author:
      KELLY, Judge:
      OLSZEWSKI, Judge, JOHNSON, Judge,

text:
    578 A.2d 1314
    Robert J. FEXA, Appellee, v. Barbara A. FEXA, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1990.
    Filed Aug. 2, 1990.

      Lynne Z. Gold Bikin, Norristown, for appellant.
    Victor F. Cavacini, Allentown, for appellee.
    Before OLSZEWSKI, KELLY and JOHNSON, JJ.
   KELLY, Judge:

In this case, the appellant, Barbara Fexa, appeals from the denial of her exceptions to the Master’s Recommendation and an order of equitable distribution. We find no merit in her challenges to the amount of the alimony award, the valuation date used for the distribution of pension and profit sharing plans, and the denial of counsel fees. However, we vacate the order of the trial court and remand for valuation and inclusion of the good will value of appellee Robert Fexa’s dental practice in the distribution, correction of the dollar value of marital bank accounts, and for further consideration of the equitable distribution of the proceeds of a life insurance policy.

The panel is unanimous in its disposition of all contentions except the one dealing with the includability of the good will value of the husband’s dental practice. On this issue, a plurality of the panel (including Judge Johnson and myself) agree that the trial court erred in excluding any good will value. Judge Olszewski agrees with the trial court that none should have been included. We examine this issue at length in the majority, concurring, and concurring and dissenting opinions in this case.

I. Facts and Procedural History

The facts and procedural history are as follows. Barbara and Robert Fexa married in 1968, and separated in 1984. There were no children born of their marriage. Barbara worked part-time for periods during the marriage in Robert’s office as receptionist and dental assistant and for a year following the separation doing the books for a dental lab which serviced her husband’s dental practice and in which her husband had a significant ownership interest. She obtained her college degree in 1985, and a real estate license in 1987. Robert continues in his dental practice. The parties were divorced on January 10, 1989 in a bifurcated proceeding. The property distribution order was entered on July 3, 1989 following denial of appellant’s exceptions to the master’s report. Appellant then filed this timely appeal.

The issues raised on appeal will be addressed in the order presented and are as follows:

1. Whether the Master erred in failing to include good will in the valuation of the Husband’s dental practice.
2. Whether the Master abused his discretion in making its award of alimony when Wife had been awarded a larger support order prior to the divorce, by the same trial court?
3. Whether the Lower Court erred in awarding the wife a smaller amount of cash funds than had the Master to offset the marital cash accounts that the Husband took as his own, and as a result, erred in failing to award his Wife the correct cash value of the parties insurance policies.
4. Whether the Master and the Court erred in valuing the pension and profit sharing plans as of the date of the hearing rather than the date of separation when Husband had dissipated the pension after separation?
5. Whether the Master erred in failing to award the wife cash funds representing a loan taken by Husband from the parties life insurance policies and used by Husband to his own use?
6. Whether the Master erred in failing to award counsel fees to the wife when she was and continues to be without immediate funds to pay her attorneys?

(Appellant’s Brief at 5).

II. Good Will Value as Marital Property

The appellant first contends that the trial court erred when it failed to include good will in the valuation of the husband’s dental practice. Having reviewed the opinion of the trial court, a majority of the panel for a plurality of reasons finds that the failure to include good will was based on an error of law. My reasons are as follows.

The trial court relied on two cases, Beasley v. Beasley, 359 Pa.Super. 20, 518 A.2d 545 (1985) and DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987), in determining that the good will value of Dr. Fexa’s dental practice was not to be considered as marital property subject to equitable distribution. I find the instant case to be materially distinguishable.

In Beasley v. Beasley, 359 Pa.Super. 20, 518 A.2d 545 (1985), we held that good will was not a factor in valuing a law practice operated as a sole proprietorship because the good will involved could not be sold or transferred. The trial court found as fact that its value lay solely in the professional reputation of Attorney Beasley himself and was incapable of sale from Attorney Beasley to another, ethical considerations aside.

Similarly, in DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987), we held that the good will of a professional corporation composed of two physicians could not be valued for equitable distribution, because the trial court had found that the two physicians practiced in different specialties and did not share patients. Despite incorporation, each physicians’ practice was conducted as though it were an individual practice. Based upon the trial court’s findings of fact, this Court concluded each physician’s good will was personal to the physician. It was not shared in common with that of his partner in a manner which could be transferred to the other physician involved in the practice.

Before deciding whether Beasley and DeMasi are distinguishable, it is necessary to consider three other cases involving similar situations—Buckl v. Buckl, 373 Pa.Super. 521, 542 A.2d 65 (1988), Ullom v. Ullom, 384 Pa.Super. 514, 559 A.2d 555 (1989), and McCabe v. McCabe, — Pa. —, 575 A.2d 87 (1990).

In Buckl, this Court held that the good will of an architectural partnership was to be considered in placing a value on the husband’s marital property. The fact that the business had a distinct identity tied to an association, rather than merely an individual, and that the work of the association could be continued by either partner, was found to create a sufficient probability that the business could remain a going concern in either partner’s absence. That being the case, the good will of the clients toward the partnership could not be deemed purely personal to individual professionals in the corporation, and to that limited extent the partnership’s alienable good will value could be included as part of the partnership assets for the purpose of buying into or withdrawing from the business itself.

In Ullom, this Court held that it was error not to include good will value when determining a spouse’s interest in an auto dealership corporation. In that case, the court had found good will to be an asset of the family owned auto dealership, but nonetheless excluded it from marital property for equitable distribution. This Court reversed the trial court reasoning that despite its intangible nature, good will would often comprise a large portion of the marketable value of a business and so it could not be ignored when determining the proper value of assets available for distribution.

Recovery of good will value in Ullom was limited though. Under the terms of incorporation when any family member desired to sell their shares in the corporation, they first had to offer them to the other family members at a set price. If the shares were not purchased by the family at that price, the shares could be offered then to any other buyer for a price which, according to expert testimony, would include a substantial sum based on the good will value of the dealership. This Court found that since an ascertainable and reasonably realizable good will value could be determined, it was error for a trial court not to include its value as an asset available for distribution.

Our Supreme Court was faced with a slightly different equitable distribution question in McCabe which they nonetheless answered by way of a similar rationale. In McCabe, our Supreme Court was called on to decide whether the husband’s partnership share of the value of a law firm as a “going concern” (including good will value) should be included in the marital property equitable distribution or whether the value to be included should be limited to the amount that the husband could actually realize on withdrawal from the firm, which was limited by contract. The Court stated “(I)f Mr. McCabe were able to sell, liquidate or otherwise realize the ‘going concern’ value assigned to his partnership interest,” it should be included as marital property. “However, it has been clearly established that the ‘going concern’ value cannot be realized in any manner. It would be unrealistic, therefore to assign this value to the partnership interest for purposes of equitable distribution.” 575 A.2d at 87-88.

From the foregoing cases, I would distill the following general considerations. If the nature of the economic good will is purely personal to the professional spouse, it is not alienable; hence, it cannot actually be realized and may not be included in the equitable distribution. Cf. McCabe; Ullom; Beasley; DeMasi. If, however, a portion of the economic good will is attributable separately to the corporation or business and can be realized by sale to another (by selling the enterprise in whole or in part, buy-in’s and buy-out’s included), then to that extent, there is good will value subject to equitable distribution. McCabe; Ullom; Buckl.

When, as here, partners have bought-in and have been bought-out, and the dental practice has been maintained, there is a clear basis upon which to determine that the good will enjoyed by the dental practice was not entirely personal to the individual professionals involved. Likewise, when professionals share clients within the corporation, there is a basis upon which to conclude the good will is not purely personal. Buckl. On the other hand, when the corporation has remained intact throughout its history and the professionals do not share clients, there is no clear basis for concluding that there is any good will other than that inalienably attached to the individual professionals involved in the corporation. DeMasi; Beasley.

The determination of whether alienable/realizable good will value exists in a particular case may often be a difficult and subtle question of fact. The determination may be complicated by additional difficulties regarding the ethics and/or legality of “selling” professional clients—especially with regard to attorneys and doctors, whose possession of client confidences complicates matters considerably. Moreover, there may also be difficulties in determining a credible value for the alienable/realizable good will; whether these difficulties are surmountable may vary with the peculiar facts of particular cases.

Judge Johnson, concurring, construes Beasley more narrowly, would effectively disclaim DeMasi, and would construe Buckl more broadly so as to render good will distributable regardless of whether the business is a sole proprietorship. In one sense, I agree. If it can be shown that, despite organization as a sole proprietorship, good will value may be actually realized through sale of the business or practice, then good will value must be included. However, to the extent good will is actually personal and inalienable, and thus cannot be actually realized through sale, I would find that McCabe would preclude distribution. I note, though, that such non-distributable good will value would have to be included as part of that spouse’s future earnings capacity in alimony and support determinations. Cf. Beasley, supra, 518 A.2d at 553.

