you that it does not.

N.T. 5/11/92 at 155. The prosecutor went s.o far as to call Thompson “pathetic” for dragging his mother through the ordeal of his trial. Id.

Thompson was on trial for allegedly killing Morris Dailey, not for the way he took care of his mother. Thompson made no claims about how he and his sister apportioned responsibility for the care of their aging mother. This utterly gratuitous character attack reminds us of Albert Camus’ existentialist novel The Stranger, where the narrator is convicted of a murder not because of evidence that he committed the crime, but because he failed to produce a socially acceptable display of grief at his mother’s funeral.

In sum, our review of the closing arguments convinces us that while many of the contested passages were permissible advocacy, two were not: using Roosevelt Cochran’s criminal record to attack Edith Goodman’s credibility and Thompson’s character; and attacking Thompson for allowing his sister to care for their mother. In reaching this conclusion, we must emphasize that the Commonwealth did not help its case by repeatedly quoting the trial transcripts out of context in its appellate brief. While we might expect defendants to play games with the record, the prosecutor’s office should not stoop to such disingenuous tactics.

III.

We must now consider whether defense counsel can be considered ineffective for having failed to object to either of these remarks. Improper closing arguments will not -often merit a new trial. It is even rarer that a defendant can meet the heavier burden of showing that trial counsel was ineffective for failing to object. Many individual hurdles must be cleared: the remarks must first be genuinely prejudicial to the defendant; this prejudice must be serious enough that it could not be cured by the court’s instructions; counsel must have had no reason for failing to object to the remarks; and finally, it must appear that objecting would have done some good— that is, counsel’s failure to object denied the defendant a fair trial. See, e.g., Commonwealth v. Baker, 531 Pa. 541, 560, 614 A.2d 663, 673 (1992) (ineffectiveness standard); see also Bricker, 506 Pa. at 587, 487 A.2d at 354 (finding counsel ineffective for failing to object to prosecutor’s improper closing argument).

In considering the effect of prosecutor’s closing argument in the context of this trial, we must keep in mind the relative strengths of the cases. This was not a typical case where the Commonwealth presented overwhelming evidence of guilt, and the defendant merely put the Commonwealth to its proofs. On the contrary, the Commonwealth’s evidence in this case was slight — a single presentation identification.

In response, Thompson put on numerous character witnesses, including neighbors who testified that he had always been a good kid who helped out the elderly. Thompson’s 'mother and sister offered a partial alibi. Finally, Thompson took the stand himself. He acknowledged that he happened to be in the area that day on a stucco job, and that he and Charles Jones had seen each other. He simply and consistently argued that Mr. Jones must have mistaken him for the person who attacked Morris Dailey. The Commonwealth could not contradict Thompson’s testimony that he was a gainfully employed, peaceable person who was in the area on legitimate business.

Closing arguments revealed what a thin case the police had handed to the district attorney’s office. Naturally, the prosecutor insisted that the Commonwealth had an “extremely strong” case. N.T. 5/11/92 at 167. After so stating, the prosecutor recited all of the Commonwealth’s evidence in a single paragraph: namely, Charles Jones’s presentation identification of Thompson and subsequent in-court identifications. Id. Our review of the record leaves us with no doubt that the prosecutor tried to cover a weak case with strong rhetoric. She deliberately sought to diminish the impact of Thompson’s best character witness by supplying answers to unasked questions, and she tried to impugn Thompson’s character with associational guilt and irrelevant criticism of how he cared for his mother.

Thompson presents a meritorious claim. His counsel should have raised some objection to these two lines of grossly improper argument. “A prosecutor must be free to present his arguments with logical force and vigor. But, while he may strike hard blows, he is not at liberty to strike foul ones.” Commonwealth v. Green, 417 Pa.Super. 119, 127, 611 A.2d 1294, 1298 (1992) (quoting Commonwealth v. Cherry, 474 Pa. 295, 301-03, 378 A.2d 800, 803-04 (1977); other citations omitted). As our review of the record documents, the prosecutor got in at least two foul blows; Thompson’s counsel should have complained to the judge, who refereed the bout.

Nor can we posit any tactical reason for counsel’s decision to let the improper attacks go by. The defense presented a solid, consistent case of misidentification. The defense did not try to downplay the brutal nature of the crime, or argue that Thompson was a perfect human being. Counsel could have objected to the prosecutor’s improper commentary on Edith Goodman’s testimony and unwarranted attacks on Thompson’s character without fear, because all of these matters were irrelevant to the question of mistaken identification. Furthermore, we think that the offending remarks were of sufficient potency to have affected the outcome of the trial. Where the evidence of guilt is far from overwhelming, we should be especially hesitant to brush off a starkly improper closing speech as harmless. Green, supra at 128, 611 A.2d at 1299; see also Brisker, supra, 506 Pa. 571, 487 A.2d 346.

Thus, our review leads to the conclusion that the prosecutor made two inflammatory and improper remarks in her closing speech, and that counsel was ineffective for failing to object. We believe that the prejudicial effect of these remarks was cured, however, when the trial court carefully instructed the jury that counsel’s closing arguments were not evidence. N.T. 5/11/92 at 195. The jury is presumed to have followed this instruction. Commonwealth v. Baker, 531 Pa. 541, 558, 614 A.2d 663, 672 (1992). “Only where the unavoidable effect of the remark creates such a bias and hostility that the jury could not render a true verdict will reversal be mandated.” Id. (citing Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975)). We do not think that this high threshold has been met. While the prosecutor may have struck some foul blows, they were not incurably foul. We therefore affirm the judgment of sentence.

Affirmed.

