author: HESTER, Judge:

text:
    620 A.2d 494
    COMMONWEALTH of Pennsylvania, Appellant v. Bruce CHRISTOPHER.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1992.
    Filed Dec. 23, 1992.
    Reargument Denied March 1, 1993.

      Thomas S. Ling, Dist. Atty., Bedford, for Com., appellant.
    Charles A. Bierbach, Huntingdon, for appellee.
    Before ROWLEY, President Judge, and JOHNSON and HESTER, JJ.
   HESTER, Judge:

The Commonwealth appeals from the April 24, 1992 order entered in the Bedford County Court of Common Pleas granting Bruce Christopher’s motion for a writ of habeas corpus. As we find the Commonwealth’s position to be meritless, we affirm the order.

The record reveals the following. On February 18, 1992, appellee, Bruce Christopher, arrived unannounced at Bedford County Children and Youth' Services (“CYS”) and met with Mark Bollman, the social worker who had been assigned to appellee’s case. Mr. Bollman greeted appellee in the building’s lobby before escorting him to the office which Bollman shared with another CYS caseworker. The two men discussed various aspects of appellee’s case while Bollman’s co-worker was present in the office.

While in the employ of CYS, Bollman was required to keep files on all of his clients. The files contained personal notations which he made following appointments with clients, as well as any information which he received from the parties. At the close of the meeting, Bollman noticed a small tape recorder partially protruding from appellee’s coat pocket. When Bollman asked appellee about the device, appellee admitted to recording the conversation.

Bollman reported the incident to the police. Bedford Borough Police Officer Douglas Diehl met with Bollman to discuss his complaint. On February 26, 1992, a local district justice, relying upon the officer’s testimony of the meeting with Boll-man, issued a search warrant for appellee’s trailer and for the home of his parents in order to locate the miniature cassette. The warrant was executed on February 26, 1992. The tape, which was found following the search of the home of appellee’s parents, was confiscated and charges were filed against appellee that same day. The Commonwealth charged appellee with illegally intercepting and disclosing oral communications in violation of 18 Pa.C.S. § 5703(1), (2), and (3). On April 1, 1992, a preliminary hearing was held, and all counts were bound over for trial.

On April 8, 1992, appellee filed a petition for a writ of habeas corpus challenging the sufficiency of the Commonwealth’s prima facie case against him. On April 24, 1992, a hearing on the petition was held. At that time, the Commonwealth notified the court that it had dropped the charges against appellee under § 5703(2) and (3). The court proceeded to hear testimony and argument regarding the remaining charge under § 5703(1). At the conclusion of the hearing, the court entered an order granting the writ and dismissed the charge against appellee. This appeal by the Commonwealth followed.

Appellee was charged under 18 Pa.C.S. § 5703 which provides, “[A] person is guilty of a felony of the third degree if he: (1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication.... ” A proper application of the statute necessitates an evaluation of the following terminology. “Intercept ” is defined at 18 Pa.C.S. § 5702 as “Aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.” Finally, “oral communication ” is defined in the same section as, “Any oral communications uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.”

The focus for this appeal is whether the conversation between Bollman and appellee constitutes an “oral communication” protected under the Pennsylvania Wiretapping and Electronic Surveillance Act (“Act”). The Commonwealth asserts that given the nature of the conversation herein and the surrounding circumstances, the Act applies. We do not agree.

The Commonwealth cites Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), for support. In Blystone, our Supreme Court, relying upon the United States Supreme Court case of Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967), promulgated the following test for determining what constitutes a justifiable expectation of privacy in communication. “To determine whether one’s activities fall within the right of privacy, we must examine: first, whether appellant has exhibited an expectation of privacy; and second, whether that expectation is one that society is prepared to recognize as reasonable.” Commonwealth v. Blystone, supra, 519 Pa. at 463-64, 549 A.2d at 87.

In the instant case, the Commonwealth argues that the following circumstances conclusively prove that Bollman had a justifiable expectation that the contents of his conversation would not be electronically recorded. Specifically, the Commonwealth emphasizes the fact that Bollman had not scheduled the interview and was not pursuing a criminal investigation against appellee. As an employee of CYS, he did not tape client conversations and always guarded the confidentiality of his client’s files, releasing information only when statutory conditions are satisfied. Based upon a flawed assessment of these circumstances, the Commonwealth concludes that the Act applies. The Commonwealth however, neglects to provide us with the basis for the caseworker’s expectation of privacy.

Appellee correctly argues that by statute, Bollman’s expectations were irrelevant. By his own admission, Bollman testified that the statutory safeguards with regard to confidentiality were in place to protect the privacy of the involved parties because the confidentiality concerns lie with the case itself. However, Bollman attempted to delineate the importance of specific information which he relayed to appellee concerning a medical assessment of appellee’s ex-wife. Bollman’s premise failed when he told the court that he hadn’t told appellee anything that appellee “shouldn’t know.” Reproduced Record (“R.R.”), 4/24/92, at 22a. Furthermore, through independent questioning of Bollman, the court ascertained that Bollman had neglected to explain to appellee the confidential nature of the information he relayed to appellee during the meeting. In addition, he told the court that it was his practice to place summaries of the visits in his CYS file.

Appellee maintains that the conversation between himself and Bollman was not an “oral communication” for purposes of this Act, and he relies upon Commonwealth v. Henlen, 522 Pa. 514, 564 A.2d 905 (1989), for support. In Henlen, a burglary suspect recorded his interrogation by police. Our Supreme Court applied the objective test in Blystone and concluded that a police officer, taking notes during a suspect interview which later could be used in court, had no justifiable expectation of privacy such that the recording violated 18 Pa.C.S. § 5703. Henlen mirrors the situation of the case herein which likewise deals with a public official who is attempting to assert a privacy right in conjunction with a case in which he is not a principal. As such, it is obvious that while appellee must expect that the information which he provides to his CYS caseworker becomes part of a file which later could be used against him in court, it is obvious likewise that because Bollman did not disclose any information about himself, he had no expectation of privacy with regard to the content of the recorded conversation.

As we agree with appellee’s argument, and concur with the well-reasoned conclusion of the hearing court, we adopt the rationale underlying the order, which states:

THE COURT: The Defendant argues that the caseworker had no expectation of privacy—confidentiality and relies on Commonwealth v. Henlen, a Supreme Court case which has to do with oral communications. Section 5703 defines oral communication as any oral communications uttered by a person possessing an expectation, but such communication is not subject to interception under circumstances justifying such expectation.
Intercept is defined in Section 5702 as aural, A-U-R-AL, acquisition of the contents of any wire or oral communication through the use of any electronic or mechanical or other device. So, the real issue in this case comes down to the question of whether or not of the caseworker had an expectation of confidentiality.
Henlen is very close and we believe we’re bound by it. We believe, under the facts of this case, that the caseworker did not have an expectation of confidentiality under the circumstances. Particularly stated and testified at the Preliminary Hearing that there was nothing to be said to the Defendant that he couldn’t tell anybody else. That was his testimony and we’re bound by that.
So, ... [w]e find, as a fact, that the caseworker had no expectation of confidentiality and, therefore, the Defendant did not violate the wiretap act section, the section of the statute followed by wiretapping.

R.R., 4/24/92, at 44a-45a.

Order affirmed.

      . Mark Bollman is no longer a CYS employee.

      . The record does not reveal the facts and circumstances surrounding appellee’s involvement with CYS.

      . Although 23 Pa.C.S. § 6339 provides for the confidentiality of report concerning instances of child abuse, 23 Pa.C.S. §§ 6336(c) and 6340 monitor the release of that information. Therefore, absolute confidentiality is not guaranteed to individuals being investigated pursuant to a suspected child abuse and neglect complaint ("SCAN”). Authorized Child Protective Services Department officials, treating physicians, guardians ad litem, courts with competent jurisdiction, the Attorney General, law enforcement officials conducting investigations, the individuals who report suspected abuse, county commissioners, and the subjects of the reports are entitled to summaries of information contained in the file as well as written reports.

      . 23 Pa.C.S. § 6336(c) refers to a release of information from the statewide register. Even if appellee desired to disclose the information in the register, he could not because he had no direct access to it. In any event, the proscriptions are for the reports themselves, and do not address the information provided by the parties involved in the investigation. Nothing in the statute prevents a subject parent from disclosing information about him or herself to any other person, including caseworkers.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    620 A.2d 497
    COMMONWEALTH of Pennsylvania v. Benjamin CORREA, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1992.
    Filed Jan. 22, 1993.

      John A. Ryan, Philadelphia, for appellant.
    Robin Godfrey, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County, following appellant’s conviction on charges of possession of cocaine and possession of cocaine with intent to deliver. Appellant was sentenced to four to ten years of imprisonment and a $5,000.00 fíne. We affirm.

Herein, appellant raises the following numerous allegations of error:

I. Did the Commonwealth deny [appellant] a fair trial based on Article I § 6, § 26 and § 28 of the Pennsylvania Constitution and Amendment VI and XIV of the United States Constitution?
A. Did the Commonwealth deny venire persons belonging to cognizable groups equal protection rights guaranteed to them by the U.S. and Pennsylvania Constitutions and as a direct result of that deprivation deny [appellant] his right to a jury chosen in a nondiscriminatory manner?
B. Are females a cognizable group included in the equal protection clause of the U.S. and Pennsylvania Constitutions?
C. Are Filipinos a cognizable group included in the equal protection clause of the U.S. and Pennsylvania Constitutions?
II. Did the absence of a low-grade charge as to testimony by an expert witness who had not participated in the examination of the actual article being discussed deprive the [appellant] of a crucial decision being made by the jury, and thereby deny defendant a fair trial when no other evidence was offered as to any indicia of a delivery or intended delivery?
III. Did prior attorneys provide ineffective assistance to [appellant] by not raising objections and/or not preserving issues?
IV. Did the trial court err when it permitted improper impeachment of the defense witness where the impeaching offense was not crimen falsi?
V. Was the evidence insufficient to sustain the verdict of guilty of possession with the intent to deliver where the “expert” witness based his opinion solely on the prosecutor’s description of the packaging of the controlled substance?
VI. Was [appellant’s] U.S. and Pennsylvania right to a fair trial violated and prejudiced when there was open hostility between counsel and the trial judge in front of the jury that pervaded the trial and adversely affected the [appellant]; and the trial court’s demeanor and attitude to the defense showed disbelief and contempt?