Judge Olszewski, on the other hand, would appear to construe Beasley and DeMasi to provide a broad “personal talents” exclusion. Semantically, I agree. If the good will is wholly personal and inalienable, then it cannot be actually realized, and consequently the value of that good will may not be included in equitable distribution. Beasley, supra, 530 A.2d at 881. I disagree, however, that this record would permit a conclusion that there was no good will value in the spouse’s dental practice other than the personal and inalienable good will which was not realizable and so not includable.

In the dental partnership involved in the instant case, the husband has had various full-time, long-term partners since approximately 1969, who were involved in the practice, and in ownership of the business. (N.T. 12/18/87 at 108A-113A, 165A-116A). Following the dissolution of various partnerships, the business continued as an entity and new partners were periodically absorbed into the business. The form of the business and its work continued unchanged despite personnel changes, thereby demonstrating that the good will of the clients of the business toward the business was not tied exclusively to the presence or skills of particular individuals but was tied to some extent to the services that could be provided by any of a number of dentists. Here, as in Buckl, the good will was capable of being valued for the purpose of buying into or withdrawing from the partnership itself, making it an asset to the business, rather than a purely personal asset.

In the case before us, expert testimony on the value to be attributed to the good will of the dental partnership had been presented. As would be expected, there was a difference in the amounts proffered as the value of the good will by each party; nonetheless, despite the differences in the values determined by the experts, I find that the evidence established that husband could realize some discernable good will value on the sale of his interest in the dental practice. (N.T. 1/27/88 at 238A). Because the valuation of the alienable/realizable good will value requires a factual determination, the case must be remanded to the trial court for a determination of the proper valuation of good will to be included for equitable distribution purposes.

III. Adequacy of the Alimony Award

Appellant next contends that the trial court’s award of alimony in the amount of $100 per week was an abuse of discretion in view of the fact that court ordered spousal support had been $501 per week, and there had been no change in circumstances. This contention reveals a misunderstanding of spousal support.

The purpose of an order of support is to assure a reasonable living allowance to the party requiring support. Commonwealth v. Turner, 258 Pa.Super. 388, 392 A.2d 848 (1978). The duty to provide spousal support is concomitant with the marital relationship, and terminates with the ending of the marriage. Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983).

In this case, the husband continued support payment beyond the entry of the divorce decree on January 10, 1989, until the resolution of the financial and property claims between the parties. This payment, however, does not set the basis for the award of alimony. There is no absolute obligation on the part of a supporting spouse to see that the dependent spouse’s life style remains unchanged from that enjoyed during the marriage.

The court in determining whether an award of alimony is necessary must consider the factors enumerated in 23 P.S. § 501(b) to determine only whether the party seeking alimony is able to provide for his or her reasonable needs through appropriate employment or other property. Hess v. Hess, 327 Pa.Super. 279, 475 A.2d 796 (1984). A review of the recommendation of the master and the opinion of the trial court confirms that those factors were properly considered. Accordingly, we affirm the order of the trial court on the issue of the adequacy of the award of alimony.

IV. Inadvertent Clerical Error

Appellant’s next issue requires little discussion. Both appellant and appellee agree that there was a clerical error in the amount shown in the trial court’s order for the division of the marital bank accounts. The appellant should receive $13,242.47 not the $9,551.75 shown in the order. On remand, this correction should be made in the equitable distribution order.

V. Valuation Date for Pension Plan

Appellant next contends that date of separation, rather than the date of hearing, should have been used for valuation of pension and profit-sharing plans. Appellant argues that a decrease in value resulting from bad investments suggested by the plan administrator should be considered an intentional dissipation of marital assets. This argument is completely without merit. The trial court properly relied on Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988), in determining the proper valuation date for the pension and profit sharing plans.

VI. Exclusion Of Life Insurance Proceeds From Equitable Distribution

Appellant further contends that the trial court erred in not equitably distributing the proceeds of a life insurance policy which appellee cancelled in 1986. The master’s recommendation at page 14 refers to the policy proceeds having gone solely to appellee, but gives no explanation as to why this amount was excluded from the distribution, when the cash value of the life insurance policy was marital property. Lindsey v. Lindsey, 342 Pa. 72, 492 A.2d 396 (1984).

The opinion of the trial court at page 10 mischaracterizes this as a loan and a liability to appellee, when the record discloses unequivocally to the contrary that in actuality appellee took as a disbursement to his own use $16,691.45 from marital property in the form of the cash surrender payment on the policy with the intent not to repay the insurance policy. (N.T. 6/30/89 at 134A-136A and 179A). In such situations, the court should properly charge the spouse who took the assets with the amount that should have been included in the distribution. Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985).

It is possible that this value has already been included in the distribution indirectly. If the money was invested in the dental business or used to purchase other assets included in the distribution, any part of the proceeds thus accounted for would already be in the distribution, and could not be double-entered for equitable distribution purposes. Hence, on remand, the trial court must redetermine the includability of policy proceeds in the equitable distribution.

VII. Counsel Fees

Appellant’s final contention is that the trial court erred in not awarding her counsel fees. The trial court’s decision that appellant had or would receive through the equitable distribution sufficient assets to pay her own counsel fee was supported in the record. We find no abuse of discretion. Adelstein v. Adelstein, 381 Pa.Super. 221, 553 A.2d 436 (1989).

Conclusion

This Opinion represents a unanimous majority opinion as to Parts III through VII. We have reached a plurality disposition as to Part II dealing with the inclusion of good will value in the equitable distribution. Judge Johnson and myself agree in the result requiring remand of this case for valuation and inclusion of the ascertainable and realizable good will value of husband’s dental practice in the distribution of marital assets.

Based on the foregoing, the order of the trial court is vacated, and this case is remanded to the trial court for further proceedings consistent with this opinion. Jurisdiction is relinquished.

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

JOHNSON, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring and dissenting:

I respectfully concur in nearly all aspects of the majority’s disposition of appellant’s claims. I must, however, dissent from that portion of the opinion which remands this case for a determination of the value of the goodwill of appellee’s dental practice. On this point, I find nothing present in the facts herein which would warrant distinguishing this case from our decisions in DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987), and Beasley v. Beasley, 359 Pa.Super. 20, 518 A.2d 545 (1986). To the contrary, as in DeMasi and Beasley, I would hold that the value of the goodwill in this case is dependent in large part on the unique talents of Dr. Fexa himself and, as such, could not be transferred upon a sale of his interest. Accordingly, I would affirm that portion of the trial court’s equitable distribution order which excluded goodwill from the valuation of appellee’s dental practice.

JOHNSON, Judge,

concurring:

I agree with Judge Kelly that the good will element of Husband’s dental practice can be valued as marital property and thus should be included for equitable distribution. Therefore, I join Judge Kelly’s conclusion that the case must be remanded for a determination of the proper valuation of good will to be included for equitable distribution purposes. However, I read and apply the applicable cases differently than does Judge Kelly.

I reject the conclusion that a distinction between a business organized as a sole proprietorship and a business organized as a partnership or professional corporation determines whether good will may be valued as marital property. The applicable cases are not decided upon this distinction. Valuation may be difficult or impossible due to other factors, but I do not read the cases to mean that existence of a sole proprietorship renders valuation of good will per se impossible.

I begin with the definition of good will:

Good will is the favor which the management of a business has won from the public, and probability that old customers will continue their patronage, (citation omitted). 38 Am.Jur.2d Goodwill § 3 states:
Good will is property of an intangible nature and constitutes a valuable asset of the business of which it is part, unless, in the particular instance it is of too uncertain and contingent a nature to be appraised. Often a large portion of the intrinsic marketable or assessable value of a business consists of its good will. However, good will cannot be separated from the business in which it inheres, nor can it be disposed of independently from the business. It has no existence as property in and of itself, as a separate and distinct entity, but only as an incident of a continuing business having locality or name.

Buckl v. Buckl, 373 Pa.Super. 521, 530, 542 A.2d 65, 69 (1988) (en banc). First, this definition, recently adopted by the en banc Buckl panel, demonstrates that the intangibility of good will does not render it incapable of valuation. Just as important, the definition establishes that good will is an inseverable element of the business’ value. This principle holds true regardless of the source of the good will. Recognizing these two significant points regarding good will at the outset of any analysis goes far toward dispelling confusion.

