text:
    526 A.2d 804
    Mary J. ARCIDIACONO and Thomas Arcidiacono, Appellees, v. TIMELESS TOWNS OF THE AMERICAS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1987.
    Filed June 1, 1987.

      Timothy I. Mark, Harrisburg, for appellant.
    E. Franklin Martin, Waynesboro, for appellees.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge:

In this action to recover damages for personal injuries sustained in a fall from a stage, the jury returned a verdict in favor of the defendant-owner of the premises. Thereafter, the trial court ordered a new trial unless the defendant agreed to pay the plaintiff one-half of the settlement figure which had been offered prior to trial. Because we find that the trial court abused its discretion, we reverse.

On April 17, 1982, Mary J. Arcidiacono, the appellee, was injured when she fell from a stage while attending a meeting on defendant’s premises. She, along with her husband, commenced an action in trespass alleging that appellant’s negligence had caused her fall. The evidence produced at trial showed that the stage from which appellee had fallen was a temporary structure which was eight feet in width, twenty-eight feet in length and sixteen inches in height. The stage had been placed between two pilasters in such a manner as to leave a space of about one foot between the rear edge of the stage and the wall which ran between the pilasters. A curtain had been hung about six inches from the rear edge of the stage, between the edge of the stage and the wall. Thus, a space existed between the end of the stage and the curtain, and also between the curtain and the wall. The defendant-owner’s witness testified that the gap between the edge of the stage and the curtain had been visible; and, in fact, photographs introduced into evidence at trial confirmed this testimony. The evidence showed, however, that the second gap, between the curtain and the wall, had not been visible.

Appellee, according to her own testimony, knew that she was walking near the edge of the stage and was aware of the fact that the curtain was located a short distance away from the edge of the stage. She stated that as she moved to step around the person who had been standing next to her, she fell between the stage and the wall. She testified that she had no idea of what had caused her to fall and that, although the lights had been dim, she had had no difficulty seeing where she was walking.

After hearing the evidence, the jury returned a verdict for the defendant-owner, finding that although it had been negligent, its negligence had not been a substantial factor in bringing about appellee’s injury. Appellee filed a timely motion for a new trial alleging that the verdict was against the weight of the evidence. The trial court entered an order granting the motion unless, within twenty days, the defendant offered to pay appellee one-half of the settlement figure which it had offered before trial. Defendant filed the instant appeal.

In Fulginiti v. Diamond Coal & Coke Co., 259 Pa. 344, 103 A. 51 (1918), plaintiff had brought suit against defendant alleging that plaintiffs personal injuries had been caused by defendant’s negligence. After the jury had returned a verdict for defendant, the trial court ordered that a new trial be held on the ground that one of plaintiff’s witnesses had been improperly induced to testify in the manner in which he had testified at trial. The trial court expressly conditioned its grant of a new trial, however, on defendant’s refusal to pay plaintiff the sum of $1,000.00. In affirming the trial court’s order, the Supreme Court said:

The action of the trial court in conditioning its grant of a new trial on refusal by defendant to pay into court the sum of one thousand dollars to use of plaintiff, in satisfaction of all his claims and demands, the costs to be first deducted thereout, is not free from criticism; but that is now all passed and calls for no further reference, since the defendant declined to accept the terms, and consequently no injury has resulted to it in consequence of the action taken. The trial court expressly and distinctly ... base[d] its action in granting a new trial on the ground that one of the plaintiff’s witnesses had been “improperly influenced to testify as he did at the trial,” and state[d] further that the interlocutory decree was intended merely as a condition on which the defendant could avoid the new trial which the court had determined the plaintiff was entitled to for the reason above stated, thus making it plainly evident that it was upon the one consideration above mentioned that the new trial was ordered, and that alone. We see no error in this.

Id., 259 Pa. at 346, 103 A. at 51 (emphasis added). See also: Raymond L.J. Riling, Inc. v. Schuck, 346 Pa. 169, 29 A.2d 693 (1943); 10 Std.Pa.Prac.2d § 62:104.

In the instant case, the trial court made no express or distinct finding that the jury’s verdict was against the weight of the evidence or that it was otherwise assailable. A close reading of the court’s opinion reveals that the court was concerned, at least in part, with insulating appellee from her poor judgment in refusing appellant’s pre-trial settlement offer without “rob[bing appellant] of the fruits of trial.” Yet it seems clear that the effect of the trial court’s order was precisely to rob appellant of the fruits of its victory while at the same time awarding appellee a recovery to which the jury had found she was not entitled. To subvert the verdict of the jury in this manner was a clear abuse of discretion and will not be permitted to stand.

Moreover and in any event, even if the trial court’s opinion were to lend itself to an interpretation suggesting that the court deemed the verdict contrary to the weight of the evidence, we would be constrained to find that the court abused its discretion. The applicable law was stated in Burrell v. Philadelphia Electric Co., 438 Pa. 286, 288-289, 265 A.2d 516, 517-518 (1970) as follows:

“The grant of a new trial is within the sound discretion of the trial judge, who is present at the offering of all relevant testimony, but that discretion is not absolute; this Court will review the action of the court below and will reverse if it determinefs] that it acted capriciously or palpably abused its discretion.” Austin v. Ridge, 435 Pa. 1, 4, 255 A.2d 123, 124, (1969) and cases there cited. “A new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion: [citation omitted]. Neither should it ordinarily be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the jury might have found for either party.” Carroll v. City of Pittsburgh, 368 Pa. 436, 445-446, 84 A.2d 505, 509, (1951). A new trial should be awarded on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Jones v. Williams, 358 Pa. 559, 564, 58 A.2d 57 [ (1948) ]; Carroll v. Pittsburgh, supra, 368 Pa. at 447, 84 A.2d 505; Brown v. McLean Trucking Co., 434 Pa. 427, 429-430, 256 A.2d 606 (1969).

See: Hawthorne v. Dravo Corp., 352 Pa.Super. 359, 365, 508 A.2d 298, 301 (1986); Cianci v. Burwell, 299 Pa.Super. 387, 390, 445 A.2d 809, 810 (1982).

In the instant case, appellee testified that she had been aware of the space which existed between the edge of the stage and the curtain at the time of her fall. She also stated that she had had no difficulty seeing where she was walking and that she simply did not know what had caused her to fall. Although the evidence showed that the space which had been permitted to exist between the curtain and the wall had not been apparent, there was no evidence that this space had any causal connection with appellee’s fall. Under the circumstances, therefore, a jury could find consistently with the evidence that appellee had failed to prove that appellant’s negligence in allowing the space between stage and wall was a substantial factor in bringing about her fall.

In its opinion, the trial court placed emphasis upon the fact that appellant had failed to explain on the defense side of the case how the fall had occurred. This was erroneous. The law imposed no such burden on the defense.

It is settled in the law that except in rare situations not here involved the mere occurrence of an injury does not prove negligence and that an admittedly negligent act does not necessarily entail liability; rather even when it is established that the defendant breached some duty of care owed the plaintiff, it is incumbent on a plaintiff to establish a causal connection between defendant’s conduct and the plaintiff’s injury. Stated another way, the defendant’s conduct must be shown to have been the proximate cause of plaintiff’s injury.

Hamil v. Bashline, 481 Pa. 256, 264-265, 392 A.2d 1280, 1284 (1978). See: Shirley v. Clark, 441 Pa. 508, 510, 271 A.2d 868, 869 (1970); Stenson v. Rechutti, 416 Pa. 548, 550, 207 A.2d 760, 761 (1965); Raibley v. Marvin E. Kanze, Inc., 221 Pa.Super. 234, 238, 289 A.2d 161, 163-164 (1972).

A review of the evidence produced at trial demonstrates support for the jury’s finding that appellee failed to carry her burden of proving the essential element of causation. The jury could readily find that she failed to prove that her fall had been caused by the appellant’s negligence and not by her own inattention. The verdict of the jury was consistent with the evidence, and the trial court should not have substituted its view for the findings of the jury.

The order awarding a new trial is reversed, and the verdict of the jury is reinstated.

      . Appellant argues that appellee waived this issue by failing to request that the notes of testimony be transcribed and by filing a post-trial motion containing only a boilerplate allegation that the verdict was against the weight of the evidence. We disagree. After appellee waived her right to have the notes of testimony transcribed, appellant requested a transcript of the testimony and paid the costs thereof. As a result, neither the trial court nor this Court has been without the benefit of the complete record. We have also examined appellees’ post-trial motion and conclude that it was of sufficient particularity to apprise the trial court of the manner in which appellee believed the verdict to be against the weight of the evidence.

      . Appellee has not filed a cross-appeal in this matter. Therefore, her allegation that the trial court erred in charging the jury on contributory negligence is not before us. "An appellee who files no counter-appeal cannot raise issues not raised by the appellant.” Philadelphia Bond & Mortgage Co. v. Highland Crest Homes, Inc., 235 Pa.Super. 252, 256 n. 1, 340 A.2d 476, 479 n. 1 (1975). See: Pennsylvania Human Relations Commission v. Chester Housing Authority, 458 Pa. 67, 72 n. 12, 327 A.2d 335, 338 n. 12 (1974).


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    526 A.2d 1192
    William C. GREENE, Appellant, v. OLIVER REALTY, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1986.
    Filed March 30, 1987.
    Reargument Denied June 12, 1987.

      Gary M. Davis, Pittsburgh, for appellant.
    Robert J. Marino, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, ROWLEY and POPOVICH, JJ.
   CIRILLO, President Judge:

This is an appeal from a grant of summary judgment by the Court of Common Pleas of Allegheny County. We reverse and remand.