First, appellant, citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and Powers v. Ohio, — U.S. -, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), argues that the Commonwealth violated the equal protection clause of the United States and Pennsylvania Constitutions when it exercised its peremptory challenge in a discriminatory manner. Specifically, appellant notes that the Commonwealth used six of its seven peremptory challenges to exclude members of a racial or ethnic minorities. The Commonwealth chose to exercise its challenges to bar six Blacks and one Filipino from serving on the jury. In addition, all of those persons excluded were women. Appellant argues that such action by the Commonwealth establishes a prima facie case of purposeful discrimination which the Commonwealth failed to rebut. However, for the following reasons, we disagree.

The record reveals the following information concerning the selection of the jury: Appellant is a Hispanic male. The venire panel consisted seventeen women and eight men. By race, there were twelve Blacks, twelve Whites and one Filipino in the venire. The petit jury finally selected was comprised of seven women and five men, and the jury was equally divided as to race with six Black jurors and six White jurors. Both alternate jurors were women; one was Black and the other White.

The first jury panel consisted of twelve prospective jurors of which five were Black, one was Filipino and seven were White. The Commonwealth exercised the first four of its seven peremptory challenges to exclude three Black women and one Filipino woman from the jury. Following the fourth challenge, defense counsel requested a side bar, dining which he objected to the Commonwealth’s peremptory challenges on the grounds that they were racially motivated in contravention of Batson, supra.

As a precaution, the Court asked the Commonwealth to set forth the reasons for its challenges. As to excluded Black juror, Laverne Jones, the district attorney stated that she generally does not want jurors who are involved in “social work” as a profession, and, therefore, she challenged Ms. Jones who was an administrator at a shelter for emotionally disturbed, homeless persons. N.T., 6/22/90, p. 67. As to excluded Filipino juror Patti Gabasa, the Commonwealth excluded her because she was difficult to understand when she spoke and the district attorney was concerned that Ms. Gabasa might have difficulty in understanding the testimony. N.T., 6/22/92, p. 69. As to excluded Black juror Gina Weatherly, the district attorney explained she struck Mrs. Weatherly because her husband was unemployed, and she preferred jurors whose personal lives were “stable”. N.T., 6/22/92, p. 70. In addition to justifying her use of the peremptory challenges, the district attorney specifically denied using her strikes in a racially biased manner, and the trial court cautioned the Commonwealth not to use her strikes in such a manner.

Following the initial Batson side-bar, the Commonwealth used two more peremptory challenges to strike two Black females from the jury. Immediately prior to the trial, defense counsel reiterated his Batson objection and noted the district attorney’s use of additional strikes against potential Black jurors. The Commonwealth once again asserted that its strikes were based upon race-neutral grounds. The trial began without any further discussion of the Batson issue.

In Batson, supra, the United States Supreme Court set forth the three factors relevant to establishing a prima facie case of purposeful discrimination: 1) The defendant is of a cognizable racial group; 2) The prosecutor has exercised peremptory challenges to remove venire members of defendant’s race; and 3) The defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used his peremptory challenges to exclude veniremen from the petit jury on account of race. Batson, 476 U.S. at 96, 106 S.Ct. at 1723; Commonwealth v. Dinwiddie, 529 Pa. 66, 70, 601 A.2d 1216, 1218 (1992); Commonwealth v. Jackson, 386 Pa.Super. 29, 39-40, 562 A.2d 338, 343 (1989) (en banc), alloc. denied, 525 Pa. 631, 578 A.2d 926 (1990). As our Supreme Court noted in Dinwiddie, 601 A.2d at 1220 n. 11, the United States Supreme Court broadened a defendant’s right to challenge apparent discrimination in the jury selection process through its decision in Powers v. Ohio, — U.S. -, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Therein, the Supreme Court stated:

We hold that the Equal Protection Clause prohibits a prosecutor from using the State’s peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race, a practice that forecloses a significant opportunity to participate in civic life. An individual juror does not have a right to sit on any particular jury, but he or she does possess the right not to be excluded from one on account of race.

Powers, at -, 111 S.Ct. at 1370.

In addition, the High Court held:

We conclude that a defendant in a criminal case can raise the third-party equal protection claims of jurors excluded by the prosecution because of their race. In so doing, we once again decline to “reverse a course of decisions of long standing directed against racial discrimination in the administration of justice.” Cassell v. Texas, 339 U.S. 282, 290, 70 S.Ct. 629, 633, 94 L.Ed. 839 (1950) (Frankfurter, J., concurring in judgment). To bar petitioner’s claim because his race differs from that of the excluded jurors would be to condone the arbitrary exclusion of citizens from the duty, honor, and privilege of jury service. In Holland [v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990) ] and Batson, we spoke of the significant role peremptory challenges play in our trial procedures, but we noted also that the utility of the peremptory challenge must be accommodated to the command of racial neutrality. Holland, supra, 493 U.S. at 479-80, 110 S.Ct. at 806-07; Batson, supra, 476 U.S., at 98-99, 106 S.Ct., at 1723-1724.

Powers, at -, 111 S.Ct. at 1372.

As Powers, supra, clearly demonstrates, the race of the defendant need not be the same as the excluded jurors in order for a claim of purposeful discrimination to exist. Thus, the first two requirements of a prima facie case of discrimination set forth in Batson, supra, have essentially been eliminated. In order to establish a prima facie case of purposeful discrimination after Powers, supra, a defendant need only show the circumstances of his case raise an inference that the prosecutor used his peremptory challenges to exclude veniremen from the petit jury on account of race. Batson, 476 U.S. at 96, 106 S.Ct. at 1723; Dinwiddie, 601 A.2d at 1221 (prosecutor must justify his peremptory challenges when they are exercised disproportionately to exclude from juries members of a particular racial class).

Instantly, the Commonwealth used five of six peremptory challenges to exclude Black venire persons from the petit jury. The inference which arises from this course of conduct, we believe, sufficiently satisfies the prima facie requirement to suggest that the Commonwealth used its peremptory challenges in a discriminatory manner, thus shifting the burden of proof to the Commonwealth and requiring it to provide an adequate and legitimate explanation for its actions. Cf., Dinwiddie, 601 A.2d at 1218. In meeting its burden, the Commonwealth must offer a clear and reasonably specific explanation of its actions which must consist of “ ‘legitimate reasons’ of exercising the challenges.” Batson, 476 U.S. at 98 n. 20, 106 S.Ct. at 1724 n. 20; Jackson, 562 A.2d at 350. However, the prosecution’s explanation need not rise to a level justifying exercise of a challenge for cause. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Jackson, 562 A.2d at 350.

In reviewing this discrimination claim, we are mindful that an appellate court will reverse a trial court’s finding of no discrimination only if that finding is clearly erroneous. Jackson, 562 A.2d at 350; United States v. Tindle, 860 F.2d 125, 129 (4th Cir.1988), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1038 (1989). Upon review of the record, we find that the Commonwealth has sustained its burden of proving that it did not exercise its peremptory challenges in a discriminatory fashion.

The following facts have influenced our decision. The jury as finally selected was equally divided between Black and White members, and although the Commonwealth had one peremptory challenge still available, it did not use it to exclude another Black venire person. Although appellant is Hispanic, the case did not involve any issues of race. The district attorney specifically denied using her strikes in a racially motivated manner, and, most significant of all, she offered race-neutral reasons for three of her first four peremptory strikes. Although it certainly would have been better for the purposes of our review if the district attorney had been asked to justify all of her challenges, it does not automatically require that we remand the case, since the prosecutor may rebut the charge of racial discrimination without justifying every strike. Stern, 573 A.2d at 1135 n. 3. In light of the foregoing, we find that the Commonwealth sustained its burden of proving that it did not exercise its peremptory challenges in a racially discriminatory manner.

Second, appellant contends that the trial court erred in failing to give the jury a “low-grade” charge concerning expert testimony. Officer Boucher had been qualified as an expert on narcotics trafficking. He testified that the manner in which the cocaine sub judice was packaged was consistent with drug distribution, not mere possession. N.T., 6/25/90, pp. 129-130. Appellant contends that Officer Boucher did not personally examine the cocaine and its packaging and, therefore, a “low-grade” jury instruction was necessary. However, we disagree.

An instruction that expert opinion testimony is “low-grade” evidence is proper when: 1) The expert’s opinion is based on facts recited in a hypothetical question; or 2) The expert’s opinion is contradicted by direct evidence. Commonwealth v. Jackson, 481 Pa. 426, 392 A.2d 1366 (1978); Commonwealth v. Thomas, 448 Pa. 42, 292 A.2d 352, 357 (1972). Instantly, Officer Boucher was able to observe the cocaine and its packaging in question, although he did not remove the cocaine from the transparent evidence bag. N.T., 6/35/90, p. 129. The district attorney asked Officer Boucher whether a person who possessed similarly packaged cocaine possessed the drugs with the intent to deliver them or for personal use? Officer Boucher responded that a person who possessed a similar cache of cocaine—eighteen twenty dollar packets— would do so with the intent to deliver them. We find that Officer Boucher’s testimony was based on his personal observation of the drugs. In addition, there was no direct evidence which conflicted with Officer Boucher’s conclusion. This is obvious when one considers that appellant testified that he did not possess any drugs, not that he possessed them for his personal use. N.T., 6/26/90, p. 16. Therefore, the lower court did not err in failing to give a “low-grade” charge in this case.

