source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    577 A.2d 564
    COMMONWEALTH of Pennsylvania v. Angelo P. HAYNES, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1990.
    Filed June 14, 1990.

      David DeFazio, Pittsburgh, for appellant.
    Claire Capristo, and Maria V. Copetas, Asst. Dist. Attys., Pittsburgh, for the Com., appellee.
    Before CAVANAUGH, DEL SOLE and HUDOCK, JJ.
   DEL SOLE, Judge:

Angelo P. Haynes was found guilty of First Degree Murder following a jury trial, and a sentence of life imprisonment was imposed. The victim was a 53 year old woman, Eddilee Sims, whose death resulted from stabbing and strangulation. She was the mother of Mr. Haynes’ friend. On appeal, Mr. Haynes raises eleven issues for our review, we will discuss each seriatim. The first three issues concern trial counsel’s effectiveness. New counsel was appointed for this appeal.

Initially, Appellant claims trial counsel, Kim W. Riester, Esq., was ineffective for failing to inform him that it was not possible to determine the age of a blood smear found on the victim’s sheet which matched his own blood type. This failure, Appellant alleges, prejudiced him because he was not then able to offer exculpatory testimony concerning the only evidence which placed him in the decedent’s bedroom. Mr. Haynes claims that had he known this fact, he would have testified that on a prior visit to the decedent’s apartment, he wiped his hand on a sheet hanging on the bathroom door, and that he often suffered minor cuts on his hands arising from his job as a construction worker.

We find no merit in this claim. Trial counsel testified at the hearing on post-trial motions that he had discussed the origin and age of the blood stain with Appellant. He stated that Appellant told him that he had no cuts on his body on the day of the murder, and this was verified by counsel with other witnesses. Furthermore, during this pre-trial discussion, Appellant had stated that he often had small cuts on his hands, and that he was in the victim’s apartment many times prior to the time of the incident when his blood could have stained the sheet. However, trial counsel was very surprised that Appellant did not repeat this explanation when he was asked, on cross-examination how he could account for the consistency between his blood type and the blood type of the stain found on the victim’s sheet. (Post-trial Motions Hearing, at 29-30, July 27, 1988; also see, N.T. at 637, Volume II, April 15, 1988).

In the trial court’s Opinion and Order denying Appellant’s post-trial motions, the court found that Mr. Riester reviewed the significance of the blood stains with Appellant before the trial. (Trial Court Opinion at 10, September 22, 1989). The trial court evidently judged Mr. Riester to be mote credible than Appellant, and did not believe Mr. Haynes’ claim that he had not been apprised that the age of the blood stain was indeterminable.

The standard used for assessing counsel’s stewardship is well established. We inquire first whether the underlying claim is of arguable merit, that is, whether the disputed action or omission was legally unsound. Then, we ask whether counsel had any reasonable basis for the questionable act or omission, and if there was such a basis our inquiry ends. If there is no reasonable basis, then Appellant will be granted relief only if counsel’s improper course of conduct was prejudicial, resulting in an adverse affect upon the outcome of the proceedings. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

Since, we find that there is no merit to the underlying claim that counsel failed to review the blood stain evidence with Appellant, we find no ineffectiveness.

Next, Appellant claims trial counsel was ineffective for failing to present evidence to the jury concerning the indeterminate age of the blood stain, thus breaching defense counsel’s duty to provide the jury with all evidence of an exculpatory nature. Commonwealth v. Guerrisi, 297 Pa.Super. 245, 443 A.2d 818 (1982).

Although we agree that counsel would be ineffective if exculpatory evidence were not introduced at trial, Commonwealth v. Adams, 465 Pa. 314, 350 A.2d 412 (1976), this is not the situation here. Mr. Riester cross-examined the forensic serologist, Ms. Austin, concerning the blood stain on the sheet. He asked Ms. Austin whether she was able to give the particular age of the stain, to which she replied negatively. (N.T. at 507, April 14,1988). Although there is some confusion whether Mr. Riester was referring to the blood or urine stain found on the sheet, we believe that his questions immediately following resolved this confusion. These later questions all concerned the tests Ms. Austin performed on the blood stain which matched Appellant’s blood, whereas the urine stain was consistent with the traits of the victim, and was still wet. It became clear thflt defense counsel was referring to the blood stain and not the victim’s own urine stain. Furthermore, Mr. Riester referred to the blood stain in his closing remarks, thus alerting the jury to the problem of determining the age of the stain. Therefore, we again find that counsel was not ineffective, because the underlying claim, that he failed to introduce exculpatory evidence, is without merit.

Next, Appellant claims counsel was ineffective for instructing him not to testify at the suppression hearing, thereby leaving uncontroverted the detective’s testimony that his uncounseled, inculpatory statements made while Appellant was in custody, were unsolicited by the police and not violative of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He admits that although the decision not to testify was ultimately his, counsel was ineffective because his advice was so “unreasonable as to vitiate the knowing and intelligent decision not to testify,” Commonwealth v. Martin, 346 Pa.Super. 129, 142, 499 A.2d 344 (1985). We disagree.

Mr. Riester testified at the hearing on post-trial motions that he had advised Appellant not to testify at the suppression hearing because it would be his word against four detectives and that if the suppression court should rule in favor of the Commonwealth then that factual finding would “bind us on appeal.” Further, if Appellant chose to testify at the pre-trial hearing, the Commonwealth would then know in advance the nature of his testimony at trial and would have time to prepare for that testimony. Appellant then agreed and elected not to testify.

The law presumes that counsel was effective, therefore the burden of establishing ineffectiveness rests squarely upon the appellant. Commonwealth v. Ellis, 354 Pa.Super. 11, 510 A.2d 1253 (1986). In order to establish a valid claim of ineffectiveness, it must be shown that the course of action chosen by counsel was not reasonably designed to protect the client’s best interests. Commonwealth v. Chin, 373 Pa.Super. 163, 540 A.2d 573 (1988).

We agree with the trial court, that Appellant made a rational decision not to testify, and that counsel’s advice was not unreasonable as to vitiate this knowing and intelligent decision. Defense counsel believed that it was strategically important not to reveal the contents of Appellant’s testimony in advance of trial, and Appellant agreed. This is a reasonable strategy for counsel to pursue. However, we can not understand why the fact that the suppression court’s credibility/factual findings would bind Appellant on appeal should be a factor in deciding whether to testify. Testifying before the suppression court would not prevent Appellant from testifying to the same information at trial as planned, whatever the suppression court’s decision. Furthermore, the jury’s finding of fact on this issue would be equally binding on appeal. Nonetheless, because we believe that it was reasonable for counsel to advise his client that it was strategically important not to testify at the suppression hearing in order not to reveal the contents of his testimony before trial, we hold that counsel was not ineffective for advising Appellant against testifying at the suppression hearing.