Appellant, William Greene began working for Grant Building, Inc. in 1959. Greene allegedly agreed to work at a pay rate below union scale in exchange for a promise that Grant would employ him “for life”. In 1975, appellee Oliver Realty, Inc. took over management of Grant Building but Oliver’s president assured former Grant employees that existing employment contracts would be honored. During that same year Greene explained the terms of his agreement to an Oliver Realty supervisor. The supervisor stated that he would look into the matter but never got back to Greene. The trial court found that Oliver had impliedly adopted the oral contract between Greene and Grant Building. In 1983, Greene was laid off and he brought this action for breach of contract. The trial court ruled that under Pennsylvania law a contract “for life” is a contract at will. The court also held that a contract at will may become a contract for a reasonable time if it is supported by sufficient additional consideration other than the employee’s services. The court stated that there was no such consideration in this case. It found that Greene worked for subunion wages in order to avoid layoff not in exchange for lifetime employment. It also held that even if sufficient additional consideration was present, the period of 1975 to 1982 constituted a reasonable time. Therefore, there was no breach of the contract and the court granted Oliver’s motion for summary judgment.

Appellant presents three issues for our review: (1) whether the issue of sufficient additional consideration should go to the jury; (2) whether the issue of “reasonable” period of time should go to the jury; and (3) whether Greene is entitled to reach the jury on the issue of equitable estoppel. Because of our disposition of this matter it is unnecessary for us to consider these issues separately.

Contemporary contract law generally provides that a contract is enforceable when the parties reach mutual agreement, exchange consideration and have outlined the terms of their bargain with sufficient clarity. See Com. Dept. of Transp. v. First Penna. Bank, 77 Pa.Commw. 551, 466 A.2d 753 (1983). An agreement is sufficiently definite if the parties intended to make a contract and there is a reasonably certain basis upon which a court can provide an appropriate remedy. See Linnet v. Hitchcock, 324 Pa.Super. 209, 214, 471 A.2d 537, 540 (1984).

If an essential term is left out of the agreement, the law will not invalidate the contract but will include a reasonable term. For instance, if the parties do not specify price, a court will impose a reasonable price which will usually be the item’s market value. See Murray, Murray on Contracts 48 (1974). See also Kuss Mach. Tool & Die Co. v. El-Tronics Inc., 393 Pa. 353, 143 A.2d 38 (1958). However, if the parties include the term but have expressed their intention ambiguously, the court will not impose a reasonable term and the contract may fail for indefiniteness. Id. 143 A.2d at 40. A court will not attempt to fix contractual terms which are inconsistent with the intent of the parties. That is because the paramount goal of contractual interpretation is to ascertain and give effect to the intent of the parties. See Burns Mfg. Co., Inc. v. Boehm, 467 Pa. 307, 313, 356 A.2d 763, 766 (1976). When the language of a written contract is clear and unequivocal, its meaning must be determined by its contents alone. Mears, Inc. v. National Basic Sensors, 337 Pa.Super. 284, 289, 486 A.2d 1335, 1338 (1984). Only if the words used are ambiguous may a court examine the surrounding circumstances to ascertain the intent of the parties. Kennedy v. Erkman, 389 Pa. 651, 655, 133 A.2d 550, 552 (1957). However, in cases involving oral contracts the complete agreement is not recorded. Therefore, in that situation, courts must always examine the surrounding circumstances to determine the parties intent. Westinghouse Elec. Co. v. Murphy, Inc., 425 Pa. 166, 171-72, 228 A.2d 656, 659 (1967). Because courts wish to effectuate the parties intentions, they may enforce an indefinite contract if its terms have become definite as the result of partial performance. One or both parties may perform in such a way as to make definite that which was previously unclear. Murray, Contracts at 51-52. See also Com. Dept. of Transp. v. Mosites Const. Co., 90 Pa.Commw. 33, 494 A.2d 41 (1985).

Traditional contract law distinguished between contracts involving two promises which were called bilateral and contracts involving only one promise which were called unilateral. Murray, Contracts at 9. A bilateral contract is created when one party promises to do or forbear from doing something in exchange for the other party’s promise to do or forbear from doing something else. In a unilateral contract there is only one promise. It is formed when one party makes a promise in exchange for the other person’s act or performance. Id. at 10. Mutuality of obligation means that both parties are under an obligation to perform their promises. It is often stated that a contract is unenforceable if there is no such mutuality but this principle is inapplicable to unilateral contracts. See Darlington v. General Elec., 350 Pa.Super. 183, 203, 205, 504 A.2d 306, 316, 317 (1986). If A promises B $100 if B walks across the Brooklyn Bridge, a unilateral contract will be formed if B does as A requests. It is a unilateral contract because it consists of a promise in exchange for a performance. However, the contract is not formed until B walks across the bridge. At that time, A owes B $100 even though B no longer has any obligation to A. A unilateral contract is formed by the very act which constitutes the offeree’s performance. Therefore, mutuality of obligation will never exist in such a situation. By the time the contract is formed, only the offeror will remain obligated. The offeree will already have performed. This is why the Restatement provides that: “If the requirement of consideration is met, there is no additional requirement of ... (c) ‘mutuality of obligation.’ ” Restatement of Contracts (Second) § 79 (1981).

The other problem with mutuality of obligation is that the doctrine is often confused and misinterpreted even in cases concerning bilateral contracts. Courts sometimes refuse to enforce a single promise made in exchange for several promises. See Perritt, Employee Dismissal Law and Practice, 47 (1984). They require that each promise must be supported by a separate consideration. This is usually done in the name of mutuality of obligation. However, if person A promises to do something in exchange for person B’s promise to do three things, there is mutuality of obligation. A is obligated to do as he promised, as is B, though B’s obligation entails three promises. Both parties are obligated, so mutuality of obligation is present. However, B’s obligation appears greater than A’s. Courts sometimes decline to force B to perform because of this difference in obligation. These courts are implicitly requiring that both parties to a contract must have concurrent or equivalent obligations. If one party is “more” obligated than another, the contract fails. This result is incorrect because consideration may be any bargained for exchange. Com. Dept. of Transp. v. First National Bank, N.A., 77 Pa.Commw. 551, 466 A.2d 753 (1983). If B desired A’s promise sufficiently to make three promises of his own, there is no reason why the law should not enforce the arrangement. As in any other contract, each party bargained for what he wanted. Modern contract law recognizes that, “If the requirement of consideration is met, there is no additional requirement of ... (b) equivalence in the values exchanged....” Restatement of Contracts (Second) § 79 (1981). It then follows logically that, “[s]ince consideration is not required to be adequate in value (see § 79), two or more promises may be binding even though made for the price of one.” Id. at § 80 comment a. See Thomas v. Thomas Flexible Coupling Co., 353 Pa. 591, 598, 46 A.2d 212, 216 (1946). Those courts which invalidated agreements like the one described above did so in the name of mutuality of obligation. But, as noted above, mutuality of obligation is present in this type of situation and equivalency of obligation is not required in contract law. See Restatement § 79. Therefore, modern contract law recognizes such agreements as valid and enforceable.

However, there is one area of contract law which is strikingly idiosyncratic. That is the law of employment contracts. It has developed contrary to all of the standard, modern contract principles discussed above. If the parties to an employment contract do not specify the duration of the contract, a court will not imply a reasonable duration. The contract is considered terminable at will. If the parties contract for “lifetime” employment, many courts will refuse to enforce their bargain even if their intentions are clear. Even if the agreement is oral, courts refuse to consider the surrounding circumstances. Though mutuality of obligation is a discredited notion, it is often required in the employment context, even when the employment agreement is a unilateral contract. Also, courts routinely refuse to enforce employment contracts if they entail a single promise made in exchange for several promises. In reaching these results, courts rely on anachronistic theories which they would never apply in other fields of contract law. The strong resistance of employment law to modern contract doctrine is a testament to the influence of a uniquely American legal tradition: the at-will presumption.

A thorough analysis of this area of law demonstrates the continuing importance of this presumption. It is far from the antiquated and outmoded principle that its critics claim. The presumption is attacked because its theoretical underpinnings are inadequately understood. The same is true of our court system’s reluctance to enforce lifetime employment agreements. The reasons given for this reluctance are so obviously insufficient that observers have concluded that there are no good reasons for the policy and such contracts should be readily enforceable. We agree that current rules of construction are too artificial. However, we also believe that there are good reasons why courts should be very careful before they enforce a lifetime employment contract.

Despite the principle of contractual interpretation that courts must ascertain and give effect to the parties’ intent, employment law creates a presumption which may be contrary to that intent. An employment agreement is presumptively terminable at will by either party. The employee may leave the job for any or no reason or the employer may terminate the employee for any cause or no cause. Darlington v. General Elec., 350 Pa.Super. 183, 188, 504 A.2d 306, 309 (1986). The party claiming that an agreement is for a definite period has the burden of proving that fact. Geary v. United States Steel Corp., 456 Pa. 171, 175, 319 A.2d 174, 176 (1974). This requirement is satisfied by clear proof that the parties contracted for a specific duration. See Maloney v. Madrid Motor Corp., 385 Pa. 224, 228-29, 122 A.2d 694, 696 (1956). When it is proven that the contract specified a definite period, the employee may not be terminated during that period unless the employer has “just cause”. Darlington, 350 Pa.Super. at 204, 504 A.2d at 316. However, the presumption is strong enough that it usually is not rebutted by an agreement which specifies that it is for “permanent” or “lifetime” employment. For various reasons, the intent of the parties is often ignored in such a situation in deference to the at-will presumption. But, if such contracts was enforceable, the employee could not be terminated without cause.

