text:
    579 A.2d 945
    COMMONWEALTH of Pennsylvania v. Kendall Lee HATFIELD, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1990.
    Filed Sept. 4, 1990.

      Brian P. McVan, Glenside, for appellant, Submitted.
    Mary MacNeil Killinger, Asst. Dist. Atty., Norristown, for Com., appellee.
    Before POPOVICH, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

Kendall Lee Hatfield appeals from the judgment of sentence entered in the Court of Common Pleas of Montgomery County on September 21, 1989, following his conviction by a jury of two counts of both robbery and aggravated assault and one count each of first degree murder, burglary, theft, receiving stolen property, and possessing an instrument of crime. He was sentenced to life imprisonment. In this timely appeal, appellant challenges the constitutionality of 18 Pa.C.S. § 314, which permits a jury to render a verdict of guilty but mentally ill in certain cases. For the reasons set forth below, we affirm.

The facts may be summarized as follows. At 10:00 a.m. on September 30, 1988, appellant unsuccessfully attempted to break into the Bryn Mawr residence of Patricia Ann Cardone. He fled the scene and entered another residence in the area belonging to Jane Brown. Appellant climbed the stairs and, utilizing a towel, grabbed Mrs. Brown by the throat. Following a brief struggle, appellant forced Mrs. Brown into a closet. He then ransacked her jewelry box, removed $100 from her purse, and fled.

As appellant was walking to the intersection of Mount Pleasant and Waverly Roads, he was stopped by Officer Edward Setzer of the Lower Merion Township Police Department, who was investigating the attempted burglary of the Cardone residence. While the officer attempted to determine appellant’s identity, appellant’s description was broadcast over the police radio. When Officer Setzer put his hand on his gun, appellant attacked him. During the ensuing struggle, appellant managed to climb on top of the officer and pin his arms to the ground. He then grabbed Officer Setzer’s gun, fired one shot at the officer’s chest, and fled. The officer died from his wound.

On October 13, 1988, appellant was arrested and charged with numerous crimes arising from the three incidents. Six months later, after the court refused to accept his plea of guilty but mentally ill, trial on the matter began. During the course of that proceeding, appellant, who did not present an insanity defense, unsuccessfully sought permission to introduce evidence of his diminished mental capacity. The jury convicted him of two counts of aggravated assault, two counts of robbery, one count of first degree murder, one count of burglary, one count of theft, one count of receiving stolen property, and one count of possessing an instrument of crime. The trial court subsequently denied post-verdict motions and imposed sentence. This appeal followed.

Appellant challenges the constitutionality of 18 Pa.C.S. § 314, which permits a jury to render a verdict of guilty but mentally ill under certain circumstances. In support of this challenge, he contends that since the statute permits defendants asserting only the affirmative defense of insanity to introduce evidence that could support the permissible verdict, it violates the equal protection provisions of both the fourteenth amendment of the United States Constitution and article I, section 2 of the Pennsylvania Constitution. We disagree.

In order to properly resolve the issue posited by appellant, we must examine 18 Pa.C.S. § 314, determine whether a defendant, under its terms, may introduce evidence of mental illness without presenting an insanity defense, and decide if any distinction between defendants who present an insanity defense and those who do not violates equal protection. We initially consider 18 Pa.C.S. § 314 which, in pertinent part, states:

(a) General rule. — A person who timely offers a defense of insanity in accordance with the Rules of Criminal Procedure may be found “guilty but mentally ill” at trial if the trier of facts finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.

While § 314 does not specifically deal with the issue of when evidence of mental illness may be introduced by a criminal defendant, we find that by implication it indicates that such proof may be introduced only in conjunction with a defense of insanity.

It long has been clear that in order for evidence to be admissible, it must be both relevant and competent. See Commonwealth v. Davis, 381 Pa.Super. 483, 554 A.2d 104 (1989); see also Commonwealth v. Hill, 340 Pa.Super. 155, 489 A.2d 889 (1985).

Though “relevance” has not been precisely or universally defined, the courts of this Commonwealth have repeatedly stated that evidence is admissible if, and only if, the evidence logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. Potts, [314 Pa.Super. 256, 276], 460 A.2d [1127,] 1137 [(1983)]; see also Commonwealth v. Doe, 316 Pa.Super. 1, 7, 462 A.2d 762, 765 (1983).

Commonwealth v. Davis, supra, 381 Pa.Super. at 491, 554 A.2d at 108. Since the section in question, by permitting a verdict of guilty but mentally ill only in those cases where the affirmative defense of insanity has been invoked, indicates that a defendant’s mental illness is not at issue absent such a defense, we conclude that evidence of mental illness is irrelevant and therefore, inadmissible.

We turn to the question of whether this restriction violates the equal protection clauses of either the United States or Pennsylvania Constitutions, keeping in mind that a strong presumption exists in favor of the constitutionality of all lawfully enacted legislation. Commonwealth v. Santiago, 376 Pa.Super. 54, 545 A.2d 316 (1988). Under the equal protection clauses of both the fourteenth amendment of the United States Constitution and article I, section 2 of the Pennsylvania Constitution, the Commonwealth must afford its citizens the equal protection of the law. Commonwealth v. Trill, 374 Pa.Super. 549, 543 A.2d 1106 (1988). However, it need not treat every citizen alike. Id. In those cases where the Commonwealth does draw distinctions between various classes of persons, they must be reasonably justified. Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986); Commonwealth v. Bottchenbaugh, 306 Pa.Super 406, 452 A.2d 789 (1982).

It is clear that:

When addressing an equal protection challenge, we must initially ascertain the appropriate degree of scrutiny to which the challenged act is to be subjected. Equal protection analysis recognizes three types of governmental classification, each of which calls for a different standard of scrutiny. The appropriate standard of review is determined by examining the nature of the classification and the rights thereby affected. In the first type of case, where the classification relates to who may exercise a fundamental right or is based upon a suspect trait such as race or national origin, strict scrutiny is required. When strict scrutiny is employed, a classification will be invalid unless it is found necessary to the achievement of a compelling state interest.
The second type of case involves a classification which, although not suspect, is either sensitive or important, but not fundamental. Such a classification must serve an important governmental interest and be substantially related to the achievement of that objective.
The third type of situation involves classifications which are neither suspect nor sensitive or rights which are neither fundamental nor important. Such classifications will be valid as long as they are rationally related to a legitimate government interest.

Commonwealth v. Bell, supra, 512 Pa. at 344-45, 516 A.2d at 1177-78 (citations omitted).

In the present case, the distinction implicitly created by 18 Pa.C.S. § 314 relates to when a criminal defendant may introduce evidence of mental illness. It is unquestioned that the distinction, which is premised upon whether that defendant presents the affirmative defense of insanity, does not relate to a suspect classification. In addition, as mental illness is not a defense to criminal conduct, see 18 Pa.C.S. § 315; Commonwealth v. Sohmer, 519 Pa. 200, 546 A.2d 601 (1988); Commonwealth v. Ruth, 309 Pa.Super. 458, 455 A.2d 700 (1983); Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974), and does not act to mitigate punishment for it, see 42 Pa.C.S. § 9727 and Commonwealth v. Sohmer, supra, we find that the right to present evidence of it is not fundamental. Therefore, in order to determine whether 18 Pa.C.S. § 314 is constitutional, we must decide if the distinction at issue rationally is related to a legitimate government interest.

One of the goals that the legislature attempted to accomplish in adopting 18 Pa.C.S. § 314, was to limit the number of persons who were escaping criminal responsibility through utilization of the insanity verdict. See Common wealth v. Trill, supra. It is clear that this purpose is not improper. Id. As the statute, by implication, permits only those defendants who raise the defense of insanity to introduce evidence of mental illness, we conclude that it bears a rational relationship to the goal articulated above. Accordingly, the distinction challenged by appellant does not render 18 Pa.C.S. § 314 unconstitutional.

Judgment of sentence affirmed.

      . We note that despite an assertion to the contrary by the Commonwealth, appellant raised and pursued this matter at trial. See Notes of Testimony (“N.T."), 7/21/89, at 288-93. Accordingly, it is clear that the matter is properly before us.

      . This decision is consistent with our holding in Commonwealth v. Trill, supra, where, in response to both equal protection and due process claims, we found that 18 Pa.C.S. § 314 is not unconstitutional.


source: Caselaw Access Project

author: DEL SOLE, Judge.

license: Public Domain

text:
    579 A.2d 948
    COMMONWEALTH of Pennsylvania v. Abraham WOODALL, Appellant.
    Superior Court of Pennsylvania.
    Argued May 9, 1990.
    Filed Aug. 31, 1990.

      Anne N. John, Uniontown, for appellant.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   DEL SOLE, Judge.

Abraham Woodall appeals from the judgment of sentence of two to five years imprisonment, consecutive to a sentence in a prior case, following conviction by a jury of receiving stolen goods based upon the sale of a stolen automobile. Appellant filed a Motion for a New Trial and In Arrest of Judgment claiming that the prosecution violated his constitutional right to a fair jury by exercising its peremptory challenge to exclude the sole black individual on the venire panel. On appeal, the Superior Court affirmed the judgment of sentence in part and remanded the case to the Common Pleas Court of Fayette County in order to determine whether the prosecuting attorney had a valid and neutral explanation for striking the juror. A hearing was held on the matter and the trial court concluded that the Commonwealth had a legitimate reason for striking the juror. Appellant’s Motion for New Trial and In Arrest of Judgment upon remand was denied. We reverse.