The fourth issue raised by Appellant is whether his statement to the Pittsburgh police should have been suppressed because the police were acting outside their jurisdiction in violation of the Municipal Police Jurisdiction Act [Act], 42 Pa.C.S.A. § 8953(a). According to the record, Detectives Bauer and McGuire entered Wilkinsburg, Pa., an independent municipality adjacent to Pittsburgh, to investigate the homicide without first contacting the Wilkinsburg police. This intrusion, it is contended, was not authorized under the Act, nor was it simply a technical violation of the Act which would not justify suppression of the evidence. See, Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985).

The Commonwealth concedes that the investigation outside the jurisdiction was not authorized under the Act, (N.T. at Vol. I 97, April 11, 1988), however, they argue that suppression of the evidence was not justified. We agree.

This court has held that the general purpose of the Municipal Police Jurisdiction Act is to restrict the jurisdiction of the police to their own municipalities, on the one hand, while allowing certain practical and policy exceptions to the general rule on the other. Commonwealth v. Merchant, 385 Pa.Super. 264, 560 A.2d 795 (1989) alloc, granted — Pa. -, 575 A.2d 111 (1990). Furthermore, in Commonwealth v. Saul, 346 Pa.Super. 155, 499 A.2d 358 (1985), we held that the Act prohibits investigations as well as arrests and service of warrants outside the police officer’s jurisdiction. However, in Saul, it was held that because of our supreme court’s decision in Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985), when a police officer made an unauthorized, controlled buy of illegal substances outside his jurisdiction, suppression of the evidence gained by the illegal investigation would be a remedy all out of proportion to the benefits gained. Id., 499 A.2d at 361. Thus, we hold that although the investigation in Wilkinsburg violated the Act, and the Pittsburgh police were acting outside of their authority, this illegality is not a basis for granting suppression.

Next, we consider Appellant’s claim that his inculpatory statements, made while in the police station, should have been suppressed based on the alleged trickery and deception employed by the police in gaining his “consent” to accompany them to the police station. This claim requires a two part analysis: (1) Whether Appellant gave his consent to accompany the police officer to the station as a result of trickery and deceit, and (2) If Appellant’s consent was invalid, whether his statements made while in custody were tainted and therefore should have been suppressed.

Our standard of review for a suppression hearing is well established. Our responsibility is to “determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” Commonwealth v. Hubble, 318 Pa.Super. 76, 78, 464 A.2d 1236, 1237 (1983). Additionally, we must consider the prosecution’s evidence and so much of the defendant’s evidence as remain uncontradicted. Commonwealth v. Mancini, 340 Pa.Super. 592, 490 A.2d 1377 (1985). When ruling on suppression motions, the suppression court is required to make findings of fact and conclusions of law as to whether evidence was obtained in violation of the defendant’s constitutional rights. (Pa.R. Crim.P. 323(i)).

We note initially that the suppression court denied the motion to suppress but did not make findings of fact on the record on this issue, nor did it discuss the suppression issues in its opinion in response to post-trial motions. Thus we must consult the record directly to ascertain the facts of Appellant’s arrest.

According to the testimony at the suppression hearing, Officers Bauer and McGuire of the City of Pittsburgh homicide squad went to Wilkinsburg at approximately 9:00 p.m. on August 7, 1987, to meet Appellant at the home of his girlfriend. The Officers knew of an outstanding bench warrant for Appellant, but were unsure of its status after three years. They informed him they were investigating the murder of Eddilee Sims but did not question Appellant about the murder. Instead, they discussed the outstanding bench warrant, and asked him to accompany them in the police car to the Pittsburgh police station to clear up this warrant problem.

On the way down to the station in the police car there was only general conversation about whether the warrant was outdated or some clerk made a mistake, but immediately upon arriving at the Public Safety Building, Appellant was placed in an interrogation room and advised of his constitutional rights. When Appellant signed a waiver of rights form, and affirmed that he understood his rights, the police began to interrogate him concerning the murder of Eddilee Sims.

At approximately 10:15 p.m., after Appellant was told that his fingerprints and palm prints matched those on the door which had been forced open on the night of the murder, Appellant stated that he broke into the apartment, but did not murder Ms. Sims. More questions followed this statement, and then at 10:35, Appellant asked for a lawyer and the questioning stopped.

Although the testimony concerning the time when Appellant was placed under arrest is contradictory, it may be inferred from the record that some time between 10:45 and 11:30, Appellant was told he was under arrest and the arrest warrant was executed. Then Appellant was taken to the Coroner’s Office for arraignment.

While leaving the arraignment, Appellant offered the statement that he had broken into Ms. Sims’ apartment with a person named Dan Smith and that Mr. Smith had killed Ms. Sims. Again, the officers read Appellant his rights and advised him of the felony-murder rule. Mr. Haynes continued to talk about Dan Smith on the ride back to and inside the Public Safety Building. However, when Mr. Haynes was asked to make a taped statement concerning the break-in, he declined to do so without his attorney. Questions about Mr. Smith and the break-in continued after this refusal.

Appellant first claims that his consent to go to the Public Safety Building was based on a false representation made to him by the police officers, and the falsity of that statement negates his consent. Our supreme court has said, that consent may not be gained through stealth, deceit or misrepresentation, and that if such exists this is tantamount to implied coercion. Moreover, it has stated that consent is invalid if at the time of the consent there is present duress or coercion, actual or implied. Commonwealth v. Wright, 411 Pa. 81, 85, 190 A.2d 709, 711 (1963) citing, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921); Amos v. United States, 255 U.S. 313 (1921).

However, since the 1963 Wright decision, supra., the Supreme Court of the United States has held that the Fourth Amendment was not violated by certain forms of deception practiced by the police. Thus in Hoff a v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), and Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), the Supreme Court held that the Fourth Amendment was not violated when a police informant or narcotics agent, respectively, misrepresented their identities to the defendant, and then the defendant voluntarily confided a wrongdoing to this undercover agent. However, the Supreme Court in both Lewis and Hoff a pointed out that in some instances police deception may violate the Fourth Amendment. In particular, the Court distinguished Gouled, supra., in which an informant, known to the defendant, gained consent to enter the defendant’s office and seized and carried away documents belonging to the defendant. This search and seizure, it was held, violated the Fourth Amendment.

Similarly, this court has held in Commonwealth v. Morrison, 275 Pa.Super. 454, 418 A.2d 1378 (1980), that there is no Fourth Amendment violation when an undercover agent misrepresents his identity and asks for and receives permission to view the inside of a defendant’s barn. The agent saw marijuana inside the barn which provided the probable cause necessary to obtain a search warrant. However, we have held that if an accident victim consents to a blood test with no notice of the criminal investigative purpose of the test, then the consent is invalid. Commonwealth v. Walsh, 314 Pa.Super. 65, 460 A.2d 767 (1983).