A presumption is a procedural device which shifts the burden of persuasion. Bixler v. Hoverter, 89 Pa.Commw. 88, 91, 491 A.2d 958, 959, (1985). A presumption of law compels the fact finder to reach a particular conclusion in the absence of evidence to the contrary. Stine v. Borst, 205 Pa.Super. 46, 53, 205 A.2d 650, 654, (1964). Presumptions arise over the course of time through experience and common observation. When experience shows that a connection exists between things so that one usually follows the other, this connection may become the foundation for a legal presumption. Watkins v. Prudential Ins. Co., 315 Pa. 497, 504, 173 A. 644 (1934). A legal presumption may also be based upon procedural expediency or public policy. See Chadbourn & Wigmore, Wigmore on Evidence 287-91 (1981).

The at-will presumption is based on an uneasy marriage of procedure, policy and experience. Our review of the relevant cases and literature reveals that there are five policies underlying the presumption: (1) The policy of freedom of contract; (2) the need for mutuality of obligation; (3) common experience that it usually effectuates the intent of the parties; (4) as a procedural protection against merit-less but vexatious lawsuits; and (5) fairness and equity.

English courts traditionally held that a contract of employment for an indefinite term was presumed to be a contract for one year. Darlington, 350 Pa.Super. at 189-90, 504 A.2d at 309. However, American courts of the late 1800’s rejected this view. These courts adopted the doctrine of freedom of contract. This principle implies that the terms of an economic relationship should be determined entirely by the parties. Therefore, no presumptions affecting the relationship should be imposed by law. It may now seem ironic, but the doctrine of at-will employment was originally based upon a rejection of artificial presumptions. See Perritt, Employee Law at 5.

However, in the late 1800’s and early 1900's, “commerce was King [and] laws were tailored to facilitate business.... Thus, laws ... largely left business decisions to businessmen.” Darlington, 350 Pa.Superior Ct. at 189-90, 504 A.2d at 309. As one commentator has written, “the prevailing economic theories of the day exhalted the role of market forces....” Perritt, Employee Law at 4. The at-will rule flourished in this atmosphere. It allowed businessmen unfettered discretion in hiring and firing. Employees were encouraged to sell their labor to the highest bidder and employers were free to hire and fire as they saw fit. It was believed that this state of affairs resulted in the greatest maximization of wealth to society. The doctrine was so appropriate for the pro-business temper of the times that it was soon accepted as a legal presumption by the vast majority of American courts. Its basis was originally freedom of contract, but this was soon confused and contorted so that the rule’s true foundation became freedom for employers to manage their businesses as they wished. Id. at 4-7.

By the early 1900’s, the at-will presumption was as inflexible and artificial as the one year rule it had replaced. The presumption was originally rebuttable if the employee produced evidence sufficient to establish an implied-in-fact contract. But it gradually developed into a substantive limitation whereby the employment relationship was conclusively at-will. Courts refused to enforce informal employment contracts even though such a refusal might be contrary to the parties’ actual intent. Perritt, Employee Law at 6. As previously discussed, freedom of contract implies that the parties are free to determine the terms of their relationship. The at-will presumption was supposedly based upon this principle. Yet, courts formalistically enforced the rule, allowing it to become a substantive limitation upon the parties’ freedom to contract. The presumption actually developed contrary to the very principle upon which it was based.

Therefore, the policy of freedom of contract encourages courts to effectuate the intent of the parties. To the extent that legal rules stymie this intent, they also obstruct freedom of contract. The right of competent adults to contract is the lifeblood of our free enterprise system. Voluntary agreements are the foundation of our society’s freedom and prosperity. If two parties desire to contract “for life”, courts should be encouraged to enforce their agreement. Of course, the at-will presumption may still be a sound legal rule. It is only when it is allowed to conclusively foreclose proof of the parties intent that it becomes an obstacle to freedom of contract. Also, the rule is supported by valid procedural, practical and equitable concerns.

One rationale for the rule which is illogical and undeserving of perpetuation is that of mutuality of obligation. Courts have often held that mutuality of obligation is lacking in the employment context, particularly in regard to contracts for permanent employment. See, e.g., Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939); Pitcher v. United Oil & Gas Syndicate, Inc., 174 La. 66, 139 So. 760 (1932); Roxana Petroleum Co. v. Rice, 109 Okl. 161, 235 P. 502 (1924); Louisville & N.R. Co. v. Cox, 145 Ky. 667, 141 S.W. 389 (1911). Several reasons have been proffered for this conclusion: (1) there is no consideration for the employer’s promise; (2) only the employer is obligated; and (3) the employer is obligated for a longer period than the employee. None of these justifications has merit.

In order for a promise to be binding, it must usually be made in exchange for consideration. However, consideration may be any bargained for benefit or detriment. Estate of Beck, 489 Pa. 276, 282, 414 A.2d 65, 68 (1980). An employer is free to promise lifetime employment to someone in exchange for that person coming to work for the employer. Once that person accepts and starts work, the employer has received exactly what he bargained for. The employee has performed the desired act. That act is the consideration for the employer’s promise and their agreement is a unilateral contract. It is irrelevant that the employee’s services are also consideration for his salary. Modern contract law recognizes that consideration may be a single act exchanged for several promises. Richter v. Mozenter, 356 Pa. 650, 654, 53 A.2d 76, 78 (1947). See Restatement Contracts (Second) § 79 (1981). Therefore, an employee is free to sell his services in exchange for wages and a promise of lifetime employment.

Once the employee begins work, the employer may be the only party obligated, but that is standard in situations involving a unilateral contract. The promisor has requested a performance as the price of his promise. Once he receives that performance, it would defy all notions of equity to allow him to avoid his obligation by claiming that the promisee is no longer obligated. He is no longer obligated because he has already performed the agreed upon acts. As previously discussed, this is the reason that mutuality of obligation is inapplicable to unilateral contracts. See Restatement § 79.

The employer and employee need not be obligated for coextensive periods of time. The law does not require equivalency of consideration. Therefore, the employee may be bound for one period of time though the employer is bound for much longer.

The at-will presumption, like most other legal presumptions, is also based upon common experience. In the vast majority of employer-employee relationships, both sides are silent about the expected duration of the employment agreement. The employee usually feels free to leave and take another job if it presents a more desireable opportunity. Similarly, the employer generally feels free to discharge the employee if he no longer wants his services. The at-will presumption is simply a legal recognition of the parties’ normal expectations. In the vast majority of cases, it is consistent with the parties' intent. Therefore, it is procedurally expedient that the law recognizes it as a presumption. It is a waste of time and resources to require parties to re-prove time and again that which experience shows is normally true. It is much more efficient to recognize the fact in question as true and require the parties to demonstrate if exceptional circumstances are present. However, the court must allow the parties to demonstrate whether those exceptional circumstances do exist. Courts must not allow the at-will presumption to foreclose such proof. Equity demands that the parties to a contract receive that which they intended to exchange. See Burns, 467 Pa. at 313, 356 A.2d at 766 (“Rules of Construction serve the legitimate purpose of aiding courts in their quest to ascertain and give effect to the intention of the parties. . . . They are not meant to be applied as a substitute for that quest.”). If courts allow the at-will rule to become a conclusive presumption then the parties are prevented from proving their actual intent. Courts must guard against this result. A presumption is a procedural tool to aid courts in carrying out their task. That task is doing justice. It is a terrible distortion of priorities to elevate concerns of efficiency over those of equity. If at all possible, a court must effectuate the intent of the parties. Justice must always remain paramount.

The at-will presumption also provides another important procedural protection. If there were no such rule, any dismissed employee could file suit based on an alleged oral contract. The ensuing lawsuit would then hinge solely on credibility. We note that a jury is much more likely to be composed of employees as opposed to employers. We hope that it does not exhibit too cynical a view of humanity for us to be concerned that this might affect more than an occasional verdict. The law is replete with procedural rules designed to guard against the danger of prejudicial jury verdicts. The at-will presumption is such a rule. However, the presumption can be rebutted by clear evidence that the parties intended a contrary result. This is a sufficient safeguard. It balances the need to protect against prejudicial verdicts with the legal system’s obligation to enforce the individual parties expectations. However, the danger of prejudicial verdicts is sufficiently strong to be of particular concern if an alleged “lifetime” contract is at issue. A contract for life is a heavy burden to impose upon an employer. Courts should be careful that when such a burden is imposed it is because that is what was contracted for and not because the jury was impassioned and sought to wreak vengeance. This danger is one of the reasons courts refuse to enforce such a contract if the only proof of its existence is that the parties exchanged promises. The parties may have used the words “permanently” or “for life” in an off-hand manner. These words are much too ambiguous to provide the sole basis for a jury’s imposition of such a tremendous obligation. Courts must look to the surrounding circumstances to determine the parties intent. Of course, that is standard in cases involving oral contracts. Westinghouse, 425 Pa. at 171, 228 A.2d at 659.

Another policy supporting continued recognition of the at-will presumption is that of simple fairness. This may surprise those commentators who complain that the rule is “antiquated” and “barbaric” because it leaves the “poor” employee without legal protection. See Decker, At-Will Employment in Pennsylvania—A Proposal For Its Abolition and Statutory Regulation, 87 Dickinson L.Rev. 477 (1983). But, a cursory analysis demonstrates that the situation is not as one-sided as it may at first appear.

We have already discussed the situation where an employer offers an employee employment for a definite period in exchange for the employee merely agreeing to take the job. The employer is bound to provide a job for the whole of the agreed upon period. But, the employee is free to leave the job at any time. However, a scenario which is much more likely to occur is where the employer and employee both agree that the employment relation is to last for a definite period. Both parties are then bound for that period. If the employer fires the employee, he can sue his former boss and recover damages. However, if the employee quits before the agreed upon period of time has expired, what recourse is available to the employer? If he sues the employee, he will have difficulty proving damages. He will need to show that the loss of this one employee caused his business to lose money. Even if the employer wins a judgment he would then have to enforce it. The old adage that you can not get blood from a stone is particularly apt in this situation. Most individuals do not have the resources to satisfy anything but the most meager judgment. Therefore, an aggrieved employee will probably have a legal remedy, but an aggrieved employer will not. This is a very inequitable result. A legal system loses all legitimacy if it deigns to treat one group more favorably than another. The law cannot pick and choose its favorites.