The issue is whether the trial court erred in its application of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1987), and by concluding that the Commonwealth had a valid, neutral explanation for striking the single black venireperson. We remanded this case to the trial court concluding that it erred in its conclusion that Appellant had failed to establish a prima facie case of discrimination under Batson, supra. We relied on Commonwealth v. Jones, 374 Pa.Super. 493, 543 A.2d 579 (1988), allocator granted, 521 Pa. 610, 557 A.2d 342 (1989), which held that “the prosecution’s use of a peremptory challenge to eliminate the only member of the defendant’s race raises an inference of discrimination and entitles defendant to an explanation.” Id. at 500, 543 A.2d at 582. Jones was not available to the trial court when it initially commenced this case.

In Jones, during jury selection, the trial court permitted the prosecuting attorney to strike the only prospective black juror. The prosecution challenged the juror on the basis that she lived in the same town as the co-defendant’s alibi witness, and, the community being close-knit, the juror or one of her ten children might know the witness. With the filing of post-trial motions, the trial court reconsidered its position deciding that the prosecutor’s reasons for striking the juror were insufficient because the co-defendant’s alibi witness was not a party or a witness in Jones’ case; furthermore, another juror, a white male, who lived in the same town as the black juror, was not struck.

We affirmed the trial court in Jones making the following statement:

It is obvious to this Court, as it was to the court below, that the reasons proffered by the prosecution for its actions were merely veiled attempts to exclude the only black person on the list of prospective jurors because of her residence or the number of siblings she had who might know of Ms. Ferguson — transparent reasons not justifying the action taken in removing Ms. Savage from the juror selection process. Id. at 501, 543 A.2d at 583.

Instantly, since it has already been decided by this court that Appellant had established a prima facie case of discrimination in the process of selecting a jury by excluding the only black prospective juror in his case, we now focus on whether the Commonwealth has sustained its burden to come forward with a neutral explanation for challenging the black juror as required by Batson, 476 U.S. at 97, 98, 106 S.Ct. at 1723.

We are reminded by Commonwealth v. Jackson, 386 Pa.Super. 29, 562 A.2d 338 (1989) that our standard of review, in a case such as this, is limited. In Jackson, we stated that:

“[A] Finding of intentional discrimination is a finding of fact entitled to appropriate deference by a reviewing court. Since the trial court’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference. Thus, an appellate court will reverse a trial court’s finding of no discrimination only if that finding is clearly erroneous. Id. at 349, 350. (Citations omitted).

As enumerated in Commonwealth v. Jackson, where it has been determined that the defendant has established a prima facie case of discrimination, the prosecution’s explanation must satisfy certain minimal requirements to qualify as legally sufficient. We reiterate those requirements here:

First, the prosecutor’s proffered explanation must be “clear and reasonably specific.” Batson, 476 U.S. at 98 n. 20 [106 S.Ct. at 1724 n. 20]. A prosecutor “may not rebut the defendant’s case merely by denying that he had a discriminatory motive or ‘affirming] [his] good faith in making individual selections.’ ” Id. 476 U.S. at 98, 106 S.Ct. at 1724 (citations omitted). Instead, the prosecutor should independently justify each strike that he exercised against a member of the defendant’s minority group____ Second, the prosecutor’s proffered explanation must consist of “ 'legitimate reasons’ for exercising the challenges.” Batson, 476 U.S. at 98 n. 20, 106 S.Ct. at 1724 n. 20. This is a broad category. “[T]he prosecutor's explanation need not rise to a level justifying exercise of a challenge for cause.” Batson, 476 U.S. at 97, 106 S.Ct. at 1723____ Third, the prosecutor’s proffered explanation must be rejected if it is pretextual. See e.g., Garret v. Morris, 815 F.2d 509 (8th Cir.1987), cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 191 (1987); Commonwealth v. Jackson, 562 A.2d at 350.

In the present case, attorney David P. Reiss was called as a witness at the hearing to ascertain whether he could provide an explanation that would satisfy the three prong test set forth in Jackson. At this proceeding, Attorney Reiss responded to the Assistant District Attorney’s questions as follows:

Mr. Korner: Would you enlighten the court as to the manner and criteria that you would utilize, when you were in the District Attorney’s Office, of striking jurors peremptorily.
Mr. Reiss: There are many factors that I used in exercising the peremptory challenges. They include the type of clothes that they wore, whether they were old, whether they were unemployed or employed, whether they had children or had no children, where they lived in relation to where the act took place, if they were asked a question whether or not they had been involved in any matter with the court, whether or not they had ever sat on a jury before, how recently to the action involved that they were sitting in. Those are just some of the various factors. Mr. Korner: Calling your attention to this case, do you recall that there was one black juror on that panel? Mr. Reiss: I don’t recall that.

Trial Court Opinion of October 26, 1989, pp. 2-3.

Our first inquiry is whether the prosecutor’s explanation was clear and reasonably specific. The explanation provided by Attorney Reiss for striking the juror contained various factors that he used when exercising peremptory challenges; however, he failed to give a clear, reasonably specific explanation for striking the only black juror in Mr. Woodall’s case. In fact, Mr. Reiss did not provide any explanation whatsoever since, according to his testimony, he could not recall that a black person was even on the panel which makes this case easily distinguishable from Jackson.

In that case, although the prosecutor was not asked for a racially neutral explanation for his strikes until four months after voir dire, he was still able to articulate legally suffident reasons for the challenges. The prosecutor used peremptory challenges to strike a man because his uncle had been arrested, another was struck because he appeared to be uncooperative and hostile during voir dire, one was struck because his employment kept him in contact with Philadelphia police officers and the last four were struck due to their familiarity with the area where the crime took place.

We recognize that more than sixteen months elapsed since the voir dire proceeding at issue in this case and that such a delay is an impediment to the resolution of a Batson claim. See Jackson, 562 A.2d at 348. It should also be noted that the voir dire proceedings in this case were not transcribed. Commonwealth v. Woodall, 393 Pa.Super. 642, 564 A.2d 1009 (1989). We cannot, however, neglect to properly apply the standards set forth in Batson or Jackson because the prosecution failed to provide a valid, neutral explanation for striking the black juror. Race was not a factor mentioned by Attorney Reiss as one of the criteria that he used to strike a juror; nevertheless, precedent calls for a clear and reasonably specific explanation for the strike which was not present here.

Second, the prosecutor’s explanation must contain legitimate reasons for exercising the challenge. We encounter the same problem here as we did above. Since the prosecutor cannot recall the case or the black juror, he cannot articulate legitimate reasons for striking the juror in this particular case. Any of the above mentioned criteria referred to by the prosecutor during the hearing would suffice as a legitimate reason, but Attorney Reiss did not refer to any of these criteria with respect to the challenged juror in this case. The basis for the requirement of having legitimate reasons for striking a venireperson where the defendant has established a prima facie case of discrimination is very important and is well put in Batson:

[T]he prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption-or his intuitive judgment-that they would be partial to the defendant because of their shared race. Just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, so it forbids the States to strike black verniremen on the assumption that they will be biased in a particular case simply because the defendant is black.... Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive or “affirming] [his] good faith in making individual selections.” If these general assertions were accepted as rebutting a defendant’s prima facie case, the Equal Protection Clause “would be but a vain and illusory requirement.” Batson, 476 U.S. at 97, 98, 106 S.Ct. at 1723, 1724.

Since Appellee has not proffered any reason, legitimate or illegitimate, we shall examine the last prong of the test.

Third, the prosecution’s explanation must be rejected if it is pretextual. It would be difficult to consider the prosecutor’s general statement of criteria for striking jurors pretextual. If the prosecutor had advanced a fictitious reason or motive to conceal the real reason for the strike then we would consider the explanation pretextual. Without an explanation pertaining to the strike in this case, we do not find that the prosecutor proffered a pretextual explanation for his actions.

Thus, we conclude that the trial court erred by its determination that the prosecution provided a racially neutral explanation for striking the only black juror in this case. The prosecutor’s testimony that he could not recall the juror in this matter will not satisfy the three prong test in Jackson. Therefore, we reverse and remand to the trial court for proceedings consistent with this decision.


author: TAMILIA, Judge:

text:
    579 A.2d 952
    In re ESTATE OF Melvin A. DOTTERRER, Deceased. Appeal of Harry A. JONES, Jr. and Olive J. Humphreys, Beneficiaries.
    Superior Court of Pennsylvania.
    Argued June 19, 1990.
    Filed Aug. 27, 1990.

      Jonathan P. Clunies, Pittsburgh, for appellants.
    Robert J. Stock, Butler, for Stalker, participating party.
    Before CIRILLO, President Judge, and OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from the Order of September 21, 1989 finding the July 20, 1973 amendment to Article VIII is a valid amendment for the residuary trust and directing the trustee to distribute the trust property in accordance with its terms. Following denial of appellant’s motions for post-trial relief on November 24, 1989, the instant appeal was filed. The underlying action for declaratory judgment on petition by Citizens National Bank of Evans City involves a revocable inter vivos trust agreement the deceased, Melvin A. Dotterrer, entered into in 1972 with Citizens National Bank. Income from the trust was to be paid to Melvin Dotterrer during his lifetime. The trust agreement specified upon the grantor’s death, two trusts were created. Trust 1 (“the marital trust”) was established for the benefit of the grantor’s wife, Laura J. Dotterrer, during her lifetime. Trust 2 (“the residuary trust”) was established to benefit various individuals and charities. The marital trust granted Laura Dotterrer a general testamentary power of appointment, and she had a limited right to withdraw principal from the residuary trust, but no power of appointment. Citizens National Bank was named as trustee.

On or about July 20, 1973, the grantor initialed and reinitialed a purported holographic amendment to the trust agreement, although the handwritten document was never executed by or delivered to the trustee; the holographic document purported to amend Article VIII of the trust agreement, which directed the distribution of the residuary trust, by changing the named beneficiaries of the residuary trust, the property they would receive and prohibiting the sale of stocks owned by the grantor.