JOHNSON, J., concurs in the result.

      . We also note that at the hearing on post-trial motions, Thompson’s counsel essentially admitted that a pathologist who he had asked to review the trial record could find no medical basis for challenging the jury’s finding on causation. N.T. 10/14/93 at 13-14.


author: BECK, Judge:

text:
    660 A.2d 76
    In re Donald T. JONES, Deceased. Appeal of Aaron WALKER, William Walker, Marion Walker Padden and John Morris.
    Superior Court of Pennsylvania.
    Argued Feb. 15, 1995.
    Filed May 11, 1995.
    Reargument Denied July 17, 1995.

      William P. Hogan, Easton, for appellant.
    Jeffrey E. Piccola, Harrisburg, for Strader, Hatfield and Munley, participating parties.
    James J. O’Connor, Scranton, for Bordi, participating party.
    Before WIEAND, BECK and BROSKY, JJ.
   BECK, Judge:

The issue is whether, in an intestacy proceeding, Section 3521 of the Probate, Estates and Fiduciary Code permits the trial court to order the original distributees to return a portion of their distribution in order to satisfy the later valid claims of additional heirs discovered after the confirmation of the account. The trial court ordered the original distributees to return a portion of their distribution and we affirm.

Donald T. Jones died intestate on November 26, 1989. Appellee Peter Bordi (the “administrator”) applied for and received Letters of Administration on November 29,1989. No bond was required. Advertisement began on December 5, 1989, and a First and Final Account was filed on February 23, 1990. The five original heirs were maternal first cousins of the decedent: Aaron Walker, William Walker, Marion Walker Padden, John Morris, and Thomas Walker. A Supplemental Account was filed on March 28, 1990, and the account was approved by the court on April 24, 1990. A Decree of Distribution and Adjudication was confirmed absolutely on May 7, 1990. The Administrator made actual distribution of $72,431.28 to each of the maternal cousins by May 29, 1990.

About three weeks after distribution was made, on or about June 20, 1990, counsel for the administrator received a letter from counsel for appellee Fiduciary Research, Inc. (“FRI”). The letter advised that FRI had been assigned the interests of three paternal cousins who are additional heirs to the estate. Upon receipt of this correspondence, administrator’s counsel contacted the original distributees by telephone, and also mailed each of them FRI’s letter dated June 21, 1990.

The administrator’s letter stated:

As you were recently informed, there is the possibility of additional heirs who may have entitlement to share in the Estate of Donald T. Jones.
Although distribution has been made in accordance with Court Order, it is advisable that, in order to save future costs and aggravation, you should secure the monetary distribution you recently received until this matter is resolved.
Specifically, if there were an additional five (5) heirs, there is a potential that each of the heirs who have received distribution, would have to divide his or her distributive share by one-half.
Enclosed is a copy of the letter I received from Attorney Morris [counsel for FRI] and the genealogical chart he provided.
Be assured that we will require the strictest proof of these potential claims.

I will keep you advised of developments in this matter. Later that month, administrator’s counsel arranged a meeting with the five original distributees to discuss the apparent existence of additional heirs, and asked each to “bring to this meeting a check for half of the amount that has been tendered to you, or $36,142.58, which will be deposited in an interest-bearing account until these claims are resolved.” None of the appellants turned over any of the funds to the administrator. Instead, they retained counsel.

On July 15, 1991, about fourteen months after the account was confirmed, and about thirteen months after the original distributees were notified, FRI filed a Petition for Review and Rehearing pursuant to 20 Pa.C.S. § 3521, Probate, Estates and Fiduciary Code, on behalf of the additional heirs, appellees Gwendlyn Jones Strader, Lois Jones Hatfield and Harriet Jones Munley. Section 3521 provides:

If any party in interest shall, within five years after the final confirmation of any account of a personal representative, file a petition to review any part of the account or of an auditor’s report, or of the adjudication, or of any decree of distribution, setting forth specifically alleged errors therein, the court shall give such relief as equity and justice shall require: Provided, That no such review shall impose liability on the personal representative as to any property which was distributed by him in accordance with a decree of the' court before the filing of the petition. The court or master considering the petition may include in his adjudication or report, findings of fact and of law as to the entire controversy, in pursuance of which a final order may be made.

Appellees, in their Petition, requested that the original distribution be reviewed and amended, and claimed that instead of a lk division to each original distributee, the redistribution should reflect an equal lk share for each of the eight first cousins.

After a two day hearing, the master made recommendations based upon his findings of fact and conclusions of law including, inter alia, the factual findings that the additional heirs were genuine first cousins of the decedent, and that each original distributee still retained a significant portion of the inheritance. The master concluded that the Jones estate should be redistributed to reflect equal xh shares to each cousin. Exceptions were filed. Based upon the master’s report, the court denied the exceptions and entered an order directing the original distributees to return certain funds so that the proposed redistribution could be accomplished. This appeal followed.

Standard and Scope of Review

Our scope of review in this appeal from an Orphan’s Court decree is limited. We will not disturb the trial court’s findings absent manifest error; we may modify the decree only if the findings upon which the decree rests are unsupported by the evidence or if there has been an error of law, an abuse of discretion or a capricious disbelief of competent evidence. Appeal of Gannon, 428 Pa.Super. 349, 631 A.2d 176 (1993). Our review of the record reveals that the court’s factual findings were indeed supported by the evidence.

Nonetheless, appellants argue that the trial court erred in ordering them to refund certain money for redistribution to the appellees because the appellees delayed too long in filing their Petition to Review and therefore should be barred from recovery by res judicata and laches.