The at-will presumption is a partial response to this quandary. Absent the presumption, the law is naturally prone to favor the interests of the employee. The presumption may make it slightly more difficult for the employee to recover if he brings an action. But this merely serves as a partial redress of the unfair situation which would otherwise occur.

A lifetime contract is a tremendous obligation to impose upon an employer. Yet, it is very difficult to enforce any employment agreement against an employee. It is unfair to place an odious burden upon one party if the other party’s actual obligation is negligible. Thus, fairness also dictates that courts should proceed with caution when dealing with alleged lifetime contracts.

Therefore, our review of the applicable policies demonstrates that the at-will presumption remains a sound legal rule. It provides a sensible balance of the relevant concerns. Most of the rule’s underlying premises remain valid. But, courts must remain flexible and not allow the presumption to foreclose proof of the parties’ intent. Though the rule is a necessary procedural safeguard, a court’s primary task is to ascertain and enforce that intent. The presumption itself grew out of the doctrine of freedom of contract. This principle holds that the terms of the economic relationship should be determined by the parties and not by artificial rules of legal construction. If the presumption is used to frustrate the desires of the contracting parties, the rule is robbed of its logic and validity. Our review also shows that lifetime employment contracts are a tremendous burden. Courts should be very careful before enforcing them. However, if the intent of the parties is clear, then so is a court’s obligation. It must enforce that intent.

However, in cases involving lifetime employment contracts, many courts ignore the parties’ desires. In some jurisdictions, lifetime employment contracts are terminable at will unless these is proof of “sufficient additional consideration.” See cases collected Annot., 60 A.L.R.3d 226, 237-40 (1974). See also Darlington, 350 Pa.Super. at 199-200, 504 A.2d at 314. The additional consideration which is required is something other than the employee’s day to day services. It could be leaving another job, passing up a better opportunity or declining to sue, etc.

These courts require that “sufficient” additional consideration be present or they will not find the at-will presumption overcome in a case involving a permanent employment contract. Courts require additional consideration because they find that permanent employment contracts are otherwise lacking in mutuality of obligation. In these jurisdictions, the presumption will not be rebutted even by strong, independent evidence that the parties intended the contract to last for life. Some courts hold that such agreements are too vague to be enforceable. See 60 A.L.R.3rd 226, 304-15 (1974). Unfortunately, they fail to explain how additional consideration clarifies matters.

Therefore, courts refuse to enforce lifetime employment agreements based on reasons of lack of mutuality and indefiniteness. This result has often been criticized as inconsistent and illogical. See Perritt, Employee Law at 151. We agree.

Under modern contract doctrine, an agreement does not fail for vagueness if the parties intended to form a contract and there is a reasonably certain basis for giving an appropriate remedy. Linnet, 324 Pa.Super. at 214, 471 A.2d at 540. The at-will presumption can only be overcome by clear evidence that the parties intended to contract for a definite period. See Maloney, 385 Pa. 224, 229, 122 A.2d 694, 696 (1956). Therefore, a litigant will only be able to reach the jury if he can clearly show that he and the defendant intended to form a contract. It is also easy enough for a court to fashion a remedy. Some courts have disagreed, questioning the details of such agreements. What is the rate of pay? The hours? The working conditions? These are some of the questions courts have posited. See Green v. Medford Knitwear Mills, 408 F.Supp. 577 (E.D.Pa.1976). However, they are easily answered. The employee will have partially performed prior to the alleged breach. An indefinite agreement may become definite by virtue of partial performance. See Murray, Contracts at 51-52. The employee’s rate of pay, hours and working conditions will already have been determined. The partial performance which has already taken place provides the basis for the court’s remedy. Because, lifetime employment contracts satisfy the Linnet court’s two-part test they should not fail for indefiniteness.

Mutuality of obligation is a thoroughly discredited notion. As previously discussed, it is inapplicable to unilateral contracts. Any rule which purportedly derives its legitimacy from this principle is a rule deserving of a rapid interment.

However, other courts utilize a more flexible approach. These courts view the presence of such consideration as proof that the parties intended the employment relation to be more binding than the standard terminable at will agreement. These courts view additional consideration as a factor to consider in determining the parties intent but not as a rigid requirement. Under this view, the at-will presumption may theoretically be overcome by clear evidence even if that evidence does not include proof of additional consideration. However, such proof is helpful because it is persuasive in rebutting the presumption. See Eilen v. Tappin’s Inc., 16 N.J.Super. 53, 83 A.2d 817 (1951). As the Darlington court explained:

“the term ‘consideration’ is not used here as it is in the usual contractual context to signify a validation device. The term is used, rather, more as an interpretation device. When ‘sufficient additional consideration’ is present, courts infer that the parties intended that the contract will not be terminable at-will.”

Darlington, 350 Pa.Super. at 199-200, 504 A.2d at 314.

However, the exchange of such consideration is only one of many potential factors which a court should consider. In Darlington, the court also quoted our Supreme Court’s holding in Price v. Confair, 366 Pa. 538, 79 A.2d 224 (1951).

The court stated:

“[I]t is the intention of the parties which is the ultimate guide, and in order to ascertain that intention, the court may take into consideration the surrounding circumstances, the situation of the parties, the objects they apparently have in view, and the nature of the subject matter of the agreement.”

Id., 366 Pa. at 542, 79 A.2d at 226.

Under this more flexible approach, additional consideration is merely considered indicative of the parties’ intent. If the parties exchanged “extra” consideration, it is logical that they expected their relationship to be more lasting than the usual employment agreement. However, it is very possible that the parties so intended but did not exchange additional consideration. The surrounding circumstances and the parties’ own expressions may still provide clear evidence of that intent. If so, courts must enforce the parties’ desired bargain. Otherwise, they are using an evidentiary rule, the at-will presumption, to defeat the parties’ intent. As already discussed, this is directly contrary to the doctrine of freedom of contract.

Pennsylvania courts have traditionally followed the flexible approach, recognizing that the paramount concern is the intention of the parties.

In Lubrecht v. Laurel Stripping Company, 387 Pa. 393, 127 A.2d 687 (1956), the Court repeated the maxim that an employment contract is presumptively terminable at will. The court stated that this presumption may be overcome by proof of the parties’ intent based on the “surrounding circumstances.” Id., 387 Pa. at 396, 127 A.2d at 690. The Court made no mention of additional consideration.

In Lightcap v. Keaggy, 128 Pa.Super. 348, 194 A. 347 (1937), the court refused to enforce an agreement for lifetime employment because of indefiniteness. The court stated that it was unable to ascertain the parties’ intent with sufficient clarity. Id., 128 Pa.Superior Ct. at 356, 194 A. at 350. The plaintiff had been promised “suitable employment” but the court questioned “[w]hat is suitable employment?” Id. The court also questioned the scale of pay, hours of work and the working conditions since none of these were specified. Because these details were not spelled out, the court refused to enforce the agreement. However, modern contract doctrine is very different from that of 1937. Vague and indefinite agreements are routinely enforced as long as courts are able to supply “reasonable” terms. Courts are more willing to supply such terms if the parties have already partially performed their obligations. If the Lightcap case were construed by a modern court, it would look to the parties’ practice prior to the alleged breach. That practice would supply the rate of pay, hours of work and working conditions. Although the Lightcap court refused to enforce a contract for lifetime employment, its refusal is of little precedential value because the result was based on principles of contract law which are now outdated. The court did state that use of the word “permanent” is not in and of itself sufficiently clear to rebut the presumption. We have no quarrel with this conclusion. Proof of an agreement to employ someone permanently or “for life” is not clear evidence. However, when viewed in the context of the surrounding circumstances, such expressions may rise to the requisite level of clarity.

In Lucacher v. Kerson, 158 Pa.Super. 437, 45 A.2d 245 (1946), this court recognized that very same principle. The court held that a contract for permanent employment is indefinite but the surrounding circumstances may demonstrate that it was intended to be for life. If so, it is enforceable. Additional consideration is one of the factors to consider when determining this intent. However, the court specifically noted that it is not the only factor of importance. The court stated that the absence or presence of additional consideration must be contemplated as well as “the other circumstances surrounding the making of the contract....” Id., 158 Pa.Superior Ct. at 443, 45 A.2d at 248.

This same principle was recognized in the recent case of Murphy v. Publicker Industries, Inc., 357 Pa.Super. 409, 516 A.2d 47 (1986). A panel of this court, per Judge Beck, held that lifetime employment contracts are enforceable. The court ruled that something more than the mere agreement itself is necessary to rebut the at-will presumption in such a case. The court stated that “one exception” to the rule is when additional consideration is exchanged. 357 Pa.Superior Ct. at 418, 516 A.2d at 52. But, the court also held “that an employee can establish rights beyond at-will employment by means other than the additional consideration rule.” Id., 357 Pa.Superior Ct. at 419, 516 A.2d at 52. Judge Beck stated that courts must focus on the circumstances surrounding the agreement and attempt to glean the parties’ intent from those circumstances.