Third, appellant contends that his prior attorneys rendered ineffective assistance of counsel. Specifically, appellant contends that trial counsel and his first successor erred in failing to raise his Batson issue in his post-verdict motions. In addition, prior counsel were ineffective in failing to request a “low-grade” charge and failing to preserve the issue for appeal. When reviewing an attack on counsel’s stewardship, we are guided by the standard which was set forth in Commonwealth v. Graham, 522 Pa. 115, 118, 560 A.2d 129, 130 (1989) as follows: “The ineffectiveness of counsel is shown where there is merit to the underlying claim, the course chose by counsel does not have a reasonable basis, and the defendant shows prejudice.” See also, Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989). Since we have found that neither the Batson issue nor the “low-grade” charge issue is meritorious, appellant cannot prevail on a claim of ineffective stewardship.

Fourth, appellant contends that the trial court erred when it permitted the Commonwealth to impeach defense witness Jimmy Colon with a criminal offense which was not one of crimen falsi. At trial, Jimmy Colon testified that he saw appellant being arrested and that the police searched him and the area around him and found nothing. N.T., 6/25/90, pp. 148-154. On cross-examination, Colon testified that when appellant was being arrested, the other persons in the area “got lost.” When asked why he did not “get lost”, appellant responded, “Why was I to get lost?” N.T., 6/25/90, p. 163. Also on cross-examination, Colon was asked whether he liked the police, and he responded ‘Why not?” N.T., 6/25/90, pp. 168-169.

In rebuttal, the Commonwealth offered evidence to show that Colon had been arrested on the charge of possession of a controlled substance, and that, due to his failure to appear in court, a bench warrant for his arrest had been issued. The evidence further demonstrated that bench warrant was outstanding at the time of appellant’s arrest. The Commonwealth sought to prove by admission of this evidence that Colon had reason to avoid the police at the time of appellant’s arrest. In addition, the evidence was offered to show that appellant had a reason to dislike the police. Upon admitting this evidence, the trial court instructed that jury:

The evidence that you have heard, ladies and gentlemen, on the Commonwealth’s rebuttal, you are to consider only for the limited purpose as it may tend to prove the bias of the witness, Colon, or as it may intend (sic) to contradict his presence at the time of the incident. That is the only purpose for which that testimony was submitted to you. You must not consider it for any other. You must see whether it contradicts his presence there and also, bias to his testimony.

N.T., 6/26/90, p. 75.

It is clear that a party against whom a witness is called always has the right to show by cross-examination that the witness is biased or has an interest in the result of the trial. Commonwealth v. Butler, 529 Pa. 7, 601 A.2d 268, 271 (1991); Commonwealth v. Williams, 524 Pa. 218, 227, 570 A.2d 75, 80 (1990); Commonwealth v. Collins, 519 Pa. 58, 63-66, 545 A.2d 882, 885-886 (1988). One way of impeaching a witness’ credibility is admission of prior convictions for crimes involving dishonesty or false statement. Commonwealth v. Randall, 515 Pa. 410, 415, 528 A.2d 1326, 1329 (1987); Commonwealth v. Gordon, 355 Pa.Super. 25, 27-28, 512 A.2d 1191, 1192 (1986).

Appellant argues that since Colon’s conviction was not for a crimen falsi, the lower court erred by admitting evidence of his conviction. We would be inclined to agree with appellant had the evidence in question been admitted solely to show Colon’s general bias against the police. Otherwise, any conviction could bé used to impeach the credibility of a witness on the grounds that he was biased against the police in general. But see, Williams, swpra (defense witness’s conviction was admissible to show possible bias against accomplice because accomplice’s police officer-father was involved in a criminal investigation of the witness); Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989) (evidence as to whether defendant’s character witness had commented favorably about convicted killers of police officers was relevant in prosecution for murder of a police officer and was admissible to indicate witness had enmity towards police officers).

However, instantly, evidence of appellant’s arrest and conviction on the charge of possession of a controlled substance was necessary to demonstrate not only that Colon was biased against the police, but also that a bench warrant had been issued for his arrest. The evidence was not offered to smear Colon’s character or to prove his criminal propensity. Rather, the evidence tended to establish that Colon had a reason to avoid the police, and, therefore, it was unlikely that Colon watched appellant’s arrest from a close distance for approximately ten minutes. N.T., 6/25/90, pp. 152-53. We find that the probative value of this evidence out weighed its prejudicial effect, and we will not reverse the trial court’s decision to admit the evidence. Abu-Jamal, 555 A.2d at 854 (question of whether prejudice outweighed relevance is discretionary ruling subject to limited review).

Appellant next complains that the evidence was insufficient to sustain his conviction for possession of cocaine with intent to deliver. “The test of the sufficiency of the evidence in a criminal case is whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt.” Commonwealth v. Carter, 329 Pa.Super. 490, 496, 478 A.2d 1286, 1288 (1984); Commonwealth v. Peduzzi, 338 Pa.Super. 551, 553-557, 488 A.2d 29, 31-32 (1985).

The facts as set forth by the Court below are as follows:

It was August 22, 1988, 1:00 o’clock in the morning; the streets were deserted. Police Officers Pinto and Ball were in their van on routine patrol on Somerset Street in North Philadelphia, a high drug area. They were about 15 feet away when they espied on the northwest corner of Somerset and Swanson Streets, a lone figure, acting inexplicably erratically. He took one look at the approaching police van and dropped a black 35 millimeter film canister from which spilled six green packets similar to narcotic packages that the officers had seen before in that area. Officer Ball proceeded to pick up the six green packets which contained a white chunky substance he suspected to be cocaine. Officer Pinto directed his attention to defendant, taking from his person a total of 2 green cellophane bags containing 12 packets of white powder. The contents of all the 18 packets tested positive for cocaine, aggregating in weight over three grams. An expert was to opine that the possessor possessed the substance for delivery, not for personal use.
Defendant had a different story: he was returning a video tape to a friend, John. Just before the police arrived, John had been working on his car. He was watching the car until [John] got back when the police came upon him. In fact they should have gone across the street where he had observed several drug transactions go down. Jimmy Colon, a friend who had just happened to pass saw the police position defendant spread-eagle like against the patrol van while one of them looked around futily for drugs. (Footnote added.)

Trial Court Opinion, pp. 1-2.

We agree with the trial court that the evidence was more than sufficient to sustain appellant’s conviction for possession with intent to deliver. The officers observed appellant in possession of eighteen twenty-dollar packets of cocaine, and the expert testified that such a cache of cocaine was possessed for delivery, not for personal use. Cf., Commonwealth v. Cardona, 316 Pa.Super. 381, 463 A.2d 11 (1983) (evidence that appellant possessed twenty bags of heroin, when combined with expert testimony that such a cache of drugs was more consistent with delivery than personal use, was sufficient to sustain a verdict of guilty of possession with intent to deliver).

Finally, appellant contends he was denied a fair trial and his defense was prejudiced by the open hostility between defense counsel and the trial judge. Although our review of the record does reveal a somewhat acrimonious relationship between the trial judge and defense counsel, it also reveals that these exchanges did not prejudice appellant.

First, the majority of the exchanges of which appellant complains were held either at side bar or when the jury was not in the courtroom. Second, the lower court instructed the jurors that they were the sole arbiters of fact, that arguments and statements of counsel were not evidence, that they would not be privy to side-bar discussion, that they should disregard any side-bar discussion that they might overhear and that they should not make any inferences from the side-bar discussions. And third, those times which the trial judge was forced to reprimand counsel were a proper exercise in his authority to control the proceedings. Cf., Commonwealth v. Celijewski, 324 Pa.Super. 185, 471 A.2d 525 (1984).

Further, a defendant is not entitled to a new trial because of the trial court’s chastisement of his trial counsel, unless that criticism reflects animosity towards or disbelief of the defendant or partiality favoring the Commonwealth. Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977); Commonwealth v. Council, 355 Pa.Super. 442, 449-451, 513 A.2d 1003, 1007 (1986), allocatur denied, 519 Pa. 664, 548 A.2d 253 (1988). Upon review, we find that the exchanges between counsel and the court did not adversely affect appellant’s defense, and, therefore, appellant is not entitled to a new trial.

In conclusion, we find that appellant’s assertions of trial court and counsel error are meritless. Accordingly, we affirm his judgment of sentence.

Judgment of sentence affirmed.

      . Pa.R.Crim.P. 1126 provides that in non-capital felony cases involving only one defendant, both the Commonwealth and the defense are entitled to seven peremptory challenges.

      . We note that the Assistant District Attorney handling the prosecution of appellant was a woman.

      . At the time of the Batson side bar, the district attorney did not give a reason for her fourth peremptory challenge by which Kim Thompson was struck from the jury. However, a review of the record reveals this was merely an oversight. N.T., 6/22/90, pp. 66-74. Moreover, it is not necessary for the district attorney to justify every peremptory strike, since even if a prima facie case of discrimination is presented, the prosecutor may rebut the case without explaining every strike. Commonwealth v. Stern, 393 Pa.Super. 152, 156 n. 3, 573 A.2d 1132, 1135 n. 3 (1990), alloc. denied, 527 Pa. 610, 590 A.2d 297 (1991); United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986).
      Further, a logical reason for the Commonwealth's action is apparent on the face of the record. Ms. Thompson was unemployed, and consistent with the Commonwealth’s reason for striking Gina Weatherly, i.e., her husband was unemployed, the Commonwealth challenged Ms. Thompson. N.T., 6/22/90, p. 57.