We agree with Judge Spaeth that:

“The problem of defining the limits to be set on the use of police deception is one of the most difficult problems of the criminal law ... For when the police are permitted to resort to deception there are losses as well as gains. The gains may be considerable—for example, the detection and elimination of a carefully organized traffic in drugs. But the losses may also be considerable. The law of search and seizure is not concerned with protecting the criminal’s right of privacy but the honest citizen’s right. If we are to be able to enjoy liberty and pursue happiness, we must know what part of our world is real and what part is illusion—that our home is our castle, and not a broadcasting center for hidden police transmission devices ... Permit the police to make our world illusion, and no one, neither criminal nor honest citizen, will be free.” Commonwealth v. Morrison, 275 Pa.Super. 454, 471, 418 A.2d 1378 (1980), (Spaeth, J., concurring).

There appears to be a common thread running through these Supreme Court cases as well as the cases in this Commonwealth which may aid in determining when police deception is permissible. That common thread is that the deception must not pertain to the consent itself, in some sense it must be collateral to the content of the permission voluntarily granted. Thus, the accused must know what is being consented to, and if the police exceed the scope of that consent, then they have passed their limits of permissible deception. This is consistent with the line of cases which have held that if the accused does not understand what it was that was consented to, then the consent is invalid. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Commonwealth v. Dressner, 232 Pa.Super. 154, 336 A.2d 414 (1975); Commonwealth v. Dixon, 226 Pa.Super. 569, 323 A.2d 55 (1974).

Thus, if an informant only deceives the accused as to his or her identity, as in Hoffa and Lewis, where the accused consented to the informant’s presence in the room at the time of an illicit conversation, then the deception is collateral and permissible. However, if the accused consents to an informant’s presence in his office, and then the informant then searches the office when the defendant leaves for a few minutes, or if the accused consents to the taking of a blood sample for non-criminal purposes and then the blood sample is used for testing blood alcohol content for criminal charges, the deception pertains to the consent itself, and the police have exceeded the scope of that consent. (See, Gouled, supra; Walsh, supra.)

Here, the police deceived the defendant concerning the reason for going to the Public Safety Building. Mr. Haynes consented to go in order to clear up the matter of the outstanding bench warrant. However, immediately upon entering the Public Safety Building, he was placed in an interrogation room, read his rights, and interrogated on the homicide. It appears that this deception was practiced on Appellant because, as the police admit, they did not have probable cause to arrest Appellant at his girlfriend’s home, and they could not arrest him on the outstanding bench warrant in Wilkinsburg, because they would be acting in a location outside their jurisdiction. They therefore deceived him by stating that the purpose of their trip was other than it was. We hold that such deception was impermissible and the consent was invalid because it pertains to the content of the consent itself. Therefore, Appellant was taken into custody illegally.

Next, we must decide whether the statements made during the interrogation at the police station must be suppressed. It does not necessarily follow that because the custodial detention was illegal, the statements made were the fruit of that initial illegality. As the Supreme Court said in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), that “granting establishment of the primary illegality, [it must be determined whether] the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

In Brown v. United States, 422 U.S. 590, 95 S.Ct. 2254, 2261-2262, 45 L.Ed.2d 416 (1975), the Supreme Court articulated several factors to be considered in scrutinizing an individual case: (1) whether Miranda warnings were given; (2) the temporal proximity of arrest and confession; (3) the presence of intervening circumstances, and, (4) the purpose and flagrancy of the official misconduct. See, Commonwealth v. Bogan, 482 Pa. 151, 393 A.2d 424 (1978).

In the instant case, Miranda warnings were given prior to any interrogation. However, the inculpatory statement was made after about one hour and 15 minutes of interrogation. The short amount of time between the primary illegality and the statement is not in itself sufficient to dissipate the taint. Cf, Commonwealth v. Farley, 468 Pa. 487, 364 A.2d 299 (1976).

The first inculpatory statement, admitting the break-in at Ms. Sims house, was made after Appellant was confronted with the evidence that his fingerprints and palm print were found on pieces of the door which showed signs of forced entry. Up until that time, Mr. Haynes had denied being at the apartment at the time of the break-in and murder, and it was the fingerprint evidence which prompted his statement. This development, rather than any exploitation of an illegal arrest, prompted Mr. Haynes’ incriminating admission.

We have held that when a suspect makes a damaging admission when confronted with evidence such as, that the suspect matched the description of the assailant, Commonwealth v. Bogan, 482 Pa. 151, 158, 393 A.2d 424 (1978), or that a co-conspirator named the suspect as the individual who shot an individual during a gang war, Commonwealth v. Fogan, 449 Pa. 552, 557, 296 A.2d 755 (1972), “intervening circumstances” are present such that it may not be said that the acquired evidence has been directly derived from, and thereby tainted by the illegal arrest. Commonwealth v. Farley, 468 Pa. 487, 364 A.2d 299 (1976).

Finally, we must look at the purpose and flagrancy of the official misconduct. Although, we may suppose that the deception was purposeful, in that Appellant was persuaded to undergo custodial interrogation when otherwise the police would have had no legal basis to arrest him at his house and transport him to police headquarters, we do not find that the act was flagrant. Flagrant illegality would include actions such as a dragnet arrest specifically condemned by the courts of this Commonwealth, see, Id,., 468 Pa. at 496, 364 A.2d 299; Fogan, supra., 449 Pa. at 556, 296 A.2d 755, or police misrepresentation that they possessed a warrant in order to gain consent.

The misconduct here, though serious, does not rise to the level of flagrant illegality. Therefore, because we find that Miranda warnings were given following the illegal arrest, and there were intervening circumstances between the arrest and statement, although the time period was short, and because there was no flagrant misconduct by the police, the inculpatory statements were not the result of the exploitation of the initial illegality. Consequently) we affirm that the statements should not have been suppressed because they had been purged of their initial taint.

Although inartfully stated, Appellant next claims that the exclusion of one of his voir dire questions, which asked whether the juror would be reluctant to impose a life sentence knowing that the crime of first degree murder carries this penalty, was error. Appellant relies on Commonwealth v. White, 366 Pa.Super. 538, 531 A.2d 806 (1987), for the principle that a life qualifying, as well as a death qualifying, question is permissible.

We disagree. White stands for the principle that it is “permissible” for the Commonwealth to ask such questions during voir dire if they were asked in furtherance of the proper purpose of determining whether prospective jurors can eliminate the influence of any scruples and render a verdict according to the evidence. Therefore, White held it was not improper to ask such a question which informed the jury of the penalty for first-degree murder.