In our case, the trial court held that the good will element of Husband’s dental practice could not be valued for equitable distribution purposes. The court noted that Husband was responsible for a large majority of the revenues of the practice due to his reputation and personal service. The court decided that, based upon these facts, the law warranted the conclusion that the good will could not be valued. The trial court relied upon two cases, Beasley v. Beasley, 359 Pa.Super. 20, 518 A.2d 545 (1985) (en banc) and DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987) for the proposition that because it was Husband’s reputation that generated the good will and not the entire dental practice that generated it, it is impossible to value the good will. Judge Kelly here properly reverses the trial court’s result, but he does so on an incorrect basis. In concluding that Beasley and DeMasi are factually distinguishable from the present case, Judge Kelly incorrectly accepts the conclusion that, if a single person’s reputation is the source of good will value to a business, good will cannot be valued.

In Beasley, Husband practiced law as a sole proprietor employing fifteen attorneys. The court was asked to decide whether the good will element of the law practice was marital property and whether Wife had a right to an appraisal of the value of the law practice. The court determined that “[i]t would appear to be incontrovertible that good will is a valuable asset and in proper context must be considered in valuation of a property,” Beasley, 359 Pa.Super. at 35, 518 A.2d at 552, and that there is no question that the law firm itself has value which is ascertainable. Beasley, 359 Pa.Super. at 41, 518 A.2d at 555. The court characterized the good will element as professional reputation and found that this element could not be determined separately but rather had to be taken into account when valuing each case file. In arriving at this conclusion the Beasley court discussed and weighted several views regarding the valuation of good will within the context of various business organization forms.

The court held that, under the facts presented in Beasley, the good will was not marital property. The court decided that the contingent fees presented too speculative a basis upon which to evaluate the case files and that, regardless, Wife did not have a right to appraise the files because in doing so she would unduly pry into the confidential attorney-client relationship. Further, the court noted that the income generated by Husband’s reputation was taken into account, and properly so, in considering Husband’s earning capacity for alimony purposes under 23 P.S. § 501(b)(1). The Beasley court did not hold generally that good will cannot be valued for equitable distribution purposes in a sole proprietorship.

In DeMasi v. DeMasi, two physicians were fifty percent shareholders in a professional corporation. The court relied upon Beasley for the proposition, not found in that case, that good will in a sole proprietorship was incapable of valuation and therefore held that the good will value of this medical practice could not be determined for equitable distribution purposes.

In Buckl v. Buckl, 373 Pa.Super. 521, 542 A.2d 65 (1988) (en banc), this Court considered both Beasley and DeMasi in deciding whether Husband’s partnership interest in his architectural firm was marital property. The court had no problem deciding that the partnership interest was marital property. The difficulty came into play in valuing the good will element of the value of the partnership share. The court held that the Master had properly determined that good will was a factor to be considered in placing a value on the husband’s marital property. The court recognized the Beasley decision but stressed that the Beasley court did not preclude valuation of good will categorically and that the Beasley decision was limited to the facts of that particular case.

Similarly, the Buckl court recognized the DeMasi decision as one in which a court decided that good will value should not be factored into the value of a business, but again the court characterized the analysis as one to be made on a case-by-case basis. Specifically, the court noted that the DeMasi court wrote: “Presumably, special circumstances may justify holding that the good will of a professional sole proprietorship is marital property while the good will of a professional corporation is not.” Buckl 373 Pa.Super. at 530, n. 5., 542 A.2d at 69, n. 5, quoting DeMasi, 366 Pa.Super. at 43-44, 530 A.2d at 883. In other words, the Buckl court concluded that use of a general rule based solely upon a distinction between a sole proprietorship and a partnership or professional corporation in order to determine whether good will value of the business should be included as marital property has not actually been used by our courts and that the cases in fact suggest that a general, per se rule should not be used.

The Buckl court then turned to the facts before it. The court noted that evidence of monetary value of the good will had been introduced. The court concluded that this value must be taken into account in valuing the partnership interest and remanded for this and other reasons. In his concurrence, Judge Del Sole noted that “[f]actually and functionally there is no difference between the partnership in the case sub judice and the interest of the professional in DeMasi. It is my view that DeMasi is implicitly overturned, and if not, severely limited in its application.” Buckl, 373 Pa.Super. at 536, 542 A.2d at 72.

Now I apply this law to the present case. Judge Kelly concludes that the good will value of Husband’s dental practice can be valued and is thus marital property. However, he reaches this conclusion by relying upon Beasley and DeMasi for the proposition that good will that emanates from the professional reputation of a sole proprietor cannot be valued for marital property purposes while good will emanating from a partnership or professional corporation can be so valued. Judge Kelly concludes that Husband’s share of his dental practice, which is a partnership, is factually distinguishable from the good will factor to be valued in Beasley and DeMasi.

There is no question that good will may be valued and is properly included as marital property. See Buckl v. Buckl. I find no general rule in any of the cases herein discussed establishing that good will of a sole proprietorship cannot be valued. If such a rule could be found in DeMasi, I agree that it is based upon a faulty reading of Beasley. Rather, the cases discussed herein make clear that the only barrier to including good will as marital property is if special circumstances preclude valuation, as in Beasley, where the court precluded Wife from appraising the files and where the court felt that Wife had already reaped the benefit of Husband’s professional reputation in the alimony award that was based upon Husband’s future earning capacity. The Buckl court’s discussion of Beasley and DeMasi supports this view. In the present case, as was true in Buckl, evidence of value that expressly evaluated good will was before the court; no special circumstances precluded its valuation. Therefore, the court should have considered it as marital property.

Valuation of good will is not an issue in McCabe v. McCabe, as Judge Kelly implies; the case thus has no bearing upon the present appeal. In McCabe, the issue was whether the trial court had properly valued shares in a law partnership. The trial court had accepted an appraisal that included assets, accounts receivable and work-in-progress. The Supreme Court noted that the appraisal did not include good will. The Court held that the appraisal should be rejected in favor of the terms of the partnership agreement, which provided for valuation of shares should a partner withdraw from the firm. Valuation of good will was not before the Court, and the Court’s only mention of the subject was that it was not included in the rejected appraisal. I find nothing in another case relied upon by Judge Kelly, Ullom v. Ullom, 384 Pa.Super. 514, 559 A.2d 555 (1989) that is contrary to my position.

Hence, I would conclude that, because good will of a business is án important aspect of the business’ value, it should be included when valuing the business, regardless of the form of organization of the business, unless there is a special circumstance that precludes valuation. Such a result would best carry out the intent of the Divorce Code to effectuate economic justice between the parties. 23 P.S. § 102(a)(6).

      . Valuation for sale to an outside physician or for inclusion of a new physician in the Corporation who practiced in the same specialty as Dr. DeMasi was not considered.

      . This was one of several concerns raised in Beasley. 518 A.2d at 552-3.

      . This issue was also addressed in Beasley, wherein the prospective value of cases taken on contingency fee agreements was sought to be included in the computation of good will value. Beasley, supra, 518 A.2d at 554-55. Our Supreme Court expressly left this issue open in McCabe, 575 A.2d at 87-88, 89.

      . In a bifurcated divorce, as we have instantly, spousal support terminates with the entry of the divorce decree. Alimony pendente lite may be awarded at a party’s request for the period between the entry of divorce and adjudication of the economic aspects of marriage to maintain an equality between spouses in resolving their differences. Levine v. Levine, 360 Pa.Super. 297, 520 A.2d 466 (1987); Desch v. Desch, 329 Pa.Super. 22, 477 A.2d 883 (1984). There is no record that the parties considered any possibility of change in payments on entry of the divorce decree.

      . Because my position is narrower than Judge Johnson's and broader than Judge Olszewski’s, it is that approach which binds as law of the case, though not as precedent. In effect, Judge Johnson and I both agree that at least the value I describe must be included, and Judge Olszewski and I agree that no more value than I describe may be included.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    578 A.2d 1323
    COMMONWEALTH of Pennsylvania v. Pedro TORRES, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 3, 1990.
    Filed Aug. 17, 1990.

      Thomas W. Moore, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before DEL SOLE, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from a judgment of sentence for murder in the first degree, 18 Pa.C.S.A. § 2502(a), and possession of an instrument of crime, id. § 907. Appellant contends that (1) the evidence relating to malice was insufficient to support the first degree murder verdict; and (2) the verdict was against the weight of the evidence. For the reasons set forth below, we affirm the judgment of sentence.

On May 4, 1987, appellant was arrested and charged in connection with a shooting death that occurred on September 4, 1986. On December 13, 1988, appellant waived his right to a jury and he proceeded to a bench trial before the Honorable David N. Savitt. Following three days of testimony, Judge Savitt found appellant guilty of murder in the first degree and possession of an instrument of crime. Appellant was sentenced to a mandatory term of life imprisonment for the murder conviction and a concurrent term of one-to-two-years imprisonment for possessing an instrument of crime. After trial, appellant’s court-appointed counsel, Thomas W. Moore, Esq., was granted leave to withdraw, and the court appointed Paul Sosnowski, Esq. for post-trial motions. Counsel filed post-trial motions nunc pro tunc on March 14, 1989. On June 6, 1989, attorney Moore re-entered his appearance for appellant, this time as privately retained counsel. On October 6, 1989, Moore filed supplemental post-trial motions on appellant’s behalf, in which he alleged that Sosnowski was ineffective for filing “boilerplate” post-trial motions. On October 12, 1989, all post-trial motions were denied, and this timely appeal followed.