We agree with Judge Beck’s careful reasoning. The at-will presumption may only be rebutted by clear evidence that the parties contracted for a definite period. See Maloney, 385 Pa. at 229, 122 A.2d at 696. A contract for lifetime employment is a heavy burden to place upon an employer’s shoulders. Because it constitutes such a tremendous obligation, courts must require evidence beyond mere proof of the parties’ agreement. A promise of permanent or lifetime employment may be nothing more than a casual aside. Or, it may be purely aspirational. The employer may be expressing his hope that a valued employee will stay with him forever. However, he may not have intended to create a binding agreement. These dangers are sufficiently real that courts must look to the circumstances surrounding the parties’ agreement. Only when those circumstances demonstrate the parties’ intent by clear evidence should a court enforce a lifetime employment contract. The presence of additional consideration is only a single factor, albeit an important one, which a court must consider to ascertain that intent. When the court is certain of the parties’ intent, it must enforce that intent, irrespective of whether additional consideration is present. If a court fails to effectuate the parties’ intent, it violates the canons of contract law as well as the very policies upon which the doctrine of at-will employment is based.

In the instant case, Oliver Realty impliedly adopted Grant Building’s promise to Greene of lifetime employment. In exchange for that promise, Greene alleges that he worked for twenty-four years at a pay rate below union scale. A trial court must allow an issue to go to the jury unless it is so clear that reasonable minds could not possibly differ over its resolution. Correll v. Werner, 293 Pa.Super. 88, 90, 437 A.2d 1004, 1005 (1981). The court concluded that Greene worked at sub-union rates in exchange for a promise that he would not be laid off and not in exchange for a lifetime contract. This is an inappropriate conclusion. This is a factual issue which must be submitted to a jury. Greene’s belief that he had been promised lifetime employment was sufficiently strong that he explained his position to a supervisor after Oliver took over Grant Building. The court must allow the jury to consider Greene’s alleged “additional consideration” as well as all the circumstances surrounding the agreement. A jury might reasonably interpret the above cited facts so as to conclude that Greene has clearly rebutted the at-will presumption.

The trial court also ruled that even if Greene successfully rebutted the presumption, he was only entitled to employment for a “reasonable” time which he had already received. This conclusion is incorrect. If the jury finds that Greene and Oliver Realty contracted for lifetime employment, such an agreement is enforceable. Darlington suggests that the presumption may be rebutted by evidence that the parties did not intend their relationship to be at-will. However, the court may be unable to determine the exact period for which the parties did intend to contract. In such a situation, the court may infer that the agreement is for a “reasonable” time. However, this principle is only applicable to the case before us if the jury finds that Greene’s employment relation with Oliver was not at-will but was also not “for life.” Under the authority of Darlington, the trial court may then interpret the agreement as being for a “reasonable time.” We refuse to make an inflexible rule that all enforceable promises of lifetime employment constitute contracts which are to last for a “reasonable period.” As we have repeatedly stressed, the paramount goal of contractual interpretation is to effectuate the parties’ intent. Piling presumption upon presumption results in that intent being obscured by a procedural morass. That is not the way for courts to achieve justice.

We do not view our decision today as a change in the law of Pennsylvania. Rather, we have attempted to summarize and synthesize some of the law applicable to employment contracts. We believe that Pennsylvania caselaw on this subject may be superficially confusing, however, upon careful analysis it is apparent that the principles underlying the cases are consistent.

Based on the above analysis, we reverse and remand for further proceedings consistent with this opinion.

POPOVICH, J., concurs in result.


author: DEL SOLE, Judge:

text:
    526 A.2d 1203
    Marsha MORIENS and Dennis Moriens v. ALBERT EINSTEIN HOSPITAL, Dr. Mark Rosenberg, Dr. Louis Schinfeld, Dr. Terry German and Dr. Lawrence T. Freedman, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1986.
    Filed April 13, 1987.
    Reargument Denied June 25, 1987.

      Michael M. Baylson, Philadelphia, for appellants.
    Cary L. Sandler, Philadelphia, for appellees.
    Before McEWEN, DEL SOLE and KELLY, JJ.
   DEL SOLE, Judge:

The instant appeal stems from a malpractice action in which Judgment was entered against Appellants. The facts of the case are as follows. Appellee-wife was under the care of Appellants-obstetricians for her pregnancy. During the last trimester of pregnancy, Appellee visited one of the obstetricians with obvious symptoms of pre-eclampsia. Instead of being hospitalized, Appellee was sent home for bed rest and tranquilizers. While at home, her condition worsened into eclampsia causing violent convulsions, during which, she dislocated her jaw. As a further result of eclampsia, Appellee developed a permanent hypertensive condition and a diminution of eyesight. To avoid suffering from eclampsia again, Appellee subsequently submitted to sterilization. Consequently, Appellees, Marsha and Dennis Moriens, brought this malpractice action.

Appellants conceded their negligence at trial and the trial court directed a verdict in favor of Appellees for the dislocated jaw. The jury returned a verdict in favor of Appellees for $300,000.00, to which was added $120,505.61 Rule 238 Delay Damages, for a total of $420,505.61. Post-trial motions were filed and were later denied by the trial court. This timely appeal followed.

Appellants present three issues for our consideration:

A. whether the court erred in granting a directed verdict for Appellees on the issue of the causation of Mrs. Morien’s dislocated jaw;

B. whether the trial court erred by instructing the jury that expert testimony was not needed to establish the causation of Mrs. Morien’s decision to become sterilized; and,

C. whether Dr. Sweeney, Appellees’ medical expert, offered testimony which was so vague, uncertain, and misleading as to require a judgment n.o.v. in favor of Appellants.

Appellants contend that the trial court erred in directing a verdict in Appellees’ favor on the issue of causation of the dislocated jaw. Appellants conceded before trial began that their failure to recognize and properly treat Mrs. Moriens’ pre-eclampsia amounted to negligence. However, Appellants argue that no concession was made to the effect that their negligence precipitated the onslaught of eclampsia, which caused the convulsions and jaw dislocation. They instead allege that the medical testimony provided at trial revealed that eclamptic convulsions can occur under the finest medical care. Appellants submit that the jury should have been permitted to decide whether or not the obstetricians’ negligence was the proximate cause of Mrs. Moriens’ dislocated jaw.

We begin this discussion with our appellate scope of review. “On a motion for a directed verdict, the trial court must accept as true all facts and inferences tending to support the contentions of the party against whom the motion has been made, rejecting all testimony and references to the contrary.” Bucchianeri v. Equitable Gas Co., 341 Pa.Super. 319, 328, 491 A.2d 835, 840 (1985) (citations omitted). Our review of such decisions rendered at the trial court level centers on whether there exists ‘an abuse of discretion or error of law which controlled the outcome of the case.’ Ibid., citing McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982).

At trial, the videotaped testimony of Dr. William Sweeney was presented by Appellees’ counsel. Dr. Sweeney testified that the medical care provided by Appellant fell below what would be considered standard practice for the treatment of a patient with mild and severe pre-eclampsia. (Videotaped Deposition, “V.D.”, 1/12/84, p. 49). The witness testified that the standard treatment for severe pre-eclampsia, symptoms of which Appellee illustrated when visiting her doctors, would be immediate hospitalization of the patient so that the disease would not develop into eclampsia. (V.D., p. 50). Dr. Sweeney later stated that he held the opinion, to a reasonable degree of medical certainty, that Appellants’ failure to recognize and treat Mrs. Morien’s symptoms was a substantial reason for the development of her subsequent eclampsia. (V.D., p. 57). It was further opined that Appellee dislocated her jaw during one of her convulsions resulting from the eclampsia. (V.D., p. 59).

Appellants called Dr. Stephen Corson to testify as a medical expert. The substance of this witness’ testimony is remarkably similar to that given by Dr. Sweeney. Dr. Corson agreed that the obstetrical care afforded to Appellee fell below acceptable standards. (N.T. 1/18/84, p. 87). Likewise, the witness stated that pre-eclampsia is a manageable and treatable disease in a great majority of the cases. When asked whether there was a good chance that eclamptic convulsions could be averted by proper medical care, Dr. Corson assented. (N.T. 1/18/84, p. 88). Appellants’ witness subsequently concurred that full-blown eclamptic convulsions were rare occurrences because, in most instances, patients with pre-eclampsia are given the necessary treatment. (N.T., 1/18/84, p. 89).

Based solely upon this oral testimony, the trial judge instructed the jury that they must return a verdict in Appellees’ favor on the issue of whether Appellants’ negligence caused the eclamptic convulsions. In practicality, this amounted to a partial directed verdict on that issue.

Our discussion concerning the propriety of the trial court’s action is guided by Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). In that bellwether decision, our Supreme Court enunciated a general rule barring directed verdicts which are grounded exclusively on the testimony of witnesses who are uncontradicted and unimpeached. The “Nanty-Glo Rule” requires that, under these circumstances, the issue be submitted to the jury. Our Supreme Court observed:

However clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence. This rule is firmly established. The credibility of these witnesses, without whose testimony plaintiff could not have recovered, was for the jury, and plaintiff’s motion for binding instructions should not have been granted.

Id. at 309 Pa. at 238, 163 A. 523 (citations omitted).

We agree with Appellants’ contention that Nanty-Glo controls our disposition of the instant case. It is for this reason that we remand for a new trial. By instructing the jury that they must find for Appellees on the causation issue, the trial judge assumed that the testimony of both parties’ experts to be true. Clearly, this was an usurption of the jury’s function to pass on the credibility of these witnesses. “The weight to be given the testimony of an expert witness is for the jury, and it has a right to believe all, some, or none of the expert’s testimony.” As in this case, the uncontradicted opinion of an expert is not conclusive and the jury is not bound by it. Martin v. Soblotney, 296 Pa.Super. 145, 169, 442 A.2d 700, 712, rev’d on other grounds, 502 Pa. 418, 466 A.2d 1022 (1982). Insofar as this case must be tried again, we need not address the merits of the remaining issues raised by Appellants.