We note at the outset that the scope of voir dire rests in the sound discretion of the trial judge, and this decision will not be reversed unless palpable error is established. Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977). We do not think it an abuse of discretion to exclude a voir dire question which is merely permissible and not required. Moreover, a proposed question of this sort from the defense, rather than the Commonwealth, suggests that the question is animated by an improper purpose, because it is in the defense’ interest to secure jurors who find the penalty so distasteful as to find the accused not guilty regardless of the evidence. In contrast, when the Commonwealth asks such a question, it is in its interest to determine whether a venireperson can overlook a settled prejudice against imposing a life sentence, in order to decide the case on the evidence. This interest coincides with the purpose of voir dire, to provide the accused with a competent, impartial and unprejudiced jury. Commonwealth v. Hathaway, 347 Pa.Super. 134, 500 A.2d 443 (1985). Thus, we find that the court did not abuse its discretion in excluding Appellant’s “life qualifying” question.

Next, Appellant claims that he was entitled to an instruction on the elements of voluntary and involuntary manslaughter. He argues that the evidence in this case did not indicate why this homicide occurred and, therefore, did not rule out or eliminate the possibility that the charges of voluntary or involuntary manslaughter could be returned by the jury. We disagree.

The law in this area has evolved slowly, but it is now clear that Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), and Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977), upon which Appellant relies for the proposition that the court must instruct a jury in the offenses of voluntary and involuntary manslaughter as lesser included offenses of homicide despite there being no evidence to support such a verdict, are no longer valid.

Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980), and Commonwealth v. Williams, 490 Pa. 187, 415 A.2d 403 (1980), held that an instruction on involuntary manslaughter may be given only where the evidence would support such a verdict. Later, Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983) held that a trial court may charge on the “unreasonable belief” subclass of voluntary manslaughter only where evidence exists that would support such a verdict. The majority in Carter did not decide the propriety of the practice of charging the jury on “heat of passion” voluntary manslaughter in the absence of evidence of such passion. Subsequently, however, this court has stated in Commonwealth v. Toledo, 365 Pa.Super. 224, 231, 529 A.2d 480, appeal denied 517 Pa. 622, 538 A.2d 876 (1987):

The fact that Jones has not been overruled expressly by the Supreme Court does not mean that inferior courts can blithely ignore the subsequent history of its holding. In view thereof, we wil] not hold, as appellant would have us do, that the trial court committed error by refusing a defense request to charge on “heat of passion” voluntary manslaughter where such a defense was not made an issue at trial where the evidence would not reasonably have supported such a finding. We are unable to conclude rationally that a different rule should obtain where voluntary manslaughter is based on “heat of passion” than where it is based on unreasonable belief.

In the instant case, neither “heat of passion,” nor “unreasonable belief,” voluntary manslaughter, nor involuntary manslaughter was made an issue at trial. There was no evidence presented concerning the death of Eddilee Sims which would support such a finding. Appellant claimed in his defense that he did not kill the victim, and the supreme court has held that when such a defense is proffered, it is proper to omit an instruction on involuntary manslaughter. Commonwealth v. Yarris, 519 Pa. 571, 549 A.2d 513 (1988). We hold, that by the same logic, it is proper to omit a charge of voluntary manslaughter.

Moreover, the absence of such an instruction in this case was harmless. In the present case, the trial court instructed on first, second, and third-degree murder. The jury could have exercised its mercy dispensing power and brought in a verdict of third or second degree murder. Instead they found Appellant guilty of first degree murder. We conclude, as did this court in Commonwealth v. Mays, 361 Pa.Super. 554, 563, 523 A.2d 357 (1987), that Appellant suffered no prejudice from the denial of the charge of voluntary or involuntary manslaughter.

Next, Appellant claims that the trial court erred in refusing to instruct the jury on the defense of voluntary intoxication. While it is indeed true that voluntary intoxication can negate the specific intent to kill which is otherwise required for conviction of first degree murder, Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986), we find no merit in the contention that failure to instruct the jury in the instant case was error.

This matter is controlled by Commonwealth v. Reiff, 489 Pa. 12, 413 A.2d 672 (1980). In Reiff, the Appellant introduced evidence at trial that he had consumed two and one-half quarts of beer in a bar prior to the fatal shooting, however, the trial court refused to instruct on voluntary intoxication and the defendant was convicted of murder of the first-degree. The supreme court held there was no error in this refusal because:

Drinking and intoxication are not synonymous terms; therefore a jury instruction on intoxication is not warranted because evidence of drinking is introduced at trial. It is the intention of the legislature that a defendant be overwhelmed or overpowered by alcoholic liquor to the point of losing his or her faculties or sensibilities before an intoxication instruction be given. Rieff supra., 489 Pa. at 15, 413 A.2d 672.

In the instant case there was no evidence of intoxication introduced, nor was there even any attempt to calculate the amount of alcohol consumed. The only evidence was that Appellant had frequented several bars on the evening of the homicide. Therefore, it was not error for the court to refuse to instruct the jury on intoxication as a defense to the charge of murder.

Next, Appellant argues that the court erred in stating in its charge that the malice requirement for first, second, and third degree murder could be presumed from the underlying felony of burglary. This is simply a misstatement of the charge. The court charged only that the malice required for second-degree murder could be presumed or inferred from the underlying felony of burglary. As this is a correct statement of the law; a jury may infer malice from the underlying felony of second-degree murder, we find no error in the charge. Commonwealth v. Legg, 491 Pa. 78, 417 A.2d 1152 (1980).

Next, Appellant claims that his motion for a directed verdict should have been granted because there was insufficient evidence to prove beyond a reasonable doubt that the accused was guilty of the crimes charged. We disagree.

In reviewing a claim challenging the sufficiency of the evidence the following standard applies:

Whether accepting as true all the evidence viewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by the evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Gamber, 352 Pa.Super. 36, 506 A.2d 1324 (1986), citing Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1952).

We believe that a review of the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences from that evidence, clearly supports the view that the evidence was sufficient in law to prove every element of the crimes of burglary and first degree murder. The circumstantial evidence of the finger and palm prints of Appellant, as well as the blood stain evidence, coupled with his admission, which was equivalent to a confession of burglary, was more than enough for the jury to find Appellant guilty beyond a reasonable doubt. We therefore find no merit to this claim.

Finally, Appellant claims that the verdict was against the weight of the evidence. The decision whether to grant a new trial on the ground that verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and that decision will not be reversed on appeal unless the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail. Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984); Commonwealth v. Hamilton, 376 Pa.Super. 404, 546 A.2d 90 (1980).

The trial judge was able to observe the demeanor of the witnesses as they offered their evidence and was satisfied that the jury’s verdict was justified. This resolution will not be disturbed unless this is tantamount to a miscarriage of justice. Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987). In the case sub judice, the verdict is clearly supported by the evidence, and thus can not be equivalent to a miscarriage of justice. The trial court did not abuse its discretion in denying Appellant’s motion to reverse on the ground that the verdict was against the weight of the evidence.