      . In Powers, supra, a White defendant's right to object to the prosecution's exclusions of Black veniremen from the petit jury through the us’e of its peremptory challenges was confirmed in recognition of "the broad right of a defendant in having a racially neutral jury selection process." See, Dinwiddie, 601 A.2d at 1220.

      . As previously stated, the Commonwealth's reason for striking Kim Thompson is apparent on the face of the record, i.e., Ms. Thompson was unemployed and the district attorney favored juror’s with a more "stable” situation. In regard to the Commonwealth's last two peremptory challenges, the district attorney was not asked to explain her reasons for her decision to exclude those two Black women from the jury. However, the Commonwealth’s reason for excluding one of the potential jurors, Brenda Davis, is obvious on the face of the record, i.e., Ms. Davis’ son was incarcerated on drug-related charges and appellant was charged with violations of the Drug Act. Cf., Commonwealth v. Smulsky, 415 Pa.Super. 461, 609 A.2d 843 (1992) (juror properly struck because of past involvement with criminal justice system); Jackson, supra (juror properly struck because of uncle's arrest).

      . Appellant also contends that the Commonwealth discriminated against Filipinos when it struck Ms. Gabasa. However, as we have previously stated, the Commonwealth offered a legitimate race-neutral reason for excluding her, i.e., the district attorney feared that Ms. Gabasa may have difficulty in understanding the testimony because Ms. Gabasa was difficult to understand when she spoke.
      In addition, appellant contends that the Commonwealth discriminated against women since every one of its peremptory challenges was use to strike women from the venire. As we have previously stated, we do not believe that the Commonwealth exercised its challenges in a discriminatory manner, and therefore, we need not address this claim further. We note the issue of extending Batson, supra, to gender has not been addressed by the Pennsylvania judiciary, and the Federal judiciary has issued conflicting opinions on the issue. In United States v. DeGross, 913 F.2d 1417 (9th Cir.1990), affirmed on rehearing en banc, 960 F.2d 1433 (9th Cir.1992), the Ninth Circuit held that equal protection principles prohibit the exercise of peremptory challenges on the basis of gender. However, in United States v. Hamilton, 850 F.2d 1038 (4th Cir.1988), cert. denied, 493 U.S. 1069, 110 S.Ct. 1109, 107 L.Ed.2d 1017 (1990), the Fourth Circuit declined to extend Batson to include gender.

      . Moreover, although the lower court did not specifically instruct the jurors that "opinion evidence is the lowest form of evidence”, the lower court did instruct the jurors that they did not have to accept the opinion of the expert and that they could make independent inferences from the circumstantial evidence surrounding appellant’s possession of the drugs. N.T., 6/26/90, pp. 128-129.

      . Colon was subsequently convicted of possession of a controlled substance.

      . Moreover, assuming such evidence was impermissibly prejudicial and should not have been admitted, we find that the error was harmless in light of the overwhelming evidence of appellant's possession of the cache of cocaine. See Commonwealth v. Williams, 524 Pa. 404, 409, 573 A.2d 536, 539-540 (1990), citing Commonwealth v. Story, 476 Pa. 391, 406, 383 A.2d 155, 162 (1978). Both arresting officers testified that they witnessed appellant toss a film canister containing six packets of cocaine to the ground upon their approach and that they found an additional twelve packets on appellant's person. Such testimony would be more than sufficient to overcome Colon's testimony that he did not see the police find any drugs.

      . Testimony revealed that Jimmy Colon did not know appellant at the time of his arrest, but later came to know appellant.


author: JOHNSON, Judge.

text:
    620 A.2d 505
    Lawrence SCHNEIDER and Sandra Schneider, his wife, and Lawrence Schneider and Sandra Schneider as Parents and Natural Guardians of Bruce Schneider and William Schneider, Appellants, v. LINDENMUTH-CLINE AGENCY, INC., Pat Cline and Aetna Insurance Company.
    Superior Court of Pennsylvania.
    Argued March 3, 1992.
    Filed Feb. 11, 1993.

      William F. Goodrich, Pittsburgh, for appellants.
    Templeton Smith, Jr., Pittsburgh, for Lindenmuth-Cline, appellee.
    Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.
   JOHNSON, Judge.

On this appeal, Lawrence and Sandra Schneider raise only two claims for relief: 1) The trial court should have entered judgment notwithstanding the verdict in their favor, and 2) The trial court erred in refusing certain requested points for charge of the Schneiders and granting certain points for charge of the defendants. We find both claims to be without merit. Accordingly, we affirm.

The distinguished trial court set forth the material facts in its Opinion denying post-trial motions as follows:

The Plaintiff, Lawrence Schneider, is a longtime client of the Defendant Lindenmuth-Cline Insurance Agency. Originally Mr. Schneider held a No-Fault automobile insurance policy from Motorists Mutual Insurance Company (hereinafter Motorists), under which Mr. Schneider received primary coverage for Medical benefits.
In 1983 Mr. Cline became an agent for Aetna Insurance Company (hereinafter Aetna) in addition to Motorists. At that time Aetna was engaged in a campaign to woo clients away from Motorists, and to that end offered a one time incentive commission to Mr. Cline for every policy he could change over. Additionally, due to Motorists’ deteriorating financial condition, Mr. Cline felt that the switch to Aetna would be beneficial to his clients. Mr. Schneider was one of the people he contacted about the change.
A form letter was sent out in December of 1983 to the targeted clients together with a request for information. Mr. Schneider returned his letter with a handwritten inquiry about possibly omitting his deductible. Mr. Cline recalled a telephone conversation with Mr. Schneider when Mr. Cline advanced the alternatives of eradicating the deductible or switching to excess coverage as a means of saving money on premiums. Thinking that Mr. Schneider desired to switch to excess coverage Mr. Cline obtained his Blue Cross/Blue Shield policy numbers in anticipation of the change.
Mr. Schneider had no recollection of this conversation with Mr. Cline. On the contrary he stated that in several conversations with a Lindenmuth-Cline employee named Linda in 1983 and 1984, he specifically requested the continuation of primary coverage. The only Linda employed by the agency did not begin work until 1988.
In 1984 Mr. Cline arranged for the transfer of Mr. Schneider’s auto insurance from Motorists to Aetna, and also arranged the switch from primary to excess coverage. A copy of the policy, which included language concerning the coordination of benefits, was mailed to Mr. Schneider who was billed for the lesser, excess coverage, premium. In 1985, while the Aetna policy was in effect, Mr. Schneider, his wife and son were injured in an automobile accident.
Believing that they were entitled to primary, or double dip coverage, Mr. Schneider instituted this action sounding in breach of contract and negligence against the Lindenmuth-Cline Agency, Pat Cline and Aetna Insurance. The parties stipulated Plaintiffs damages to be $18,478.93. The case went to trial before a jury, who on January 15, 1991, returned a verdict for the defendants. Plaintiff filed timely post trial motions.

Turning to the first issue, our standard of review of an order denying judgment n.o.v. is limited. We must determine whether there was sufficient competent evidence to sustain the verdict. Wenrich v. Schloemann-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989); Ingrassia Construction Co., Inc. v. Walsh, 337 Pa.Super. 58, 61, 486 A.2d 478, 480 (1984). In so doing, we must grant the verdict winner the benefit of every inference which reasonably may be drawn from the evidence. We also must reject all unfavorable testimony and inferences. Ingrassia, supra. See also Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 508, 559 A.2d 550, 552 (1989); Jewell v. Beckstine, 255 Pa.Super. 238, 386 A.2d 597 (1978). Judgment n.o.v. may be granted only in clear cases, where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Gray v. H.C. Duke & Sons, Inc., 387 Pa.Super. 95, 563 A.2d 1201 (1989); Frank v. Peckich, 257 Pa.Super. 561, 391 A.2d 624 (1978). Judgment n.o.v. may not be employed to invade the province of the factfinder. Thus, where there is a question of fact to be resolved, this is the fact-finder’s function. Trawick v. Nationwide Mutual Insurance Co., 242 Pa.Super. 271, 363 A.2d 1265 (1976).

The trial court acted correctly in refusing to grant the Schneiders’ motion for judgment n.o.v. None of the testimony adduced at trial showed that the Schneiders requested or paid for insurance coverage other than that which they received. The Schneiders received a copy of their policy shortly after it was issued and had every opportunity to review the plain language of its excess coverage provision.

The Schneiders rely upon the case of Tonkovic v. State Farm Mutual Automobile Insurance Company, 513 Pa. 445, 521 A.2d 920 (1987) for their assertion that judgment n.o.v. was wrongly withheld. We find that case to be inapposite.

In Tonkovic, the insured applied, in July 1979, for an insurance policy providing disability coverage offered by State Farm Mutual Automobile Insurance Company. It was undisputed that Tonkovic applied for coverage that would enable him to make his mortgage payments in the event of injury, without regard to where such injury might occur, or whether he might be eligible for worker’s compensation benefits. An application had been filled out covering these specific points. Tonkovic paid for the policy. Three months later, Tonkovic was injured on the job and received worker’s compensation benefits. Tonkovic’s subsequent application for benefits under his State Farm policy was rejected. Our supreme court found that Tonkovic had applied and paid for certain coverage in advance, and State Farm then unilaterally reduced and excluded the coverage desired. It found that Tonkovic had specifically requested a type of coverage that would have protected him in the very instance before the court, but was issued a policy quite different from that which he requested. Our supreme court recognized that Tonkovic placed testimony before the jury from which the jury could conclude that Tonkovic never received a copy of the policy and had never been advised of a change in the coverage for which he had originally applied. On those facts, our supreme court held that an insurer may not unilaterally change the coverage provided without an affirmative showing that the insured was notified of, and understood, the change, regardless of whether the insured read the policy. Tonkovic at 454, 521 A.2d at 925.

