author: BROSKY, Judge. MONTGOMERY, Judge,

text:
    566 A.2d 254
    COMMONWEALTH of Pennsylvania v. Richard HOLLIHAN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued May 16, 1989.
    Filed Sept. 28, 1989.
    Reargument Denied Nov. 6, 1989.

      James R. Wilson, Asst. Public Defender, Pittsburgh, for appellant.
    Edward M. Clark, Asst. Dist. Atty., Pittsburgh, for Com.

      Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   BROSKY, Judge.

This is an appeal from the judgment of sentence of life imprisonment entered against appellant following his conviction by a jury of first-degree murder.

Appellant’s issues on appeal are that: (1) The trial court erred in admitting an out-of-court statement under the excited utterance exception to the hearsay rule; (2) the trial court erred in admitting the “psychological” testimony of Detective Payne; (3) appellant’s trial counsel was ineffective for failing to object to a portion of the trial court’s jury charge; and (4) his trial counsel was ineffective for failing to object to the firing of the murder weapon in the presence of the jury, and post-trial counsel was ineffective for failing to preserve this issue for appellate review. We affirm.

Appellant shot and killed his wife with a sawed-off shotgun. He claimed at trial that the gun accidentally discharged, but a jury found him guilty of first-degree murder.

Appellant’s first claim is that the trial court erred in admitting his seventeen year old daughter Jewelie’s out-of-court statement under the res gestae exception to the hearsay rule, which encompasses the excited utterance exception. Appellant admits that Jewelie was excited, the statement was spontaneous, and it was within a very short time of the incident. Appellant’s Brief at p. 10. But he avers three reasons why the statement was inadmissible and we will address them seriatim.

Appellant first claims that Jewelie did not perceive the incident. Jewelie was on the first floor of the family home and appellant and the victim were in their second floor bedroom. Jewelie heard a loud noise, akin to a door slamming. Immediately thereafter, appellant told Jewelie to, “[G]et an ambulance, your mother’s hurt.” N.T., 1/28— 2/3/86, at p. 270. Jewelie ran up the steps to the second floor, saw a leg protruding from the bedroom, and ran back downstairs and to the next-door neighbor’s house. While there, she made the statements in question to neighbor Joseph Dorsch, and he reiterated them at trial:

She was very upset. My mother-in-law was hugging her, trying to calm her down, and during the time, she was talking like she knew something like this was going to happen eventually, she knew—
I really don’t remember the exact words, but it was to the effect of she knew something was going to happen sooner or later. It was like she was—
She was upset, oh, yeah. The way she talked, the way I took it, it was like she had been in fear of something like this happening at sometime or other.

Id. at pp. 23, 28. Jewelie did not learn that her mother had been shot and killed until after she made the statement. To qualify a statement as an excited utterance the statement must be:

a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.

Commonwealth v. Stohr, 361 Pa.Super. 293, 297, 522 A.2d 589, 591 (1987); Commonwealth v. Pronkoskie, 477 Pa. 132, 137-38, 383 A.2d 858, 860 (1978) (citation omitted). There is no requirement that the available declarant corroborate the statement. Pennsylvania Evidence, L. Packel and A. Poulin, at p. 564 (1987). If the declarant is unable to remember the statement, it is still admissible. Id.

We find that Jewelie clearly perceived the incident giving rise to the excited utterance. Although she didn’t realize that her mother had been shot and killed, the auditory instruction from appellant, coupled with Jewelie’s visual perception of a leg, establishes that she perceived an unexpected and shocking occurrence.

Appellant next claims that Jewelie’s statement that, “something like this was going to happen sooner or later[,]” supra, was only an opinion of a past event, and there is therefore no way to ascertain her rationale for the opinion.

To be admissible, the “opinion” stated in an out-of-court statement by a person who has witnessed a shocking occurrence should (a) be rationally based upon personal knowledge of the facts upon which she based her conclusion, and (b) her conclusion should not mislead the jury. Commonwealth v. Galloway, 336 Pa.Super. 225, 485 A.2d 776 (1984).

We agree with appellant’s contention. Galloway mandates that the statement be a condensed version of what the declarant had just perceived. Jewelie testified that her parents had not fought on the evening of the murder; therefore, there were no facts within her personal knowledge upon which she could have rationally based her conclusion.

Nevertheless, we find that the trial court's admission of Jewelie’s statement was harmless error. An error is harmless only if an appellate court is convinced beyond a reasonable doubt that it is so. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Immediately after Mr. Dorsch reiterated Jewelie’s statement, the trial court, after explaining the excited utterance to the hearsay rule to the jury, further stated that:

We have a situation here where I think we’re going to have to inquire later on — the person who is alleged to have made this utterance is, in fact, in the courtroom— what that was based upon.
I don’t know that we know at this point in time whether Jewelie Hollihan had any knowledge whatsoever of exactly what happened to her mother other than the fact that she had been told to call an ambulance, call the police. We don’t know what she knew at that point in time and what formed the basis.
All we know is it was in a short period of time after this sound was heard by this witness after there was a lot of confusion that was in this setting that this utterance was made.
So it’s not offered for the truth of what she said. It’s merely offered to establish that she said it.
What’s it’s based upon, we don’t know at this point in time, and I don’t think you can speculate about what that means until you know.

N.T., 1/28-2/3/86, at 29-30. Therefore, the trial court admonished the jury not to read anything into Jewelie’s statement.

Mr. Dorsch also corroborated Jewelie’s statement. An error may be harmless if properly admitted evidence is substantially similar to the erroneously admitted evidence. Commonwealth v. Story, supra. Mr. Dorsch testified that appellant and his wife argued at times, and that he (Dorsch) and his wife were afraid that appellant would shoot a gun in his own house. N.T., 1/28-2/3/86, at 33.

Furthermore, the evidence against appellant was overwhelming.

[I]n applying the overwhelming evidence test to determine if an error is harmless, a court may rely only on uncontradicted evidence. The uncontradicted evidence of guilt must be so overwhelming, and the prejudicial effect of the improperly admitted evidence so insignificant by comparison, that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict.