We first note that review of a confirmed account or distribution traditionally is granted as of right only where (1) there are errors of law appearing on the face of the record; (2) new matter has arisen since the confirmation of the account or decree; or (3) where justice and equity require a review and no person will suffer thereby. Estate of Roart, 390 Pa.Super. 38, 568 A.2d 182, 185 (1989). Clearly, in this case the review was properly allowed on the basis that “new matter” had arisen in the person of each additional heir.

The Applicable Law

We next examine the issue of whether the court, under cii'cumstances such as these, may order original distributees to refund part of their inheritance so that it may be redistributed to newly discovered heirs. In order to answer this question we have traced the relevant statutes and the case law. Based on language in the current statute we conclude that the trial court is permitted to order original distributees to return part of their distribution.

Appellants, in their arguments to the contrary, rely on a number of decisions which held that a court could not, in the absence of fraud, order the return and redistribution of the decedent’s property after a distribution had already been made. See, e.g., Downing v. Felheim, 309 Pa. 566, 164 A. 598 (1932); Ferguson v. Yard, 164 Pa. 586, 30 A. 517 (1894).

However, each of the cases cited by appellants was decided in accordance with earlier statutes that expressly precluded the review of a decedent’s account after distribution was made, in the absence of fraud. For example, the relevant statute enacted in 1840 provided that:

[I]t is peremptory on the court to grant a bill of review, upon the application of an executor or administrator, alleging error in the account, or any person interested, supported and sustained by oath of the applicant at any time within five years after final confirmation of the account; provided the balance so decreed shall not have been actually paid by the executor or the administrator. This is the only exception, and would seem to be the only matter upon which the discretion or judgment of the court can find excuse or justification in refusing to grant review.

Bishop’s Estate, 10 Pa. 469, 471 (1849) (emphasis in original). See also Bear’s Estate, 162 Pa. 547, 29 A. 856 (1894); White’s Estate, 249 Pa. 115, 94 A. 470 (1915).

Section 48 of the Fiduciary’s Act of 1917 also did not permit review after the distribution had been made. Downing, 309 Pa. at 572, 164 A. at 600. See also Ferguson, supra, 164 Pa. 586, 30 A. 517 (a voluntary payment by an administrator cannot be recovered back in the absence of fraud or an agreement to refund in case of overpayment); Estate of Mack, 111 Pa.Super. 20, 169 A. 468 (1933) (previous distribution barred petition to review). Cf. Estate of Turnbull, 88 Pa.Super. 482 (1926) (review permissible where no payment had yet been made).

Section 48 was in turn replaced by section 721 of the Fiduciary’s Act of 1949, codified at 20 P.S. § 320.721. Thereunder, the court could give “such relief as equity and justice shall require,” but the court was specifically not authorized to grant review “as to any property distributed by the personal representative in accordance with a decree of court before the filing of the petition.” 20 P.S. § 320.721 (emphasis added). See Estate of Smith, 38 Erie L.J. 1, 11 (1954).

Most significantly for the instant matter, section 721 was amended in 1970. Act No. 108, § 4, P.L. 336, May 5, 1970. The 1970 amendment removed the language that precluded review after distribution. This new version of section 721, which was later recodified at the present 20 Pa.C.S. § 3521, permits the court to “give such relief as equity and justice require.” Unlike the previous statutes it does not bar review after distribution. The statute enumerates the sole limit to the permissible relief as follows:

Provided, That no such review shall impose liability on the personal representative as to any property which was distributed by him in accordance with a decree of court before the filing of the petition.

20 Pa.C.S. § 3521.

In light of the fact that the bar in the previous statute was not reenacted we hold that the legislature intended to change the statute to permit review even where property has been distributed. The sole prohibition protects the administrator where his or her payment was sanctioned by the court, as in this case.

We have found no binding decisions, nor have the parties directed our attention to any, that dispose of facts such as ours under the current statute. Under the current statute, the right of additional heirs to obtain review by the court and relief from original distributees within five years from confirmation of the account is limited only by the court’s determination of “equity and justice.” The statute does not create a bar against ordering the return and redistribution of previously distributed property.

In this case, the master heard testimony from all interested parties and recommended that the original distributees be ordered to refund part of the inheritance so that redistribution to the newly discovered heirs could be accomplished. He found that the newly discovered heirs did not unduly delay in asserting a claim for their intestate portion of the estate, and that any prejudice suffered by appellants was attributable to their own actions and not to any delay by appellees.

In summary, we find that the trial court did not abuse its discretion in ordering that appellants return part of the distribution made to them in order to satisfy the later valid claims of the additional heirs discovered after confirmation of the account.

Res Judicata

Appellants challenge the decree on the basis of res judicata and laches. Res judicata applies only where the previous proceeding and the current matter share (1) identity of things sued for; (2) identity of causes of action; (3) identity of parties; and (4) identity of the quality or capacity of the 'parties suing or being sued. See, e.g., City of Pittsburgh v. Zoning Board, 522 Pa. 44, 559 A.2d 896 (1989); Ashbaugh v. Ashbaugh, 426 Pa.Super. 589, 627 A.2d 1210 (1993). Obviously, the newly discovered heirs were not involved in the proceedings that culminated in the May 1990 distribution decree. Appellants themselves concede that the original distribution decree “is res judicata between Administrator and Appellants.” Appellants somehow argue from this correct legal conclusion that the “omitted heirs, having been no party to the original account proceedings,” are entitled only to monies which may remain in the administrator’s hands. We do not see how the decree, to which the additional heirs were not parties, could be res judicata as to them. This argument therefore fails.