The grantor died testate on October 13, 1975, and on March 5, 1979, a final decree was entered, allocating the estate between the two trusts. Laura J. Dotterrer died testate on April 30, 1984, with her will exercising her power of appointment over the marital trust assets in favor of Donald and Barbara Stalker. The residue of her estate was left equally to her niece and nephew, appellants Olive J. Humphreys and Harry A. Jones, Jr. Following the death of the grantor’s wife, it became necessary for the trustee to distribute the assets of the residuary trust. The trustee thereafter filed the above petition for declaratory judgment in order to determine the validity of the purported amendment to Article VIII of the trust agreement. By Order dated September 21, 1989, the trial court determined the July 20, 1973 amendment to be valid and directed the trustee to distribute the trust in accordance with its terms. This appeal follows denial of motions for post-trial relief.

On appeal, appellants first argue the trial court erred in holding the purported holographic amendment to Article VIII of the trust agreement did not change the duties to be performed by the trustee and did not require the trustee’s consent. Appellants argue the amendment amounts to a significant change in the trustee’s duties, which would require the trustee’s consent, inasmuch as the amendment changes the distribution of the trust to other beneficiaries and prohibits the sale of stock.

It is well settled in Pennsylvania a revocable trust can only be revoked or amended in accordance with the terms of the trust In re Trust of Kaufmann, 460 Pa. 24, 331 A.2d 209 (1975); Damiani v. Lobasco, 367 Pa. 1, 79 A.2d 268 (1951). Article I, § C. of the trust agreement provides:

The Grantor reserves the right and power at any time and from time to time during his life, to revoke in whole or in part this Trust Agreement and to withdraw any insurance policy, security, property or other funds belonging to the trust estate or any part thereof; or to alter or amend any term or provision of the Trust Agreement, except that the Grantor shall have no power to change the duties of the Trustee without its written consent. Upon the death of the Grantor, this Trust Agreement shall thereafter be irrevocable and not subject to alteration or amendment by any person. (Emphasis added.)

From our examination of the record in this case, as well as our analysis of the law of trusts, this Court finds the changes made to the trust agreement by the grantor do not constitute changes in the trustee’s duties.

Appellant argues that the prohibition of the sale of any of the stock or bonds in the trust corpus, the changes in the amount of distribution to be made to each of the beneficiaries under the trust and the alteration of the sequence in which distribution is to be made, constitute a significant change in the trustee’s duties. Such an interpretation confuses the duties of the trustee with the results of those duties. We therefore find this argument without merit, and cite with approval a portion of the trial court Opinion:

In the context of trust administration, the duties of a trustee arise out of the fiduciary relationship between the trastee and the beneficiary. In cases where there is no provision, express or implied, in the terms of the trust, the duties and powers of the trustee are governed by the principles and rules which have evolved by courts of equity for the governing of the conduct of trustees. The duty of loyalty is imposed as a duty arising out of the trustee/beneficiary relationship even though the creator of the trust did not expressly or impliedly provide for such a duty. Even this duty, however, can be modified by provisions in the terms. Other duties may be modified also, such as the duty not to delegate, the duty to keep and render accounts, or the duty to use reasonable care and skill in the administration of the trust account [sic] 2A Scott on Trusts Section 164 (1987). In the present case, the Trustee’s duties to administer the trust properly are not changed by the amendment. Only the scheme of distribution and the power to dispose of the stock are changed. Thus, this Court finds that a change of duties did not occur in the amended Agreement, therefore, consent by the Trustee was not required.

(Slip Op., O’Brien, J., 9/22/89, pp. 3-4.)

Appellant’s second argument is the trial court erred in holding that the trust agreement could be amended by an instrument executed with only the grantor’s initials.

The trial court and the parties were unable to discover any Pennsylvania authority which addresses this issue directly, and our research of this issue similarly has failed to disclose any caselaw on point. Our Supreme Court, however, has stated previously: “The principles applicable to the construction of trust instruments are essentially the same as those used in the construction of wills.” Matter of Tracy, 464 Pa. 300, 304, 346 A.2d 750, 752 (1975) (footnote omitted).

While oral trusts are enforceable, In re Estate of Trbovich, 488 Pa. 583, 413 A.2d 379 (1980), the trust involved instantly concerns realty, and therefore the Statute of Frauds requires the trust be in writing. 33 Pa.C.S. § 2. The Statute of Frauds contains no directive as to what writing constitutes a sufficient memorandum, but prior decisions have established that to satisfy the statute, the memorandum need only contain a sufficient statement of the terms of the agreement and the signature of the grant- or. In re Estate of Beeruk, 429 Pa. 415, 241 A.2d 755 (1968). The signature need not be in any particular form, but must only provide some reliable indication that the grantor intended to authenticate the writing. Hessenthaler v. Farzin, 388 Pa.Super. 37, 564 A.2d 990 (1989).

In the case at bar, the original trust agreement, executed by the grantor in 1972, was in writing and set forth the terms of the trust and the intended distribution of assets. The agreement also contained the complete signatures of the grantor and the trustee’s representative. The 1973 holographic amendment, however, while clearly setting forth the changes to be made in the trust agreement, is followed only by the grantor’s initials. Appellants concede the initials are those of the grantor, but only contest the validity of initialing the trust amendment. Again applying the analogy of the execution of wills to the execution of trusts, we find initialing the agreement constitutes a valid signature and execution. In re Kehr’s Estate, 373 Pa. 473, 95 A.2d 647 (1953).

The trial court, in deciding this case, relied upon decisions in other jurisdictions that addressed the similar issues. George W. Watkins Family v. Messenger, 115 Idaho 386, 766 P.2d 1267 (1988). The court also relied upon a contract analysis of signature and execution. See Restatement (Second) of Contracts, Section 134, Comment a (1981). While we do not find this analysis necessary to a determination of the merits of this case, this Court may affirm a decision of the trial court when it is correct on any legal ground without regard to the ground on which the court relied. Baker v. Morjon, Inc., 393 Pa.Super. 409, 574 A.2d 676 (1990); Wecht v. PG Pub. Co., 353 Pa.Super. 493, 510 A.2d 769 (1986).

Order affirmed.


author: FORD ELLIOTT, Judge:

text:
    579 A.2d 955
    COMMONWEALTH of Pennsylvania v. John Daryl IRWIN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 14, 1990.
    Filed Aug. 30, 1990.

      Robert A. Crisanti, Pittsburgh, for appellant.
    Maria V. Copetas, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the judgment of sentence entered on March 1, 1989, in the court of Common Pleas of Allegheny County, Pennsylvania. Appellant, John Daryl Irwin, was found guilty of rape and involuntary deviate sexual intercourse following a non-jury trial. He was sentenced to serve a term of incarceration of not less than seven and one-half nor more than fifteen years.

The charges arose from incidents occurring between 1988 and 1984 at the home of the victim, a minor under the age of fourteen years. Appellant was then living with the victim’s mother in that household. The victim testified that appellant would enter her bedroom during the night and have sexual intercourse with her and also commit the act of involuntary deviate sexual intercourse. The victim, who was approximately seven years old at the time of these incidents, stated that she did not tell anyone about them because she was afraid of appellant. In January of 1988, the victim told her mother what appellant had done to her and the mother contacted the police. Appellant was arrested and eventually brought to trial.

Appellant now claims that trial counsel was ineffective for failing to move for recusal and proceeding in a non-jury trial after appellant had admitted, in open court, his willingness to plead guilty to the charges. Appellant also argues the trial court erred in not sua sponte recusing itself after hearing appellant’s offer to plead guilty. As appellant’s arguments lack merit, we affirm.

In this appeal, this court is again asked to consider the issue of ineffective assistance of counsel. It is well settled that a presumption exists that counsel is acting effectively, Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989). Thus, to establish his claim, appellant has the burden of proving that the issue, argument or tactle which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit, and If so, that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interest. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). In addition, it must be demonstrated by appellant how the ineffectiveness prejudiced him. Commonwealth v. Pierce, 515, Pa. 153, 527 A.2d 973 (1987).

On November 9, 1988, appellant entered the courtroom of Judge Walter R. Little to stand trial on the aforementioned charges. After the case was called, defense counsel conducted a colloquy with appellant on his waiver of a jury trial. Appellant decided to proceed with a bench trial. The court then recessed for lunch. After the luncheon recess, and before the Commonwealth began its case, appellant informed the court that he wished to plead guilty to the charges. He stated to the court that he wanted to do this because he didn’t want to see this child take the stand and testify. The court then directly asked appellant:

THE COURT: Are you willing to plead generally to the charges understanding the possible ranges of what the sentencing might be?
MR. IRWIN: Yes, I would.

Notes of Testimony, 11/9/88 at 10.

At this point, the judge instructed trial counsel to confer with appellant and, if he continued to desire to plead generally, the court would accept his plea. Following a short recess, appellant told the court that he was not guilty of the charges after all. The court then ordered the Commonwealth to proceed. Trial counsel made no objection nor moved for recusal. Appellant was subsequently convicted after the non-jury trial.

In support of his argument, appellant first cites Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978). In Badger, the defendant came into court and expressed an intention to plead guilty to the charges. After the plea colloquy began and following an oral recitation of the alleged facts by the prosecutor, the defendant challenged some portions of the scenario. The court then asked the defendant whether she was admitting to the recited facts and she responded in the negative. Thereupon, defense counsel requested permission to withdraw the guilty plea and the motion was granted. Immediately following, the defendant entered a plea of not guilty and, without objection nor motion for recusal by defense counsel, proceeded in a non-jury trial before the same judge. Badger was found guilty.

On appeal, Badger claimed that trial counsel was ineffective for failing to seek recusal. Our Supreme Court agreed, stating that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interest. “The alternative of having a judge, who was not aware of the plea, try the case would have offered a potential for success substantially greater than the tactics used.” Id. 393 A.2d at 644.