Commonwealth v. Story, supra at 417, 383 A.2d at 168. Appellant told a police officer at the scene that he and his wife fought frequently, were fighting that evening, and that he lost control of himself. N.T., 1/28-2/3/86, at 75. When told at the scene that he would be charged with homicide, appellant stated that he was under a lot of financial pressure, but his wife never wanted to listen to his problems, so he killed her. Id. at 127. In the police car on the way to the station, appellant volunteered in a normal tone that he killed his wife, and his daughters were going to be upset with him. Id. at 94. Appellant stated that he loaded and unloaded the gun twice; when he loaded it a third time he shot his wife. Id. at 103.

Appellant claimed at trial that the gun accidentally discharged. Id. at 344. While claiming that the killing was accidental, he did not contradict the above testimony of the police officers, and said testimony established his guilt overwhelmingly. Therefore, the overwhelming evidence of guilt was uncontradicted, the prejudicial effect of the improperly admitted evidence was insignificant by comparison, and the error was harmless.

Appellant’s final contention regarding his first issue is that the phrase “something like this,” from Jewelie’s statement “[I] knew something like this was going to happen sooner or later[,]” is vague.

We find that the .fact that the statement is vague works to appellant’s advantage as well as the Commonwealth’s. Therefore, this issue is meritless.

Appellant’s second issue is that the “psychological” testimony of Detective Robert Payne was irrelevant and prejudicial. Detective Payne was one of the investigating officers in the case. During appellant’s trial, the prosecutor asked Detective Payne if appellant’s unsolicited comments regarding the killing were unusual in this type of case. Payne responded:

Not necessarily, no. It’s been my experience over the number of years that in some of these unfortunate domestic situations, that in many cases, people are under a tremendous amount of pressure to the point of breaking, and once they do react to that pressure and an incident such as this happens, where an individual dies, the pressure is released, almost like opening up a pressure valve, and the weight of the world is off their shoulders.

N.T., 1/28-2/3/86, at 132. After appellant’s counsel objected on the grounds that Payne was giving an expert opinion, the prosecutor laid a foundation for the question. Appellant claims on appeal that the information elicited by the prosecutor was improper since appellant did not put his mental capacity at issue.

Initially, we find that appellant has waived this issue since he advances an issue different from that objected to at trial. Nevertheless, we will address it due to the nature of appellant’s sentence.

We find that Detective Payne’s testimony, although bordering upon expert testimony, did not fit into such classification.

Whether a witness is qualified as an expert is a matter committed to the sound discretion of the trial court. Commonwealth v. Worrell, 277 Pa.Super. 386, 419 A.2d 1199 (1980). “A witness may state relevant facts known to him, because of experience, even though he is not regarded as an expert whose opinion would be admissible on a hypothetical inquiry.” Commonwealth v. Grabowski, 378 Pa.Super. 454, 465, 549 A.2d 145, 151 (1988). If the witness has any reasonable pretention to specialized knowledge on the subject under investigation he may testify, and the jury will decide how much weight to accord the evidence. Commonwealth v. Harris, 186 Pa.Super. 59, 140 A.2d 344 (1958). We find that Detective Payne testified as a layperson with specialized knowledge accumulated through his duties as an investigating officer in homicide cases.

But, arguendo, even if Payne did testify in the capacity of an expert witness, his testimony was still admissible. The foundation laid for Payne’s testimony elicited the following information: Payne has participated in several hundred homicide cases over a ten year period. N.T., 1/28-2/3/86, at 133; fifty percent of the cases involved domestic disputes, and in a majority of these he was involved in taking statements from or questioning the defendant. Id.; Payne has a B.A. degree in administration of justice, and an M.A. in criminology, with a minor in psychology. Id. at 133-34.

Therefore, by virtue of his work experience and educational background, Detective Payne was qualified to give an expert opinion regarding appellant’s unsolicited statements to the police.

Appellant’s third issue is that his trial counsel was ineffective for failing to object to the portion of the trial court’s charge that informed the jury of the penalty for first degree murder. The trial court stated that:

Prior to your deliberations, I will inform you as to the penalty for first degree murder. A person who is convicted of murder of the first degree shall be sentenced to a term of life imprisonment. In murder of the first degree the Court has no discretion and must impose a sentence of life imprisonment.

N.T., 1/28-2/3/86, at 454. Appellant claims he was prejudiced by this statement since it made the jury more likely to find him guilty of first-degree murder.

Appellant could have been found guilty of first or third degree murder, voluntary manslaughter or involuntary manslaughter. The jury was thoroughly instructed as to the elements of each possible crime. Id. at 446-54. The trial court then instructed the jury that:

In arriving at a verdict, you should not concern yourselves with any possible future consequences of your verdict, including what the penalty might be if you should find the Defendant guilty.
Whenever a Defendant has been found guilty, it then becomes my duty to fix the penalty. You have nothing to do with this, and you should not permit the possibility of punishment to influence your decision in any way.

Id. at 460.

The trial court properly complied with the Pennsylvania Standard Jury Instructions (Criminal) when it informed the jury of the penalty for first-degree murder. Id. at § 152502 D (Crim.), at pp. 220-21. Since appellant’s underlying issue is meritless, his trial counsel was not ineffective for failing to raise it.

Appellant’s fourth issue is that his trial and post-trial counsel were ineffective for failing to object and preserve objections to the firing of the shotgun, which was used to kill the victim, in the courtroom. A primer, which is part of a shell and does not make as much noise as a bullet, was fired while the gun was pointed toward the floor. It was fired by Dr. Robert Levine, an expert witness for the prosecution, to demonstrate the amount of force necessary to cause this gun to discharge accidentally. Appellant claims that he was prejudiced since the demonstration could hp.ve been shown on videotape and the noise from the discharge was very loud.

Dr. Levine tapped the hammer, which was in the down position, of the gun with a rubber mallet, with no effect. He then hit the hammer harder and the gun discharged. N.T., 1/28-2/3/86, at 203.

An expert witness may testify as to matters within his scientific area of expertise. Commonwealth v. Johnson, 373 Pa.Super. 312, 541 A.2d 332 (1988). In determining whether to admit demonstrative evidence in a homicide case, the trial court must first determine if the evidence is inflammatory. Commonwealth v. Frederick, 327 Pa.Super. 199, 475 A.2d 754 (1984). If it is, the trial court must then determine if the evidence is of such essential evidentiary value that its need clearly outweighs the likelihood of inflaming the passions of the jurors. Id.