Judgment of sentence is affirmed.

HUDOCK, J., concurs in the result.

      . Contrary to the Commonwealth’s contention that Appellant agreed to go with the police officers to clear up the matter of the bench warrant and to be interviewed in regard to the murder, the Officer’s testimony clearly reveals that the only purpose that Appellant was aware of was to check on the bench warrant matter. (N.T. April 11, 1988, at 31).

      . Appellant claims that at the time the first inculpatory statement was made, no evidence in the possession of the police department indicated that the palm print on the exterior of the door belonged to Appellant, and this trickery coerced this statement from him. Although this is literally true, the detective in charge of the interrogation testified that prior to the interrogation he had had a conversation with the fingerprint expert in which both agreed to almost a hundred per cent certainty that whoever’s finger prints were on one side of the door panel which had been removed, the palm prints matched because they were in perfect configuration. Therefore, because the detective knew that the fingerprints matched Appellant’s, he assumed that the palm print was Appellant’s. Thus, the statement that Appellant’s palm prints matched those found on the door does not rise to the level of trickery or implied coercion.


author: POPOVICH, Judge:

text:
    577 A.2d 576
    Susan POWELL, Appellee, v. William Theo POWELL, Appellant. Susan POWELL, Appellant, v. William Theo POWELL, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1989.
    Filed June 20, 1990.

      Albert Momjian, Philadelphia, for appellant (at 537) and appellee (at 538).
    Albert C. Oehrle, Norristown, for appellant (at 538) and appellee (at 537).
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

These are cross-appeals from an equitable distribution order entered in the Court of Common Pleas of Chester County. We affirm in part, reverse in part and remand this case for new disposition.

William and Susan Powell were married on April 20,1974. They separated on September 23,1983 and were divorced on January 18, 1989. No children were born of the marriage. Both parties are well educated and in good health.

The Powells each appeal from the following order: AND NOW, this 18th day of January, 1989, it is hereby ORDERED AND DECREED that:
1. Susan Powell, Plaintiff, and William Theo Powell, Defendant, are divorced from the bonds of matrimony.
2. The marital residence of 2520 White Horse Road, Easttown Township, Chester County is awarded to Plaintiff.
3. All household furniture and contents remaining in the marital home are awarded to Plaintiff.
4. Defendant shall pay Plaintiff the sum of $3,357.00 in cash or, at Defendant’s option, by transfer to Plaintiff or retention by her, of an equivalent number of shares of Westinghouse stock at the market price on the date of settlement.
5. All Westinghouse stock is awarded to Defendant, except as otherwise provided in Item 4.
6. Defendant’s pension is awarded to him.
7. 1979 Datsun is awarded to Defendant.
8. Defendant’s interest in the E.E.O.C. class action suit is not marital property.
9. All other miscellaneous accounts are awarded to the title owner, joint accounts shall be divided equally as of September 29, 1983 balances and may be applied to effect the provisions of Item 4.
10. The parties are directed to execute all deeds, stock transfers or other documents necessary to effectuate this order.
11. The fee of the Special Master shall be divided equally by the parties.
12. No alimony, counsel fees or costs are awarded.

It is within the discretionary authority of a lower court to equitably distribute the marital property. Williams v. Williams, 373 Pa.Super. 143, 540 A.2d 563 (1988); Kleinfelter v. Kleinfelter, 317 Pa.Super. 282, 463 A.2d 1196 (1983). Absent an abuse of discretion, the trial court’s findings will not be disturbed on appeal. Id.; see also Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987); Commonwealth ex. rel. Levy v. Levy, 240 Pa.Super. 168, 361 A.2d 781 (1976) (defines “abuse of discretion”). After reviewing the record and the parties’ briefs, as well as the applicable law, we hold that the trial court erred in its method of dividing the marital property in the instant case.

On appeal, the parties raise several issues. William Powell argues that the trial court abused its discretion by:

(1) adopting an income equalizing approach in distributing the marital property;
(2) including non-marital property in the equitable distribution award;
(3) excluding marital property from the equitable distribution award;
(4) underestimating Mrs. Powell’s earning capacity;
(5) failing to consider his contribution to and Mrs. Powell’s dissipation of the marital estate; [and]
(6) awarding alimony to Mrs. Powell.

Further, he asserts that the trial court abused its discretion in distributing the marital property by:

(1) adopting a stale and arbitrary value for the marital home and the fair market rental value of the marital home;
(2) awarding the marital home to Mrs. Powell instead of ordering the sale of the house; and
(3) awarding the Westinghouse stock to him without considering the volatile value of the stock or the tax consequences of the award.

Susan Powell counters these arguments. Additionally, she contends that the trial court abused its discretion by:

(1) improperly failing to consider a portion of the EEOC award as marital property;
(2) improperly omitting to direct her continuation as a non-employee beneficiary of Mr. Powell’s health insurance at Westinghouse; [and]
(3) improperly failing to award legal fees in Mrs. Powell’s favor.

Further, she states that in valuing and distributing the marital property, the trial court properly

(1) [undertook] a full analysis of all eleven factors of § 401(c) including an analysis of the income available to the parties once division of the property became effective;
(2) [identified] all non-marital and marital property with the exception of a portion of the EEOC award;
(3) [evaluated] the marital home; and
(4) [divided] and [awarded] the marital property.

Due to the complexity of this case, we will address each issue seriatim.

Mr. Powell first asserts that the trial court neglected to follow the statutory mandates of 23 P.S. § 401(d); this section provides the court with a list of factors to be considered in a case requiring equitable distribution. Instead, he alleges that the trial court improperly adopted “an income equalizing approach” in dividing the marital property.

In the instant case, the property awards weighed in favor of Mrs. Powell. Mr. Powell contests this distribution. In support of his position, Mr. Powell notes that Mrs. Powell is twenty years his junior, well-educated and fluent in three languages. She has teaching and research experience and the capacity for future earnings. She is the named beneficiary with a remainderman interest in a trust fund that generates a large income. Additionally, the Powells’ marriage lasted only ten years.

Conversely, Mr. Powell is retired and living on a fixed budget. He claims that the trial court erred in not considering these factors in dividing the marital assets.

We have held that when the trial court distributes marital property, it must not presume a fifty/fifty division. Fratangelo v. Fratangelo, 360 Pa.Super. 487, 493-94, 520 A.2d 1195, 1200-01 (1987). The court must first analyze the factors set forth in 23 P.S. § 401(d). Id. In the instant case, the trial court purported to review “the eleven factors provided in Section 401(d) of the Divorce Code” (Trial Court opinion, at 3), yet the trial court explicitly stated that

[defendant's social security and pension accounts for 42% of the combined income; [pjlaintiff’s earning capacity accounts for 20%. If [pjlaintiff receives 22% additional, the parties would be on equal footing. The remaining 16% will be allocated 11% to [pjlaintiff and 5% to [djefendant. This distribution can be accomplished by awarding the marital home to [pjlaintiff and Westinghouse shares to [djefendant.