Laches

Appellants also challenge the decree on the basis of laches. The decedent’s account was finally confirmed on May 7, 1990. FRI initially contacted the additional heirs on May 22, 1990. FRI then contacted the estate’s attorney who contacted the original distributees on June 20, 1990. The Petition for Review was not filed until July 15, 1991, about fourteen months after the estate was confirmed and the additional heirs were informed about their potential claim. Laches applies to bar recovery by an individual who knows of the existence of a cause of action and yet delays unreasonably in pursuing it; there must be a lack of due diligence and resulting prejudice to the other party. Brodt v. Brown, 404 Pa. 391, 172 A.2d 152 (1961); Snyder v. Queen Cutlery Co., 357 Pa.Super. 456, 516 A.2d 71 (1986).

Although appellees filed their Petition for Review well within the five year statute of limitations set forth in 20 Pa.C.S. § 3521, appellants point out that Macpherson’s Estate, 260 Pa. 492, 103 A. 887 (1918), instructs “a delay for less than the period of the statute of limitations may be a bar to relief, and that each case must be judged by its own facts and circumstances in determining whether the suitor is concluded by delay from asserting his rights.” Id. at 503, 103 A. at 890.

“The application of the equitable doctrine of laches does not depend upon the fact that a certain definite time has elapsed, but whether, under the circumstances of the particular case, the complaining party is guilty of want of due diligence in failing to act to another’s prejudice.” Estate of Marushak, 488 Pa. 607, 413 A.2d 649, 651 (1980) (citing Wilson v. King of Prussia Enterprises, Inc., 422 Pa. 128, 221 A.2d 123 (1966); Leedom v. Thomas, 473 Pa. 193, 373 A.2d 1329 (1977)). In this case, the court concluded that appellees were not barred by laches from asserting their right to the monies left by their cousin. We find no error in this determination.

FRI contacted the additional heirs by letter dated May 22, 1990, about the possibility of an inheritance. The original distribution to appellants was effected by May 29, 1990. The “new” cousins did not receive any additional information about Donald Jones’s death until they signed and returned their contingent fee agreements to FRI. At this point, FRI contacted the administrator about the additional cousins by letter dated June 18, 1990. The administrator’s counsel in turn notified the original distributees about this development in late June 1990, and warned them to escrow their newly received inheritance.

However, despite their knowledge that other heirs might have a valid claim, appellants spent part of the money received. It appears from the record that FRI promptly notified appellants of the new heirs’ claim. Essentially, it was appellants’ refusal to return or even escrow any part of the funds that triggered this legal action. Appellees filed their Petition for Review little more than a year after they knew about their claim. We agree with the court that appellees acted diligently, and therefore any prejudice that appellants suffered cannot be attributed to appellees’ lack of diligence, but must be attributed to appellants’ own actions.

We conclude that the trial court’s order was equitable, and did not constitute an abuse of discretion or an error of law.

Order affirmed.

      . This filing was technically premature. Section 3501.1 of the Probate, Estates and Fiduciary Code provides that "[a] personal representative may file his account at any time after four months from the first complete advertisement of the original grant of letters, but shall not file it earlier unless directed to do so by the court.” 20 Pa.C.S. § 3501.1 (emphasis added). Appellants vaguely argue that this irregularity should somehow nullify the appellees’ claim to the inheritance. We note, however, that it was not until appellees filed their Petition for Review that appellants voiced any objection to the procedures utilized by the administrator. There were several junctures at which such objection could have been raised, particularly in exceptions to the original distribution order. We agree with the master’s determination below that this issue is waived. In any event, even if the administrator had waited the requisite time to file his account, there is no showing that the additional heirs would have been found earlier. Moreover, had the additional heirs been involved from the beginning, appellants simply would have received the same % distribution awarded in the order they now challenge.

      . Thomas Walker died during the pendency of these proceedings. No substitution or appeal has been filed on his behalf.

      . This was less than the total amount due the cousins according to the first decree. The administrator apparently retained the balance of each total award of $75,631.28 for certain expenses.

      . FRI had previously sent the following unsolicited letter dated May 22, 1990 to appellees, the additional heirs:

        We locate missing heirs to estates. You are one such heir. A substantial inheritance awaits heirs who make timely claims.
      We are so sure of your stake in an existing estate that we are willing to prove your interest at our own expense. All we need is your assurance, [Mrs. Hatfield], that we will be rewarded when your inheritance is paid to you. Please read the enclosed agreement.
      As you can see, if you receive no money, you owe us nothing. I promise you will have no expenses at any time. We disclose details about estates only after receiving agreements. This shields us from heirs who would take unfair advantage of our genealogical achievements.
      After we receive your agreement we will be able to obtain further information such as the expiration date for claims, or when you may expect to receive your inheritance (after we validate your claim). Such information is unavailable to us without your cooperation, so I urge you to send your agreement today....
      A postscript states “I would not have wasted time locating you if I was not 99% certain of your opportunity to collect an inheritance.” The agreement includes a partial assignment of rights and provides that FRI’s fee is 35% of the inheritance obtained. Only upon signing and returning their assignment agreements did the appellees discover in a June 11, 1990 letter from FRI that their first cousin Donald Jones had died intestate.

      . This equal division is in accordance with the intestacy law, which provides that first cousins, who are in the same degree of consanguinity to the decedent, shall take in the same degree. 20 Pa.C.S. § 2104.

      . We note that there is no allegation of fraud by the cousins in this case.