We find that the demonstration was not inflammatory and its presentation was relevant as appellant claimed that the gun had accidentally discharged. The pressure exerted on the hammer was more clearly conveyed to the nearby jurors than it would have been in a videotape. Furthermore, the jurors could have been negatively influenced against the Commonwealth since they were subjected to a loud noise.

Since appellant’s underlying issue is meritless, his trial and post-trial counsel were not ineffective for failing to object to the demonstration or preserve the issue for appellate review.

Judgment of sentence affirmed.

POPOVICH, J., concurs in the result.

MONTGOMERY, J., files a dissenting opinion.

MONTGOMERY, Judge,

dissenting.

After carefully and thoroughly reviewing the record in this matter, I am convinced that the appellant is entitled to a new trial due to the ineffective assistance of counsel. Therefore, I respectfully dissent.

The appellant argues that trial counsel was ineffective in failing to object to a firearm demonstration in the jury’s presence and that post-trial counsel was also ineffective for failing to raise prior counsel’s ineffectiveness. In reviewing a claim of ineffective assistance, we must first determine whether the issue underlying the claim of ineffectiveness is of arguable merit, and, if so, whether the course chosen by counsel had some reasonable basis designed to serve the interests of his client. Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, the petitioner must show that counsel’s ineffectiveness prejudiced his case. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

I recognize that any in-court demonstration is subject to the trial court’s discretion and, therefore, our review is limited accordingly. Commonwealth v. Kenon, 333 Pa.Super. 366, 482 A.2d 611 (1984). However, in exercising its discretion, the trial court must determine whether the demonstration is relevant and must also determine if the probative value of the demonstration is outweighed by the potential prejudice to the defendant. Id. The demonstration was, arguably, relevant. However, assuming that relevance is not a concern, I cannot agree that the probative value of the demonstration which took place during the trial of this case outweighed the prejudice to the appellant. In my opinion, a review of the record compels a conclusion contrary to that reached by the majority.

The Commonwealth’s expert testified that “[he would] demonstrate the force needed to cause the primer to discharge, ... you will see a spit of flame coming out ... you will also hearefsic] a loud noise.” (Trial Transcript at 203) When the court inquired if the demonstration was safe, the witness responded: “Yes. I’ll have it aimed down toward the floor, and again, you’ll see the spit of flame, and you’ll hear the sound. Sometimes these primers by themselves will have a very large sound.” (Id.) Under the circumstances, I believe the demonstration fell outside the permissible range. Exposing the jury to the sound and “spit of flame” as the purported murder weapon was fired in their presence clearly outweighed, to the appellant’s prejudice, any potential probative value of this demonstration. For this reason, I would find trial counsel was ineffective as I am unable to arrive at a single possible explanation justifying counsel’s failure to object to the demonstration; nor can I imagine any reasonable basis in counsel’s failure designed to effectuate the appellant’s interest. Likewise, I would find post-trial counsel ineffective for failing to raise the issue.

For these reasons, I would vacate the judgment of sentence and remand for a new trial.


source: Caselaw Access Project

author: CAVANAUGH, Judge: POPOVICH, Judge,

license: Public Domain

text:
    566 A.2d 260
    COMMONWEALTH of Pennsylvania, Appellee, v. Howard T. FENTON, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Howard T. FENTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 15, 1989.
    Filed Oct. 13, 1989.
    Reargument Denied Nov. 30, 1989.

      Robert B. McGuinness, Towanda, for appellant.
    Robert Fleury, Dist. Atty., Troy, for Com., appellee.
    Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This is a direct appeal from judgment of sentence. Appellant Howard Fenton was serving a sentence of partial confinement on weekends following his conviction for two misdemeanor offenses, disorderly conduct and criminal mischief. On Friday, November 20, 1987, appellant failed to appear at the Bradford County jail as scheduled. Appellant was located at a tavern later that evening, arrested, and charged with escape. Once appellant was taken to the county jail, an altercation occurred which resulted in a further charge of simple assault being lodged against Fen-ton.

On March 24, 1988, appellant entered pleas of guilty to charges of simple assault, a misdemeanor of the second degree, and escape, a felony of the third degree. A hearing and colloquy were conducted by Mott, J., who accepted the guilty pleas. On May 31, 1988, appellant was sentenced to a term of three and one-half to seven years imprisonment on the escape charge, and received a concurrent sentence of eleven to twenty-four months on the assault charge. This appeal followed.

Appellant presents only three questions for our consideration:

I. Whether the sentencing court below gave a sufficient statement of reasons for the sentence imposed.
II. Whether the sentence imposed constitutes cruel and unusual punishment.
III. Whether the lower court erred in denying the appellant’s request to withdraw his guilty pleas.

In addition, we will discuss an issue mentioned in appellant’s post-verdict motions although it was not raised on appeal to the court. This issue is whether appellant’s crime of escape was incorrectly graded as a felony of the third degree instead of a misdemeanor of the second degree. While we believe that the issue is not properly before this court, we recognize that it forms the basis for Judge Popovich’s dissent and we feel it would be wise to note the reasons why the trial court’s disposition was correct in any event.

Having reviewed the record and applicable authority, we affirm the judgment of sentenbe entered below.

Appellant first charges that the court did not give adequate consideration of the sentencing guidelines promulgated by the Pennsylvania Commission of Sentencing and that the court did not give an adequate statement of reasons for the sentence imposed.

Our Supreme Court has held in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), that the guidelines promulgated by the Sentencing Commission are of no force at all and that a sentencing court is not required to impose a sentence that would be considered appropriate by the commission. In the instant case the court’s sentence was the maximum penalty which the court could impose on a person convicted of a third degree felony. 18 Pa.C.S.A. § 106(b)(4). The lower court, at the sentencing hearing, gave its reasoning in arriving at this sentence.