Appellant first contends that the evidence at trial was insufficient to support his conviction for murder in the first degree. The test for reviewing a sufficiency claim is well-settled:

Where a defendant challenges his conviction on appeal the test of sufficiency of evidence is whether, viewing all evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984); see also Commonwealth v. Hoke, 381 Pa.Super. 70, 78-79, 552 A.2d 1099, 1103 (1989).

Section 2502 of the Crimes Code, 18 Pa.C.S.A., provides in relevant part that “[a] criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.” Id. § 2502(a). In Commonwealth v. Gardner,

490 Pa. 421, 416 A.2d 1007 (1980), our Supreme Court stated that:

In determining the sufficiency of the evidence to support a finding of first degree murder, we must find that the killing was a malicious one accompanied by a specific intent to kill. If the act of the defendant under all the circumstances properly gives rise to an inference that the appellant knew or should have known that the consequence of his act would be death or serious bodily harm, malice is present. Commonwealth v. McFadden, supra [448 Pa. 277, 292 A.2d 324 (1972).]
It is well settled that specific intent to kill, as well as malice, may be inferred from the use of a deadly weapon upon a vital part of the victim’s body. Commonwealth v. Kingsley, 480 Pa. 560, 391 A.2d 1027 (1978); Commonwealth v. Moore, 473 Pa. 169, 373 A.2d 1101 (1977); Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976). It is this specific intent to kill which distinguishes murder of the first degree from the lesser grades of murder. Commonwealth v. Moore, supra.

Id., 490 Pa. at 425, 416 A.2d at 1008-09 (emphasis added). Appellant’s specific argument is that the Commonwealth failed to present sufficient evidence of malice but instead relied exclusively upon the fact that appellant used a deadly weapon upon a vital part of the victim’s body. Appellant relies on Commonwealth v. McGuire, 487 Pa. 208, 409 A.2d 313 (1979) (plurality), for the proposition that the use of a deadly weapon upon a vital part of the body is not sufficient to show malice without additional evidence. In McGuire, the defendant was charged with murder, voluntary manslaughter, and involuntary manslaughter. The court dismissed the charge of involuntary manslaughter and found defendant guilty of murder in third degree. At trial in McGuire, the only evidence offered by the Commonwealth to prove malice was the use of a gun upon the victim, while all of the other evidence presented at trial negated the inference of malice. Accordingly, our Supreme Court, in a plurality opinion by Justice (now Chief Justice) Nix, found that the evidence did not support a finding of malice and, accordingly, the defendant was discharged as to the count of murder in the third degree.

Appellant’s reliance upon McGuire is misplaced. McGuire was a plurality opinion and our Supreme Court has since repeatedly emphasized that the inference from the use of a deadly weapon upon a vital part of the body alone is sufficient to establish malice. See, e.g., Commonwealth v. Carbone, 524 Pa. 551, 574 A.2d 584 (1990), Commonwealth v. Yarris, 519 Pa. 571, 549 A.2d 513 (1988), cert. denied sub nom Yarris v. Pennsylvania, — U.S. —, 109 S.Ct. 3201, 105 L.Ed.2d 708 (1989); Commonwealth v. D’Ambro, 500 Pa. 303, 456 A.2d 140 (1983); Commonwealth v. Gardner, supra. Moreover, to the extent that the McGuire rule retains vitality, the situation in the instant case is sufficiently distinguishable as to require affirmance. At trial, the Commonwealth called Edwin Laureano, an eyewitness to the shooting, who testified that appellant shot the victim three or four times from a distance of two-to-four feet while the victim attempted to deflect the bullets with his bare hands. See N.T. December 13, 1988 at 58-62. Laureano further testified that after the victim had been shot, there was blood on the right side of his chest. Id. at 65. Based upon this evidence, the fact-finder properly could have concluded that appellant used a deadly weapon on a vital part of the victim’s body. See Commonwealth v. Gardner, supra. The only testimony offered to contradict Laureano’s testimony was appellant’s own, wherein he denied knowing the victim and denied shooting anybody, but admitted that he had been at the location of the shooting at the time of the incident. See N.T. December 15, 1988 at 198-99, 205. Moreover, appellant’s testimony also suggested that he was a cocaine dealer and that there was a fight under way for the corner upon which the victim was killed. Id. at 199-203. As this review demonstrates, in this case, unlike McGuire, there was no evidence offered at trial to contradict the inference of malice from the use of a deadly weapon upon a vital part of the victim’s body. Thus, there was sufficient evidence to support the murder conviction.

Appellant also claims that his conviction was against the weight of the evidence. Specifically, he argues that the Commonwealth’s eyewitness was not credible, and that his testimony was so unbelievable that a new trial is warranted. It is settled that:

The determination whether to grant a new trial on the ground that the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent an abuse of discretion. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982). Before a trial court may grant relief on the ground that the verdict is against the weight of the evidence, ‘ “it must appear from the record that the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice....” ’ Commonwealth v. Gamber, 352 Pa.Super. 36, 45, 506 A.2d 1324, 1329 (1986) (quoting Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981)). Our review of a trial court’s decision on a weight of the evidence claim is extremely limited.

Commonwealth v. Hamilton, 376 Pa.Super. 404, 414, 546 A.2d 90, 95 (1988). Appellant’s weight of the evidence claim rests on his belief that Laureano was not credible because (1) his testimony was inconsistent and (2) his attitude regarding the shooting was “lackadaisical.” During cross-examination, appellant had an opportunity to test Laureano’s credibility by questioning him about the inconsistencies in his testimony and asking him about his failure to cooperate with the police. See N.T. December 13, 1988 at 83-109. The only testimony offered to contradict Laureano’s testimony was appellant’s own testimony. Credibility is an issue for the finder of fact that will not be disturbed on appeal. Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979). Moreover, it is settled that the trier of fact is free to believe all part or none of the testimony. Id. In this case, the trial court, sitting as the fact-finder, believed Laureano’s testimony and did not believe appellant’s contradictory testimony. This determination is perfectly consistent with the evidence presented, and certainly is not such as to “shock our sense of justice.” Accordingly, we find that the trial court did not err in finding that the verdict was supported by the weight of the evidence.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed

      . Appellant also contends that the trial court erred in permitting the Commonwealth’s expert witness to testify concerning an autopsy report prepared by another doctor. After carefully reviewing the record and the briefs submitted by the parties, we find that the trial court has adequately addressed this contention in its opinion. Accordingly, we need not address the issue further.

      . All of appellant’s claims are couched in ineffectiveness terms, premised on attorney Sosnowski’s alleged failure to properly preserve appellant’s claims in post-verdict motions. Specifically, appellant claims that these motions were defective because they were boilerplate. See Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) (en banc). Review of the motions reveals, however, that they are sufficiently specific to comport with Holmes. Moreover, we note that the trial court did not consider the claims waived. Accordingly, we shall address appellant’s arguments on their merits and need not consider the ineffectiveness claim.

      . Justice Nix’s lead opinion in McGuire was joined by Justice O’Brien. Justice Eagen concurred in the result. Justices Roberts and Larsen each filed a separate dissenting opinion. Justices Manderino and Pomeroy did not participate in the decision of the case.

      . We note that it is questionable whether appellate courts in this Commonwealth are still able to review a verdict to determine if it is against the weight of the evidence. See Commonwealth v. Nelson, 514 Pa. 262, 271-72 n. 3, 523 A.2d 728, 733 n. 3 (1987); see also Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989). But see Commonwealth v. Jenkins, 396 Pa.Super. 395, 398-401, 578 A.2d 960, 962-963 (1990), No. 2389 Philadelphia 1989 J. A24025/90) (filed August 1, 1990) (“the passing statements of our Supreme Court in Wallace and Nelson have not resulted in a prohibition of weight of the evidence claims in our appellate courts” and, thus "an examination of these matters by appellate tribunals still exists.”).


author: CIRILLO, President Judge:

text:
    578 A.2d 1326
    CANTER’S PHARMACY, INC. d/b/a Westbrook Pharmacy and Surgical Supply, Appellant, v. ELIZABETH ASSOCIATES.
    Superior Court of Pennsylvania.
    Argued March 13, 1990.
    Filed Aug. 14, 1990.