(Trial Court opinion, at 7). In light of this statement, and without the benefit of more detailed reasoning by the trial court as to how it arrived at its conclusions, we are constrained to agree with Mr. Powell that the trial court placed undue emphasis on equalizing the parties’ economic situations and did not adequately consider the elements of § 401(d) before distributing the property. See also Trial Court opinion, at 8.

Mr. Powell also asserts that the trial court inaccurately calculated the percentage of his pension benefits that properly could be considered a marital asset. He argues that the trial court failed to distinguish Mr. Powell’s total income from that portion which is subject to the provisions of 23 P.S. § 401(e). As such, Mrs. Powell’s award was deduced from the total value of Mr. Powell’s benefits rather than the marital property portion.

The estimated coverture fraction in this case was between $41,000.00 and $51,000.00. See Reproduced Record (R.R.) at 320a, 335a-336a. Rather than distributing the property based upon the coverture fraction, the trial court considered Mr. Powell’s total income, including the balance of his (personal) pension plan funds and his social security income which he was not yet entitled to receive at the time the parties separated. See 23 P.S. § 401(e); Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985) (discussing pensions). See also King v. King, 332 Pa.Super. 526, 530, 481 A.2d 913, 915 (1984), wherein we held that “only that portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property within the meaning of the Divorce Code.”

Importantly, Social Security benefits are not subject to equitable distribution. See Flemming v. Nestor, 363 U.S. 603, 609-10, 80 S.Ct. 1367, 1371-72, 4 L.Ed.2d 1435 (1960) (“[t]o engraft upon the Social Security system a concept of ‘accrued property rights’ would deprive it of the flexibility and boldness in adjustment to ever-changing conditions which it demands.”); Sorbello v. Sorbello, 21 D & C 3d 187, 196 (1981) (social security benefits are not marital property; “[wjhereas, in general, individuals accrue property rights to pensions, a form of deferred compensation, they accrue no property rights to Social Security benefits.”). A trial court may only distribute money and property that is part of the marital estate. In the instant case, the trial court divided monies that were not assets of the marriage.

Mr. Powell also argues that the increase in value of Mrs. Powell’s interest in her trust fund should not have been excluded from the marital property. Complimenting this argument, he contends that not only is she independently wealthy, but she has great potential to earn a salary in the future.

Mrs. Powell acquired an interest in the trust fund before she married Mr. Powell. Therefore, the fund is non-marital property. See Diamond v. Diamond, 360 Pa.Super. 101, 519 A.2d 1012, 1016 (1987) (in determining whether an asset constitutes marital property, the test is when the right to the asset accrued, not when the asset was received); 23 P.S. § 401(e). The issue becomes whether the increase in the fund’s value during the Powells’ marriage constitutes marital property. If so, then it is subject to distribution.

We conclude that the recent case, McGinley v. McGinley, 388 Pa.Super. 500, 565 A.2d 1220 (1989) is dispositive of this issue. Cf. Aletto v. Aletto, 371 Pa.Super. 230, 237, 537 A.2d 1383, 1386 (1988) (the increase in value during marriage of wife’s stock, which was actually acquired pre-marriage, was considered marital property for equitable distribution purposes). Cf. Anthony v. Anthony, 355 Pa.Super. 589, 591, 514 A.2d 91, 92 (1986) (accord, pursuant to 23 P.S. § 401(e)-(f); the time of property acquisition rather than the method determines whether the property is marital under the Divorce Code).

In McGinley v. McGinley, 388 Pa.Super. 500, 565 A.2d 1220 (1989), this court held that the appellant’s future interest in a testamentary trust vested upon his birth, even though his receipt of the trust funds was contingent upon his surviving his father. This court further concluded that the increase in value of the appellant’s interest in the trust was not marital property because the appellant did not possess his interest in the trust at the date of the parties’ separation. We stated:

It is undisputed that, under 23 P.S. § 401(e)(3), the corpus of the trust is excluded from marital property. The question is whether the legislature intended the trust’s increase in value to be included as marital property, as the legislature expressly included the increase in value of property acquired by gift, bequest, devise or descent § 401(e)(3), supra____ It is also undisputed that, if an interest is so contingent that it is a mere expectancy, then no aspect of it can be included as marital property. (Citing Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987)).
It has been the common law for centuries, and it has always been the law of this Commonwealth, that a future interest may be vested, even if a condition precedent must occur before the actual passing of the property. (Citing Overbrook Heights Building & Loan Association v. Wilson, 333 Pa. 449, 458, 5 A.2d 529, 532 (1939)). This is true even if the future event is the remainderman’s own death. (Citation omitted)____ [B]ecause [appellant’s] father must die before [appellant] comes into possession, and because [appellant] could predecease his father, [appellant’s] interest is said to be vested subject to divestment. (Citation omitted)____ Accordingly, his interest in this property vested before [his] separation from [his wife]. Our inquiry does not end here, however. We must proceed to the question of whether the legislature intended to include in its definition of marital property the increase in the value of a vested future interest such as [appellant’s] ____ [W]e appreciate that this is primarily an issue of statutory interpretation. Against a background of the mandate to “[e]ffectuate economic justice between parties,” 23 P.S. § 102(a)(6), the legislature enumerated types of property that could fairly be construed as having been accumulated during the marriage in 23 P.S. § 401(e)(3), quoted above.
When interpreting a statute “[w]ords must be given their plain meaning, unless doing so would create an ambiguity, and we must interpret statutes in accordance with the legislative intent.” (Citations omitted). The plain meaning of the phrase “property acquired” is property that has actually come into possession. One could argue that a vested future interest is an interest that has come into possession. However, with no Pennsylvania precedent to guide us at this point, we decline to impose this possibly strained interpretation upon the statute; we decline to enlarge its purview to include .present “possession” of future interests. Hence, we conclude that the increase in value of [appellant’s] vested future interest in the trust does not come under the legislative definition of marital property. We hold this with full awareness that we have also held, where the legislature has not expressly included pensions, that they are, nevertheless, whether vested or non-vested, marital property. (Citation omitted).
[...] We reiterate that, given the plain language of our Divorce Code, we decline to speculate upon legislative intent and so we hold that the increase in value of [appellant’s] vested future interest is not marital property. We do this recognizing that the legislature may at any time clarify or modify the statute.

Id., 388 Pa.Superior Ct. at 506-513, 565 A.2d at 1223-1226. In light of the McGinley decision, we hold that the increase in value to Mrs. Powell’s trust fund is not marital property and therefore is not subject to equitable distribution. We find no error in the trial court’s exclusion of the increased value in its equitable distribution order.