      . In fact, another section of the Decedents, Estates and Fiduciaries Code apparently authorizes refund and redistribution as a possible remedy where additional distributees, previously unknown, appear:
      § 3540. Absentee and additional distributees
      (a) Distributions due absentees.—
      (1) If the continued existence or whereabouts of an heir devisee or legatee who once existed cannot be ascertained at the time of the audit of the personal representative’s account, the court ... shall direct that any property distributable to the absentee shall be converted into money that shall be paid into the State Treasury, through the Department of Revenue. The moneys shall be held in a custodial capacity subject to refund, without appropriation,----
      (b) Possibility of additional distributees. — If the existence of a person or persons would affect the distribution of an estate but there is no proof that such a person even existed, and the court is satisfied that all reasonable steps have been taken to determine whether such a person existed, the court may award distribution of the estate to those who would be entitled if no such person existed, with or without refunding bonds. Any such bond shall be without security, shall be in such form and amount as the court directs, shall be executed by each distributee and filed with the clerk, and shall provide that if, within seven years or any shorter period fixed by the court, it is later established that there is an additional person or persons entitled to share in the distribution of the estate, the distributee upon demand will return such portion or all of the property received by him as the court may direct or, if it has been disposed of, will make such restitution as the court deems equitable----
      20 Pa.C.S. § 3540 (emphasis added). There is no indication that this procedure was considered by the court below, prior to distribution in accordance with the initial decree, and the parties do not cite the statute. It seems that the provision always applies, since the existence of unknown persons always "would affect the distribution of an estate.” § 3540(b). In any event, it is not clear why, if "there is no proof that such a person even existed,” known distributees or the personal administrator would invoke the procedures described. This provision seems to create a precautionary measure which is voluntary in nature. We have found no relevant cases citing the statute.
      We also note that several provisions in the Uniform Probate Code (which Pennsylvania has not adopted) apparently authorize refund and redistribution where additional heirs come forward after distribution. Section 3-909 provides that "[ujnless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitation, a distributee of property improperly distributed or paid, ... is liable to return the property improperly received and its income since distribution.” If the distributee has disposed of the property, "he is liable to return the value as of the date of disposition." Uniform Probate Code, Uniform Laws Annotated (West 1983) (Supp.1994). Section 3-1006 also provides that:
      Unless previously adjudicated in a formal testacy proceeding or in a proceeding settling the accounts of a personal representative or otherwise barred, the claim of a claimant to recover from a distributee who is liable to pay the claim, and the right of an heir or devisee, or of a successor personal representative acting in their behalf, to recover property improperly distributed or its value from any distributee is forever barred at the later of three years after the decedent's death or one year after the time of its distribution thereof, ... This section does not bar an action to recover property or value received as the result of fraud.
      Uniform Probate Code § 3-1006. These authorities appear to permit return and redistribution under circumstances similar to those in this case.

      . The record contains no evidence, and no claim is made, that either set of cousins knew about the other, or that the appellees even knew of Donald Jones’s death until FRI contacted them.

      . The master nonetheless found that each appellant still retains a substantial amount of the original inheritance.


text:
    660 A.2d 88
    Ayse COSMAS, Appellant v. BLOOMINGDALES BROS., INC. a/k/a Bloomingdales and James Coia, Individually and Store Manager for Bloomingdales Bros., Inc. and Helen Bobb, Individually and Security for Blooming-dales Bros., Inc. and Gloria Savoya, Individually and Personnel Manager for Bloomingdales Bros., Inc. and Clarence Turk, Individually and Security for Bloomingdales Bros., Inc. and Diane Terrell, Individually and Store Clerk for Bloomingdales Bros., Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 7, 1995.
    Filed May 31, 1995.

      Steven M., Dorr, Philadelphia, for appellant.
    David F. White, Philadelphia, for appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge:

Appellant Ayse Cosmas was an employee of appellee Bloomingdales Bros., Inc. from July 1982 through September 1986. On July 3, 1986, appellant purchased several items from Bloomingdales using the Diners Card of a Mr. John Ryan. Bloomingdales security subsequently found out that John Ryan had passed away on July 1, 1986: two days before appellant made her purchases. During questioning, appellant explained that she and Ryan were having a relationship, and that he had authorized her use of the credit card on this and other occasions. She further stated that various store personnel were aware of the relationship, and of her prior use of Ryan’s credit card.

Notwithstanding appellant’s explanations, she was suspended and later fired from Bloomingdales. Additionally, Bloomingdales security personnel filed a criminal complaint against appellant, alleging forgery, theft by deception, criminal conspiracy, and receiving stolen property. District Justice M. William Peterson heard the charges on February 15,1987, and held appellant over for trial. Upon subsequent review, the Montgomery County District Attorney’s Office decided to drop all charges against appellant, and her record was expunged.

On October 2, 1987, appellant filed suit against Blooming-dales and six individual employees of Bloomingdales that were involved in this incident. Appellant alleged malicious prosecution, defamation, and interference with contractual relations. Since a 1990 bankruptcy petition barred appellant’s suit against appellee Bloomingdales, the Honorable Paul W. Tressler granted summary judgment in favor of Bloomingdales on December 29, 1993. Subsequently, and after further review, Judge Tressler also granted summary judgment in favor of the individual appellees. Appellant appeals the decision to grant summary judgment in favor of four of the individual appellees: James Coia, Clarence Turk, Gloria Savoya and Helen Bobb.

Summary judgment is proper when the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue of material fact. DeWeese v. Anchor Hocking, 427 Pa.Super. 47, 48, 628 A.2d 421, 422 (1993). When a trial court is considering a summary judgment motion, it must examine the record in the light most favorable to the nonmoving party. Id. On appeal, we will not disturb a trial court’s entry of summary judgment unless we find an error of law or a clear abuse of discretion. Id.