      Ernest W. Baum, Bethel Park, for appellant.
    Harold K. Waldman, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and FORD ELLIOTT and BROSKY, JJ.
   CIRILLO, President Judge:

Westbrook Pharmacy and Surgical Supply (“Westbrook”) appeals from an order entered on June 2, 1989, in the Allegheny County Court of Common Pleas granting Elizabeth Associates’ motion to stay the proceedings pending arbitration. We reverse.

On January 7, 1987, Schneider Health Services, Inc. (“SHS”), Orrie M. Rockwell, Jr., and Westbrook entered into a partnership agreement for the purpose of operating a personal care facility in Elizabeth, Pennsylvania. The partnership was conducted under the name of Elizabeth Associates (“Elizabeth”). The partnership agreement contained an arbitration provision:

Arbitration. If for- any reason the Partners cannot agree in a matter or matters of Partnership affairs, the dispute shall be decided by a majority decision of three (3) arbitrators, by which the Partners agree to abide. Each Partner shall have the right to appoint one arbitrator. The decision of the arbitrators shall be final, and the cost of the same shall be borne equally by the Partners.

After the partnership commenced operations, it began to suffer financial losses which required, pursuant to the agreement, additional capital contributions by the partners. Disputes arose concerning the extent of the losses and the management of the partnership. In sum, Westbrook refused to contribute any additional operating capital.

On January 24, 1989, Elizabeth instituted a civil action in the Allegheny County Court of Common Pleas against Westbrook to recover capital contributions allegedly owed by Westbrook to the partnership. On March 7, 1989, West-brook responded by answering Elizabeth’s complaint and filing a counterclaim against Elizabeth seeking equitable relief in the form of a partnership accounting and a dissolution of the partnership. Subsequently, on March 8, 1989, Westbrook commenced a separate equity action alleging various breaches of the partnership agreement. Elizabeth did not respond to this separate equity action.

On March 28, 1989, the trial court granted Westbrook’s petition to consolidate the civil action commenced by Elizabeth with the equity actions instituted by Westbrook. On May 10, 1989, Elizabeth filed a motion to stay the consolidated proceedings pending arbitration pursuant to the arbitration provision in the partnership agreement. See 42 Pa.C.S. §§ 7303, 7304. On June 2, 1989 the trial court entered an order staying the proceedings pending arbitration, and this timely appeal followed. Westbrook presents one issue for our consideration:

When a contract contains a provision that all disputes arising under the contract will be decided by Arbitration, can the parties, by their conduct, waive or revoke the Arbitration provision and resort to suit under the jurisdiction of the Court of Common Pleas?

It is well settled that when one party to an agreement seeks to prevent the other from proceeding to arbitration, our inquiry is limited to determining whether an agreement to arbitrate was entered into and whether the dispute involved is within the scope of the arbitration provision. Flightways Co. v. Keystone Helicopter Co., 459 Pa. 660, 663, 331 A.2d 184, 185 (1975); Sanitation Sewer Authority v. Dial Associates Construction Group, Inc., 367 Pa.Super. 207, 210, 532 A.2d 862, 863 (1987). Additionally, pursuant to the policy favoring arbitration, an order enjoining arbitration of a grievance should not be granted unless it is clear that the agreement involved is not susceptible of an interpretation that covers the asserted dispute. Sanitation Sewer Authority, 367 Pa.Super. at 210-211, 532 A.2d at 862-863.

Westbrook maintains that since its separate equity action seeking dissolution of the partnership cannot be heard in arbitration that these consolidated actions are not subject to arbitration. We agree.

It is clear that in certain circumstances a partnership may be dissolvable by the express will of any partner at any time. Girard Bank v. Haley et al., 460 Pa. 237, 243, 332 A.2d 443, 446 (1975). As the following discussion will illustrate, Westbrook’s filing of an equity action seeking a dissolution effectively expressed its desire to dissolve the partnership at-will.

Dissolution of a partnership is caused under ... 59 P.S. § 93 (1964), “by the express will of any partner.”[] The expression of that will need not be supported by any justification. If no “definite term or particular undertaking [is] specified in the partnership agreement, ” such an at-will dissolution does not violate the agreement between the partners; indeed, an expression of a will to dissolve is effective as a dissolution even if in contravention of the agreement. ... We have recognized the generality of a dissolution at will. See Lacey v. Rutter, 358 Pa. 502, 57 A.2d 679 (1948).... If the dissolution results in breach of contract, the aggrieved partners may recover damages for the breach and, if they meet certain conditions, may continue the firm business for the duration of the agreed term or until the particular undertaking is completed.

Haley, 460 Pa. at 243, 332 A.2d at 446-447 (citations and footnote omitted, emphasis added). The concept is simple: one cannot be coerced to remain in a partnership against his or her wishes.

Also, it is significant that the dissolution of a partnership does not mean that the partnership ceases doing business; rather dissolution “is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on, as distinguished from the winding up, of the business.” 59 Pa.C.S. § 351 (emphasis added). Here, although the partners drafted a provision concerning the termination of the partnership, the agreement is silent as to dissolution.

The termination of a partnership is markedly different from the dissolution of a partnership. When a partnership has terminated it ceases doing business; when a partner effects a dissolution it simply means that partner is no longer associated with the business of the partnership. Consequently, since the instant agreement does not concern the dissolution of the partnership, the relevant provisions of the Partnership Act will control. Haley, 460 Pa. at 242, 332 A.2d at 446.

We must now determine if this partnership was for a definite term or for a particular undertaking. Once again, if the partnership was for an indefinite term or not for a particular undertaking, Westbrook was free to dissolve the partnership at-will without violating the agreement. 59 Pa.C.S. § 353; Haley, supra. A review of the partnership agreement reveals that the partnership is not for a fixed term, and its purpose is set forth as follows:

The purpose of the Partnership shall be the renovation, equipping and operation of a large personal care facility to be known as Old Elizabeth Manor and to be located at 310 Third Street, Elizabeth, Pennsylvania, ... and to do and perform any and all other acts as shall be necessary or incidental ^thereto.

In Haley, the partnership’s purpose was to maintain and lease buildings on a tract of real property. Haley, 460 Pa. at 244, 332 A.2d at 447. The supreme court found that this undertaking was general and could not be said to set forth a “particular undertaking” within the meaning of the Act. Id.

A “particular undertaking” under the statute must be capable of accomplishment at some time, although the exact time may be unknown and unascertainable at the date of the agreement. Leasing property, like many other trades or businesses, involves entering into a business relationship which may continue indefinitely; there is nothing “particular” about it.

Id. (footnote omitted). The purpose of the instant partnership was to renovate, equip and operate a personal care facility. Operating a personal care facility, like leasing property, may continue indefinitely; there is nothing particular about it. Id. Accordingly, Westbrook’s decision to dissolve was not in violation of the agreement.

Having concluded that Westbrook did not violate the agreement when it effected a dissolution of the partnership, we further find that these parties should not be forced into arbitration. Since an expression of a will to dissolve is effective as a dissolution, Westbrook’s equity action seeking dissolution effectively caused a dissolution of the partnership. Haley, supra; 59 Pa.C.S. § 353. Arbitration, by its very nature, presupposes the existence of a dispute and an ability to decide in favor of one party and against another. See 59A Am Jur 2d § 538. Clearly, when a party has an unqualified right to dissolve a partnership at-will there is nothing to arbitrate. Indeed, arbitration, in this case, would be futile. Therefore, since Westbrook’s decision to dissolve at-will is not subject to arbitration, the trial court erred in staying these proceedings pending arbitration. Sanitation Sewer Authority, supra.

Order reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Clearly, an appeal as of right may be taken only from a final order. Pa.R.A.P. 341. A final order is one that 1) ends the litigation; 2) effectively puts the litigant “out of court”; or 3) precludes a party from presenting the merits of his or her claim to the trial court. Fried, v. Fried, 509 Pa. 89, 93-94, 501 A.2d 211, 213 (1985). While an order denying a petition to proceed to arbitration is an appealable order, 42 Pa.C.S. § 7320(a)(1), no statutory authority permits appellate review of an order granting a petition to proceed to arbitration. 42 Pa.C.S. § 7320; Gardner v. Prudential Insurance Company, 332 Pa.Super. 358, 359, 481 A.2d 654, 655 (1984); Brennan v. General Accident Fire and Life Assurance Corporation, LTD, 307 Pa.Super. 288, 290, 453 A.2d 356, 357 (1982). In Brennan and Gardner, the appellant was attempting to appeal from an order directing the parties to proceed to arbitration. Here, the order did not expressly direct or compel the parties to proceed to arbitration. Rather, the trial court stayed the proceedings pending arbitration. The effect of the instant order, however, is identical to the orders entered in Brennan and Gardner: no proceedings will take place in the court of common pleas until the arbitration process has concluded.
      In any event, an order temporarily staying proceedings is generally not appealable. Reynolds Metals Company v. Berger, 423 Pa. 360, 362, 223 A.2d 855, 856-857 (1966). However, if the effect of the stay order is tantamount to a dismissal of the cause of action or amounts to a permanent denial of relief requested, the party aggrieved should undoubtedly be afforded the opportunity to appeal on the basis that such stay order is a final disposition of some, if not all, of the rights involved.
      Therefore, a consideration of the practical effects of the stay order on appellant’s cause of action is an essential prerequisite in determining whether the order appealed from is interlocutory.