BY THE COURT:

All right, Mr. Fenton, in this case I have considered your age, the information about you that is in the pre-sentence investigation report, and the information about yourself that you have just given me and that your attorney has as well and the evidence of the circumstances of the offense, your personal background and the circumstances that are found to be set forth in the presentence report and are not in dispute. The facts of the offense have been established by your pleas of guilty. In addition I have considered your prior criminal record, your personal characteristics and your potential for rehabilitation and all of the available alternatives to total confinement including any factors weighing in favor of probation or partial confinement. After considering all of these factors I find that one, ... there is an undue risk during any period of probation or partial confinement, you will commit another crime. Two, you are in need of correctional treatment and rehabilitation that can best be provided by your commitment to an institution and three, a lessor [sic] sentence would depreciate the seriousness of your crimes. I therefore find that a sentence to total confinement is proper____ The Court has bent over backwards in the past for the defendant and has been lenient in the past with the defendant. The defendant did not avail himself of that leniency and therefore it is obvious to the Court that the defendant is in need of a sentence to a state institution so that he might rehabilitate himself.

(Transcript of 5-31-88, pp.9-12). The record shows that the lower court had the benefit of a presentence report, Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), and that the court acted within its discretion in sentencing appellant as it did. That another judge confronted with appellant’s case might have acted differently does not lead to the conclusion that the sentence imposed in the instant case constitutes an abuse of discretion.

Appellant also argues that his sentence is so “grossly disproportionate” to the offense for which he has been convicted that it violates the ban on cruel and unusual punishment of the Eighth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment. Appellant seeks to raise this issue in a one page argument without citation of persuasive authority. While the lower court’s sentence might be considered strict, it certainly does not violate any constitutional ban against cruel and unusual punishment.

Finally, appellant argues that the court erred in denying his application for leave to withdraw his guilty plea to the escape charge. A criminal defendant will be permitted to withdraw a guilty plea after sentencing only if he is able to make a showing of prejudice which results in a manifest injustice to the defendant. Commonwealth v. Vance, 376 Pa.Super. 493, 546 A.2d 632 (1988). To prove manifest injustice, a criminal defendant must show that his plea was involuntary or was entered without knowledge of the charge. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). Appellant Fenton has failed to demonstrate that he has suffered any prejudice which results in manifest injustice. An examination of the guilty plea colloquy shows appellant acknowledged that he was guilty of the offense of escape, and further reveals that appellant was informed that the escape charge was a third degree felony for which he could receive a maximum sentence of seven years imprisonment. (Transcript of 3-24-88, pp. 12-19). Thus, the lower court did not err in denying appellant permission to withdraw his guilty plea.

In connection with the guilty plea, the dissent argues that the trial court erroneously interpreted the gradation section of the escape statute, 18 Pa.C.S.A. § 5121, and that appellant’s crime of escape was thus incorrectly graded as a felony of the third degree. Although the issue was not properly raised on appeal, a perusal of the statute and its legislative history illustrates that the trial court made no error in this regard either.

Subsection (d) of § 5121 discusses the circumstances under which a conviction for escape will be graded as a felony or as a misdemeanor. Subsection (d) reads as follows:

(d) Grading.—
(1) An offense under this section is a felony or the third degree where:
(1) the actor was under arrest for or detained on a charge of felony or following conviction of crime;
(ii) the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape; or
(iii) a public servant concerned in detention of persons convicted of crime intentionally facilitates or permits an escape from a detention facility.
(2) Otherwise an offense under this section is a misdemeanor of the second degree.

18 Pa.C.S.A. § 5121(d).

We do not believe that appellant’s conviction for escape could properly be graded as a felony under the provisions of § 5121(d)(1), (ii) or (iii) on the basis of the evidence presented in the record before us. However, appellant’s escape was properly graded as a felony of the third degree in accordance with § 5121(d)(1)(i). Our reading of the language used by the legislature in this provision leads us to conclude that an escape is properly graded as a felony of the third degree if it occurs following the actor’s conviction of any crime for which he has been incarcerated. The language used by the legislature provides that an actor who has been convicted of a crime, whether that crime be a felony, misdemeanor or even a summary conviction, and who then commits the offense of escape, as defined by the statute, be charged with a felony of the third degree. Plainly, the legislature sought to draw a distinction between detention on charges and detention after conviction for misdemeanor and summary cases.

In the instant case, appellant had been convicted of two misdemeanor offenses prior to his escape. Thus, the Commonwealth correctly charged appellant with felony escape pursuant to 18 Pa.C.S.A. § 5121(d)(1).

This reading of the statute is in accordance with existing case law, including those cases cited by the dissent in support of its conclusion. The dissent has cited two cases in which we have held that an escape charge was incorrectly graded as a felony rather than as a misdemeanor; however, both cases can be distinguished from the situation now before us.

In Commonwealth v. Nixon, 328 Pa.Super. 250, 476 A.2d 1313 (1984), the information charging Nixon with escape was found to be defective in that it failed to set forth the degree of the offense. However, in the instant case the information charging appellant Fenton with escape clearly shows that the offense is graded “F3”, indicating a third degree felony. The majority also cites Commonwealth v. Drawbaugh, 335 Pa.Super. 120, 483 A.2d 985 (1984). Drawbaugh was being detained following his arrest on several summary warrants, but had not yet been convicted of a crime, when he escaped. We held that Drawbaugh’s escape was incorrectly graded as a felony under the circumstances of that case. This result does not preclude the statutory interpretation we have advanced with regard to the instant case because appellant Fenton was not merely under arrest or being detained on two misdemeanor charges at the time of his escape. Appellant Fenton had been convicted of these crimes before his escape, which brings appellant’s case with the scope of § 5121(d)(1)(i), while the circumstances in Drawbaugh’s case fell under the misdemeanor provisions of § 5121(d)(2) because Drawbaugh had not been arrested or detained on a felony charge or been convicted of a crime.

We would also note that 18 Pa.C.S.A. § 5121 is derived from and uses language substantially similar to § 242.6 of the Model Penal Code upon which the Pennsylvania Criminal Code is based. The language of § 242.6(4) of the Model Penal Code reads as follows:

§ 242.6 Escape.
* * * * * *
(4) Grading of Offenses. An offense under this Section is a felony of the third degree where:
(a) the actor was under arrest for or detained on a charge of felony or following conviction of crime; or
(b) the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape; or
(c) a public servant concerned in detention of persons convicted of crime purposely facilitates or permits an escape from a detention facility.
Otherwise an offense under this section is a misdemean- or.