I.

Count I of appellant’s complaint contains a claim of malicious prosecution. In order to make out a successful claim of malicious prosecution, a plaintiff must show that “the defendants instituted proceedings without probable cause, with malice, and that the proceedings were terminated in favor of the plaintiff.” Amicone v. Shoaf, 423 Pa.Super. 281, 285, 620 A.2d 1222, 1224 (1993); Wainauskis v. Howard Johnson Co., 339 Pa.Super. 266, 276, 488 A.2d 1117, 1122 (1985). The trial court granted summary judgment against appellant because it found that, as a matter of law, appellees had probable cause to institute the criminal proceedings against appellant. The primary basis for this finding was the fact that a district justice held appellant over for trial on the charges instituted by appellees.

In a malicious prosecution action, the plaintiff has the burden of proving lack of probable cause. Id. “Probable cause is defined as ‘[] a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinary prudent man in the same situation in believing that the party is guilty of the offense.’ ” Wright v. Schreffler, 421 Pa.Super. 428, 430, 618 A.2d 412, 414 (1992) (quoting Cibrone v. Stover, 351 Pa.Super. 250, 254, 505 A.2d 625, 627 (1986) (citations omitted)). In certain instances, a defendant can introduce conclusive evidence of the existence of probable cause, thereby defeating plaintiffs claim of malicious prosecution. E.g., Kelley v. General Teamsters, Chauffeurs and Helpers, Local Union 249, 518 Pa. 517, 521, 544 A.2d 940, 942 (1988) (actions taken on the advice of counsel, if such actions are taken in good faith and after full disclosure, are conclusively established to be actions taken with probable cause). In many states, one such instance of conclusiveness is a plaintiffs conviction in the underlying criminal action. Even if the conviction is later overturned, it is conclusive proof of the existence of probable cause, unless the convicted party can show fraud or other undue influences at work in the conviction proceedings. See Restatement of Torts, 2d § 667(1) (1976). But see Williams v. City of New York, 508 F.2d 356 (2d Cir.1974) (stating that a conviction ultimately upset is accorded only the force of prima facie evidence of probable cause).

While a conviction may serve as conclusive evidence of the existence of probable cause, the action of a district justice or magistrate in holding the plaintiff over to be tried in court is not similarly conclusive. See Restatement of Torts, 2d § 663(2) (a holding over of the accused is simply evidence of probable cause). See also Miller v. Pennsylvania Railroad Co., 371 Pa. 308, 317, 89 A.2d 809, 813 (1952) (stating that a holding over for trial, like a grand jury indictment, was “affirmative evidence of probable cause”); De Salle v. Penn Central Transportation Co., 263 Pa.Super. 485, 492, 398 A.2d 680, 684 (1979) (same). It is true that a holding-over represents a decision by a neutral and experienced judicial officer that the prosecution has made out a prima facie case. Commonwealth v. Fox, 422 Pa.Super. 224, 233, 619 A.2d 327, 332 (1993), appeal denied, 535 Pa. 659, 634 A.2d 222 (1994). A determination of a prima facie case, however, does not necessarily equal a finding of probable cause such as will bar an action for malicious prosecution.

The definition of prima facie is “[a]t first sight; on the first appearance; on the face of it.” Black’s Law Dictionary 1071 (6th ed. 1990). Prima facie evidence is defined as “[ejvidence which, standing alone and unexplained, would maintain the proposition and warrant the conclusion.” Id. These definitions indicate that a preliminary hearing, where the justice or magistrate looks for a prima facie case, will oftentimes barely scratch the evidentiary surface of a case. See Commonwealth v. Smith, 436 Pa.Super. 277, 289, 647 A.2d 907, 913 (1994) (stating that a preliminary hearing is “a much less searching exploration into the merits of a case than a trial”). If the individual that initiated the prosecution was hasty or acted with lack of deliberation or care, this will not necessarily be apparent at a preliminary hearing where the only question is whether there is a prima facie case. Such haste or lack of care, however, may be an important issue in the search for probable cause in a malicious prosecution action. Hugee v. Pennsylvania Railroad Co., 376 Pa. 286, 289, 101 A.2d 740, 742-43 (1954) (finding lack of probable cause, notwithstanding a holding over by a magistrate, where defendant acted with unwise haste and lack of due care in prosecuting plaintiff); Wainauskis, 339 Pa.Super. at 278, 488 A.2d at 1123 (upholding jury finding of lack of probable cause, notwithstanding a holding over by a magistrate, because the jury could have found that defendant acted with unwise haste and lack of due care).

Unlike a conviction, the decision to hold someone over is a cursory determination, often made rather quickly and with an eye toward allowing the case to go forward if there is any arguable evidence of guilt. A preliminary hearing does not offer the full panoply of procedural safeguards, and the credibility of witnesses is not at issue. In this sense, a decision to hold someone over is more like a grand jury indictment, and less like a full-blown conviction. For this reason, the Restatement and the Pennsylvania Courts have both treated a decision to hold over, not as conclusive, but rather as affirmative evidence of the existence of probable cause. Miller, 371 Pa. at 317, 89 A.2d at 813; De Salle, 263 Pa.Super. at 492, 398 A.2d at 684; Restatement of Torts, 2d § 663(2).