Judgment reversed. Case remanded for a new trial. Jurisdiction relinquished.


author: CERCONE, Judge:

text:
    526 A.2d 1205
    COMMONWEALTH of Pennsylvania v. James B. DAVIS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued June 5, 1986.
    Filed May 27, 1987.

      Thomas E. Kuhn, Erie, for appellant.
    Paul J. Susko, Assistant District Attorney, Erie, for Com., appellee.
    Before ROWLEY, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

After a trial by jury appellant, James Davis, was convicted of first degree murder, two counts of criminal attempt to commit murder, two counts of aggravated assault and various weapons offenses arising out of a multiple shooting in which one victim was killed and two victims were shot and severely wounded.

The salient question, inter alia, for our disposition is: whether police violate an accused’s constitutional rights as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), when after thoroughly informing the accused of these rights, they ask for clarification of the accused’s conflicting statements regarding intent to invoke or waive his constitutionally protected rights.

In addressing this case of first impression in Pennsylvania we turn to a brief account of the facts as elicited at trial:

On the evening of December 21, 1980, the Erie police responded to a report of a multiple shooting at a residence on the city’s east side. Davis, the appellant here, fled the scene of the shooting, but moments later was arrested by the police at his grandfather’s home when he relinquished the firearm used in the crimes. According to the evidence at trial appellant entered the residence armed with a unlicensed .22 caliber magnum revolver, shot and killed Alberta Collins, a 38 year old woman and shot and wounded two other women, one of whom was almost nine months pregnant and lying on a bed in a room adjoining the one in which he shot and killed Alberta Collins. Appellant was twice given Miranda warnings, once on his way to the police station and again in the interrogation room at police headquarters. On his way to the interrogation room appellant was upset, crying and repeatedly stated, “I’m sorry, I’m sorry, what did I do?, why did I do it?.” He then became violent and the police had to restrain him to prevent injury to himself or the police. When he regained his composure the police informed him of his constitutional rights under Miranda to which he gave every evidence of fully understanding. He said to the police that he wanted to talk about and make a statement regarding the crimes under investigation. Having said this, he was given a form on which were enumerated his rights under Miranda. Two questions to be answered at the bottom of the form contained a waiver proviso. To the first question, “Do you understand each of these rights I have explained to you,” appellant answered by writing the word, “yes” and his initials thereafter. To the second question, “Having these rights in mind do you wish to talk to us now?”, appellant wrote “No”. At trial the police officers, testified that they were baffled by the written “no” answer in light of appellant’s oral statement immediately prior thereto that he wanted to make a statement regarding the crimes under investigation. As a result, they asked why he wrote “no” to the second question and appellant answered that he meant, “I don’t want an attorney.” After this exchange, the appellant wrote the word “yes” to this second question and his initials thereafter in substitution of the word “No”. Appellant then made his oral statement regarding the crimes involved in this case which the officers reduced to writing. The appellant signed the statement and initialed its pages.

Specifically appellant argues that the lower court erred by refusing to suppress his statement to the police. He alleges, that under the pressure of in-custody interrogation, he was subjected to undue mental stress and did not mean to change his “No” answer to a “Yes” answer to the waiver question. And in addition he states he was incompetent to give a statement as he was under the influence of alcohol or drugs.

The Supreme Court of Pennsylvania has explained our role as a reviewing court on suppression issues.

When ruling on suppression motions, the suppression court is required to make findings of fact and conclusions of law as to whether evidence obtained was in violation of the defendant’s constitutional rights. Pa.R.Crim.P. 323(i), and must determine whether the Commonwealth has established by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h). On review, this court must “determine whether the record supports the factual findings of the court below and the legitimacy of the inferences drawn from those findings.” In doing so, we will consider “only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” (citations omitted.) Commonwealth v. Davis, 491 Pa. 363, 368, 421 A.2d 179, 181 (1980).

Commonwealth v. Carbaugh, 356 Pa.Superior Ct. 42, 514 A.2d 133 (1986).

The detectives’ testimony on behalf of the Commonwealth at-both the suppression hearing and trial was as follows:

Detective H. Gregory Strickland explained appellant’s initial negative response:

I asked him to answer question number two, and he wrote a no in there. At this point either myself or Sergeant Turner, I’m not sure wish [sic], he indicated after I read to him that he wanted to talk to us, and I think [sic] was myself or Turner said, “What do you mean no after you already indicated you wanted to talk to us?” He said, “I don’t want an attorney.” So, we said, “Do you want to talk to us?” And he said, “Yes.” We scratched out the no and we told him he would have to write a yes if you wanted to talk to us.

Detective William Turner testified:

I was watching the defendant very closely ... and I noticed that he wrote no, and I commented, “No?” Because we had already gone through, do you want to talk to us about it, and the question was said to him, and he answered verbally. “Do you want to talk to us about what happened, understanding we have gone through the five rights? Do you understand each of these rights? And he answered, “Yes.” Greg [Detective Strickland] said to him, “Having these rights in mind, do you wish to talk to us now? And he said, “Yes,” and Greg said, “Okay. Answer the question. Write your answer in.” And he wrote, “No,” and I said, “No?” And he said, “No.” I said, “You just said you wanted to talk to us.” “Yeah, I don’t want an attorney,” I haven’t the faintest idea, but that is exactly what he said.

It was after this exchange that appellant explained he did not want an attorney and wrote the word “yes” and his initials in answer to the second question. The suppression court found that appellant’s complaints of the pressure he felt during the interrogation and his allegations of drug or alcohol influence were not credible and that his oral statement to the police was made voluntarily, understanding^ and intelligently in an atmosphere free and clear of any attempt of coercion, threats or cajoling on the part of the police.

Our Pennsylvania Supreme Court has consistently refused to adopt a per se rule of incapacity to waive constitutional rights based on mental or physical deficiencies. Rather, we are to look at all the circumstances to determine if a knowing and intelligent waiver was effected. Commonwealth v. Hicks, 466 Pa. 499, 505, 353 A.2d 803, 805 (1976); See also, Commonwealth v. Glover, 488 Pa. 459, 412 A.2d 855 (1980). The Commonwealth need only-show by a preponderance of the evidence that a voluntary, knowing and intelligent waiver of a constitutional right was made. Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980).

In maintaining that the police subjected him to improper questioning in violation of Miranda, and of his Fifth and Fourteenth Amendment rights as applied to the states appellant relies on the language of Miranda:

“If the individual indicates in any manner, at any time, prior to or during questioning, that he wishes to remain silent, the interrogation must cease”.

There is no question that under Miranda an accused must be told that he has a right to remain silent, that anything he says shall be held against him in a court of law, that he has the right to counsel and that if he can’t afford counsel the state will provide one for him. Once an accused categorically proclaims protection under one of these rights, either silence or right to counsel, all questioning by the police must cease.

However, the facts in this case do not, as appellant argues, violate his rights within the parameters of Miranda. Here the appellant sent out mixed signals to his interrogators. These conflicting messages posed understandable questions in the minds of the police, who like most humans, do not possess prescient powers that sweep away all the concerns of reasonable doubt. If there is any situation where police inquiry is appropriate this is such a case. The questions asked by the police in the attempt to clarify appellant’s intent when making two statements, each directly contrary to the other, were appropriate and commendable. The questions did not pertain to substantive or procedural inquiries into the crimes committed nor were they in any way coercive or threatening. They were asked to determine whether appellant wanted to make a statement as he first orally indicated or whether he wanted to remain silent as he subsequently indicated in written form.

Recently, in Connecticut v. Barrett, — U.S. —, 107 S.Ct. 828, 98 L.Ed.2d 920 (1987), the United States Supreme Court reversed the Connecticut Supreme Court which held that the lower court should have suppressed defendant’s oral confession when the defendant had said he would not give a written statement to the police without the presence of counsel, but would give an oral statement, which he proceeded to do. The Connecticut court had held that defendant’s request for counsel was an invocation of one of his Miranda right and should have terminated any attempt by the police to take an oral statement from him.

The United States Supreme Court determined that defendant’s oral statement made clear his willingness to talk about the sexual assault, and, there being no evidence that he was “threatened, tricked or cajoled” into speaking to the police, the trial court properly found that Barrett’s decision to do so constituted a voluntary waiver of his right to counsel. The Court further held that although the Miranda rules were designed to protect defendants from being compelled by the government to make statements, they also give defendants the right to choose between speech and silence. In Barrett, the defendant had stated he would not put anything in writing without the presence of counsel and yet, the Supreme Court approved his oral confession as not being violative of his constitutional rights. In the instant case we are relieved of the request for counsel consideration. In fact, nowhere in the evidence in the instant case did appellant allege he exercised his right to have the benefit of counsel.

Although the United States Supreme Court in Barrett did not speak definitively on the effect of ambiguous responses to Miranda warnings, the circumstances of Barrett do present the consequences of two directly opposed statements by a defendant regarding his constitutional rights. The court stated that “nothing in our decisions, however, in the rationale of Miranda requires authorities to ignore the tenor or sense of a defendant’s response to these warnings. Interpretation is only required where the defendant’s words, understood as ordinary people would understand them, are ambiguous. Here, however, Barrett made clear his intentions, and they were honored by the police.” Id., at ---, 107 S.Ct. at 832-33.

Instantly appellant initiated the events which occurred after being given his Miranda warnings by declaring he wanted to talk to the police. Thus there was nothing coercive on the part of the police in understandably asking for clarification of his answer “No” in light of his expressed desire to speak.

Opinions in the state and federal courts do address the ambiguity problem.