Appellant also relies on Commonwealth v. Simmons, 335 Pa.Super. 57, 483 A.2d 953 (1984). In Simmons, the defendant appeared in court to plead guilty to the charges brought against him. The trial judge conducted a colloquy which included a summation of the evidence and an admission by the defendant of his guilt. Simmons, who had a history of mental illness, then informed the judge that he was not guilty of the charges and wanted a trial by jury. The trial judge then, after hearing and denying appellant’s suppression motion, had the parties select a jury. Simmons then elected to be tried non-jury. His trial counsel asked the judge to recuse himself and the motion was denied because there was no other judge available to hear the case.

This court reversed on the grounds that Simmons’ right to be tried before an impartial factfinder should not have been subordinated to an administrative problem of the availability of another judge. If it is clear that a defendant has acknowledged the facts underlying the charges and has admitted his guilt to the trial judge, the judge should recuse himself.

Badger and Simmons dealt with situations where defendants had come to the courtrooms to enter their pleas of guilty. Those trial courts first determined whether the respective pleas were knowingly and intelligently made and then listened to summaries of the evidence upon which the charges were based. It was at this point in the proceedings that the defendants registered their objections to the factual recitations by the Commonwealth. The trial courts then allowed the defendants to change their pleas to not guilty and proceeded to hear the cases non-jury. Both cases were reversed.

The instant case, however, differs from these cited authorities. Appellant came before the court pleading not guilty. He waived his right to a jury trial, choosing instead to be tried non-jury. It was at this point in the proceedings, before any evidence was presented or any testimony taken, that appellant informed the court that he wished to plead guilty. He said he was doing this because a trial would be inconvenient for the Commonwealth and burdensome for the young victim. The trial judge immediately stopped the hearing and instructed appellant to confer with counsel about his new request. After a brief recess, appellant told the court that he was not guilty of the charges. A non-jury trial then followed.

Trial counsel did not seek recusal nor did the trial judge recuse himself sua sponte. We find no errors of omission in this matter. The brief exchange which took place between appellant and the judge did not constitute a plea of guilty. As Justice McDermott stated in Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984):

A guilty plea is an acknowledgment by a defendant that he participated in the commission of certain acts with a criminal intent. He acknowledges the existence of the facts and the intent.

Id. at 1307. Appellant did none of the above. He did not tell the judge that he committed any wrongful acts or that he was guilty of any crime.

It has long been held that trial judges, sitting as factfinders, are presumed to ignore prejudicial evidence in reaching a verdict. Commonwealth v. Brown, 336 Pa.Super. 628, 486 A.2d 441 (1985). Although appellant’s request to plead guilty does not technically qualify as “prejudicial evidence”, we can conclude on the same basis that appellant’s request to plead guilty without more did not unfairly prejudice an experienced trial judge. Even under circumstances where a defendant had informed the judge that he was guilty, we have held that recusal was not always required. “A judge may be relied upon to know — as a jury may not be — that a guilty plea is not an unambiguous event.” Commonwealth v. Casella, 312 Pa.Super. 375, 379, 458 A.2d 1007, 1009 (1983).

It is also presumed that a trial judge is capable of recognizing in himself the symptoms of bias and impartiality. Our Supreme Court stated in Reilly By Reilly v. Southeastern Pa. Transportation, 507 Pa. 204, 219-21, 489 A.2d 1291, 1299 (1985): “If the judge feels that he can hear and dispose of the case fairly and without prejudice, his decision will be final unless there is an abuse of discretion.” Therefore, whenever the question of recusal is raised, either on motion or sua sponte, it is best answered by the trial judge himself. Upon being presented with appellant’s claim that he had been denied a fair trial, Judge Walter Little wrote:

We have reviewed the transcript of the non-jury trial and we are satisfied that the posture taken by this court was as an impartial factfinder. Further, the Court’s posture throughout the hearing was not improper nor prejudicial to the defendant and all actions were unbiased and impartial.

Trial court opinion 6/30/89 at 6.

From our review of the record, we conclude that trial counsel was not ineffective for not requesting recusal, for recusal was unwarranted in this case.

Judgment of Sentence affirmed.

      . Appellant was initially represented by Fred A. Lagattuta, Esquire, at the pre-trial conference on April 18, 1988. On the day set for trial, June 15, 1988, Mr. Lagattuta withdrew from the case and the Office of the Public Defender was appointed to represent appellant. A postponement was then granted. On August 8, 1988, a second postponement was granted because appellant had been committed involuntarily to Mayview State Hospital for ninety days under Section 304 of the Mental Health Act. The case came to trial on November 9, 1988.


author: PER CURIAM.

text:
    579 A.2d 958
    COMMONWEALTH of Pennsylvania v. ONE 1986 FORD MUSTANG “EXP” SERIAL # 1FABP0197GW2112070. Appeal of Edward STEINER, Jr. and One 1986 Ford Mustang “EXP” Serial # 1FABP0197GW2112070.
    Superior Court of Pennsylvania.
    Submitted April 2, 1990.
    Filed July 10, 1990.

      David J. Rossi, Schuylkill Haven, for appellant.
    George C. Yatron, Dist. Atty., Reading, for Com., appellee.
    Before MONTEMURO, MONTGOMERY and HESTER, JJ.
   PER CURIAM.

This is an appeal arising from the seizure of a vehicle pursuant to the Controlled Substances Forfeitures Act, 42 Pa.C.S. §§ 6801 and 6802 (hereinafter “Act”). Finding no error, we affirm.

On January 14, 1989, appellant and a passenger in his automobile were arrested and charged with possession of cocaine and various drug paraphernalia. On January 27, 1989, the Commonwealth filed a petition seeking forfeiture of the vehicle. A hearing on the petition was held May 16, 1989. Appellant pleaded guilty to the charges on May 21, 1989. The vehicle was ordered forfeited by the trial court on July 27, 1989. Post-trial motions were denied on August 25, 1989 and the instant appeal was filed.

Appellant charges that the seizure of his vehicle and subsequent forfeiture to the Commonwealth violated various federal and state constitutional rights.

In examining the claims of appellant, we are guided by the principle that an act of assembly will not be deemed unconstitutional unless it clearly, palpably, and plainly violates the constitution. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981). Moreover, any doubts are to be resolved in favor of sustaining the legislation. Id. Statutes providing for the forfeiture of specific property used in violation of the law are constitutional. Commonwealth v. One 1936 Ford Truck, Three Ton, 136 Pa.Super. 473, 7 A.2d 532 (1939). The legislature, under police power, may provide for forfeiture of an automobile used in violation of the law. Commonwealth v. Beloff, 166 Pa.Super. 286, 70 A.2d 689 (1950). There need not be an underlying conviction of a crime to support a forfeiture. Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985).

Appellant initially argues that the controlled substances were seized subsequent to an illegal search of the vehicle. However, at hearing on the forfeiture petition, counsel stipulated that the case would be decided on the basis of the testimony given at the preliminary hearing on the criminal charges (Tr. at 2). The record of that hearing clearly reveals that the controlled substances were in “plain view” of the arresting officers and thus legally confiscated (Tr. at 18, 29, 33-39). See Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988).

Appellant next contends that the forfeiture statute violates due process as it does not allow a defendant to testify on his own behalf while protecting his testimony from later use in criminal proceedings. As noted above, appellant stipulated that the forfeiture proceeding would be determined on the basis of the preliminary hearing testimony, rather than by holding a full hearing. There is nothing in the record to indicate that appellant ever raised this issue before the trial court and we cannot consider it for the first time on appeal. Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974).

Appellant also claims that the Act unconstitutionally denied him a jury trial. Article I, section 6 of the Pennsylvania Constitution preserves the right to trial by jury only in those cases where it existed at the time the constitution was adopted. Murphy v. Cartex Corp., 377 Pa.Super. 181, 546 A.2d 1217 (1988). Jury trials are not available in proceedings created by statute unless the proceeding has a common-law basis or unless the statute expressly or impliedly so provides. Since the right to a jury trial in a forfeiture proceeding did not exist at the adoption of the Pennsylvania Constitution and there is neither a common-law basis for the forfeiture statute nor a provision within the statute for a jury trial, appellant’s claim is unfounded.

Appellant next argues that forfeiture of his automobile pursuant to the Act is an excessive penalty which is disproportionate to the underlying offense and thus constitutes cruel and unusual punishment, as the value of the auto exceeds the maximum fine which may be imposed and the value of the contraband was stipulated at $50.00. The Act provides for the forfeiture of a vehicle which is used to facilitate the transport, sale, receipt, possession or concealment of drug paraphernalia and controlled substances, without regard to amount. 42 Pa.C.S. § 6801(a)(4). Courts of this Commonwealth have seized subject vehicles pursuant to the Act regardless of their value relative to the maximum fine to be imposed. This court has affirmed the seizure of a $30,000.00 auto under the Act, Commonwealth v. One 1985 Cadillac Seville, 371 Pa.Super. 390, 538 A.2d 71 (1988), as well as that of an automobile found to contain 71 milligrams of cocaine and 2.1 grams of marijuana. Commonwealth v. One 1984 Blue/Silver Oldsmobile, 389 Pa. Super. 53, 566 A.2d 612 (1989). We have been unable to discover any Pennsylvania case where the forfeiture statute was held to constitute an excessive penalty amounting to cruel and unusual punishment because the value of the forfeited property exceeded the value of the contraband. We note as well that, in addition to the actual drugs seized herein, there were numerous containers seized in which cocaine residue was found, indicating that these containers had previously contained cocaine. We do not believe that forfeiture is prohibited merely because many of the drugs possessed in the vehicle had been consumed, sold or otherwise disposed of prior to the seizure.

Order affirmed.


author: POPOVICH, Judge: OLSZEWSKI, Judge,

text:
    579 A.2d 960
    In the Interest of E.J., Appellee. Appeal of COMMONWEALTH of Pennsylvania. (Two Cases) In the Interest of R.P., Appellee.
    Superior Court of Pennsylvania.
    Argued May 31, 1990.
    Filed Sept. 5, 1990.