At best, the Tonkovie decision demonstrates the existence of factual disputes calling for jury resolution. There is nothing in that decision to form the basis for a grant of judgment n.o.v. in the Schneiders’ favor. Even under the extreme circumstances present in Tonkovic, the issue before our supreme court was whether a jury could find that the policy exclusion was not applicable. The court stated that, on appeal, the evidence and the reasonable inferences must be viewed in the light most favorable to the verdict winner and that conflicts in testimony must be resolved in the verdict winner’s favor. Id. at 454, 521 A.2d at 925. At the very most, the Schneiders were entitled to exactly what they received: the submission of their claim to the jury.

Turning to the Schneiders’ second contention on appeal, again we find no error. The Schneiders asked for the following points for charge:

6. When an insurer elects to issue a policy different from what the insured requested, there is clearly a duty to advise the insured of the changes so made. The burden is not on the insured to read the policy to discover such changes or not read at his peril. Tonkovic v. State Farm Mutual Automobile Insurance Company, 521 A.2d [at] 925.
7. Where an individual applies for and prepays for specific insurance coverage, the insurer may not unilaterally change the coverage provided without an affirmative showing that the insured was notified of and understood the change regardless of whether the insured read the policy. Tonkovie ....
8. An insurer cannot unilaterally defeat the expressed expectations of the insured when the issued coverage differs materially from the coverage which the insured specifically applied, the insurer must call the difference to the attention of the insured, regardless of whether the policy language by itself is clear. Koval v. Liberty Mutual Insurance Company, [366 Pa.Super. 415, 421], 531 A.2d [487], 490 (1987).

Plaintiffs Supplemental Additions to the Points for Charge, submitted January 14, 1991, ruled on January 15, 1991, Trial Transcript, January 14 and 15, 1991, pp. 194, 195, R.R.Vol. II, pp. 194, 195, Brief for Appellant, pp. 17-18.

A trial judge is not bound to remold points for charge presented to him. If they are not strictly in accordance with the facts in evidence or the law of the case, she may refuse them. Sedlitsky v. Pareso, 400 Pa.Super. 1, 8, 582 A.2d 1314, 1317 (1990), appeal denied 527 Pa. 673, 594 A.2d 659 (1991). It is not error for the court to refuse a requested point for charge which is improperly formulated, and the court is not responsible for adapting the request to make it a correct statement submittable to the jury. Parnell v. Taylor, 266 Pa.Super. 74, 86, 403 A.2d 100, 106 (1979) (Per Price, J., with one judge concurring in the result). Points for charge which necessitate qualification or modification may be refused, for the trial judge is not to mold or restate points which are not accurate as drawn. Solomon v. Luria, 213 Pa.Super. 87, 246 A.2d 435, 439 (1968).

We conclude that none of the requested points here at issue accurately reflect the authorities from which they purportedly are drawn, nor do they reflect the facts at trial in this case. We therefore find no error in the trial court’s rejection of the points for charge set forth above.

In the Argument portion of the Schneiders’ Brief, the only authority relied upon and argued, outside of the quoted language contained in the disputed points for charge, in support of these requested points is Tonkovic v. State Farm Mutual Automobile Insurance Company, supra. The facts presented at trial would not support any one of the three requested points.

Lawrence Schneider had primary coverage for medical benefits under a Motorist Mutual policy. He was contacted by defendant Pat Cline concerning switching his carrier to Aetna. Cline testified, as on cross-examination, that Schneider was interested in saving money in his insurance costs if a transfer were to be affected. Cline apprised Schneider of two possibilities for decreasing his premium costs: eliminating his property deductible since the automobile being insured was somewhat old and switching to excess rather than primary coverage on the medical benefits. Cline obtained Schneider’s private hospitalization and medical benefits policy numbers in anticipation of the change from Motorist Mutual to Aetna.

Schneider did not recall this conversation with Cline, but testified that in speaking with an employee named Linda at the Lindenmuth-Cline agency in 1983 and 1984, he specifically requested the continuation of primary coverage. Cline, in 1984, arranged for the transfer of the insurance from Motorist Mutual to Aetna, with a switch from primary to excess coverage. The policy, with language concerning the coordination of benefits, was mailed to and received by Schneider in 1984. After the policy was issued, Schneider was billed for, and paid, the lower, excess coverage premium. The following year, the Schneiders were involved in an accident. Their request to secure double payment from Aetna was refused prompting this suit.

These facts will not support the points requested. As to requested point No. 6, above, the Aetna policy had not been requested by the insured but was discussed on the initiative of the agent as a possible cost-saving device. More fundamentally, the requested point omits a material clause included in the Tonkovic opinion. The pertinent language in Tonkovic is, in its entirety:

We find a crucial distinction between cases where one applies for a specific type of coverage and the insurer unilaterally limits that coverage, resulting in a policy quite different from what the insured requested, and cases where the insured received precisely the coverage that he requested but failed to read the policy to discover clauses that are the usual incident of the coverage applied for. When the insurer elects to issue a policy differing from what the insured requested and paid for, there is clearly a duty to advise the insured of the changes so made. The burden is not on the insured to read the policy to discover such changes, or not read it at his peril.

Tonkovic 513 Pa. at 454, 521 A.2d at 925 (emphasis added). In the case now under review, there is absolutely no testimony to support any suggestion that Schneider had paid for primary coverage under the Aetna policy and received something less. To the contrary, the uncontradicted testimony was that Schneider received a bill for a reduced sum, after the policy had been delivered to him, and paid that reduced sum without further inquiry.

In the same vein, requested point No. 7 was properly refused since it, also, assumes facts that were not in evidence, that is, the alleged application and prepayment for specific insurance coverage, and the unilateral change of the coverage provided. The Schneiders contend on appeal that this case is controlled by Tonkovic. We cannot agree.

Both of the requested points for charge, Nos. 6 and 7, when accurately related to the Tonkovic holding, depend upon a factual scenario not present on this appeal. Schneider did not prepay for specific coverage, he did not fill out an application for specific coverage, and he did receive both a reduced premium notice and his policy at least one year prior to the incident which triggered his claim against Aetna. We find no error in the trial court’s denial of points Nos. 6 and 7.

As to requested point No. 8, this is nothing more than a restatement of points Nos. 6 and 7. The language submitted to the trial court is an excerpt from Koval v. Liberty Mutual Insurance Company, 366 Pa.Super. 415, 422, 531 A.2d 487, 490 (1987). In Koval, in quoting the language here sought to be given to the Schneider jury as request No. 8, this Court was doing nothing more than distinguishing Tonkovic from the case then before it, a case in which an anti-staeMng clause was upheld against the insured.

We are unable to find the “crucial distinction” which energized the Tonkovic decision. Tonkovic 513 Pa. at 454, 521 A.2d at 925. We find no error in the trial court’s denial of point No. 8.

In the alternative, the Schneiders argue that the trial court erred in charging the jury “as requested by the defendants.” The Schneiders contend that the following portion of the court’s charge was erroneous:

Now, we talked about the insurance policy and how it was issued and mailed to the insured. Now, an insured is deemed to have knowledge of the contents of an insurance policy issued to him when he has received the policy. If the terms of the insurance policy are such that upon reading the policy the insured would be aware that coverage for medical benefits would be excess over similar benefits he is deemed to have such knowledge.
If you find based upon the evidence that the language of Mr. Schneider’s insurance policy included clearly worded and conspicuously displayed language to the extent that the coverage for medical benefits would be excess over similar benefits available to the insured, then the insured is not permitted to recover against any of the defendants in this case.

Trial Transcript, January 14 and 15, 1991, pp. 212-213, R.R.Vol. II, pp. 212-213.

The Schneiders also take issue with the following excerpt from the trial court’s charge:

... .You may find in favor of the plaintiffs against the Pat Cline Agency only if you find by a preponderance of the evidence that the plaintiffs and Pat Cline or LindenmuthCline specifically agreed that primary medical benefit coverage would be included in the Aetna insurance being acquired.

Id. at 211-212.

The Schneiders do not argue that the quoted language is not a correct statement of the law in Pennsylvania. They limit their objection to the charge actually given on the basis that it is “violative of the holding in Tonkovic.” While this may very well be true, it would not be determinative of this appeal unless we were to find that Tonkovic controls the outcome of this case. The Schneiders concede as much. In evaluating a claim of erroneous instructions to the jury, we must analyze the court’s charge in its entirety. Olson v. Dietz, 347 Pa.Super. 1, 6, 500 A.2d 125, 127 (1985). We are unable to find any error in the charge as a whole. That the charge does not parallel the holding in Tonkovic is of no moment, inasmuch as the unique facts and “crucial distinction” found by our supreme court in Tonkovic are not present here.

Our role as a reviewing court is limited to determining whether the trial court committed error in either (a) giving points for charge that were not consistent with the law and the facts, or (b) refusing to give requested points for charge which are required in order to secure a proper resolution of the dispute. On this appeal, the Schneiders advance three specific points for charge which were refused. On the trial record available to this court, we find no error in such refusal. The Schneiders, in the alternative, go on to suggest that a portion of the charge that was given was erroneous. Since the challenged portions mirror facts which were in front of the jury and set forth correct statements of Pennsylvania law, we cannot find error in those portions of the charge about which objection has been made.

Accordingly, we AFFIRM the judgment in favor of the defendants and against the plaintiffs. Judgment AFFIRMED. Jurisdiction RELINQUISHED.

FORD ELLIOTT, J., files a concurring and dissenting opinion.

FORD ELLIOTT, Judge,

concurring and dissenting.

I agree with the majority that appellants’ first issue is without merit. However, I must respectfully dissent to the majority’s resolution of appellants’ second issue which challenges the sufficiency of the jury charge.