In United States v. Riggs, 537 F.2d 1219 (4th Cir., 1976) the issue of the police need for clarification of ambiguities arising out of custodial interrogation was addressed. In Riggs the defendant, when given his Miranda warning and then informed of the general nature of the crime being investigated, made the following statement:

I don’t know anything about the $1,000; I didn't take the money, and I have no information to furnish the FBI with regard to the money____ What happens now?

The FBI agent continued to question the defendant about his employment, salary and debts, and to seek a release to enable the FBI agent to get information about Riggs’ loans and the search of his car. Eventually Riggs confessed. Riggs’ contention on appeal was that his confession was inadmissible because it was the product of continued interrogation after he asserted his right to have questioning cease. The court cited the clear requirement of Miranda, “Once warnings have been given, the subsequent procedure is clear. If an individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” However, the Riggs court found Miranda to be inapplicable because defendant’s statement that he had “no information to furnish the FBI with regard to the money” was susceptible of two interpretations, either an attempt to cut off questioning under Miranda or a declaration of ignorance not precluding further cooperation during the investigation. The court decided the latter interpretation was the more plausible. However, the important part of the Riggs decision is as follows:

We add a note of caution. In a case such as this, where a suspect makes a statement which arguably amounts to an assertion of his Miranda rights and the interrogating agent recognizes that the statement is susceptible of that construction, his questioning with regard to the crime he is investigating should immediately cease and he should then inquire of the suspect as to the correct interpretation of the statement. Only if the suspect makes clear that he is not invoking his Miranda rights should substantive questioning be resumed. Such a practice could well save the government’s case and the admissibility of the suspect’s statement where a suspect’s ambiguous statement might well be interpreted to be an assertion of Miranda rights.

Id., at 1222.

In the instant case, it was reasonable for the Erie police to construe appellant’s “No” as a clear declaration of ignorance not precluding clarification, considering his equally clear statement made prior thereto. In State v. Shifflett, 199 Conn. 718, 508 A.2d 748 (1986) defendant, after being given Miranda warnings, refused to sign a waiver form but said he would make an oral statement. At some point during interrogation, defendant said he would like to resolve all charges against him in one “package deal” to be worked out between his attorney and the state’s attorney. The next day after again receiving Miranda warnings he orally confessed to his crimes. Appellant continued to refuse to sign a written statement. On appeal, the Supreme Court of Connecticut found that the defendant did not constructively invoke his right to counsel when he mentioned his attorney while discussing a “package deal”. However, the salient part of the opinion as it relates to the issue at hand is the court’s language that “when circumstances are such as to reasonably apprise the interrogating officers that an accused may have invoked his right to” counsel, the officers must clarify his intentions rather than proceed to question him.”

In United States v. Chansriharaj, 446 F.Supp. 107 (S.D. N.Y.1978) the court found defendant’s statement that a friend was trying to get him a lawyer to be unclear. However, it found that the police’s attempt at clarification was faulty. As a result, the court held, “Suzuki’s statement did not require termination of the interview. What was called for was some form of inquiry designed to clarify the defendant’s intentions. After the defendant’s ambiguous remarks, only with the help of such a clarification could the government sustain its burden under Miranda of showing waiver. What the assistant did instead of seeking clarification was simply to reiterate the nature of the right and ask again whether Suzuki understood it. We cannot find on that record a satisfactory demonstration of waiver and accordingly suppress the interview.” Id., at 109. In the instant case, however, there was a clear and effective attempt by the Erie police to clarify an ambiguous situation without employing any coercive tactics giving appellant a free and untrammelled choice of silence or speech. While the word “No” written by the defendant, in and of itself is unambiguous, it nevertheless created an ambiguity given the circumstances of the statement immediately prior thereto.

The cases cited by appellant in his brief are inapposite. In Commowealth v. Carbaugh, 356 Pa.Superior Ct. 42, 514 A.2d 133 (1986) this court was confronted with the issue of whether the defendant’s statement was rendered inadmissible by the failure of police to stop questioning him after his numerous requests to remain silent. There we held that the police subjected appellant to improper questioning in violation of his right to remain silent. Appellant’s attempts to stop the questioning were ignored by the police and threats were made by them in order to secure his confession. Therefore, the court concluded the questioning could “only be characterized as a callous disregard of appellant’s rights and as an effort ‘to wear down his resistance and make him change his mind.’ ” Id., 356 Pa.Superior Ct. at 48, 514 A.2d at 136.

Appellant maintains that Pennsylvania does not distinguish between questions that are asked for clarification and questions that elicit the substantive facts of the criminal episode. For this proposition appellant cites Commonwealth v. Simala, 434 Pa. 219, 252 A.2d 575 (1969). Appellant’s reliance on this case is misplaced for if anything it adds credence to our holding today. In Símala the defendant confessed with full understanding of his Miranda rights without any illegal or improper conduct by the police or by the Mayor to whom he first confessed. The court in its opinion stated that it is not custody plus questioning which Miranda safeguards but custody plus police conduct ... calculated to, expected to or likely to evoke admission that is important as it relates to the protection of an accused’s rights. Id. The court in Simala further explained that the prosecution can only use a confession given by an accused without any prompting before warnings are given.

Even where an accused blurts out a confession, Miranda warnings at the least should be necessary before any questions are asked that do anything more than clarify statements already made, See Institute of Continuing Legal Education, “Criminal Law and the Constitution— Sources and Commentaries” 354 (1986). (emphasis added).

Id., 434 Pa. at 226, 252 A.2d at 579.

The other cases cited by appellant do not meet, head-on, the problem of clarification and therefore are of no assistance to us.

Under the circumstances, we agree with the learned lower court that appellant’s constitutional rights were in no way violated when he confessed and his confession was properly admitted at trial. We find nothing in this case which would intimate that appellant did not voluntarily, knowingly and intelligently decide to confess. This issue is initially to be determined by the suppression court and when its findings have ample support in the record they will be sustained upon appellate review. Commonwealth v. Bundy, 458 Pa. 240, 244, 328 A.2d 517, 520 (1974).

Appellant raises other issues of error committed by the court below and numerous allegations of ineffective assistance of trial counsel. They are as follows: (1) whether the lower court erred in deciding that appellant’s right to a speedy trial was not violated; (2) whether the lower court erred in admitting appellant’s confession into evidence before the Commonwealth established the corpus delicti; (3) whether the lower court’s instruction to the jury regarding voluntary manslaughter was incorrect; (4) whether the evidence was sufficient to support appellant’s conviction; and (5) whether the trial counsel was ineffective for failing to do the following: request sequestration of the police officers who were Commonwealth witnesses, to impeach the only Commonwealth witness with a prior conviction, to impeach a witness with her prior inconsistent statement, to object to the characterization of the victim during trial as a “victim of murder”, to object to the Commonwealth’s use of hearsay during rebuttal, to object to the prosecutor’s prejudicial statements during closing and to object to the court’s charge to the jury on the grading of offenses.

Appellant seeks review of an alleged violation of his rights under Pa.R.Crim.P. 1100 which governs a defendant’s right to a speedy trial. The instant charges were filed against appellant on December 22, 1980. Accordingly, the run date was June 20, 1981.

Appellant concedes that he requested several continuances prior to trial either because his counsel was unavailable for various hearings or that he petitioned the court for the appointment of new counsel. On May 11, 1981 the date scheduled for trial, (approximately 5 weeks before the run-date) appellant and his second counsel appeared before the court to obtain a continuance in order to petition for a psychiatric evaluation of appellant. On May 13, 1981 a hearing was held on the petition and appellant requested new counsel for the third time. The court informed appellant that the Commonwealth was prepared for trial and that if the case did not proceed now, the next available criminal session of court was the following July. Nevertheless, appellant exercised his option to retain new counsel. Because of this request the court asked the Commonwealth to file a petition to extend the time for trial until July 15, 1981 and to reflect in the petition the fact of appellant’s request. The court then granted the petition based on the hearing of May 11, 1981. It is the grant of the Commonwealth’s petition to extend time for trial to which appellant objects.

Under Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976) the court may grant an extension under Rule 1100 upon a record showing of due diligence by the Commonwealth and certification that trial is scheduled for the earliest date consistent with the court’s business. The record here establishes that despite the Commonwealth’s readiness for trial the delay was occasioned by appellant’s request for new counsel. There was no reason for the court to hold a hearing when it was apparent that appellant was not ready for trial having entered a petition to appoint new counsel. We find no error in the court’s finding that Rule 1100 was not violated.

Appellant asserts that the lower court erred in admitting his confession into evidence before the Commonwealth had established the corpus delicti with regard to the attempted murder committed against Vicky McCoy who was not present at trial because she could not be found. Appellant alleges that the evidence adduced at trial regarding the crime of attempted murder established nothing more than that the victim suffered a gunshot would not necessarily having the elements of attempted murder present. In order to establish the corpus delicti it is enough for the Commonwealth to prove beyond a reasonable doubt that the injury which occurred is consistent with a crime having been committed; the Commonwealth need not rule out the possibility of an accident or suicide. Commonwealth v. Rhoods, 225 Pa.Superior Ct. 208, 310 A.2d 406 (1973) quoting Commonwealth v. Boykin, 458 Pa. 25, 298 A.2d 258 (1972). Appellant’s argument is without merit in that the Commonwealth proved, before the admission of the confession, Ms. McCoy’s injuries through the testimony of the paramedics who arrived immediately following the shooting. The admitted evidence that preceded the introduction of appellant’s confession established that there were three victims shot at the residence where Ms. McCoy was found. The paramedics also found Ms. McCoy in severe distress and calling for help and stating that she had been shot. Accordingly, we find no abuse of discretion by the court in deciding that the corpus delicti was established prior to the admission of appellant’s confession.