      Karen L. Grigsby, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Ira B. Shrager, Philadelphia, for appellee, E.J.
    Bradley Bridge, Asst. Public Defender, Philadelphia, for appellee, R.P.
    Before ROWLEY, WIEAND, OLSZEWSKI, MONTEMURO, BECK, KELLY, POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
   POPOVICH, Judge:

This case was granted en banc consideration to resolve an appeal by the Commonwealth from the orders of the Court of Common Pleas of Philadelphia County, Juvenile Division, “discharging” the appellees (R.P. and E.J.) from five (5) counts each of Aggravated Assault, Simple Assault, Possession of an Instrument of Crime, Reckless Endangerment of Another Person, Criminal Conspiracy and Risking a Catastrophe. We dismiss the appeal.

The facts, as presented at the hearing, were properly characterized by the Juvenile Court judge as follows:

While elementary school children from St. Edward’s School were having noontime recess in the schoolyard of the Hartranft Public School, one tan pit bull and a second dog, described by the complaining witnesses as a black and white dog, were released into the schoolyard. The five children who testified in Court said that they were bitten by the tan pit bull. One child said the black and white dog laid down at the end of the playground during the entire incident. The five complaining witnesses were unable to identify the individual or individuals who released the dogs. Only two of the complaining witnesses testified to hearing the command words “sic ’em”, but these witnesses were unable to identify the individual or individuals in the playground who spoke these words. A classmate of the defendants testified that he saw the defendants with the dogs in a lot near the schoolyard and that he left their company prior to the schoolyard incident. He stated that the defendants’ only intention was to mate the dogs. This was confirmed by a police officer who read into the record a statement taken from defendant, J[], six days after the incident. An older student was supervising the schoolyard during the recess and assisted in capturing the tan pit bull who was unable to identify the defendants as the individuals who released the dogs into the schoolyard.

At the completion of the hearing, the case was taken under advisement until January 11, 1989, whereupon the petitions against the eleven-year-old juveniles were “discharged”, one of the grounds being that the evidence as presented by the Commonwealth was insufficient to establish the appellees’ guilt beyond a reasonable doubt. See Juvenile Court Opinion at 3.

Following the denial of the Commonwealth’s motion to reconsider the ruling entered, this appeal was filed and raises two questions for our consideration. Before addressing either one, however, we must decide whether the Commonwealth’s appeal is properly before us for review.

Both juveniles argue to this Court that the orders “discharging” them from the offenses lodged are not appeal-able, whereas the Commonwealth, on the other hand, contends that the Juvenile Court’s ruling was a “legal” decision on the question of the continuing viability of the rebuttable presumption of capacity (mens rea) of juveniles between the ages of seven and fourteen, and, as such, is appealable. See Commonwealth’s Brief at 23 & 24.

At bar, the Juvenile Court found, and the record bears this out, that no evidence was offered by the prosecution to establish the guilt of the juveniles beyond a reasonable doubt. See Juvenile Court Opinion at 8. The absence of such evidence was the alternate basis for the crimes against the appellees being “discharged” by the court below. See note 1, supra.

Because jeopardy attached with the commencement of the juvenile hearing and the receipt of testimony, see In the Interest of R.R., 317 Pa.Super. 334, 344 n. 12, 464 A.2d 348, 353 n. 12 (1983), with the Juvenile Court’s “discharge” orders, the fundamental rule of double jeopardy jurisprudence became applicable to foreclose a review of such a finding (“discharge”), be it one that was entered by the court in “error or otherwise.” Commonwealth v. Tillman, 501 Pa. 395, 397, 461 A.2d 795, 796 (1983); see also Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43 (1978). In other words, because we read the record to indicate a finding of “not guilty” on the charges brought against the appellees (the nomenclature notwithstanding), the inquiry of this appellate court is terminated since the jurisdictional prerequisites for an appeal have not been met by the appellant/ Commonwealth. See Commonwealth v. Ray, 448 Pa. 307, 292 A.2d 410, 413 (1972); see also Tillman, supra. This position is consistent with and is an extension of the United States Supreme Court’s teaching in Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986), wherein the Pennsylvania Supreme Court’s view that a defendant’s demurrer to the evidence, which was granted by the trial court, was not the equivalent of ruling on the sufficiency of the evidence was disapproved so as to preclude the Commonwealth’s appeal. It was considered by the United States Supreme Court to be as if a “not guilty” verdict had been entered by the finder-of-fact. In so holding, the Court wrote:

When a successful post[-]acquittal appeal by the prosecution would lead to proceedings that violate the Double Jeopardy Clause, the appeal itself has no proper purpose. Allowing such an appeal would frustrate the interest of the accused in having an end to the proceedings against him. * * * the Double Jeopardy Clause bars a post[-]acquittal appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into “further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.”

476 U.S. at 145-146, 106 S.Ct. at 1749 (Citations omitted). Consequently, whether the finding of the trial court be labelled an “acquittal”, “dismissal”, or, as in the case instantly, a “discharge”, the effect is the same for double jeopardy purposes. Id. at 142, 106 S.Ct. at 1747. The Commonwealth’s contention to the contrary at page 21 of its brief that “the word ‘discharge’ is not the equivalent to ‘not guilty’ or ‘not delinquent’ ” flies in the face of the Juvenile Court’s specific determination that the “evidence was insufficient to establish the [appellees’] guilt beyond a reasonable doubt”. Such a finding, as was Smalis’ ruling on the effect of the grant of a demurrer, triggered the protective and insulating sphere of the Double Jeopardy Clause so as to deny any appeal by the prosecution to have the orders reviewed. As a result, we are without jurisdiction to hear the present appeal.

Appeal dismissed.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

I am in complete agreement with the majority’s treatment regarding the effect of the juveniles’ “discharge” on this appeal. I would address, however, the alternate basis offered by the trial court. This issue was briefed and argued by the parties before this court on appeal; therefore, the time has come to resolve this issue. Accordingly, I write separately to address the substantive issue as to whether the common law rule of a rebuttable presumption that children under the age of fourteen lack capacity to be criminally responsible has been superceded by the Juvenile Act.

Statutes are not presumed to change the common law unless expressly declared in their provisions, Commonwealth v. Miller, 469 Pa. 24, 364 A.2d 886 (1976); however, where the Legislature expressly provides a comprehensive definitional scheme, these provisions supercede the prior common law principles. Under the Juvenile Act of 1976 (as amended in 1977), the Legislature has expressly included specific ages and categories that replace the common law presumption concerning the capacity of a child to commit a criminal act. 42 Pa.C.S.A. §§ 6301-6302. The plain language of § 6302 provides that a “delinquent child” is “[a] child ten years of age or older whom the court has found to commit a delinquent act ...,” and a “dependent child” is “[a] child who ... is under the age of ten years and has committed a delinquent act.” 42 Pa.C.S.A. § 6302.

Moreover, the common law presumptions are inapplicable to juvenile proceedings which were created in order to protect children from the harsh punishments of the adult criminal system. See Commonwealth v. Durham, supra, (Price, J., dissenting). In my view, the Juvenile Act accomplishes the goal of removing the consequences of criminal behavior from those children who have committed delinquent acts and instead substitutes a program of supervision, care and rehabilitation. See 42 Pa.C.S.A. § 6301(b)(2).

      . An appellate court may affirm the actions of the court below for reasons other than those proffered by the initial tribunal hearing the matter on appeal. As a result, we find it unnecessary to reach the merits of the alternative ground for the Juvenile Court’s dismissal of the charges against the appellees, i.e., that the Commonwealth failed to rebut the common law presumption of incapacity of juveniles between the ages of seven and fourteen to commit a crime (delinquent act). See Commonwealth v. Durham, 255 Pa.Super. 539, 389 A.2d 108 (1978) (en banc). We leave the resolution of the continuing viability of the common law presumption of the incapacity of juveniles for another day.

      . It is difficult to conceive of a scenario in which, were we to address the merits of the Commonwealth’s claims and direct a remand for a re-assessment of the case, a "resolution of factual issues going to the elements of the offense[s] charged’’, as prohibited by Smalis v. Pennsylvania, 476 U.S. 140, 146, 106 S.Ct. 1745, 1749, 90 L.Ed.2d 116 (1986), would not take place.
      We find that the Commonwealth focuses too much upon the verbiage utilized by the adjudicating tribunal in entering its ruling. Rather, one must look to whether an inquiry and resolution (be it under the caption of "guilty”, "not guilty”, "dismissal”, or "discharge") of the factual matters dealing with the elemental aspects of the offense(s) charged have transpired. This, we find, occurred instantly and is not subject to appellate scrutiny under the guise of assessing a “legal" ruling by the trial court. Such is just not the case since a “factual” determination as to the sufficiency of the evidence was made at bar, and, as such, is not reviewable on appeal. Id.

      . The rule stated in Commonwealth v. Durham, 255 Pa.Super. 539, 389 A.2d 108 (1978), that “[t]he common law presumption of incapacity, in the case of a child between the ages of seven and fourteen, is still very much alive in this jurisdiction,” is not controlling here since it was based on the old Juvenile Court Law, 11 P.S. §§ 50-101 to 50-332 and has been statutorily preempted by 42 Pa.C.S.A. § 6301.


author: WIEAND, Judge:

text:
    579 A.2d 963
    COMMONWEALTH of Pennsylvania v. Thomas PIERCE (Nevius), Appellant.
    Superior Court of Pennsylvania.
    Submitted March 12, 1990.
    Filed Sept. 6, 1990.

      James M. Wolfe, Asst. Atty. Gen., Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, McEWEN and HESTER, JJ.
   WIEAND, Judge:

The issue in this appeal is whether the doctrine of “collateral consequences,” which prevented a collateral attack on a criminal conviction from becoming moot after the sentence had been served, has been superseded by the provisions of the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 et seq.