Mr. Powell asserts that the trial court erred in its finding that Mrs. Powell’s earning capacity is merely $13,-000.00 per year. We agree with Mr. Powell that the trial court assigned an unreasonably low earning capacity to Mrs. Powell. Given Mrs. Powell’s background, education, experience, age, health and freedom to pursue a career, we find that the trial court abused its discretion in assessing her earning capacity at $13,000.00 per year—especially in light of the fact that that was Mrs. Powell’s approximate salary when she was a research assistant at Penn in 1980. See Commonwealth ex. rel. Simpson v. Simpson, 287 Pa.Super. 356, 361, 430 A.2d 323, 326 (1981) (lists factors to be considered when determining earning capacity). See also Letter by Bernard W. Albert, R.R. 361a (vocational expert assessed that Mrs. Powell’s earning capacity was at least $16,600.00—$20,800.00 per year in 1987).

Mr. Powell next alleges that the trial court erred by failing to consider the parties’ contributions as well as dissipations to the marital estate. After a review of the record, we find no merit to this contention. We echo the language used by the trial court in evaluating this claim:

Neither party has made a contribution to the other for education, training or increased earning power of the other party. Plaintiff contributed $13,000.00 to Defendant to settle with his former wife which resulted in the acquisition by Defendant of his former marital residence. The property was subsequently placed in joint ownership with Plaintiff and later sold and the proceeds used to purchase the present marital residence. Defendant made all mortgage payments until his exclusion from the marital residence and thereafter Plaintiff was responsible for such payments during her period of exclusive possession. I find no cogent reason to find a cognizable contribution by either party to the marital estate or to charge either party with dissipation of it.

Trial Court opinion, at 5-6.

Mr. Powell also argues that the trial court erred in awarding alimony to Mrs. Powell because Mrs. Powell does not meet the threshold requisites of 23 P.S. § 501(b). Again, we find that Mr. Powell’s position is without basis. The trial court’s order clearly states that “[n]o alimony, counsel fees or costs are awarded.”

Mr. Powell next alleges that the trial court erred in adopting an inaccurate valuation of the marital residence and its fair market rental value, and in failing to consider the tax consequences of the property award. The marital home was valued at $370,000.00 in 1987 and is presently worth approximately $447,000.00. See R.R. at 269a-275a. He contests the trial court’s finding that there is only $260,000.00 of equity in the house. Conversely, Mrs. Powell argues that the house was appraised in 1983 and valued at $265,000.00. (R.R. at 309a).

In 1986, Mr. Powell’s appraiser estimated that the market value of the property was $335,000.00. (R.R. at 348a-349a). The following year, the appraiser testified that the property had increased in value to $370,000.00. (R.R. at 269a-275a).

In Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986), we stated:

[s]ince equitable results will most likely flow from providing the court with the most recent information available, it is persuasively argued that this would occur by valuing marital property as of the date of the equitable distribution hearing. However, as the above discussion indicates, such is not always the case. Therefore, we do not attempt at this time to establish a valuation to be used in every situation. To recognize a specific valuation date as a matter of law would deprive the trial court of the necessary discretion required to effectuate economic justice.

Id., 351 Pa.Superior Ct. at 594, 506 A.2d at 932. Clearly, it is within the trial court’s powers to assign a value to the marital home or to equitably divide the value of the marital residence between the parties. However, the valuations should be made as close as possible to the property distribution date. Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988); Aletto v. Aletto, 371 Pa.Super. 230, 537 A.2d 1383 (1988).

Both Mr. and Mrs. Powell cite Zeigler v. Zeigler, 365 Pa.Super. 545, 530 A.2d 445 (1987) for the proposition that “adjustment in the value of a residence for expenses associated with a contemplated sale may be an appropriate consideration in some equitable distribution cases.” Id., 365 Pa.Superior Ct. at 550, 530 A.2d at 447. This rule is effective even if the parties did not contemplate selling the home. Id. However, the Zeigler court went on to state:

[w]e neither forbid nor require the practice. In this case, however, we hold that the trial court’s refusal to deduct the costs of sale was a proper exercise of its discretion. The record does not establish the expenses incident to the contemplated sale with sufficient specificity to require that such expenses be deducted.

Id. Here, we conclude that although the trial court had the authority to estimate the equity in the house, no reasoning or mathematical computations were supplied to support the $100,000.00 downward adjustment. See Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985) (trial court should show support for its conclusions). On remand, the trial court should specify how it arrived at the figure of $260,-000.00, representing the equity in the marital home. If a new valuation is ordered, we direct that the trial court exercise its discretion and make the appropriate adjustments to the instant equitable distribution scheme. See Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988); Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986); Winters v. Winters, 355 Pa.Super. 64, 512 A.2d 1211 (1986); Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986) (all explaining valuation of marital property).

The trial court found that Mr. Powell is entitled to his portion of the fair market rental value of the marital residence since July, 1985, which amounted to $6,468.00. The trial court did not clarify how it arrived at this figure in its opinion.

Mr. Powell contends that

[i]n light of the numerous infirmities in the reasoning and valuations relied on by the court to distribute the marital home to Wife, the lower court’s Order should be vacated and sale of the marital property should be expressly ordered since the home is the major marital asset. In the alternative, if it is determined that Wife should retain the marital home, a buy-out remedy should be recalculated based upon the actual fair market value of the home less the actual equity in the home without reference to sales costs which Wife will not incur. Husband is entitled to his equitable distribution share in the marital home based on accurate calculations.

(Appellant’s brief, at 40). While we decline to order that the marital home be sold, we agree with Mr. Powell that he is entitled to his equitable share of the marital property as a whole. In the trial court’s discretion, he may be entitled to a portion of the fair market rental value of the marital home. Mr. Powell’s award should be based on proper estimations, and we remand this case for such clarifications. See Bold v. Bold, 358 Pa.Super. 7, 516 A.2d 741 (1986) (a trial court granting a divorce may not resort to a buy-out remedy absent specific findings, on record, as to why the marital property could not be divided); see also Barletta v. Barletta, 506 Pa. 404, 485 A.2d 752 (1984); Brojack v. Brojack, 385 Pa.Super. 502, 561 A.2d 788 (1989) (accord); 23 P.S. § 401(c, d).

Finally, Mr. Powell contends that the trial court erred by awarding him stock without considering the stock’s volatile worth or the tax ramifications of selling it. There is no indication that the trial court did not recognize the volatile value of stock. However, it is unclear whether the trial court considered the tax consequences of the stock award pursuant to 23 P.S. § 401(d)(10). See Hovis v. Hovis, 518 Pa. 137, 541 A.2d 1378 (1988) (discusses tax liabilities); see also White v. White, 382 Pa.Super. 478, 555 A.2d 1299 (1989). On remand, and in keeping with the spirit of the original equitable distribution order, the trial court may consider dividing some or all of the stock between the parties and assigning Mr. Powell’s basis in the transferred stock to Mrs. Powell. The effect of this arrangement would be to remove the tax liability from one party and allow both parties the freedom to sell their stock when they choose.