        Philco Corporation v. Sunstein, 429 Pa. 606, 609-610, 241 A.2d 108, 109-110 (1968) (footnote omitted). Instantly, as the following discussion will illustrate, the practical effect of staying these proceedings pending arbitration is to deny Westbrook’s request to dissolve the partnership at-will. Therefore, since we conclude that this order is sufficiently final, we will permit the appeal. Fried, supra; Philco Corporation, supra.

      . Since the trial court granted Westbrook’s petition to consolidate Elizabeth’s civil action with Westbrook’s equity actions, we can assume that this case was proceeding in equity. See Pa.R.C.P. 2129.

      . The supreme court in Haley was construing the “Uniform Partnership Act” at 59 P.S. § 1 et seq. This act was repealed, consolidated and essentially reenacted at 59 Pa.C.S. § 301 et seq. The “Uniform Partnership Act," 59 Pa.C.S. § 301 et seq., which was still in effect when this action was commenced, has been repealed, essentially reenacted at 15 Pa.C.S. § 8101 et seq. and renamed the "Partnership Code."

        Section 353 Causes of Dissolution

      Dissolution is caused:
      (1) Without violation of the agreement between the partners:
      (ii) By the express will of any partner when no definite term or particular undertaking is specified.
      59 Pa.C.S. § 353.

      . The authors of the Uniform Partnership Act suggest the following delineation in distinguishing among various terms which apply to that process which leads to the final settlement of all partnership affairs: “Dissolution” designates that point in time when the partners cease to carry on the business together; "termination” is the point in time when all the partnership affairs are wound up; and "winding up” or "liquidation” is the process of settling partnership affairs after dissolution. This is judicially recognized as the correct sequence of events.
      59A Am Jur 2d § 809, comment.


author: POPOVICH, Judge:

text:
    578 A.2d 1330
    COMMONWEALTH of Pennsylvania, Appellee, v. Norman A. BATSON, Appellant.
    Superior Court of Pennsylvania.
    Argued May 2, 1990.
    Filed Aug. 17, 1990.

      Caroline Roberto, Pittsburgh, for appellant.
    Edward M. Clark, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Allegheny County on April 23, 1989, following Appellant’s conviction on the charges of criminal homicide and theft. Appellant, through new counsel, presently contends that (1) the lower court erred in ruling that appellant’s statement was admissible for impeachment purposes if appellant testified in his own behalf, where said statement had been suppressed because of a violation of appellant’s Sixth Amendment right to counsel; and (2) appellant was denied effective assistance of trial counsel. We affirm.

On Saturday, May 30, 1987, Theodore Levi, the deceased, went to the Brewer’s Lounge in the Gloria Hotel in Pittsburgh and was accompanied by his friend, Donald Maher. Testimony revealed the Brewer’s Lounge was reputed to be a “homosexual” bar. While at the bar, Mr. Levi met appellant, Norman A. Batson, and over the next two hours, the deceased bought appellant drinks. The deceased requested appellant accompany him to a nearby restaurant and then to another “gay” bar where they were refused entry. Later, appellant and the deceased proceeded to the deceased’s home and immediately began drinking whiskey. Mr. Maher had left the company of appellant and the deceased earlier in the evening.

Once at his home, the deceased purportedly made an uninvited sexual advance toward appellant after which appellant became furious and proceeded to beat and kick him repeatedly. The deceased lost consciousness and eventually died. Appellant fled in the deceased's car after stealing a set of sterling silver flatware and some jewelry. He abandoned the car in St. Louis, Missouri, and continued by bus to Las Vegas, Nevada.

Appellant turned himself over to police on June 4, 1987, in Las Vegas, waived his Miranda rights and made a statement confessing to the beating. T.T. pp. 158-235. Police detectives from Pittsburgh questioned appellant on June 8, 1987, in Las Vegas. He again expressly waived his constitutional rights and made a statement. On June 10, 1987, appellant was arraigned in Pittsburgh. He requested legal assistance, and a public defender was appointed. Two days later, the police initiated contact with appellant to advise him of the additional charge of robbery. At that time, appellant was again given Miranda warnings. Appellant waived his right to counsel and was interrogated without his appointed counsel being present.

Appellant was formally charged with Criminal Homicide, Robbery and Theft by Unlawful Taking or Disposition. Following a suppression hearing on December 1, 1987, the Honorable Robert E. Dauer suppressed the statement made by appellant in Pittsburgh on June 12, 1987, because the court found that the police had violated appellant’s Sixth Amendment right to counsel. On December 7, 1987, the Commonwealth filed a motion requesting permission, should appellant choose to testify, to use the suppressed statement for impeachment purposes. The Commonwealth’s motion was granted. Appellant chose not to testify on his own behalf at trial.

The jury, on December 8, 1988, adjudicated appellant guilty of first degree murder and theft. He was acquitted of robbery. Post verdict motions -were filed and argued. Judge Dauer denied relief and sentenced Appellant to life imprisonment. This appeal followed.

Appellant argues that a statement suppressed due to a violation of a defendant’s Sixth Amendment right to counsel may not be used by the prosecution for impeachment purposes. Appellant relies on Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975) which prohibited the use of constitutionally infirm statements to impeach the credibility of a criminal defendant who testifies on his own behalf.

However, Triplett, supra, is no longer the law of Pennsylvania for two reasons. First, in 1984, Article 1, Sec. 9 of the Pennsylvania Constitution was amended to include the following, language: “The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.” Interpreting the amendment, the Superior Court in Commonwealth v. Baxter, 367 Pa.Super. 342, 343, 532 A.2d 1177, 1178 (1987), allocatur denied, 518 Pa. 615, 541 A.2d 743, held, “The use of a voluntary confession for impeachment is not a violation of either the Pennsylvania Constitution as currently revised or of the fifth amendment of the United States Constitution.” Pa. Const. Art. 1, sec. 9.

Appellant attempts to distinguish Baxter, supra, on the grounds that Baxter, supra, overrules Triplett, supra, only when a defendant’s Fifth Amendment rights are violated. Therefore, appellant argues Triplet, supra, remains in full force when a violation of a defendant’s Sixth Amendment rights occurs. Consequently, he contends Triplett, supra, controls instantly.

However, appellant’s argument must fail due to the second reason behind the emasculation of Triplett, supra. Most recently, the United States Supreme Court, in Michigan v. Harvey, — U.S. —, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990), held that statements obtained in violation of the prophylactic rule may be used to impeach defendant’s false or inconsistent statement, even though the same statement is inadmissible as substantive evidence. Since we are unable to uncover any authority to indicate that the right to counsel guaranteed by the Pennsylvania Constitution is more expansive than that provided under the Sixth Amendment of the United States Constitution, we hold Michigan v. Harvey, supra, is controlling.

Here, as in Michigan v. Harvey, supra, the statement made by appellant was given voluntarily and of free will. Therefore, we find that the lower court properly ruled that the statement, though not permitted in the prosecution’s case-in-chief, could be admitted for impeachment purposes.

Appellant next raises the contention that he was denied effective assistance of counsel on several grounds: 1) Counsel’s failure to request redaction from statements of all comments concerning appellant’s prior criminality and failure to preserve for appeal denial of those requests made; 2) Counsel’s failure to request limiting instructions regarding use of prior criminality; and 3) Counsel’s failure to preserve for appeal the issue of weight of the evidence.

The standard for reviewing ineffective assistance of counsel claims is well-established, as.outlined recently in Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of effectiveness is of arguable merit; .... If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests.... Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him.”

Durst, 559 A.2d at 505.

Specifically, appellant complains that the following excerpts should have been redacted from the statements which he gave to police and which were admitted as substantive evidence of his guilt:

Question: Did you hit him with anything else?
Answer: No, I did not. I’m perfectly capable of taking care of myself. I don’t need to use anything when I get in a scuffle or nothing, I don’t do that. (T.T., p. 204) I’ve kicked people’s ass before, but I ain’t never done nothin’ like this, believe me. Huh uh. Hell yea, I feel terrible about this. (T.T., p. 234)
I’ve, I have been in a lot of fights. I’ve kicked a lot of people’s ass. I think I kicked people’s ass worse than that before and they lived through it. I never, I wasn’t trying to kill him. I swear to God I wasn’t. (T.T., p. 318)
It was like he was calling my bluff or something and, you know, so I was going along with him, and don’t get me wrong, I have sold myself before so it wasn’t like I had never been in that situation before. (T.T., p. 280) Answer: I was going down there and try and sell myself to get some money.
Question: Okay. In other words, you prostituted yourself in the past?
Answer: Yes, sir. (T.T., p. 311-312)

Assuming arguendo that the aforementioned statements should have been redacted and that counsel had no reasonable basis for failing to request redaction or, at least, demand a limiting instruction, we nevertheless find that appellant’s assertion of error must fail because he was not prejudiced.