The comment following this section of the model code includes the following discussion:

Subsection (4) provides that violation of Section 242.6 is a felony of the third degree if the conditions of any of three paragraphs obtains. Paragraph (a) is the most controversial of the three and is discussed below.
* * * * * *
Paragraph (a) of Subsection (4) makes it a felony to escape from a jail or other place of confinement if the detainee is under sentence for any crime, whether felony or misdemeanor. Additionally, this provision treats as a felony any escape from arrest for a felony.

Model Penal Code and Commentaries § 242.6 (Official Draft and Revised Comments 1980). This discussion supports our interpretation of the language found at 18 Pa.C.S.A. § 5121(d)(1)(i). Consequently, appellant’s crime of escape should be graded as a felony. It is not illogical that the legislature should provide a more serious penalty for escape by a convicted misdemeanant than for escape by an alleged misdemeanant who has been arrested but not convicted. We believe this was the legislature’s intent.

Judgment of sentence affirmed.

POPOVICH, J., files a dissenting statement.

POPOVICH, Judge,

dissenting:

I respectfully dissent. This appeal presents an opportunity to interpret the gradation section of the escape statute, 18 Pa.C.S.A. § 5121. To resolve this appeal correctly, I believe it is necessary to address an issue raised in appellant’s post-verdict motions but not directly argued on appeal. Following his guilty plea on the felonious escape charge, the appellant filed a motion to withdraw his plea and a motion to modify sentence. Therein, the appellant alleged, inter alia, that the escape charge was, in fact, a misdemeanor of the second degree not a felony of the third degree; thus, his plea was not “knowing,” and his sentence was illegal. On appeal, Howard Fenton contends the lower court erroneously denied his petition to withdraw his plea.

The central question to the resolution of this issue is whether the appellant’s crime of escape was correctly graded as a felony of the third degree.

The pertinent sections of the escape statute, 18 Pa.C.S.A. § 5121, read as follows:

(a) Escape. — A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.
* *****
(d) Grading.—
(1) An offense under this section is a felony of the third degree where:
(i) the actor was under arrest for or detained on a charge of felony or following conviction of crime;
(ii) the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape; or
(iii) a public servant concerned in detention of persons convicted of crime intentionally facilitates or permits an escape from a detention facility.
(2) Otherwise an offense under this section is a misdemeanor of the second degree.

Upon review of the record, I am convinced that the appellant’s crime of escape was incorrectly graded as a felony of the third degree when, in fact, it should have been graded as a misdemeanor of the second degree. The record is devoid of any evidence which would warrant a grading of felony in the third degree. First, the appellant was originally incarcerated on the charges of criminal mischief, a misdemeanor of the second degree, and disorderly conduct, a misdemeanor of the third degree. Therefore, his escape was not a felony of the third degree pursuant to § 5121(d)(1)(i).

I interpret the language of § 5121(d)(1)(i), “the actor was under arrest for or detained on a charge of felony or following the conviction of crime,” to mean the actor was arrested for, detained on, or convicted of a felony. To demonstrate why such an interpretation is logical, consider the following situation: defendant is convicted of a summary offense and placed on work release while incarcerated in the county jail. 18 Pa.C.S.A. § 1105 (summary conviction punishable by imprisonment up to ninety days). He fails to return to the jail from work and, later, is captured without incident at his home. If we were to interpret “following the conviction of crime” to mean following the conviction of any crime, then defendant’s offense would be graded as a felony escape — the same grading which would be imposed upon an incarcerated rapist who used excessive force in effecting his escape from a maximum security prison. Such an anomalous result could not have been the legislature’s intent. Rather, logic dictates that the grading of the escape offense should be related, at least in part, to the grading of the underlying crime. I believe that was the legislature’s intent when drafting § 5121(d)(1)(i), ergo, my current interpretation.

Second, the facts unequivocally demonstrate that the appellant escaped simply by failing to appear at the jail for his weekend confinement. Thus, the appellant did not use force “to effect” his escape, and the crime cannot be considered a felony under § 5121(d)(1)(iii).

And third, there was no evidence presented (nor alleged) which would support a felony charge under § 5121(d)(1)(iii). Accordingly, I would find that the appellant’s crime of escape should have been graded a misdemeanor of the second degree, § 5121(d)(2).

When reviewing a request to withdraw a guilty plea after sentence has been entered, this Court must determine whether there has been a showing of prejudice which results in a manifest injustice to the defendant. Commonwealth v. Vance, 376 Pa.Super. 493, 499, 546 A.2d 632, 635 (1988); Commonwealth v. Middleton, 504 Pa. 352, 473 A.2d 1358 (1984); Commonwealth v. West, 336 Pa.Super. 180, 485 A.2d 490 (1984). Under the manifest injustice standard, the petitioner must show that his plea was involuntary or was entered without knowledge of the charge. Commonwealth v. Glaze, 366 Pa.Super. 517, 521, 531 A.2d 796, 798 (1987); Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982).

Instantly, I am convinced that the appellant pleaded guilty to the correct crime but one incorrectly graded as a felony instead of a misdemeanor. Ordinarily, a defendant who enters a guilty plea after an incorrect explanation of the possible sentence will be allowed to withdraw the plea under the manifest injustice standard. Commonwealth v. Leonhart, 358 Pa.Super. 494, 517 A.2d 1342 (1986), appeal denied, 515 Pa. 620, 531 A.2d 428 (1987) (withdrawal allowed where defendant not informed at colloquy of Commonwealth’s intention to proceed under mandatory sentencing provision). However, under the facts before us, the appellant will not suffer prejudice on the level of manifest injustice if he is not allowed to withdraw his plea. The appellant’s ignorance of what I believe to be the correct possible sentence did not deprive him of his right to weigh the alternatives of going to trial versus entering a guilty plea, Shaffer, supra, because his true possible sentence was, in reality, less than the possible sentence upon which he based his decision.