Thomas Pierce, a/k/a Thomas Nevius, entered a plea of guilty to second degree murder on April 4, 1972 and was sentenced to serve a term of imprisonment for not less than five (5) years nor more than fifteen (15) years. He did not file a petition to withdraw his guilty plea and did not appeal from the judgment of sentence. After his sentence had been served, on February 19, 1989, Pierce filed pro se a petition for relief under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. The trial court dismissed the petition without hearing and without appointment of counsel after determining that Pierce was ineligible for relief under the P.C.R.A. because he had completed his sentence. On appeal from this order, Pierce contends that the trial court erred when it dismissed his petition. His petition attacking the conviction collaterally was not moot, he argues, because of the collateral criminal consequences flowing therefrom.

The Post Conviction Relief Act, which became effective April 13, 1988, provides that to be eligible for relief, a person must plead and prove by a preponderance of the evidence:

(1) That the person has been convicted of a crime under the laws of this Commonwealth and is:
(i) currently serving a sentence of imprisonment, probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the crime; or
(iii) serving a sentence which must expire before the person may commence serving the disputed sentence.

42 Pa.C.S. § 9543(a)(1). The P.C.R.A. court dismissed appellant’s petition for relief because he was not “currently serving a sentence of imprisonment, probation or parole for the crime” or waiting to serve a sentence for such crime.

Although the legislative history of the P.C.R.A. is scant, legislative intent may be ascertained by considering, inter alia, the former law, if any, including statutes upon the same or similar subjects. 1 Pa.C.S. § 1921(c)(5). The Post Conviction Hearing Act, the predecessor to the Post Conviction Relief Act, required merely that a petitioner be incarcerated. Because of the general nature of this requirement, the Supreme Court created an exception to the mootness doctrine, which was known as the “collateral consequences” doctrine.

In Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971), the Supreme Court held that when a criminal sentence has been fully satisfied, a collateral attack upon the underlying conviction is not moot and can be considered if it is shown that the criminal sentence may directly affect any subsequent criminal prosecution or conviction. This rule was later extended to have application even if one could not show any criminal consequences, but could show actual or potential civil consequences. See: Commonwealth v. Rohde, 485 Pa. 404, 402 A.2d 1025 (1979); Commonwealth v. Doria, 468 Pa. 534, 364 A.2d 322 (1976). See also: Commonwealth v. Markley, 348 Pa.Super. 194, 501 A.2d 1137 (1985).

Commonwealth v. Carter, 362 Pa.Super. 70, 73, 523 A.2d 779, 780 (1987).

The Post Conviction Relief Act, however, limits eligibility for relief to a person who is “currently” serving a sentence on the conviction which he or she seeks to attack collaterally or waiting to serve such a sentence. A change in the language of a statute ordinarily indicates a change in the legislative intent. Masland v. Bachman, 473 Pa. 280, 374 A.2d 517 (1977). Moreover, the legislature must be presumed to have intended every word of the statute to have effect. Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979). See also: Commonwealth v. Scott, 376 Pa.Super. 416, 546 A.2d 96 (1988); Commonwealth v. Saul, 346 Pa.Super. 155, 499 A.2d 358 (1985); Commonwealth v. Mlinarich, 345 Pa.Super. 269, 498 A.2d 395 (1985) (en banc); Commonwealth v. Carr, 334 Pa.Super. 459, 483 A.2d 542 (1984); Commonwealth v. Slyman, 334 Pa.Super. 415, 483 A.2d 519 (1984). The legislature will not be presumed to have intended the additional language as mere surplusage. 1 Pa.C.S. § 1921(a), 1922(2). See also: Commonwealth v. Scott, supra; Commonwealth v. Saul, supra; Commonwealth v. Carr, supra; Commonwealth v. Slyman, supra. Thus, the language of the new statute which requires that a person be currently serving or waiting to serve a sentence for the conviction which he seeks to attack must be given effect.

The title and preamble of a statute may also be considered in determining the intent of the legislature. 1 Pa.C.S. § 1924. Section 9542, the preamble of the Post Conviction Relief Act, discloses the legislature’s intent to limit the availability of P.C.R.A. relief to petitioners whose sentences have not yet expired. The section provides in pertinent part:

§ 9542. Scope of subchapter
This subchapter provides for an action by which persons convicted of crimes they did not commit or serving unlawful sentences may obtain collateral relief and for an action by which persons can raise claims which are properly a basis for Federal habeas corpus relief.

42 Pa.C.S. § 9542. Under the federal habeas corpus law, relief is not available unless a person is “in custody” for the conviction established. 28 U.S.C.A. § 2254(a). In Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989), the Supreme Court held that a person whose sentence has fully expired at the time the petition is filed is not “in custody” even though collateral consequences flow from the prison conviction. In so holding, the Court reasoned “once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon it.” Id. at -, 109 S.Ct. at 1926, 104 L.Ed.2d at 545. See also: United States v. Bush, 888 F.2d 1145 (7th Cir.1989); Hendrix v. Lynaugh, 888 F.2d 336 (5th Cir.1989); Waldon v. Cowley, 880 F.2d 291 (10th Cir.1989); Taylor v. Armontrout, 877 F.2d 726 (8th Cir.1989); Unger v. Cohen, 718 F.Supp. 185 (S.D.N.Y.1989). The provision under the P.C. R.A. requiring that a petitioner be “currently serving” or waiting to serve a sentence for the prior conviction in order to be eligible for relief is consistent with the federal habeas corpus provision requiring that a petitioner be “in custody” in order to obtain relief.

The Post Conviction Relief Act, when read as a whole and in conjunction with it’s predecessor, the Post Conviction Hearing Act and the law pertaining to federal habeas corpus relief, leads us to conclude that the language of the Post Conviction Relief Act pertaining to eligibility for relief was intended to limit relief to those petitioners whose sentences have not expired and to preclude relief for those whose sentences have expired, regardless of collateral consequences. Therefore, the order of the lower court will be affirmed.

Order affirmed.


author: BECK, Judge:

text:
    579 A.2d 966
    COMMONWEALTH of Pennsylvania, Appellant, v. George William RUPPERT. COMMONWEALTH of Pennsylvania v. George William RUPPERT, Appellant.
    Superior Court of Pennsylvania.
    Argued April 4, 1990.
    Submitted April 4, 1990.
    Filed Sept. 4, 1990.

      Jonelle H. Pepple, Asst. Dist. Atty., York, for Com.

      Jeffrey C. Marshall, Asst. Public Defender, York, for George Ruppert.
    Before CIRILLO, President Judge, and BECK and HESTER, JJ.
   BECK, Judge:

This is an appeal from judgment of sentence imposed following a trial by jury in which appellant, George Ruppert, was found guilty of rape, statutory rape, involuntary deviate sexual intercourse, indecent assault, and corruption of a minor. Upon consideration of appellant’s post-verdict motions, the trial judge arrested judgment on the rape conviction. The Commonwealth cross-appeals from that determination.

The primary issue in this case, raised by the Commonwealth, is whether there was sufficient evidence presented at trial of forcible compulsion to sustain Ruppert’s conviction of the crime of rape. We will consider the Commonwealth’s appeal first.

The Commonwealth contends that the trial judge erred in granting Ruppert’s motion in arrest of judgment. In reviewing a trial court’s granting of a motion in arrest of judgment, we determine whether the evidence offered by the Commonwealth was legally sufficient to support the verdict. We will affirm only if, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, and accepting all reasonable inferences drawn therefrom on which the jury could have based the verdict, the evidence was nonetheless insufficient to find guilt beyond a reasonable doubt. Commonwealth v. Robinson, 351 Pa.Super. 309, 311-12, 505 A.2d 997, 998 (1986). Viewed in this light, the facts of this case are as follows.

From November of 1988 to January of 1989, George Ruppert, his wife Diana Ruppert, their three daughters, ages nine, six and five, and Bruce Ruppert, George’s brother, lived in a trailer owned by Ruppert’s mother. The trailer had two bedrooms, a living room, kitchen and bathroom. The three girls slept in one bedroom. The two younger ones slept in a bed while “TR” the nine-year old victim, slept on a mat on the floor. Diana slept in the other bedroom which was next to the girls’ room, while George, and Bruce, who stayed with the family only sporadically, slept in the living room.

TR was ten years old at the time of the trial. She testified that during the three month period in question, Ruppert would come into her bedroom during the night and wake her up. While her two sisters were sleeping, he would take his “thing,” “what he goes to the bathroom with,” out of his pants, pick her up and put it in her “butt” and in the part she “go[es] to the bathroom with.” Notes of Testimony, (“N.T.”) 8/15/89, at 131-32. She testified that she told him this hurt her, that she cried while he did it, and that sometimes she would yell out. Id. at 132-34, 151-52. She further stated that he would sometimes tell her to sit on a chair, and then he would put his penis in her mouth. He would then ejaculate and make her swallow the “yucky stuff.” Id. at 133, 140-41. In addition, he would take her into the bathroom and show her sexually explicit magazine pictures. Id. at 142-43. Ruppert told her not to tell anybody. Id. at 132-33. TR could not specify how frequently these events occurred. She did testify that during the incidents, her mother was sometimes at home sleeping in the next room. During the three month period in question, Ruppert was drinking heavily and often would not remember what he did. Id. at 312.

Based on this and other evidence, the jury found Ruppert guilty of rape, and all other charges. Ruppert filed a post-verdict motion in arrest of judgment, alleging insufficient evidence to sustain the guilty verdict as to rape. The trial judge granted the motion, finding insufficient evidence of the element of forcible compulsion under Commonwealth v. Titus, 383 Pa.Super. 54, 556 A.2d 425 (1989). The trial court erred in its application of Titus in this case, and we therefore reverse.