Appellant claims he was prejudiced by the admission of the statements in that he was convicted of first degree murder, rather than murder of the third degree. Ordinarily, evidence of prior crimes is inadmissible. However, “[e]vidence of other crimes and/or violent acts may be admissible in special circumstances where the evidence is relevant for some other legitimate purpose and not merely to prejudice the defendant by showing him to be a person of bad character.” Commonwealth v. Lark, 518 Pa. 290, 296, 543 A.2d 491, 497 (1988).

As was stated in Commonwealth v. Morris, 513 Pa. 169, 171, 519 A.2d 374, 377 (1986), “[t]here is no per se rule that requires a new trial for a defendant every time there is a reference to prior criminal activity.” Instantly, when reviewed in context, the statements complained of actually support appellant’s defense that he did not intend to kill the victim and that the fight was prompted by the victim’s sexual advances. Moreover, those statements are merely five isolated excerpts from two separate statements totalling over one hundred and twenty-one pages of the trial transcript. See T.T., pp. 169-240, 268-318. Consequently, we find that appellant was not prejudiced by the admission of the statements, and, counsel can not be held ineffective for failing to request redaction or for failing to request a limiting instruction. Cf., Commonwealth v. Wallace, 561 A.2d at 724-725 (1989).

Judgment of sentence affirmed.

      . The deceased was not acquainted with appellant previous to this meeting.

      . Appellant told police that he had earlier discussed a financial arrangement for sex with the victim (T.T. 280).

      . Briefly, the prophylactic rule provides that once a criminal defendant invokes his Sixth Amendment right to counsel, subsequent waiver of that right even if voluntary, knowing and intelligent under traditional standards, is presumed invalid if secured pursuant to police initiated conversation. For a more in-depth explanation of the prophylactic rule, see Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986).

      . Failure to preserve for appeal the issue of weight of evidence need not be discussed. Most recently, our Supreme Court, in Commonwealth v. Wallace, 522 Pa. 297, 561 A.2d 719, 728 (1989), in addressing this issue stated "[a] challenge to the weight of the evidence is not appealable." Moreover, if we were to rule upon the weight of the evidence, we would find that verdict is not so contrary to the evidence as to shock one's sense of justice. Commonwealth v. Jensch, 322 Pa.Super. 304, 469 A.2d 632 (1983) (standard of review for challenges to the weight of the evidence). Consequently, whether we review the issue or find it waived, counsel was not ineffective. Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421 (1989) (counsel may not be held ineffective for failure to preserve a meritless claim).


author: KELLY, Judge: OLSZEWSKI, Judge,

text:
    578 A.2d 1334
    COMMONWEALTH of Pennsylvania v. Charles O’NEILL, III, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1990.
    Filed Aug. 31, 1990.

      James M. Lammendola, Philadelphia, for appellant.
    Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, KELLY and JOHNSON, JJ.
   KELLY, Judge:

In this case we are called upon to decide whether a trial court may proceed to sentence on one charge while holding post-verdict motions on a separate charge from the same jury trial verdict under advisement, and what effect inclusion of premature appeal of the still interlocutory verdict in a timely notice of appeal from sentence entered on the other charge has on the trial court’s authority to rule on the post-verdict motions held under advisement on the still interlocutory verdict. We find that the trial court had authority to sever the charges at sentencing and to act on the post-verdict motions held under advisement, notwithstanding the premature inclusion of the still interlocutory verdict in the notice of appeal from the other judgment of sentence entered on the other charge.

We are also called upon to determine whether Commonwealth v. Uhrinek, 518 Pa. 532, 544 A.2d 947 (1988) has applicability to sufficiency of evidence claims as well as to claims involving exclusion of evidence. We find that Uhrinek, which sets forth a rule of admissibility, is inapplicable to issues of evidentiary sufficiency. We affirm judgment of sentence.

I. Facts and Procedural History

Appellant was driving his pick-up truck on the evening of February 21, 1987 while intoxicated. At approximately 9:07 p.m., on a well-lit, wide, relatively empty street he struck and killed a pedestrian crossing the street at the corner. A blood alcohol test administered four and a half hours later showed the appellant to have a blood alcohol level of .27%. Coincidently, the autopsy showed the victim to also have a .27% blood alcohol level at the time of death.

Appellant was charged with driving while under the influence of alcohol (75 Pa.S.C.S. § 3731), homicide by vehicle (75 Pa.C.S.A. § 3732), homicide by vehicle while under the influence of alcohol (75 Pa.C.S.A. § 3735), and involuntary manslaughter (18 Pa.C.S.A. § 2504). Appellant was found not guilty of involuntary manslaughter and guilty of all other charges on July 19, 1988. On July 28, 1988, appellant filed a Motion for a New Trial or an Arrest of Judgment on the charges of homicide by vehicle and homicide by vehicle while under the influence of alcohol. On December 8, 1988, the post-trial motions were denied on the homicide by vehicle while under the influence of alcohol count and appellant was sentenced to the mandatory minimum sentence of three years imprisonment. The trial court took the motion on vehicular homicide under advisement. On January 3, 1989, appellant improperly filed his appeal on both charges despite the fact that his conviction of homicide by vehicle remained at that time an interlocutory verdict, not yet ripe for appeal. Subsequent to the filing of notice of appeal, on January 11, 1989, the trial court granted the Motion for an Arrest of Judgment on the charge of homicide by vehicle.

II. Arrest of Judgment

Originally, appellant’s notice of appeal purported to appeal both the Homicide by Vehicle (HBV) and Homicide by Vehicle While Under the Influence of Alcohol (HBV-DUI) convictions. Here, though, by the time the appeal was taken, judgment of sentence had been entered only on the HBV-DUI conviction. As it is well settled that in criminal cases appeals lie from judgment of sentence rather than from the verdict of guilt, see Commonwealth v. Gumpert, 354 Pa.Super. 595, 512 A.2d 699 (1986); Commonwealth v. Luciano, 345 Pa.Super. 83, 497 A.2d 655 (1985), it is clear that appellant’s instant appeal is only properly before us with regard to his HBV-DUI conviction. However, as appellant has neither briefed, nor argued any challenge to the disposition of the HBV charge, which was clearly interlocutory when taken, see id., we construe the portion of appellant’s appeal to that charge as inoperative surplusage.

III. Sufficiency of the Evidence

Upon review of the record, we are satisfied that the evidence presented was more than sufficient to establish the elements of the crime of homicide by vehicle while under the influence of alcohol. Appellant was, unarguably, very drunk at the time he struck and killed the victim. Not only was there testimony concerning the appellant’s appearance and behavior at the time of the accident which indicated that he was intoxicated, but a blood alcohol content test taken four and one half hours after the accident showed a blood alcohol content of .27%. (N.T. 7/15/88 at 59-66, 32-3). This is almost three times the .10% required to be legally intoxicated. Appellant was, consequently, convicted of driving while under the influence of alcohol.

The principle argument raised in appellant’s brief is appellant’s contention the evidence was not sufficient, beyond a reasonable doubt, to prove that defendant’s operation of a vehicle while intoxicated was the actual cause of death of the decedent, who was himself intoxicated. (Appellant’s brief at 3). Appellant would like somehow to make the deceased’s intoxication exonerate him of his own guilt. Based on the evidence presented, we find no way logically to read the facts to effect such a result.

Appellant has attempted to persuade the court to view the circumstances of this case as analogous to those in Commonwealth v. Uhrinek, 518 Pa. 532, 544 A.2d 947 (1988). In each case the victim was intoxicated at the time of his death, and each defendant wanted to use his victim’s intoxication as proof that the victim brought about the accident himself. Unfortunately for appellant, that is where the similarity ends.

In Uhrinek there was extensive testimony from the defendant as well as witnesses that the deceased, while joking with friends, darted into the street in an area not designated for pedestrian crossings. Moreover, though it was 1 a.m., the deceased was wearing sunglasses.

The case before us does not involve any behavior on the part of the deceased which could arguably be said to have precipitated the accident. The deceased, clearly visible for more than a block, crossed to the center of the street walking at a normal rate of speed. He was in a pedestrian crossing zone at an intersection. Appellant, approaching from the opposite side of the intersection had ample opportunity to see the victim and anticipate that he would continue walking to the other side of the street.