The appellant pleaded guilty to the crime of escape which was correctly defined by the lower court citing 18 Pa.C.S.A. § 5121(a). Under the statute, the grading of the escape as a felony or a misdemeanor relates not to the guilt or innocence of the defendant but to the punishment to be imposed. Commonwealth v. Jones, 279 Pa.Super. 93, 98, 420 A.2d 1046, 1049 (1980). Having determined that the appellant’s escape was incorrectly graded, I would hold that manifest injustice is prevented, not by allowing the appellant to withdraw his plea, but rather by vacating the illegal felony sentence and remanding for resentencing as a misdemeanor of the second degree. Commonwealth v. Nixon, 328 Pa.Super. 250, 252-255, 476 A.2d 1313, 1314-1315 (1984); Commonwealth v. Drawbaugh, 335 Pa.Super. 120, 121, 483 A.2d 985, 986 (1984) (defendant sentenced on escape as felony three, rather than appropriate grade of misdemeanor two, sentence vacated, case remanded).

      . If one was to interpret the statute literally, the only ocassion when an escape would be graded as a misdemeanor of the second degree is when a person escapes after an arrest on a summary or misdemeanor offense while still in “official detention” but prior to conviction. I question why the Legislature saw fit to include subsection (2) when the possibility of an “otherwise” is so remote.

      . The Arrest Warrant Affidavit of Ptlm. Reginald Douglas of the Towanda Police states "[Officer] Dewey said that he and a Sayre police officer arrested the defendant at that time and had to use physical effort to remove him from the [Lehigh Tavern].” This is the only evidence of force exercised by the appellant which could be considered to be related to the escape. However, the appellant used force to resist arrest, not "to effect" his escape as required by the statute. In addition, his conviction on simple assault charges is wholly unrelated to the escape charge.


author: WIEAND, Judge:

text:
    566 A.2d 266
    In the Interest of Andre SCOTT. Appeal of Andre SCOTT.
    Superior Court of Pennsylvania.
    Argued Aug. 15, 1989.
    Filed Nov. 2, 1989.

      Leonard N. Sosnov, Asst. Public Defender, Philadelphia, for appellant.
    Kathy L. Echteruach, Asst. Dist. Atty., for Com., participating party.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   WIEAND, Judge:

Andre Scott, a fifteen year old boy, was adjudicated delinquent on a petition alleging that he had committed the crimes of theft by receiving stolen property, unauthorized use of a motor vehicle, and criminal conspiracy. On appeal from a dispositional order committing him to detention, Scott contends that the evidence was insufficient to show that he ever had possession or control of the stolen vehicle or that he knew the vehicle to be stolen. Although these issues are interesting, we conclude that the evidence was sufficient to support the juvenile court’s finding.

In reviewing a challenge to the sufficiency of the evidence, we view all evidence received at the adjudicatory hearing, as well as all reasonable inferences therefrom, in the light most favorable to the Commonwealth. We then determine whether “the trier of fact could have found that each element of the offense[] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). See also: Commonwealth v. Stark, 363 Pa.Super. 356, 526 A.2d 383 (1987); Commonwealth v. Quarles, 361 Pa.Super. 272, 522 A.2d 579 (1987); In the Interest of LaMore, 356 Pa.Super. 322, 514 A.2d 633 (1986).

On November 15, 1988, at or about 7:50 p.m., Philadelphia Police Officer Stanley Panikowski observed a 1982 Buick Regal pass his unmarked car at a high rate of speed. He and his partner followed the Buick vehicle as it violated a stop sign and struck two parked vehicles. When the police vehicle was about a car' length away, the driver and a passenger in the Buick leaped from the vehicle and fled in different directions. Panikowski pursued the passenger as he ran down an alley.' Although conceding that he lost sight of the person whom he was pursuing, Panikowski testified that moments later he observed the passenger walking toward him. Panikowski apprehended the male passenger, who was identified as Andre Scott, and returned him to the scene of the accident. The Buick was then found to have been stolen less than twelve (12) hours earlier. The steering column had been broken. Scott testified in his own behalf that he had not been a passenger in the Buick and had not been the person who had run therefrom. The hearing court expressly rejected appellant’s explanation.

To convict appellant of theft by receiving stolen property, the Commonwealth was required to prove beyond a reasonable doubt that the car had been stolen, that appellant had been in possession of it, and that he had known or had reason to know it was stolen. See: 18 Pa.C.S. § 3925; Commonwealth v. Deemer, 316 Pa.Super. 28, 32, 462 A.2d 776, 778 (1983). See also: Commonwealth v. Peluso, 481 Pa. 641, 393 A.2d 344 (1978); Commonwealth v. Jerry, 323 Pa.Super. 299, 470 A.2d 601 (1983); Commonwealth v. Grabowski, 306 Pa.Super. 483, 452 A.2d 827 (1982). Similarly, to convict on a charge of unauthorized use of an automobile, the Commonwealth was required to prove that appellant had been operating a vehicle without the owner’s consent and that appellant then knew or had reason to know that he lacked permission of the owner to operate the vehicle. Commonwealth v. Randall, 287 Pa.Super. 479, 482, 430 A.2d 991, 993 (1981).

In the instant case, there was no evidence that appellant had been driving the stolen vehicle. The Commonwealth, therefore, contended that the juvenile had been in joint or constructive possession of the stolen automobile. This required proof that appellant had exercised conscious control or dominion over the Buick automobile. Commonwealth v. Scudder, 490 Pa. 415, 419 n. 2, 416 A.2d 1003, 1006 n. 2 (1980). Such control or dominion may be established by circumstantial evidence; however, mere suspicion or conjecture will not suffice. See: Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973); Commonwealth v. Frey, 264 Pa.Super. 212, 215, 399 A.2d 742, 743 (1979); Commonwealth v. Manson, 230 Pa.Super. 527, 530, 327 A.2d 182, 183 (1974). Mere presence at the scene of a crime in the company of the perpetrator is not sufficient to sustain a conviction. See: Commonwealth v. Roscioli, supra 454 Pa. at 63-64, 309 A.2d at 399; In re Amos, 287 Pa.Super. 446, 449, 430 A.2d 688, 690 (1981). The exercise of conscious dominion or control over a vehicle is not established merely by showing that a suspect has been a passenger in a stolen vehicle. See: Commonwealth v. Scudder, supra, 490 Pa. at 419, 416 A.2d at 1005, citing Commonwealth v. Armstead, 452 Pa. 49, 305 A.2d 1 (1973); Commonwealth v. Taylor, 69 Pa.D.& C.2d 748 (1974).