Appellants’ argument concerning the jury instructions is twofold. First, appellants argue that the trial court erred in refusing certain points they requested. Second, appellants maintain that the trial court erred in charging the jury, in part, according to appellee’s request. The majority opinion focuses only on the first part of appellants’ argument. My concern is with the second part.

The majority carefully analyzes appellants’ requested instructions against the backdrop of the evidence adduced at trial and concludes that the trial court did not err in refusing to charge the jury on those points. However, with respect to the part of the charge which was given as requested by appellee, and which appellants’ maintain was erroneous, the majority summarily dismisses appellants’ contentions by concluding that the charge is a correct statement of the law. However, I believe that an equally thorough review of that challenged part of the charge demonstrates that the trial court erred in giving this portion of the charge at all in light of the evidence adduced at trial.

At the outset, this writer admits to some confusion regarding the nature of the cause of action appellants are pursuing. The pleadings clearly sound in negligence. However, at various times during the proceeding and again in this appeal, appellants have characterized their claim as a breach of contract. The contract allegedly breached is not the written insurance contract between appellants and Aetna but rather an oral agreement to secure insurance as between appellants and appellees Pat Cline and Lindenmuth-Cline. However, based on the evidence presented at trial to establish this claim, appellants’ breach of contract theory is grounded in misrepresentation and on a breach of duty of good faith and fair dealing owed by appellees to appellants. This court must take the case as presented to it and may not conform the cause of action on appeal. The trial court clearly accepted appellants’ characterization and instructed the jury on a breach of contract theory. In resolving the limited issue presented on appeal as to the appropriateness of the jury instructions, this court’s review is not hampered by the characterization of the cause of action.

For appellate purposes, in reviewing a challenge to jury instructions, we must examine the charge in its entirety, against the background of the evidence adduced at trial, to determine if an error occurred. Sweitzer v. Dempster Systems, 372 Pa.Super. 449, 539 A.2d 880 (1988). In this case, the evidence adduced at trial sought to demonstrate the misrepresentation and breach of duty on appellees’ part involving the alleged oral agreement. This evidence generally conforms to the allegations in the pleadings. It is within this context that the trial court charged the jury as follows:

Now, the plaintiff may only recover on the basis of breach of contract against Pat Cline and Lindenmuth-Cline if they prove that they had a contract with the defendants to acquire for them no-fault insurance with Aetna which provided primary coverage for medical benefits. If you find that the plaintiffs failed to prove any element of their breach of contract claim against Pat Cline and LindenmuthCline then your verdict must be in favor of these defendants. If you find the essential terms of the agreement between the plaintiffs and Pat Cline or the Cline Agency were so uncertain that you cannot tell if the agreement has been kept or broken, there is not an enforceable contract, and your verdict must be in favor of Pat Cline and Lindenmuth-Cline. When determining the attempt [sic] of the parties, when entering into an oral contract is that all surrounding circumstances be examined to determine the parties’ intent. You may find in favor of the plaintiffs against the Pat Cline Agency only if you find by a preponderance of the evidence that the plaintiffs and Pat Cline or Lindenmuth-Cline specifically agreed that primary medical benefit coverage would be included in the Aetna insurance being acquired.
If you find that the defendants Lindenmuth and Pat Cline furnished policies differing from what the insured requested, further that these defendants failed to advise the plaintiff of the changes made, then you may find for the plaintiffs and against the defendants.
Now, we talked about the insurance policy and how it was issued and mailed to the insured. Now, an insured is deemed to have knowledge of the contents of an insurance policy issued to him when he received the policy. If the terms of the insurance policy are such that upon reading the policy the insured would be aware that coverage for medical benefits would be excess over similar benefits he is deemed to have such knowledge.
If you find based upon the evidence that the language of Mr. Schneider’s insurance policy included clearly worded and conspicuously displayed language to the extent that the coverage for medical benefits would be excess over similar benefits available to the insured, then the insured is not permitted to recover against any of the defendants in this case.

(N.T., Vol 2 at 211-13.)

Appellants maintain that the trial court erred in giving that portion of the jury charge which instructed that if the jury found that the insurance policy included clearly worded and conspicuously displayed language regarding medical benefits, then appellants could not recover against any of the appellees. I agree.

The objectionable charge is taken directly from the holding of our supreme court’s decision in Standard Venetian Blind Co. v. American Empire Insurance Co., supra. In Standard Venetian Blind, the supreme court reversed this court’s holding in Hionis v. Northern Mutual Insurance Co., 230 Pa.Super. 511, 517, 327 A.2d 363, 365 (1974), which stated that:

[W]here a policy is written in unambiguous terms, the burden of establishing the applicability of the exclusion or limitation involves proof that the insured was aware of the exclusion or limitation and that the effect thereof was explained to him.

The supreme court instead decided that:

We hold only that where, as here, the policy limitation relied upon by the insurer to deny coverage is clearly worded and conspicuously displayed, the insured may not avoid the consequences of that limitation by proof that he failed to read the limitation or that he did not understand it.

Standard Venetian Blind 503 Pa. at 307, 469 A.2d at 567.

What is critical to an understanding of this holding, however, is that Standard Venetian Blind, was decided in the context of a declaratory judgment action seeking a determination of coverage issues under a written policy of insurance. The supreme court looked to the clear and unambiguous exclusionary language in the policy and decided as a matter of law that the language of the contract controlled and therefore the court would not look to negotiations leading up to the contract. Applying age old contract principles, the court stated:

We believe that the burden imposed by Hionis fails to accord proper significance to the written contract, which has historically been the true test of parties’ intentions. By focusing on what was and was not said at the time of contract formation rather than on the parties’ writing, Hionis makes the question of the scope of insurance coverage in any given case depend upon how a factfinder resolves questions of credibility.

Id. at 306, 469 A.2d at 567. Undeniably, were appellants herein suing on the insurance contract supplied by Aetna, I would agree that as a matter of law the contract was clear and unambiguous as to the medical benefits coverage question. In such a case, a jury question is not presented. However, what distinguishes this case from Standard Venetian Blind, is that appellants’ claim is not based on a breach of the policy of insurance. Rather, appellants sued Pat Cline and Lindenmuth-Cline Agency for breach of duty and misrepresentations involving an allegedly separate oral agreement to write an insurance policy.

It has long been the law of this Commonwealth that insurers and their agents are held to a duty to deal fairly and openly with their insureds. See Dercoli v. Pennsylvania National Mutual Ins. Co., 520 Pa. 471, 554 A.2d 906 (1989); Fedas v. Insurance Co. of the State of Pennsylvania, 300 Pa. 555, 151 A. 285 (1930); Miller v. Keystone Insurance Co., 402 Pa.Super. 213, 586 A.2d 936 (1991); and Banker v. Valley Forge (Banker II), 401 Pa.Super. 367, 585 A.2d 504 (1991). Appellants’ alleged that appellees breached that duty in obtaining coverage through Aetna which differed from, that requested by Mr. Schneider. Indeed, appellants presented evidence at trial that they never requested the coordination of benefits clause, never signed any form requesting or acknowledging such a change, and were never informed that this clause had been incorporated in their new policy with Aetna. Appellees, naturally, presented conflicting testimony. Such factual conflicts in similar cases have been determined to be a question for the jury. See Tonkovic, supra, and Rempel v. Nationwide Insurance Co., supra. Indeed, even the trial court, in the portion of the charge to the jury preceding the Standard Venetian Blind charge acknowledged the existence of numerous questions of fact which would have to be resolved by the jury. This is precisely what takes this case outside the purview of Standard Venetian Blind. Therefore, when the trial court additionally charged the jury in a way that is only consistent with an action seeking recovery solely under the insurance contract, it effectively precluded the jury from properly resolving those factual inconsistencies on which they were also charged.

The portion of the charge which characterized the Standard Venetian Blind holding is, in essence, an “all-or-nothing” proposition. The jury is instructed that if they find that the particular clause of the insurance contract at issue is clearly worded and conspicuously displayed, then they cannot find in favor of the plaintiff. Such an instruction is erroneous instantly, since appellants were not seeking to recover against appellees on a breach of the written insurance contract. Rather, it is precisely because the policy language so clearly prohibited recovery, that they were suing on the theory of negligent misrepresentation in the context of an oral agreement to write insurance. Thus the Standard Venetian Blind charge given by the trial court in this instance was erroneous.

I agree with appellants that cases such as Rempel, supra, and Tonkovic, supra, more closely parallel the present factual situation and theory of the case. Rempel, for instance, was a trespass action wherein there was a factual dispute between the insured and the insurer as to precisely what type of coverage was requested and subsequently provided. Specifically, Mr. Rempel, in 1961, called his Nationwide agent and asked if he could match a life insurance policy offered by a competing company, whereby upon Rempel’s death the balance on his mortgage would be paid off plus an additional §5,000 benefit would be paid to Rempel’s wife. The Nationwide agent represented that a specific whole life policy offered by Nationwide would afford the same level of benefits as the competitor’s policy. However, upon Rempel’s death, the Nationwide policy failed to provide such a level of benefits. Mr. Rempel filed a trespass action against the agent and Nationwide, alleging misrepresentation. There was conflicting evidence at trial as to what representations were made by Nationwide’s agent to the Rempels. Accordingly, the trial court properly allowed the factual conflicts to be resolved by the jury.