As affirmative evidence, a holding over is to be considered along with all of the other evidence offered by the parties on the issue of probable cause. See Kelley, 518 Pa. at 523, 544 A.2d at 943; Miller, 371 Pa. at 317, 89 A.2d at 813; De Salle, 263 Pa.Super. at 492, 398 A.2d at 684. The weight to be given to the holding-over determination depends on whether it was reached by fair and complete means, or whether it was a product of some act or omission of defendants that may have tainted the proceedings. See Wainauskis, 339 Pa.Super. at 278, 488 A.2d at 1123-24 (finding that holding of the plaintiff for trial is not competent evidence of probable cause where the action was tainted by inaccurate or incomplete evidence given by the defendants); see also Miller, 371 Pa. at 317, 89 A.2d at 813; De Salle, 263 Pa.Super. at 492, 398 A.2d at 684. If the holding-over proceeding was not impeached in any way, it will constitute very weighty evidence and the plaintiff will bear a hefty burden in trying to overcome it.

In the present case, District Justice M. William Peterson heard evidence on February 15, 1987, and decided to hold appellant over for trial. While this determination is not conclusive, it is affirmative evidence that appellees did in fact have probable cause to initiate the criminal proceedings against appellant. Since appellant has not alleged any procedural infirmities, or that appellees lied or withheld evidence at the preliminary hearing, that proceeding stands untainted and is considered weighty evidence in the probable cause determination. In addition, the following facts are not disputed: Ryan’s widow called the store complaining about the unauthorized purchases on her husband’s credit card; investigation revealed that appellant made those purchases; the purchases were made two days after Ryan died; and appellant knew that Ryan was dead when she purchased the items in question. All of this taken together is weighty evidence that a reasonable person would believe that appellant had committed a crime.

In opposition, appellant asserts that appellees knew or should have known that she had authorization to make purchases on behalf of Ryan in the past, and that appellees should have believed her, or investigated further, after she told them that Ryan had authorized the July purchases at issue here. Appellant’s past authorization has little bearing on this present allegation of unauthorized use, where the cardholder had passed away and appellant knew of his demise. As for appellant’s claim that she had authorization for these particular purchases, she did not offer any proof of this fact. In contrast to her unsubstantiated assertions of authorization, appellees knew that Ryan had died two days before these purchases were made, and that his closest living relative, his wife, stated that they were not authorized. The information available at the time was sufficient to give rise to a reasonable suspicion that appellant had made these purchases without authorization. These facts appeared to District Justice Peterson to establish probable cause, and they may well have appeared in the same light to appellees. Therefore, we agree with the trial court that, as a matter of law, appellant has failed to meet her burden of establishing lack of probable cause.

II.

As to Counts II and III of appellant’s complaint, the trial court granted summary judgment because it found that appellant failed to plead a cause of action against the individual defendants. The court wrote, “[n]owhere in the Complaint did Plaintiff plead in the alternative that the individual Defendants acted other than as agents of Defendant Blooming-dales.” Opinion 8/2/94 at 4. This statement is misleading, however, as appellant need not plead that defendants acted other than as agents in order to make out individual liability.

It has long been a basic tenet of agency law that “[a]n agent who does an act otherwise a tort is not relieved from liability by the fact that he acted at the command of the principal or on account of the principal.” Deaktor v. Fox Grocery Co., 332 F.Supp. 536, 542 (W.D.Pa.1971), affirmed, 475 F.2d 1112 (1973) (quoting Restatement of Agency, 2d § 343 (1957)); see also Valley Forge Golf v. L.G. DeFelice & Son, 124 F.Supp. 873, 875 (E.D.Pa.1954); First National Bank of Blairstown v. Goldberg, 340 Pa. 337, 340, 17 A.2d 377, 379 (1941); Muldowney v. Middleman, 176 Pa.Super. 75, 77, 107 A.2d 173, 175 (1954). Thus, the question is not whether the individual defendants were acting as agents of Blooming-dales, but whether the individual defendants actually committed a tort. If so, they are liable for that tort regardless of their agency or employment relationship.

Appellees further obscure the issue by phrasing it in terms of whether they were acting within the scope of their employment. After answering this question affirmatively, appellees assert that they cannot be subject to suit individually. This is simply not an accurate statement.

As our Supreme Court stated in Wicks v. Milzoco Builders, Inc., “whether appellees acted within the scope of their authority as corporate officers is irrelevant. ‘The fact that an officer is acting for a corporation also may make the corporation vicariously or secondarily liable under the doctrine of respondeat superior; it does not however relieve the individual of his responsibility.’ ” 503 Pa. 614, 620, 470 A.2d 86, 89 n. 5 (1983) (quoting Donsco, Inc. v. Casper Corp., 587 F.2d 602, 606 (3d Cir.1978)). Whether an employee is or is not acting within the scope of his or her employment, therefore, is only relevant in determining whether the employer can be secondarily liable for the employee’s tort. In either case, the employee himself remains liable for his own torts.

Notwithstanding the above, appellees will escape liability if appellant failed to plead with sufficient particularity that she was seeking individual liability. See Pa.R.C.P. 1019. It appears that this is what the trial court was alluding to when it stated that appellant did not plead sufficient facts for individual liability. See Opinion 8/2/94 at 4. In Counts II and III, appellant does not specifically state, as she does in Count I, that she is seeking to hold the individual appellees jointly and severally liable with Bloomingdales. Nevertheless, we believe that the complaint sufficiently identifies the personal liability that it seeks in at least one instance.