In order to sustain the jury verdict of guilty of rape, the Commonwealth had to prove that Ruppert engaged in sexual intercourse, with another person not his spouse, by forcible compulsion, or by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution. 18 Pa.Cons.Stat.Ann. § 3121(1) & (2) (Purdon Supp.1990). It is clear that in this case no evidence was submitted of physical force or violence; however, the Pennsylvania Supreme Court held in Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), that forcible compulsion includes “not only physical force or violence, but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person’s will.” 510 Pa. at 555, 510 A.2d at 1226. The determination of whether moral, psychological or intellectual force exists in a given case is to be made in light of the totality of the circumstances, and important factors to be considered include the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and the physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination, or custodial control over the victim, and whether the victim was. under duress. Id.

The defendant in Rhodes, a twenty year old man who was a neighbor of the eight year old victim and who knew her for several years, lured her to an abandoned building and proceeded to engage in sexual acts with her to the extent that she was bleeding and torn. Id., 510 Pa. at 557, 510 A.2d at 1227. In finding sufficient evidence of forcible compulsion, the Rhodes court reasoned:

There is an element of forcible compulsion, or the threat of forcible compulsion that would prevent resistance by a person of reasonable resolution inherent in the situation in which an adult who is with the child who is younger, smaller, less psychologically and emotionally mature, and less sophisticated than the adult, instructs the child to submit to the performance of sexual acts. This is especially so when the child knows and trusts the adult. In such cases, forcible compulsion or the threat of forcible compulsion derives from the respective capacities of the child and the adult sufficient to induce the child to submit to the wishes of the adult (“prevent resistance”), without the use of physical force or violence or the explicit threat of physical force or violence.

Id., 510 Pa. at 557, 510 A.2d at 1227.

In Titus, supra, on which the trial court relied, Titus was found guilty of rape and related offenses against his thirteen year old daughter. Titus lived in a two bedroom apartment with his parents and the daughter. One night he came home after a night of drinking and got into bed with the girl. After she woke up, he engaged in sexual intercourse with her. She then pushed him away, after which he left her alone. 383 Pa.Super. at 56, 556 A.2d at 426. There was no evidence of physical forcible compulsion in that case, and a panel of this court found insufficient evidence of moral, psychological, or intellectual compulsion. The panel reviewed Rhodes and its progeny and found that in all cases following Rhodes, and in Rhodes itself, there existed factors additional to a parent-child or authority figure relationship which established the existence of moral, psychological, or intellectual force sufficient to sustain a conviction of rape. Proof of a parent-child relationship between the victim and the accused, without more, was not enough to prove this type of force. Id., 383 Pa.Superior Ct. at 62, 556 A.2d at 429. The Titus court noted the following additional contributing factors:

... in [Commonwealth v.] Dorman, [377 Pa.Super. 419, 547 A.2d 757 (1989) ], the remote locality and the uncle’s use of force to push the victim down; in [Commonwealth v.] Poindexter, [372 Pa.Super. 566, 539 A.2d 1341 (1988)] the father’s reproaches and threats, the beatings of the two victims, and their fear of breaking up the family; and in Rhodes itself, the extreme youth of the victim and the isolated location to which she was taken.

Id. See also Commonwealth v. Frank, 395 Pa.Super. 412, 577 A.2d 609 (1990) (therapist-patient relationship, plus threat that therapist would “ruin [victim’s] adoption”, provided sufficient evidence of psychological forcible compulsion). In Titus, the court found that the Commonwealth failed to prove any additional factor other than the father-daughter relationship. The child was thirteen years old and was neither taken to a remote location nor threatened; therefore, the panel concluded that there was insufficient evidence of moral, psychological or intellectual forcible compulsion or the threat thereof to sustain the conviction for rape. Id.

In the instant case, the trial judge found that the only factor serving to establish the existence of moral, psychological or intellectual force was the parent-child relationship, and, following Titus, that this was insufficient. The judge was particularly persuaded by the fact that the acts took place in the child’s bedroom while her sisters slept nearby and with her mother in close proximity, and that there was no evidence of duress. We have carefully examined the record and find the trial court erred in its assessment of the evidence. Viewing the totality of the circumstances in the light most favorable to the Commonwealth, it is clear that the Commonwealth presented sufficient evidence of moral, psychological or intellectual force.

The Commonwealth demonstrated that the thirty-three year old father of a pre-pubescent child repeatedly came into her room at night, woke her up, and engaged in vaginal, oral and anal sexual intercourse with her. During these acts, the child protested by crying and yelling. She even told her father he was hurting her. She testified at trial that he “made” her swallow the “yucky stuff”, his semen. The jury could conclude from the evidence of her crying out and her being forced to swallow the semen that TR resisted her father’s advances, which he forced upon her, and in addition that he used his position of authority and trust over her and exploited her sense of duty and obedience to him in order to overcome her resistance. See Dorman, 377 Pa.Super. at 429, 547 A.2d at 762. In addition, he took her into the bathroom to show her magazine pictures depicting men and women engaged in various sexual acts. The jury could legitimately infer that Ruppert showed her the sexually explicit pictures as psychological persuasion in order to encourage her to imitate what she was seeing. The record reveals evidence of psychological manipulation designed to overcome the will of the child; therefore, the jury’s conclusion that Rupert was guilty of rape is supported by record evidence. We conclude that the trial court erred when it found the force used was based solely on that which is inherent in the parent-child relationship. We therefore reverse the trial court’s order arresting judgment as to rape.

Next, we consider Ruppert’s appeal in which he raises three issues: (1) whether the trial judge erred in permitting a videotape deposition to be admitted into evidence absent strict compliance by the Commonwealth with Pa.R.Crim.P. 9015; (2) whether the trial court erred in failing to grant appellant’s motion to employ a psychologist to examine the victim for the purpose of challenging her competency; and (3) whether the lower court erred in concluding that the ten year old victim-witness was competent to testify. As to these issues, we have thoroughly reviewed the briefs of the parties, the record and the relevant case law, and we conclude that they have been correctly resolved by the trial judge in his opinion. We therefore affirm on that basis.

On appellant Ruppert’s appeal, we affirm the trial court.

On the Commonwealth’s cross-appeal, we reverse the order of the trial court arresting judgment. We vacate the judgment of sentence and remand the case for entry of sentence consistent with the jury verdict.

      . 18 Pa.Cons.Stat.Ann. § 3121 (Purdon Supp.1990).

      . 18 Pa.Cons.Stat.Ann. § 3122 (Purdon 1983).

      . 18 Pa.Cons.Stat.Ann. § 3123 (Purdon 1983).

      . 18 Pa.Cons.Stat.Ann. § 3126 (Purdon 1983).

      . 18 Pa.Cons.Stat.Ann. § 6301 (Purdon 1983).

      . In arresting judgment, the trial court also relied on Commonwealth v. Mlinarich, 518 Pa. 247, 542 A.2d 1335 (1988). Mlinarich is a post-Rhodes case in which the Supreme Court was evenly divided, resulting in the affirmance of the Superior Court, which had held, pre-Rhodes, that the "legislature intended the term 'forcible compulsion' to mean ‘physical compulsion or violence’.” Commonwealth v. Mlinarich, 345 Pa.Super. 269, 272, 498 A.2d 395, 396 (1985).
      At least three panels of this court have considered the effect of Mlinarich on Rhodes, and all have concluded that Rhodes remains the law of the Commonwealth. Titus, 383 Pa.Super. at 60, n. 2, 556 A.2d at 428, n. 2; Commonwealth v. Dorman, 377 Pa.Super. 419, 427-29, 547 A.2d 757, 761 (1988), appeal denied, 524 Pa. 617, 571 A.2d 380 (1989); Commonwealth v. Thek, 376 Pa.Super. 390, 392. n. 1, 546 A.2d 83, 85 n. 1 (1988).
      Accordingly, we apply Rhodes in the present case.


author: HESTER, Judge:

text:
    579 A.2d 970
    COMMONWEALTH of Pennsylvania v. William A. LONG, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 25, 1990.
    Filed Aug. 20, 1990.

      Stanton D. Levenson, Pittsburgh, for appellant.
    James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and POPOVICH and HESTER, JJ.
   HESTER, Judge:

This is a direct appeal from the judgment of sentence of ten to twenty years imprisonment entered following appellant’s conviction by a jury of murder of the third degree. We affirm.

Appellant, William Long, was convicted on May 3, 1989, for the shooting death of Jonathan Bailey on August 20, 1988. Following the denial of post-verdict motions, appellant was sentenced. This timely appeal followed.

Appellant presents one issue for our review:
DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN REFUSING THE APPELLANT’S REQUEST THAT THE JURY BE CHARGED THAT IT COULD RETURN A VERDICT OF INVOLUNTARY MANSLAUGHTER WHERE THAT OFFENSE WAS MADE AN ISSUE IN THE CASE AND THE TRIAL EVIDENCE WOULD HAVE SUPPORTED SUCH A VERDICT?

The jury in the instant case did receive instructions on first degree murder, third degree murder, and voluntary manslaughter. Defense counsel requested a jury instruction on involuntary manslaughter which the trial court denied.

Since the Pennsylvania Supreme Court’s decisions in Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980), and Commonwealth v. Williams, 490 Pa. 187, 415 A.2d 403 (1980), it has been settled that “in a murder prosecution, an involuntary manslaughter charge shall be given only when requested, and where the offense has been made an issue in the case and the trial evidence reasonably would support such a verdict.” Id., 490 Pa. at 185, 415 A.2d at 402; 490 Pa. at 190, 415 A.2d at 404.