Similarly, in Tonkovic, supra, a case decided after Rempel and relying upon it, there were certain factual disputes which were properly left to the jury for resolution. In Tonkovic, in the context of the assumpsit action, there arose factual inconsistencies as to whether State Farm’s agent had explained all of the modifications and restrictions in the policy. Specifically, whether the agent explained that the policy would not provide disability benefits if Mr. Tonkovic’s injury was compensable under worker’s compensation coverage. Mr. Tonkovic had specifically requested a policy of disability insurance which would enable him to make his mortgage payments in the event he became disabled, even if the disability was work-related and covered by worker’s compensation. When Tonkovic was injured at work and State Farm refused to pay the benefits, he instituted legal action. However, in the context of this assumpsit action there were clear and definite factual disputes as to the content of the conversations between Tonkovic and State Farm’s agent, regarding the scope of the policy. These factual disputes were allowed to go to the jury for resolution, and the jury’s verdict was ultimately upheld by the supreme court. Indeed, in deciding Tonkovic, Justice Papadakos addressed Standard Venetian Blind and rejected it as providing the basis for granting a j.n.o.v. motion in a case where there are clearly factual disputes requiring jury resolution. Justice Papadakos, in addressing Standard Venetian Blind, references a portion of that case wherein the court recognized that its holding is not' to be universally applied in all cases involving insurance coverage disputes. The Standard Venetian Blind court stated:

Although on this record we reject Hionis, we note that in light of the manifest inequality of bargaining power between an insurance company and a purchaser of insurance, a court may on occasion be justified in deviating from the plain language of a contract of insurance.

Id. 503 Pa. at 307, 469 A.2d at 567. Justice Papadakos, in Tonkovic, went on further to state:

Thus, we made it clear that our holding was not to be mechanically applied without regard to the factual context in which the claim arose. Venetian Blind is simply not applicable to the facts of the instant case. Neither did we intend by our decision in Venetian Blind to overrule or create a conflict with our decision in Rempel v. Nationwide Life Insurance, supra, which is clearly controlling on the instant facts. We find a crucial distinction between cases where one applies for a specific type of coverage and the insurer unilaterally limits that coverage, resulting in a policy quite different from what the insured requested, and cases where the insured received precisely the coverage that he requested but failed to read the policy to discover clauses that are the usual incident of the coverage applied for.

Tonkovic 513 Pa. at 453, 521 A.2d at 924-25.

Instantly, given that appellants’ suit centers around the oral negotiations leading up to the formation of the insurance contract and not on the insurance contract itself, and given that there were factual disputes regarding that negotiation period, the trial court should have allowed those disputes to be resolved by the jury, as occurred in Rempel and Tonkovic. However, by charging Standard Venetian Blind to the extent it did, the trial court undercut the jury’s fact finding role.

Finally, this distinguishment of Standard Venetian Blind should not be interpreted to indicate that the principles of that case have no application in a cause based upon a breach of duty and misrepresentation. Trial courts certainly may charge that a plaintiff is deemed to have knowledge of the contents of a clearly-worded insurance policy issued to him. Such knowledge is relevant to the jury in making its credibility determinations or in assessing the intent and understandings of the party relative to the breach of duty and misrepresentation claims. However, Standard Venetian Blind may not be charged to the extent that it removes fact finding determinations from the jury. Since that occurred in this instance, I am compelled to conclude that the erroneous instructions substantially impaired the jury’s factfinding role; and therefore I would vacate the judgment in favor of appellees and remand for a new trial.

      . I am mindful that based upon the allegations of the complaint, appellees, Pat Cline and Lindenmuth-Cline Agency, Inc., filed a motion for summary judgment on the basis that appellants’ claim was barred by the applicable statute of limitations. In their summary judgment motion, appellees maintained that since appellants’ complaint was grounded in negligence, the applicable limitations period was two years. Since suit was not filed until three years after benefits were denied, it was appellees' position that suit was time-barred. In response, appellants maintained that although their complaint contained the words negligence and misrepresentation, their action was really one for breach of contract, not the insurance contract itself, but rather the oral contract between appellants and appellees regarding the procurement of a policy of insurance. Appellants argued in response to the summary judgment motion, that appellees had agreed to secure for them the same level of coverage that appellants had under their Motorist Mutual policy. By failing to leave the medical coverage primary, appellees breached this oral agreement. Based on appellants’ arguments, the trial court denied the summary judgment motion. Appellees again raised the statute of limitations argument via a motion for directed verdict. Again, the motion was denied.
      Given that the statute of limitations issue was not raised before this court, I will not concern myself with the appropriateness of the trial court's ruling in that respect.

      . It is of note that the question of whether a cause of action is pled as an assumpsit or trespass claim has been of some import in this area of the law. It is arguable that the application of Standard Venetian Blind v. American Empire Insurance Company, 503 Pa. 300, 469 A.2d 563 (1983), may directly relate to whether an insured is suing on a breach of insurance contract claim or whether the claim sounds in tort for breach of duty and misrepresentation. As noted by Justice Zappala in dissent in Tonkovic,

      Unlike Rempel [v. Nationwide Insurance Co., 471 Pa. 404, 370 A.2d 366 (1977) (discussed infra)], however, the Appellant in this case brought an action in assumpsit asserting that the Appellee’s denial of coverage was wrongful as it was based upon a policy exclusion which was not brought to his attention. The Appellant did not set forth a separate cause of action in trespass for negligent misrepresentation, but sought only to recover on the insurance policy which had been issued....
      ... At no time did the Appellant move to amend or conform the pleadings to include a trespass action for negligent misrepresentation after this reference of the agent’s failure to obtain requested coverage was made. Instead, the Appellant proceeded with his assumpsit claim for wrongful denial of coverage on the insurance policy which had been issued. The majority’s holding depends upon its analysis of a cause of action which was not raised in the Appellant’s complaint or by the theory of the case during the course of trial. Although the majority has raised a legal theory which may be applicable to the factual circumstances of this case, this Court is not at liberty to redraft the Appellant’s complaint or to dispose of the appeal on legal issues which were not presented by the parties.

        Id. 513 Pa. at 460-462, 521 A.2d at 928-929. See also Cohen, Stewart L., “Resolving Insurance Coverage Disputes in Pennsylvania Through Principles of Tort Law—A Bridge Over Muddied Waters.” 60 Pennsylvania Bar Association Quarterly, pp. 201-205 (1989).

      . I must query whether the section of Standard Venetian Blind charged to the jury in this instance could ever provide the basis for a jury charge. The function of a jury is to resolve issues of fact. The Standard Venetian Blind charge given herein resolves an issue of law since, “[glenerally, interpretation of unambiguous writings falls within the province of the court, while interpretation of ambiguous writings is a matter for the jury.” Koval v. Liberty Mutual Insurance Co., 366 Pa.Super. 415, 423, 531 A.2d 487, 491 (1987).
      Thus, while the charged portion of Standard Venetian Blind would properly resolve an issue of law in a summary judgment motion, for instance, it seems to have no place in a charge to a jury.


author: HOFFMAN, Judge:

text:
    620 A.2d 516
    COMMONWEALTH of Pennsylvania v. Thelbert O. LEWIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1992.
    Filed Feb. 12, 1993.
    Petition For Allowance of Appeal Denied June 7, 1993.

      Harvey L. Anderson, Philadelphia, for appellant.
    Norman Gross, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, OLSZEWSKI, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from judgment of sentence for second degree murder, two counts of robbery, criminal conspiracy and kidnapping. Appellant, Thelbert Lewis, presents the following questions for our review:

I. Whether the Court of Common Pleas of Philadelphia had jurisdiction over the charged homicide, where the facts disclose that the homicide occurred in New York, and no act occurred in Pennsylvania which would constitute “complicity” “solicitation or conspiracy” to commit the homicide in New York.
II. Whether the guilty plea was voluntary where the colloquy on the plea did not include an inquiry into the basis, if any, over the jurisdiction of the charged homicide.
III. Whether trial defense counsel rendered ineffective assistance of counsel in failing to advise Appellant of the issue of jurisdiction over the charged homicide, in threatening Appellant that he would receive the death penalty if he pressed for trial, and in failing to object to the proper delineation of the elements of felony murder as including either the completed robbery or the kidnapping as the underlying felony.

Appellant’s Brief at 3. For the reasons set forth below, we affirm.

The relevant facts in this case are as follows. On December 3, 1985, appellant and two co-defendants stole a trailer load of beer from a Northeast Philadelphia beer distributor. In the course of carrying out the robbery, a security guard from the beer distributorship was kidnapped by appellant and co-defendants and was taken to New York City where the men unsuccessfully attempted to sell the beer.

While appellant was selling the beer, the co-defendants took the security guard out of the trailer, strangled him to death and left his body in a dumpster in Brooklyn, New York. Later that day, the men abandoned the trailer and returned to Philadelphia. Subsequently, appellant was arrested and charged with murder, voluntary manslaughter, two counts of robbery, criminal conspiracy and kidnapping.

On May 4,1987, appellant entered pleas of guilty to murder in the second degree, two counts of robbery, criminal conspiracy and kidnapping. Immediately after his plea, appellant was sentenced to life imprisonment for second degree murder to be served concurrently with his sentences of two-to-four years imprisonment for robbery and two-to-four years imprisonment for criminal conspiracy. Appellant failed to file a timely appeal. However, appellant filed a petition under 42 Pa. C.S.A. § 9541 of the Post Conviction Relief Act seeking permission to file an appeal nunc pro tunc. On April 30,1991, the trial court issued an order granting appellant the right to file a notice of appeal nunc pro tunc. Appellant filed his notice of appeal and subsequently filed post-trial motions which were denied. This timely appeal followed.

I.

Appellant first contends that the Court of Common Pleas of Philadelphia did not have jurisdiction to try appellant on the charge of second degree murder. Specifically, appellant argues that because both the actual homicide and the plan to commit the homicide took place in New York, Pennsylvania courts are without jurisdiction. We disagree.

18 Pa.C.S.A. § 102(a)(1) provides:

(a) General rule.—Except as otherwise provided in this section, a person may be convicted under the law of this Commonwealth of an offense committed by his own conduct or the conduct of another for which he is legally accountable for if...:
(1) the conduct which is an element of the offense or the result which is such an element occurs in this Commonwealth.