The crucial difference between this case and Uhrinek is the trial court’s treatment of the evidence of each victim’s intoxication. In Uhrinek the evidence of the victim’s intoxication was withheld from the fact finder precluding its consideration as part of the “pedestrian dart out” theory of the defense. Here the defendant’s theory of causation was presented without restriction. This material difference in the posture of the two cases further undermines appellant’s reliance on Uhrinek. Uhrinek merely provides a rule of admissibility and not, as appellant suggests, a test for sufficiency. Even after Uhrinek, the fact finder remains free to accept or, as here, reject the defendant’s theory of causation focussing on the pedestrian’s intoxication.

When reviewing a case to determine whether the evidence was sufficient to support the verdict, the evidence must be viewed in the light most favorable to the Commonwealth, and all reasonable inferences therefrom must be drawn in favor of the Commonwealth. Commonwealth v. Grayson, 379 Pa.Super. 55, 549 A.2d 593 (1988). We find that the evidence of record amply supports the trial courts verdict of guilty of homicide by vehicle while under the influence of alcohol.

IV. Conclusion

Based on the foregoing, we affirm the judgment of sentence entered on the charge of homicide by vehicle while under the influence of alcohol. Jurisdiction relinquished.

Judgment AFFIRMED.

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

JOHNSON, J., has concurred in the result of the majority opinion.

OLSZEWSKI, Judge,

concurring and dissenting.

I wholeheartedly agree with the majority that the evidence presented was sufficient to convict appellant of homicide by vehicle while driving under the influence, and that Commonwealth v. Uhrinek, 518 Pa. 532, 544 A.2d 947 (1988) provides a rule concerning the admissibility of evidence, and not the sufficiency of evidence. On the other hand, I respectfully disagree with the majority’s disposition of the homicide by vehicle charge as “surplusage.” In my opinion, that portion of the appeal dealing with the homicide by vehicle charge is subject to quashal and remand to the trial court for appropriate action. Upon filing of the notice of appeal, the trial court was divested of jurisdiction pursuant to Pa.R.A.P. 1701(a). Therefore, I disagree with the majority’s conclusion that the trial court retained jurisdiction to enter its order dated January 11, 1989. Accordingly, I cannot join in the comments set forth in footnote 1 of the majority opinion.

In the interest of judicial economy and prompt and effective disposition of cases, the better practice involving crimes arising from the same occurrence would be to argue and dispose of all post-verdict motions together. Since the constitutional prohibition against double jeopardy mandates that such crimes be tried together, it logically follows that post-trial matters in such cases should be dealt with in one proceeding wherever possible. Had the trial court done so in this case, we would not be faced with the procedural morass confronting us today.

      . We note only that to the extent the Commonwealth, in its brief to this Court, purports to challenge the validity of the trial court’s arrest of judgment on the HBV charge, see Commonwealth’s Brief at 1, n. 1, such a challenge is waived for failure to timely appeal from that order within 30 days from its entry. See Pa.R.A.P. 903(a); Commonwealth v. Cavanaugh, 500 Pa. 313, 315, 456 A.2d 145, 146 (1983).


author: MONTGOMERY, Judge:

text:
    578 A.2d 1337
    Robert LAMAR, Appellant, v. COLONIAL PENN INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued May 23, 1990.
    Filed Aug. 28, 1990.
    Joseph M. Zoffer, Pittsburgh, for appellant.
    Dara A. Decourcy, Pittsburgh, for appellee.
    Before ROWLEY, KELLY and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The plaintiff-appellant, Robert Lamar, instituted this action seeking an order from the trial court to compel defendant-appellee, Colonial Penn Insurance Company, to arbitrate a dispute concerning underinsurance coverage. After a review of the briefs and consideration of the arguments of counsel, the trial court denied the appellant’s request, without prejudice to the appellant’s right to file a separate legal action to seek the desired insurance coverage from the appellee. Thereafter, the appellant filed the instant appeal to our court.

There appears to be no dispute that in late September, 1988, the appellant was severely injured when he was struck by a motor vehicle while he was a pedestrian. At the time, he was covered by a policy of motor vehicle insurance issued by appellee, Colonial Penn Insurance Company. The policy included first party medical benefits and underinsured motorists coverage. The plaintiff’s injuries resulted in over $75,000.00 in medical expenses. The appellee paid $10,000.00 to a medical provider, representing the limits of first party medical benefit coverage on the appellant’s policy. The appellee also tendered its consent and waived any rights of subrogation with respect to the appellant’s settlement of a third party claim against the responsible driver for the limits of the liability insurance coverage available under that driver’s policy. Finally, the appellee paid the appellant $15,000.00 in underinsured motorists benefits, pursuant to the specific limit set forth in the appellant’s policy.

The trial court determined that the appellant sought arbitration based upon the contention that the limits of his underinsured coverage should have been $100,000.00, instead of $15,000.00. The appellant claimed that the appellee did not provide sufficient information to permit him an informed choice as to available coverage. He contended that he intended to elect the higher amount of coverage.

The arbitration provision of the insurance policy in issue states:

If We and the insured person do not agree:
1. Whether that person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle;
2. As to the amount of damages; either party may make a written demand for arbitration. Arbitration shall be conducted in accordance with the provisions of the Pennsylvania Uniform Arbitration Act. Each party will select the arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction. Each party will:
1. Pay the expenses it incurs; and
2. Bear the expenses of the third arbitrator equally. Unless both parties agree otherwise, arbitration will take place in the county in which the insured person lives. Local rules of law as to procedure and evidence will apply. A decision agreed to by two of the arbitrators will be binding.

The trial court refused to require the appellee to arbitrate the appellant’s claim. In its opinion, the trial court indicated that the appellant was seeking to arbitrate a claim that he intended to elect underinsurance coverage in a larger amount than was provided by his policy. The trial court found that the dispute involved questions concerning the appellant’s intent, rather than issues concerning the provisions of the policy. The court noted that in Ostroff v. Keystone Insurance Company, 357 Pa.Super. 109, 515 A.2d 584 (1986), it was held that arbitrators were limited to interpreting the terms of a policy, and that consideration of tort theories to enlarge the coverage listed on the face of the policy was improper. Because the trial court in the instant case found that the plaintiff was not asking for arbitration concerning the terms of the policy, but rather a decision as to “extrinsic matters”, concerning the appellant’s intent at the time he selected coverage, the court concluded that the request to compel arbitration should not be granted.

On April 27, 1990, the Supreme Court of Pennsylvania filed its decision in Brennan v. General Accident Fire and Life Assurance Corporation, Ltd., 524 Pa. 542, 574 A.2d 580 (1990). In that case, the court reversed a Superior Court decision which held that a panel of arbitrators considering an underinsured motorist claim had exceeded its jurisdiction in deciding an issue which the parties had previously agreed was not in dispute.

In its ruling in Brennan, the Supreme Court referred to the arbitration provision of the motor vehicle insurance policy under which the dispute in that case arose. In pertinent part, it provided:

If we and the covered person disagree whether that person is legally entitled to recover damages from the owners or operator of an underinsured motor vehicle, or do not agree as to the amount of damages, either party may make a written demand for arbitration.

With regard to that provision, the Supreme Court declared:

A review of the language of the arbitration clause reveals that arbitration is mandated whenever the insured and the insurer disagree as to when a party is legally entitled to recover damages. There is no limit to the jurisdiction of the arbitrators over what issues may be submitted and in fact the policy declares that all disputes between the insurance company and the insured will be arbitrated. The instant dispute, in its broadest sense, involves a disagreement as to the amount of damages which Appellant would and could possibly receive under the policy. The court has held, since the insurance policy was written by the Appellee, any ambiguity will be interpreted against the Appellee. National Grange Mutual Insurance Co. v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968). Given the broad scope of authority given the arbitrators, we have little difficulty in concluding that the dispute herein is a matter specifically within the scope of the arbitration clause. 524 Pa. at 548, 574 A.2d at 583. (Emphasis added.)

While the arbitration clause in issue in the instant case is not identical to the clause considered by the Supreme Court in Brennan, it is evident that it is virtually the same for all legal intents and purposes. In such circumstances, we must be guided by the Supreme Court’s analysis of the breadth of coverage of such policy language in Brennan. The Supreme Court holding makes it clear that such wording in the policy creates "... no limit to the jurisdiction of the arbitrators over what issues may be submitted ... ”, and “... all disputes between the insurance company and the insured will be arbitrated.” (emphasis added)

Accordingly, we must hold that the trial court erred in denying the plaintiff-appellant’s request for an order to compel the defendant-appellee insurer to arbitrate the underinsurance coverage dispute in issue in the instant case. Such an order must be issued by the trial court.

The order of the trial court is reversed and the case is remanded for further proceedings. Jurisdiction is not retained.