In Commonwealth v. Murray, 246 Pa.Super. 422, 371 A.2d 910 (1977), police spotted a vehicle fitting the description of a car reported stolen and gave chase to the speeding vehicle. The vehicle suddenly stopped in the middle of the block, and the two occupants fled. A police officer pursued the defendant on foot and followed him into a bar, where he found defendant seated on a bar stool. An examination of the vehicle confirmed that it was the stolen car. There were no keys in the ignition, and the ignition wires were hanging down under the dashboard. The Commonwealth was unable to prove that the defendant had been the driver of the stolen automobile. In response to an argument that this inability constituted a fatal deficiency in the Commonwealth’s case, the Court said:

As to the matter of possession, we do not believe that Officer Mumper’s inability to state that appellant was actually driving the stolen vehicle is fatal to the Commonwealth’s case. Under the circumstances, the trier of fact found that appellant was either driving or riding in a vehicle that he knew was stolen. This, coupled with the attempted escape along with his companion, was sufficient basis for the fact finder to apply the doctrine of joint possession, which is appropriate when the “... totality of the circumstances justify a finding that all of the occupants of the vehicle were acting in concert....” Commonwealth v. Shaffer, 447 Pa. 91, 105, 288 A.2d 727, 735, cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972). Under this doctrine, it is immaterial that appellant may not have been behind the wheel of the stolen vehicle. We are satisfied that the evidence supports conviction of receiving stolen goods beyond a reasonable doubt.

Id., 246 Pa.Superior Ct. at 428-429, 371 A.2d at 913. The facts of this case are similar to the facts in the instant case.

„ The facts were different in Commonwealth v. Scudder, supra. There, in response to a call by the owner of a stolen van, police chased the van for three miles, during which the driver refused to heed directions to stop. The van was stopped only when it came upon a roadblock set up by the police. Scudder, a passenger in the van, was tried by jury and found guilty of theft by receiving stolen property. The Supreme Court reversed, holding that the evidence was insufficient to show that the appellant had known the vehicle to be stolen or that he had exercised conscious control or dominion over the vehicle. In Scudder, however, there was no evidence that the appellant had attempted to flee. Although the driver of the stolen van had attempted to elude the police, this fact, without more, did not permit an inference adverse to the passenger. The Court said:

Nor does the fact that the operator attempted to flee provide a basis for such an inference, without some showing that the passenger directed, encouraged or consented to the actions of the operator in this regard. The inference of guilt arising from flight may not be imputed to a passenger unless there is some evidence to indicate that the passenger concurred in the judgment to flee.

Id., 490 Pa. at 419-420, 416 A.2d at 1006 (1980).

Scudder and Murray, therefore, can be reconciled on their facts. They teach that where a defendant, who is a passenger in a stolen vehicle, flees from approaching police, an inference of guilt may be drawn from the fact of flight to avoid arrest. This principle is not contrary to the decision in Waldron Appeal, 237 Pa.Super. 298, 353 A.2d 43 (1975). There, a majority of the Court suggested that it was the driver, not the passenger, who had fled from police in the stolen vehicle. Although the passenger had fled also after the occurrence of an accident, the majority was influenced by testimony that the driver had told the passenger that the car was stolen only after the accident had occurred. Therefore, a majority of the Court concluded, the “fact that appellant fled after the accident [did] not establish that he knew prior to the accident that the vehicle had been stolen.”

In the instant case, appellant’s flight was unexplained. Murray holds and Scudder suggests by dictum that where a passenger in a stolen vehicle flees for the purpose of avoiding arrest, a fact finder may infer therefrom the dominion and guilty knowledge necessary to convict. These are the facts of the instant case. We conclude, therefore, that the evidence was sufficient to support the juvenile court’s adjudication.

Order affirmed.

      . 18 Pa.C.S. § 3925.

      . 18 Pa.C.S. § 3928.

      . 18 Pa.C.S. § 903.


author: OLSZEWSKI, Judge:

text:
    566 A.2d 269
    Mary GROLL, Appellee, v. SAFECO LIFE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1989.
    Filed Nov. 2, 1989.

      Charles Weiner, Philadelphia, for appellant.
    John J. Levy, Philadelphia, for appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   OLSZEWSKI, Judge:

Safeco Life Insurance Company (“Safeco”) appeals from an order granting summary judgment in favor of appellee Mary Groll. On appeal, Safeco asserts that the incontestability provision in a group life insurance policy does not bar it from asserting the defense that the insured was ineligible for coverage under the policy. We disagree with Safeco’s argument; consequently, we affirm.

On November 1, 1982, Safeco Life Insurance Company (“Safeco”) issued a policy of group insurance to the Kaplan Company (“Kaplan”) on the lives of Kaplan’s regular full-time employees working a minimum of thirty hours each week. Michael Groll filled out an enrollment card in which he designated Mary Groll as his beneficiary. On January 1, 1986, Michael Groll was shot and killed in his home during a burglary.

Michael Groll’s premiums were paid from November 1, 1982, the date on which the policy became effective, until his death. Safeco had accepted all of these premium payments. Pursuant to the terms of the policy, the amount of basic life insurance coverage on each insured was $10,000. An additional $10,000 of life insurance coverage was provided in the event of an accidental death. As defined under the policy, Michael Groll’s death was an accidental one.

Kaplan submitted a notice of claim to Safeco on January 9, 1986, and requested that Safeco pay the $20,000 of insurance proceeds directly to Michael Groll’s beneficiary, Mary Groll. Safeco refused to pay the proceeds because Michael Groll was not a regular full-time employee of Kaplan working a minimum of thirty hours each week and was therefore ineligible to be an insured under the terms of the policy.

Mary Groll filed suit against Safeco. She did not allege that Michael Groll was an eligible employee; rather, she asserted that she was entitled to collect the proceeds of the policy despite his ineligibility because the policy contained an incontestability clause. She contended that pursuant to said clause, Safeco was barred from asserting Michael Groll’s employment status as a defense for non-payment of the proceeds because it failed to contest his eligibility within the two-year time period mandated by the policy’s incontestability clause.