Id.

18 Pa.C.S.A. § 2502(b) defines second degree murder as follows:

A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.

Id.

In the instant action, the homicide occurred in furtherance of the robbery of the trailer of beer. Although the actual homicide occurred in New York, a necessary element of appellant’s second degree murder charge, the robbery of the trailer, took place in Philadelphia. Hence, the Court of Common Pleas of Philadelphia had jurisdiction over appellant’s second degree murder charge.

II.

Appellant next contends that since he was uncertain whether the trial court had jurisdiction over the homicide and the plea colloquy failed to include an inquiry into the basis of the trial court’s jurisdiction, appellant’s guilty plea to the charge of second degree murder was involuntary. We disagree.

After carefully reviewing the record and the parties’ briefs, we find that the trial court has adequately addressed these issues in its well-reasoned opinion. Accordingly, we resolve these issues for the reasons stated therein.

III.

Finally, appellant contends that trial counsel was ineffective for failing to advise appellant of the lack of jurisdiction over the homicide, for threatening appellant that he would receive the death penalty if the case went to trial and for failing to object to the trial court’s predicating the felony murder on either the robbery or the kidnapping. Appellant’s arguments are without merit.

In order to prevail on a claim of ineffectiveness, appellant must establish the following:

We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect on the outcome of the proceedings.

Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

Appellant first argues that trial counsel was ineffective for failing to advise appellant of the uncertainty of the trial court’s jurisdiction. However, since the trial court did have jurisdiction over the homicide, trial counsel had no obligation to raise the issue of jurisdiction with appellant.

Next, appellant contends that trial counsel was ineffective by “focusing” on the death penalty in advising appellant to plead guilty, thereby improperly coercing appellant’s guilty plea. We disagree. It is well-settled that “[t]he fact that appellant may not have pleaded guilty but for the opportunity to avoid the death penalty is insufficient to demonstrate the invalidity of the plea where counsel’s advice that the plea would be to appellant’s advantage was competent.” Commonwealth v. Chumley, 482 Pa. 626, 647, 394 A.2d 497, 508 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979).

Appellant’s counsel had a reasonable basis to believe that if the case proceeded to trial, appellant might be convicted of first degree murder and that if so, the Commonwealth would request a penalty of death. Moreover, there was an overwhelming amount of evidence supporting the charges of second degree murder, robbery, conspiracy and kidnapping. In light of the circumstances, the advice of appellant’s counsel to take the plea was competent and reasonable.

Appellant further argues that trial counsel was ineffective for failing to object at the plea colloquy to the following description of the elements of the offense of second degree murder:

Third, that the killing was committed while you and other defendants were engaged in the commission of the felonies of robbery and kidnapping.
Fourth, that the act of the defendant, one acting individually or collectively or as an accomplice, killed one guard while in furtherance of either or both or all of the felonies, as the case might be.

N.T., May 4, 1987, at 5-58. This argument is spurious. The trial court’s instructions at the plea colloquy properly set forth the required elements of second degree murder. Hence, appellant’s counsel had no basis to object. Accordingly, we affirm judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 2502(b).

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 2901.

      . The charge of kidnapping and one of the robbery charges merged with the charge of second degree murder for sentencing purposes.

      . At appellant’s plea colloquy, appellant’s counsel stated the following: I became aware this past Friday of negotiations that other lawyers for the codefendants were in the process of, which would have put those two people to testify against my client, if [the case went to trial.] I also became aware ... on the statement of co-counsel that they would then seek the death penalty against my client.
      N.T., May 4, 1987, at 10-11.


text:
    620 A.2d 519
    Sheena DARBY, a Minor by Her Parent and Natural Guardian, David BRIGGMAN and David Briggman in his Own Right v. Robert DANIELS, Pa. Financial Responsibility Assigned Claims Plan, Travelers Insurance Company and Constitution State Service Company. Appeal of David BRIGGMAN.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1992.
    Filed Feb. 19, 1993.

      William J. Campanale, Philadelphia, for appellants.
    John J. Morgan, Philadelphia, for appellee Pa. Financial.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment denying appellant David Briggman uninsured motorist benefits under the Pennsylvania Financial Responsibility Assigned Claims Plan. Appellant raises the following issue on appeal:

I. WHETHER THE PLAINTIFF, DAVID BRIGGMAN, CAN BE DEEMED THE OWNER OF A MOTOR VEHICLE AT THE TIME OF HIS MOTOR VEHICLE ACCIDENT IN 1990, WHEN SUCH VEHICLE WAS DESTROYED BY ACCIDENT IN 1983, SUCH THAT HE IS PRECLUDED FROM ELIGIBILITY FOR UNINSURED MOTORIST BENEFITS UNDER THE PENNSYLVANIA ASSIGNED CLAIMS PLAN.

Appellant’s Brief at 3. For the following reasons, we reverse and remand.

On May 7, 1990, appellant sustained injuries in a motor vehicle accident with Robert Daniels whose vehicle was uninsured at the time of the accident. Appellant applied to the Pennsylvania Financial Responsibility Assigned Claims Plan (hereinafter “Pa. Assigned Claims Plan”) for uninsured motorist benefits. Following arbitration, an award was entered in favor of appellant. Appellees, Pa. Assigned Claims Plan, Travelers Insurance Company (“Travelers”) and Constitution State Service Company (“Constitution”), filed an appeal and a nonjury trial was held. The trial court determined that appellant was ineligible for benefits pursuant to 75 Pa.C.S.A. § 1752(a)(3) and therefore entered judgment in favor of appellee. This timely appeal followed.

75 Pa.C.S.A. § 1752(a)(3) provides:

(a) General rule.—A person is eligible to recover benefits from the Assigned Claims Plan if the person meets the following requirements:
(3) Is not an owner of a motor vehicle required to be registered under Chapter 13 (relating to registration of vehicles).

Id. During the trial, appellee Pa. Assigned Claims Plan submitted documents from the Pennsylvania Department of Transportation which indicated that appellant was the record owner of a 1980 Subaru motor vehicle at the time of the accident and that the registration on the vehicle had expired in August, 1983. Appellant responded that he did not own the 1980 Subaru at the time of the May 7, 1990 accident because the vehicle had been destroyed in an accident in 1983 and that his finance company sold the vehicle for a salvage value of $375.00. N.T. 9/11/91 at 9. This amount was used to partially satisfy the outstanding balance on his vehicle loan. Appellant submitted the receipt of sale and correspondence from General Motors Acceptance Corporation, appellant’s finance company, as evidence of the above transaction. See Special Memorandum of Sale and Receipt for Payment dated November 3, 1983. Appellees offered no evidence to rebut this evidence. Nevertheless, the court determined that appellant was not eligible for benefits pursuant to 75 Pa.C.S.A. § 1752(a)(3). This was error.

Section 102 of the Motor Vehicle Code, 75 Pa.C.S.A., defines “motor vehicle” as “[a] vehicle which is self-propelled except one which is propelled solely by human power or by electric power obtained from overhead trolley wires, but not operated upon rails.” The code defines “vehicle” as “[e]very device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks.” Id.

The 1980 Subaru had been destroyed in an accident and sold for scrap value by appellant’s financing company. Thus, it was no longer capable of being “self-propelled.” Accordingly, the documentation provided by appellant during trial established both that he was no longer the owner of the 1980 Subaru and that the 1980 Subaru was no longer a “motor vehicle” as defined by the Motor Vehicle Code. Thus, appellant is eligible for benefits under 75 Pa.C.S.A. § 1752.

For the foregoing reasons, we reverse and remand for proceedings consistent with this opinion.

Reversed and remanded; jurisdiction relinquished.

      . The registration requirements set forth in Chapter 13 state that “[n]o person shall drive or move and no owner shall knowingly permit to be driven or moved upon any highway any vehicle which is not registered in this Commonwealth unless the vehicle is exempt from registration.” 75 Pa.C.S.A. § 1301(a).

      . As the trial judge is no longer sitting on the Court of Common Pleas, we do not have the benefit of an opinion explaining the court’s reasoning.

      . Appellee nonetheless asserts that appellant remained the title holder of the destroyed automobile because he never transferred title ownership. However, since the 1980 Subaru was no longer a "motor vehicle” at the time of the accident, appellant’s ownership status is irrelevant. Moreover, as noted previously, there was persuasive evidence indicating that appellant had in fact sold the Subaru in November 1983.

      . Appellee cites Allen v. Erie Insurance Company, 369 Pa.Super. 6, 534 A.2d 839 (1987) and Kresge v. Keystone Insurance Company, 389 Pa.Super. 548, 567 A.2d 739 (1989) for the proposition that this court does not recognize an “inoperability” exception to the registration or insurance requirements of the Motor Vehicle Responsibility Law. However, those cases are distinguishable from the instant case.
      First, Allen and Kresge involved the application of Sections 1713 and 1714 of the MVFRL (pertaining to first party benefits) whereas the present matter involves the interpretation of Section 1752 (pertaining to benefits under the Assigned Claims Plan). Second, the court in Allen and Kresge determined that the inoperability of a registered automobile did not excuse an owner from obtaining insurance on the automobile. In so holding, the court in Allen noted that an owner’s registration of his vehicle was evidence that the vehicle was potentially operable. Here, the automobile had not been registered for nearly seven years. Third, in Allen and Kresge, the court expressed its concern with avoiding fraudulent claims and disputes as to what constitutes "inoperability” or transfer of ownership. The concern with fraud in those cases is not present here, where appellant has not merely testified that she no longer possesses the car, but presented documentation indicating that appellant’s automobile had in fact been sold in November 1983 for $375.00.