Appellant complains that the trial court erred in its charge to the jury on voluntary manslaughter when it charged that the crime of voluntary manslaughter can be made out only if “the surrounding circumstances take away every evidence of cruelty or a depraved heart or wantonness.” An evaluation of the court’s charge to the jury must be based upon an examination of the instruction as a whole to determine if it was fair or prejudicial. Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983) cert. denied 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986). Commonwealth v. Zimmerman, 351 Pa.Superior Ct. 5, 504 A.2d 329 (1986). The lower court in its opinion concedes that the statement complained of by appellant was incorrect. However when read in the context of the statements that preceded and followed it, the charge on voluntary manslaughter was correct. The charge was as follows:

Because voluntary manslaughter involves an intentional act, confusion sometimes exists in the jury’s mind concerning the difference between that crime and the crime of first degree murder. If you bear in mind that voluntary manslaughter is never attended by legal malice, that is, by the existence of a depraved heart, cruelty, or recklessness of consequences, you will not go astray.
Voluntary manslaughter is willful, but it is necessary that the surrounding circumstances take away every evidence of cruelty or a depraved heart or wantonness.
Therefore, to reduce an intentional blow or wound which results in death to voluntary manslaughter, there must be a sudden and intense passion resulting from serious provocation by the individual without time to cool and placing the Defendant beyond the control of his reason and suddenly impelling him to do the deed.

We find this language to constitute a proper charge on voluntary manslaughter. Pa.SSJI (Crim.) § 15.2504.

Appellant argues that the evidence was not sufficient to support his convictions. The well established standard for reviewing the sufficiency of the evidence is as follows:

... In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt____

Commonwealth v. Whiteman, 336 Pa.Superior Ct. 120, 485 A.2d 459 (1984). While appellant concedes that he shot the victims, he argues that in light of his claim of self defense there was not enough evidence to warrant the jury’s finding of guilt as to the first degree murder, attempted murder, assault or the various weapons offenses with which appellant was charged. Appellant’s argument appears to be one of credibility which is a challenge to the weight of the evidence rather than the sufficiency. Where evidence is conflicting, it is the province of the finder of fact to determine the credibility of the witnesses. In exercising this prerogative, the factfinder is free to believe all, part or none of the evidence. Commonwealth v. Arms, 489 Pa. 35, 413 A.2d 684 (1980).

The evidence presented at trial identified the cause of death of the deceased victim as a gunshot wound. The testimony of the Commonwealth’s eye witness, Diane Hill, established that the appellant shot and injured her and Vicky McCoy as well as having shot and killed Alberta Collins. This testimony was further corroborated by appellant’s confession which was admitted into evidence. Clearly, this evidence supports appellant’s conviction of first degree murder and the other offenses of which he was convicted. See Commonwealth v. Santiago, 476 Pa. 340, 382 A.2d 1200 (1978) (testimony of eye witness which placed defendant at the scene of the crime and established that as a result of defendant’s conduct victim was motionless, face down, in a pool of water was sufficient for the jury to conclude beyond a reasonable doubt that defendant had killed the victim wilfully, deliberately and with premeditation). Issues of credibility are properly left to the jury and here the jury chose to resolve any conflict between the testimony presented by the Commonwealth and that of appellant, in favor of the Commonwealth.

Appellant submits that his trial counsel rendered ineffective assistance of counsel. The standard for evaluating the effectiveness of counsel is set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 602-06, 235 A.2d 349, 352-53 (1967):

We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.

In order to determine whether appellant received ineffective assistance of counsel, we must first examine the merits of his claims. Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Garvin, 335 Pa.Superior Ct. 560, 485 A.2d 36 (1984). “Moreover, the courts of this state have repeatedly said that counsel will not be deemed ineffective in the absence of some showing that the defendant was prejudiced by counsel’s alleged shortcomings”. Commonwealth v. Litzenberger, 333 Pa.Superior Ct. 471, 482, 482 A.2d 968, 974 (1984).

Appellant alleges that counsel was ineffective for failing to object to the sequestration order issued by the court as it allowed the affiants, police officer, to remain in the court room during trial. The question of whether to sequester witnesses is one within the discretion of the court and the scope of such an order is also within its discretion. Accordingly, an appellate court will not find reversible error absent a clear abuse of discretion. Commonwealth v. Fant, 480 Pa. 586, 391 A.2d 1040 (1978) cert. denied 441 U.S. 951, 99 S.Ct. 2180, 60 L.Ed.2d 1056 (1979). We find no abuse of discretion here. The officers to whose presence in court appellant objected testified to the circumstances surrounding appellant's confession. This testimony was also received into evidence during a pretrial suppression hearing where the officers were not sequestered but were subject to appellant’s cross-examination. Where witnesses had all testified at a prior trial and examination of the testimony indicated that it was the same as that given at the prior hearing, refusal by the court to sequester witnesses is not an abuse of discretion. Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). Counsel was not ineffective for failing to object to the court’s sequestration order.

Appellant contends that trial counsel was ineffective for failing to impeach Commonwealth witness Diane Hill with evidence of her conviction of a crimen falsi (larceny), in the state of Florida. Attached to appellant’s reproduced record is a copy of the conviction obtained subsequent to trial. Appellant maintains that trial counsel was ineffective for not discovering the conviction and accordingly not using it for impeachment purposes.

Failure of counsel to impeach the Commonwealth’s only witness with his own criminal record has been held to be ineffective assistance of counsel. Commonwealth v. Grove, 229 Pa.Superior Ct. 293, 324 A.2d 405 (1974). In Grove, defense counsel failed to attack the credibility of the Commonwealth’s only witness in any manner. Such is not the case here. While Diane Hill was the Commonwealth’s only witness, her credibility was attacked by the admission on cross-examination of evidence that Ms. Hill forged the signature and cashed her boyfriend’s unemployment check and that Ms. Hill conspired with her boyfriend to steal pills from his place of employment. Ms. Hill’s larceny conviction would have been cumulative in its effect against her credibility and its absence at trial did not deprive appellant of a fair trial. We find no prejudicial error here. See, Commonwealth v. Little, 449 Pa. 28, 295 A.2d 287 (1972). We conclude similarly with regard to the alleged prejudicial error on the part of defense counsel for not objecting to the characterization of the victim, Alberta Collins, during the course of trial as a “victim of murder”.

Appellant asserts trial counsel’s ineffectiveness for failing to impeach one of the officers for making inconsistent statements. Any harm that could have accrued to appellant in this instance was cured by counsel’s vigorous arguments during closing wherein he attacked the credibility of the officer’s testimony. Cf., Commonwealth v. Chapman, 255 Pa.Superior Ct. 265, 386 A.2d 994 (1978) (footnote 15 (2).)

Appellant assigns as counsel’s ineffectiveness his failure to object to the court’s allowing the Commonwealth to introduce impeaching evidence against Vicky McCoy who at a preliminary hearing testified in favor of appellant. Because Ms. McCoy was unavailable at trial, appellant introduced her recorded testimony taken at his preliminary hearing. Specifically, appellant objects to the Commonwealth’s calling as a witness a police officer who read into evidence a statement he took from Ms. McCoy immediately following the criminal episode. This statement was used to impeach Ms. McCoy’s recorded testimony as it differed from her account of the criminal episode given by her at appellant’s preliminary hearing. Appellant maintains that Ms. McCoy’s statement to the officer is inadmissible hearsay. Appellant is proceeding under a misconception for the statement was not offered to prove the truth of the matter asserted but to cast doubt on the witness’s veracity. A trial court does not abuse its discretion in allowing the prosecution to attempt to impeach a witness’s testimony by utilizing a statement given by the witness to a police officer at the scene of the crime. Cf., Commonwealth v. Thomas, 284 Pa.Superior Ct. 375, 425 A.2d 1151 (1981). We find no abuse of discretion by the court in admitting the impeachment testimony, and, therefore, will not find counsel to be ineffective for failing to object to it.

Appellant avers that counsel was ineffective for failing to object to the prosecutor’s closing remarks which were prejudicial. It is settled law that the prosecutor has an obligation during closing arguments to present the facts in a manner that will lead the jury to a dispassionate and objective evaluation and will produce judgment warranted by the evidence. Commonwealth v. Clark, 280 Pa.Superior Ct. 1, 421 A.2d 374 (1980). Also, we must assess isolated comments of the prosecutor in relation to his entire closing statement. Although the prosecutor made strong and often sarcastic remarks, they were based on the evidence presented and were tempered by his comment to the jurors that they ultimately must determine the truth based on the testimony presented by both parties. Thus, we find no error here.

Lastly, appellant assigns as ineffectiveness counsel’s failure to object to the court’s charge to the jury on the crimes of assault and attempted murder. Appellant avers that the charge was improper as the court did not adequately distinguish the grades of assault or inform the jury that appellant could be found guilty of the lesser grades of attempted assault or manslaughter, rather than attempted murder. Appellant maintains that it was likely that had the jury been so instructed he would have been convicted of lesser offenses. In examining a challenge to the court’s jury instruction, we are required to examine the charge as a whole. Ohle and Zimmerman, supra. Having done this, we find no merit to appellant’s claim. In order for appellant to be granted relief he must present a credible claim that he actually received ineffective assistance of counsel. Commonwealth v. Johnson, 355 Pa.Superior Ct. 123, 512 A.2d 1242 (1986). This appellant has failed to do.

Finding no merit to appellant’s underlying claims, we cannot find counsel ineffective for failing to raise them. Garvin, supra.

For the aforestated reasons the judgment of sentence is affirmed.

      . This issue is also left open in Smith v. Illinois, 469 U.S. 91, 96 n. 3, 105 S.Ct. 490, 493 n. 3, 83 L.Ed.2d 488, 494 n. 3 (1984) (per curiam) and Commonwealth v. Hubble, 509 Pa. 497, 504 A.2d 168 (1986).