After admitting that no material facts were in dispute, both parties filed motions for summary judgment. Following a hearing on said motions before the Honorable William H. Yohn, Jr., Safeco’s motion was denied and Mary Groll’s motion was granted. In response, Safeco filed the instant appeal.

On appeal, Safeco alleges that the incontestability clause should not have barred its ability to contest Michael Groll’s eligibility under the terms of the policy. Safeco argues that its act of accepting Groll's insurance premiums should not be construed as a waiver of its right to subsequently assert Groll’s employment status as a defense, since it had no awareness of Groll’s employment status until the time of his death. Additionally, Safeco contends that if the incontestability clause is interpreted as requiring all insurers to investigate all potential insureds, a substantial increase in insurance rates would result, thereby defeating the purpose of group life insurance programs which function on a self-administrative fashion.

A motion for summary judgment may be properly granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Askew by Askew v. Zeller, 361 Pa.Super. 35, 521 A.2d 459 (1987). The moving party bears the burden of demonstrating that summary judgment is warranted. Id. Both parties to this appeal stipulated that there were no material issues of fact and have stipulated all necessary facts. Accordingly, our focus on appeal is whether Mary Groll was entitled to judgment as a matter of law.

As was stated by the trial court, “the question before us is whether an employee who, admittedly, did not meet the eligibility requirements of an employer’s group life insurance policy is nevertheless covered by the policy on the date of his accidental death where the policy contained a two-year incontestability clause and, in fact, was not contested within the two-year contestability period.” Pennsylvania statutorily mandates that all life insurance policies contain a type of incontestability clause. 40 P.S. § 510(c). In pertinent part, § 510 provides that all life insurance policies delivered in Pennsylvania must contain “[a] provision that the policy shall be incontestable after it has been in force, during the lifetime of the insured, two years from its date of issue, except for nonpayment of premiums; ...”.

In cases involving incontestability provisions in individual life insurance policies, Pennsylvania case law draws a distinction between questions of policy validity and questions of policy coverage. An incontestability clause bars the insurer from challenging the validity of the policy, but does not bar a challenge to policy coverage. Perilstein v. Prudential Insurance Company of America, 345 Pa. 604, 29 A.2d 487 (1943). The courts of this Commonwealth have never addressed this distinction in the context of group life insurance; however, other jurisdictions have drawn an analogous distinction between “conditions of insurance” and “limitations on coverage” in group policies. Defenses based on conditions of insurance, like those based on policy validity, are barred; defenses based on coverage limitations, like those based on policy coverage, are allowed. Simpson v. Phoenix Mutual Life Ins. Co., 24 N.Y.2d 262, 267, 299 N.Y.S.2d 835, 839, 247 N.E.2d 655, 657 (1969). The insurance policy in question was in effect for long enough to trigger incontestability; therefore, we must determine whether eligibility for coverage under a group policy is a condition of insurance or a limitation on coverage.

Many jurisdictions have addressed this issue, and two irreconcilable lines of cases have arisen. One line of cases, following Simpson v. Phoenix Mutual Life Ins. Co., 24 N.Y.2d 262, 299 N.Y.S.2d 835, 247 N.E.2d 655 (1969), holds that eligibility is a condition of insurance and cannot be contested. The other line, led by Crawford v. Equitable Life Assurance Society, 56 Ill.2d 41, 305 N.E.2d 144 (1973), holds that the defense of ineligibility is not barred by an incontestability clause. We have analyzed both lines of cases, and find the Simpson cases to be the better reasoned opinions. Safeco advances several public policy arguments in support of the Crawford line of cases; however, we find the arguments unpersuasive. Accordingly, we follow Simpson.

Simpson v. Phoenix Mutual Life Ins. Co., 24 N.Y.2d 262, 299 N.Y.S.2d 835, 247 N.E.2d 655 (1969), involved a factual situation identical to that in the case at bar. The Simpson decedent was not eligible for coverage under his employer’s group policy because he worked less than 30 hours per week. 24 N.Y.2d at 264, 299 N.Y.S.2d at 837, 247 N.E.2d at 656. Nevertheless, Simpson enrolled in the plan, and his employer paid all of his premiums until his death. Id. The Simpson court analyzed the validity/coverage distinction in individual life insurance cases. The court concluded that conditions of insurance are those matters which can be discovered by investigation at the time the policy is issued, whereas limitations of coverage are risks which the insurer cannot otherwise guard against. 24 N.Y.2d at 266-69, 299 N.Y.S.2d at 839-41, 247 N.E.2d at 657-8. Eligibility could be discovered by simple investigation; therefore, the defense of ineligibility is barred by an incontestability clause. 24 N.Y.2d at 268, 269, 299 N.Y.S.2d at 840, 841, 247 N.E.2d at 658, 659. See also Freed v. Bankers Life Ins. Co. of Nebraska, 216 N.W.2d 357 (Iowa 1974).

The result in the case at bar must be the same. Safeco had two years to conduct a simple investigation regarding the employment status of Michael Groll and to contest the validity of his policy. Instead, Safeco chose not to make such an investigation. This Court should not be expected to alter the terms of the policy to account for Safeco’s failures. In sum, Safeco gambled and lost.

In making this determination, we are not broadening the scope of coverage afforded the insured, but are enforcing the promises of the insurer. These promises benefitted the insurer by enticing the insured to purchase the policy. Safeco cannot subsequently seek to ignore these promises when they become unfavorable or unprofitable. Accordingly, we affirm the determination of the trial court.

Order affirmed.

      . The trial court suggested that the incontestability clause in the instant policy was broad enough to cover both questions of validity and questions of coverage. The provision states:
      Safeco will not contest the policy, except for non-payment of premium, after the policy has been in force for two years.
      SAFECO can only contest your coverage under this policy if:
      (a) the contest is based on your statement of insurability;
      (b) the statement is in writing and signed by you; and
      (c) your coverage has been in force for less than two years during your lifetime.
      We need not decide whether this clause bars challenges to limitations on coverage, because we find that eligibility is a condition of insurance, not a limitation on coverage.