Appellant contends that the evidence offered at trial would have supported a verdict for involuntary manslaughter. In support of this claim, he relies upon Commonwealth v. Terrell, 482 Pa. 303, 393 A.2d 1117 (1978), contending that the similar facts of Terrell compel the conclusion that the facts in this case rationally would sustain such a verdict. Appellant also asserts that the trial court in the instant case applied an improper standard when determining whether an involuntary manslaughter charge was warranted. He contends that the court failed to view the facts in a light most favorable to him and instead credited the Commonwealth’s version of the facts. In support of this claim, appellant quotes the trial court’s statement that appellant “ran for several hundred feet, took careful aim, and calmly delivered the fatal act of violence.” Appellant’s brief at 15, quoting trial court opinion at 18. Appellant asserts that such a statement ignores appellant’s own testimony that he did not crouch down or drop down to fire the gun.

Even considering only appellant’s evidence, however, it is clear that the facts presented did not warrant an involuntary manslaughter charge. Appellant’s own summary of the facts, as stated in his brief, are as follows.

In the early morning hours of August 20, 1989, Appellant received a telephone call from his mother-in-law, Alberta Houston, informing him that his 20-year-old niece, Stephanie ... had been raped. After receiving this phone call, he woke up his daughter, told her that Stephanie had been raped, telephoned his wife Judy Long at the V.A. Hospital where she worked as a registered nurse, told her what happened, and then proceeded with his daughter to his mother-in-law’s house. Appellant arrived there at 9:30 a.m. to find his mother-in-law “hysterical”.
Meanwhile, Judy Long had driven to Magee Women’s Hospital to get Stephanie and take her to Judy’s mother’s house where Stephanie lived. When Judy met Stephanie at the hospital, Stephanie was crying and “devastated.” Judy and Stephanie arrived at Stephanie’s home at around 10:30 a.m. Stephanie was clothed in a bathrobe and still appeared “very hysterical.” She immediately took a shower, and Judy returned to work.
About a half an hour later, Stephanie told Appellant that she had been raped. Appellant asked her if she knew who raped her. She said Jonathon Bailey from Homewood (whom Appellant had not known previously) and described the car he was driving. She also told Appellant that Bailey had threatened her that he didn’t care who she had told because if she told anyone and they said anything to him he would f_ them up and he would f_her up too, and that if she put him in jail, that he was going to kill her when he got out.”
About half an hour later, Appellant went to a local bar on Lincoln Avenue, had a beer and then went to Home-wood to get some information on Jonathon Bailey. Appellant visited the Homewood Field (also known as Willie Stargell Field) at around 3:00 p.m. Through his investigation, Appellant learned that Bailey would be at Home-wood Field at approximately 6:00 p.m. to attend football practice for a semi-professional team called the East End Raiders. At around 4:00 p.m., Appellant picked up his wife at work and drove to his mother-in-law’s house to get his mother-in-law and Stephanie so Stephanie could report the rape to the Monroeville police. After taking Appellant home at 5:00 p.m., Judy Long, her mother and Stephanie proceeded to the Monroeville police station where Stephanie made her report.
Meanwhile, at around 5:30 p.m., Appellant thought that, since Stephanie was pressing charges against Bailey, he should try to talk to him. Appellant then walked to Homewood Field in search of Bailey. He had a gun for self-protection. When Appellant arrived at the field around 6:00 p.m., he shot basketball for a while and made some inquiries about Bailey. A short time later, Appellant saw his brothers, Dusty and Michael, at the field. Since Appellant had no idea that his brothers would be there, he asked them, “What are you guys doing here?”. They said they had “run into a friend” of Appellant’s who told them he would be at the Homewood Field. His brothers asked him what was going on, to which the Appellant replied, “I came up here to see this guy about Stephanie.” Michael asked if he was all right, and Appellant said, “Yes, I’m all right, you guys don’t have to stick around.” They said they would wait around anyway.
Five minutes later, a man in a silver gray Chrysler pulled up and parked the car. When he got out, Appelled [sic] called, “Hey, Jonathon.” Bailey turned around and replied, “What?” Appellant said, “I want to talk to you ... about Stephanie.” Bailey responded, “Stephanie who?”. Appellant said, “Stephanie ..., the girl you raped.” Bailey retorted, “F_you and Stephanie, I don’t want to hear that sh__” At that point, Bailed [sic] walked across the street and started conversing with a Mr. Eackles. Appellant pursued Bailey to let him know that Stephanie had gone to the police to press charges against him and that if Bailey harmed her, he would have to answer to him. As Appellant approached Bailey and Eackles, Bailey got into Eackles’ car with Mrs. Eackies. Appellant then told Bailey, “Now are you going to get out, man, are you going to get out of the mother f_car and talk to me like a man, or do you just like to take pussy?” Angered by Appellant’s words, Bailey kicked at Appellant and then grabbed a pipe and hit Appellant on the arm as Appellant reached for Bailey’s legs. Appellant backed up several feet from the car and Bailey came out, exclaiming: “You want to see me, mother f_, you want to see me.” Appellant pulled out the pistol and fired two shots into the ground in an attempt to stop Bailey. Simultaneously, Dusty Long had come from across the street and hit Bailey in the back with a piece of wood as he grabbed Bailey by the shirt. Bailey then broke loose from Dusty, tearing his shirt, and started running away. Appellant chased him. Bailey ran over the wall and through the courtyard. Appellant yelled, “Stop, man, if this is what you want, stop, mother f--” As Bailey ran onto the field, Appellant fired his gun from about 124 feet away and hit Bailey in the back, causing him to fall to the ground. Appellant immediately ran up to Bailey. He felt scared for doing something he had not intended to do. Realizing that Bailey was hurt, Appellant turned and ran off the field. Appellant did not see what happened to Bailey after his departure.
Jonathon Bailey died, possibly more than an hour later, due to the combination of a single gunshot wound and blunt force trauma to the head.

Appellant’s brief at 5-8 (citations to the record and footnotes omitted).

The trial court’s statement in its opinion that appellant “took careful aim, and calmly delivered the fatal act of violence” is a reference to the testimony of four eyewitnesses to the shooting who testified that when appellant fired the fatal shot as he chased the victim across the football field, he knelt down, crouched down, or squatted down and aimed at the victim and shot him in the back. Even if we were to disregard the testimony that appellant crouched down when he fired, the evidence clearly does not support a jury charge or verdict as to involuntary manslaughter.

A person is guilty of involuntary manslaughter “when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner ... he causes the death of another person.” 18 Pa.C.S. § 2504(a). The testimony at trial, instead, is sufficient to prove an intentional or unintentional malicious killing. Appellant’s own testimony at trial established that he fired two shots into the ground as the victim attempted to exit the Eackles’ vehicle in order “to stop him.” Notes of Testimony (N.T.), 2/2/89, at 693. He testified that he fired the third shot into the victim’s back as the victim tried to run away. Id. at 694. Appellant never stated why he directed the third shot at the victim. He contended only that he shouted, “Stop, if this is what you want, stop, mother f_” Id. Appellant never stated that he fired the third shot in order to stop the victim. Even if appellant had made such a claim, however, it would not support his contention that involuntary manslaughter was at issue. It is ludicrous to suggest that appellant recklessly and negligently chased the victim onto a field and fired a shot into the fleeing victim’s back from thirty yards away simply to stop him. See also Commonwealth v. Williams, supra (in light of the facts, it is ludicrous to suggest that the defendant recklessly or negligently struck twelve blows with an iron pipe to the blind victim’s head).

Furthermore, appellant’s reliance on Commonwealth v. Terrell, supra, is misplaced. We note initially that the opinion in Terrell, authored by Justice Pomeroy, was joined only by Chief Justice Eagen. Four other justices concurred with three concurring opinions. Further, the Terrell decision predated White and Williams by two years. More importantly, however, the facts in Terrell are significantly different from the instant facts. In Terrell, the defendant and his friend, Richard Alexander, were playing cards when the defendant accused Alexander of cheating. Alexander took the money on the table and left. Later, the defendant, who was unarmed, found Alexander at a jitney station and asked to speak to him. Alexander suggested that they step outside, whereupon he pulled a gun on the defendant. Terrell testified that he knew Alexander to carry a knife and believed him to be pulling out the knife, not a gun. When he saw the gun, the defendant panicked, grabbed it, and shot Alexander.

It is clear that the jury could have found that although Terrell had no intention to kill or seriously harm Alexander, his conduct nevertheless was reckless in that “he consciously disregarded a substantial and unjustifiable risk that death or serious bodily injury might result to Alexander after he ‘snatched’ the gun.” Commonwealth v. Terrell, supra, 482 Pa. at 309, 393 A.2d at 1120.

We disagree with appellant that Terrell is indistinguishable from the present case. The similarities appellant underscores, see appellant’s brief at 14, are insignificant. In the present case, appellant, by his own testimony, was not an unarmed man involved in a close-quarters physical altercation with another man who just had drawn his own weapon. Instead, appellant’s testimony reveals that he sought out the victim and approached him in an angry manner, that he did not fear the victim, that he purposely brought his fully loaded semi-automatic hand gun which he concealed in his pants, that when appellant confronted the victim, Bailey stated he did not want to talk to appellant and removed himself to a nearby automobile, that appellant pursued the victim to the car and pulled him out by the legs, that he shot into the ground twice when he was five or six feet away from Bailey to stop him, that the victim ran away and appellant pursued him, and finally, after Bailey had fled over a wall, across a courtyard and into a field, appellant fired a third shot into the victim’s back as he tried to escape. We agree with the Commonwealth that by appellant’s own testimony, in firing the third shot into the victim’s back as he tried to run away, appellant has not placed into issue whether he was acting in a reckless or grossly negligent manner as is required for a finding of involuntary manslaughter. Instead, appellant demonstrated that his firing of the third shot was employed with conscious thought and with no explanation as to why he fired it. As such, the trial court was correct in denying appellant’s requested jury instruction on involuntary manslaughter.

Judgment of sentence affirmed.