On the Count II defamation claim, appellant sufficiently pleads individual liability against appellee Helen Bobb. In paragraph 66, appellant alleges that, “[t]he defendants, and more specifically, defendant Helen Bobb, contriving to deprive plaintiff of her good name ... did, utter, state and publish the following false and defamatory words of and concerning the plaintiff and intending to injure the plaintiff____” R.R. at 23a. In paragraph 70, appellant further alleges that, “[t]he statements ... were deliberately and recklessly published ... by the defendant BLOOMINGDALE BROS., INC. and defendant HELEN BOBB____” R.R. at 25a. These allegations specifically identify Bobb as a separate and distinct defendant and seek to hold her liable for her own alleged tortious conduct. It is of no moment that appellant subsequently alleges that Bobb was acting within the scope of her employment at Bloomingdales. This additional allegation serves only to open the door for potential secondary liability on the part of Bloomingdales. It does not serve to release Bobb from liability for what is alleged to be a tortious act on her part. Given that plaintiff has properly alleged Bobb’s individual liability, and that material issues of genuine fact still exist as to whether Bobb’s actions were indeed tortious, summary judgment was improperly granted as to Bobb under Count II.

Appellant has failed to allege individual liability as to the remaining appellees under Count II. Bobb is the only appellee that is actually accused of making a defamatory statement. The other appellees are merely accused of holding relevant supervisory positions. As to these individual appellees, appellant has failed to allege facts to support individual liability and summary judgment was properly granted.

Regarding Count III, we need not determine whether appellant sufficiently pled individual liability as to all of the individual appellees. We find that summary judgment was properly granted as to all of them because, as the trial court alternatively noted, employees acting within the scope of their employment cannot be liable on contractual interference claims based on a contract between a co-employee and the mutual employer. Rutherfoord v. Presbyterian-University Hospital, 417 Pa.Super. 316, 332, 612 A.2d 500, 508 (1992) (holding that where a contractual interference claim is based on contract with employer, and that contract is terminated by an agent of the employer acting within the scope of his agency, there is no third party and no claim will lie).

Since we find that summary judgment was properly granted on Counts I and III as to all appellees, and on Count II as to all appellees except Helen Bobb, we affirm the trial court’s order in those regards. We reverse as to the defamation claim against appellee Helen Bobb, as issues of material fact still need to be resolved.

Order affirmed in part, reversed in part. Remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . Defendant Jan Tracy Boyd obtained a Praecipe of Judgment Non Pros on November 2, 1987. Defendant Diane Terrell never responded to this complaint and her whereabouts are unknown. Brief for appellant at 6.

      . While Pennsylvania law has been less than clear on this point, it appears that we subscribe to this theory, as a general rule. See Bussard v. Neil, 616 F.Supp. 854 (M.D.Pa.1985) (a conviction, even if later reversed, was conclusive proof of probable cause); Martinez v. Korvette, 335 F.Supp. 886 (E.D.Pa.1971), affirmed, 477 F.2d 1014 (3d Cir.1973) (stating that it was not clear whether Pennsylvania found a conviction conclusive on the issue of probable cause, but that such evidence could not be overcome without a showing of fraud or unfairness); Lynn v. Smith, 193 F.Supp. 887 (W.D.Pa.1961) (conviction on summary proceeding before justice of the peace was conclusive on the existence of probable cause); Cooper v. Hart, 147 Pa. 594, 23 A. 833 (1892) (a guilty verdict, even if later reversed, was conclusive proof of probable cause). But see Hamidian v. Occulta, 854 F.Supp. 350, 354 (M.D.Pa.1994) (refusing to grant summary judgment for defendants on state malicious prosecution claim because conviction by justice of the peace may not conclusively establish probable cause); MacDonald v. Schroeder, 214 Pa. 411, 63 A. 1024 (1906) (conviction by jury and subsequent grant of new trial by the judge was not conclusive proof of probable cause); Cap v. K-Mart Discount Stores, Inc., 357 Pa.Super. 9, 13, 515 A.2d 52 (1986) (disagreeing with Lynn v. Smith and holding that conviction for summary offense before justice of the peace was not conclusive evidence of probable cause).

      . This treatment, where evidence of a holding over is not conclusive as to probable cause, but is weighty if unimpeached, comports with our policy on the tort of malicious prosecution. Malicious prosecution "involves a conflict between the interests of society in law enforcement as opposed to the individual interest in freedom from false accusation.” Kelley, 518 Pa. at 521, 544 A.2d at 942. It is often said that the interest of society in preserving order is the more important concern. Id. Thus, we must be careful not to discourage lawful proceedings against those who are apparently guilty. Id. At the same time, however, the general public is entitled to protection from abuse of authority and from the embarrassment, humiliation, and expense of being wrongfully prosecuted for a crime. Neczypor v. Jacobs, 403 Pa. 303, 308, 169 A.2d 528, 531 (1961); Wainauskis, 339 Pa.Super. at 278, 488 A.2d at 1123. Therefore, if immediate action is not required, the protection of the individual demands precautions such as adequate preliminary investigation. Id. Given these competing interests, we are bound to consider a decision to hold over for trial as weighty, but not necessarily conclusive, evidence of the existence of probable cause.

      . Appellant argues that appellees Bobb and Turk knew or should have known about her relationship with Ryan and her prior authorized use of his Diners Card. Brief for appellant at 17-22. All of this evidence was presented to the district justice, however, and was considered before making the determination to hold appellant over for trial. R. Exhibit H at 53-56; R. Exhibit I at 15-17. There is simply no contention that appellees lied or withheld evidence during that proceeding.

      . While the issue of probable cause is one for the court to decide as a matter of law, a determination of disputed facts should be left for a jury. Bruch v. Clark, 352 Pa.Super. 225, 228, 507 A.2d 854, 856 (1986). Appellant asserts that there are issues of fact here that require a jury determination. After review of the record, however, we disagree. In this case, the facts that are relevant to the issue of probable cause are not in dispute.