Mrs. Powell’s cross-appeal raises three issues for our consideration: (1) whether the trial court should have considered a portion of Mr. Powell’s EEOC award as marital property; (2) whether the trial court should have ordered that Mrs. Powell be continued as a non-employee beneficiary of Mr. Powell’s Westinghouse health insurance plan; and (3) whether the trial court should have awarded reasonable legal fees in her favor. We find each claim to be meritless.

Mr. Powell has a pending discrimination claim against Westinghouse. If, in the future, there is a determination in Mr. Powell’s favor, then he could possibly receive compensation as a result of the lawsuit. See R.R. at 468a. However, Mr. Powell’s cause of action accrued in 1985: post-separation. See 23 P.S. § 401(e)(4), (e)(8); Hurley v. Hurley, 342 Pa.Super. 156, 492 A.2d 439 (1985). As such, any recovery to which he may be entitled is not marital property-

Mrs. Powell also asserts that Mr. Powell has a continuing duty to provide her with health coverage under his company’s health plan. We find this claim to be without merit. Mr. Powell notes that pursuant to his company’s policy, the entry of a final divorce decree terminates Mrs. Powell’s right to be a named beneficiary under the policy. Therefore, Mrs. Powell’s coverage lapses under the terms of Westinghouse’s policy, not due to any willfully unfulfilled obligation by Mr. Powell. Additionally, Mrs. Powell has the means to maintain her own health plan. We find no abuse of discretion in the trial court’s directive regarding this issue.

Finally, Mrs. Powell claims that the trial court erred in failing to award attorney’s fees to her pursuant to 23 P.S. § 502. While we realize that these proceedings have been extensive and complicated, we nevertheless find no basis upon which to justify Mrs. Powell’s request.

For all of the foregoing reasons, we affirm the trial court’s findings in part, reverse in part, and remand this case for further proceedings consistent with this opinion.

Jurisdiction relinquished.

CERCONE, J., concurs in the result.

      . Although the parties state that no final divorce decree has been entered in this case, we find that the trial court’s order that the parties be divorced from the bonds of matrimony represents a final order for appeal purposes.

      . 23 P.S. § 401(e) provides, in part:
      For purposes of this chapter only, "marital property" means all. property acquired by either party during the marriage, including the increase in value prior to the date of final separation of any nonmarital property acquired pursuant to paragraphs (1) and (3), except:
      (1) Property acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage.
      (2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.
      (3) Property acquired by gift, except between spouses; bequest; devise; or descent.
      (4) Property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets.
      (5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the date of final separation. [... ]
      (7) Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the date of final separation.
      (8) Any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.

      . The effect of this error was to divide the property founded upon the assumption that Mr. Powell’s retirement income composed 42% of the marital funds. (Trial Court opinion, at 7).
      We note that the trial court’s order awarded Mr. Powell’s pension to him. However, we construe Mr. Powell’s argument to be that the trial court’s improper calculation affected the equitable distribution scheme as a whole. We agree. See Lowry v. Lowry, 375 Pa.Super. 382, 544 A.2d 972 (1988) (in equitably distributing pension benefits, coverture fraction must be applied so that only the portion of the pension that was acquired during marriage is subject to distribution; explains how coverture fraction is determined).

      . Mrs. Powell is the 'beneficiary of the Edward A. Schmidt Trust. According to the terms of the Trust, Mrs. Powell will have access to the fund’s income upon her mother’s death and will be entitled to the principal twenty years thereafter.
      The record indicates that the Schmidt Trust is valued at approximately $2,000,000.00. (R.R. at 219a). In 1976, the trust was worth $400,000.00 (R.R. at 218a). The appreciated difference, therefore, amounts to approximately $1,600,000.00. Mr. Powell asserts that Mrs. Powell’s interest in the trust fund increased by $744,388.00 between the date of marriage and the date of separation. (R.R. at 219a). (Since Mrs. Powell shares a one-half interest in the trust’s principal with her brother, she likewise has a one-half interest in its increase.) See 23 P.S. § 401(d)(5).

      . Mr. Powell argues that pursuant to 23 P.S. § 401(d)(5), the court must consider "the opportunity of both parties for future acquisition of capital assets and income.” (Appellant’s brief, at 28). He argues that Mrs. Powell will inherit money upon her mother’s death, and that the court should have accounted for this wealth accretion in its § 401(d)(5) evaluation.
      Mrs. Powell’s inheritance is purely speculative. The general rule regarding expectancies is that a court may not consider the mere possibility of an inheritance by a spouse as a factor in equitable distribution. Gruver v. Gruver, 372 Pa.Super. 194, 539 A.2d 395 (1988). We have held that it constitutes an abuse of discretion to include the possibility of an inheritance in determining an equitable distribution. Id. Further, Mrs. Powell’s inheritance is necessarily contingent on her surviving her mother.
      There is evidence that during the Powells’ marriage, Mrs. Powell’s mother helped to supplement her daughter’s finances. (R.R. 103a-108a). This additional income constitutes marital property. 23 P.S. § 401(d).
      On remand, the trial court should reconsider the parties’ financial situations as a factor in dividing the marital assets.

      . We note that the McGinley case was not filed at the time the parties prepared their briefs. However, it is established that changes in the law generally apply to cases pending in this court. In Fairbanks v. Travelers Insurance Company, 337 Pa.Super. 39, 486 A.2d 469 (1984), we stated:
      In Pennsylvania, decisions changing the law are usually applied to cases pending on appeal. If such decisions rely upon statutory interpretations, they relate back to the date the particular statute became effective, because they merely interpret existing legislation.

        Id., 337 Pa.Superior Ct. at 42, 486 A.2d at 470-71. See also Aletto v. Aletto, 371 Pa.Super. 230, 235, 537 A.2d 1383, 1385 (1988).

      . It should be noted that Mrs. Powell operates the marital home as a boarding house. This venture has generated approximately $50,-000.00 in income to Mrs. Powell between 1981 and 1987. (R.R. 506a). See also R.R. at 175a-179a; 270a-276a. The trial court acknowledged that Mrs. Powell received rentals for others’ use of the marital premises, but it did not include this source of income in its evaluation of Mrs. Powell’s earning capacity. See Trial Court opinion, at 6, 7.

      . We note that Mrs. Powell was awarded alimony pendente lite. Her last award was in 1985. See Trial Court opinion, at 4. We do not find that the trial court abused its discretion in allowing Mrs. Powell alimony pendente lite.

      . The trial court reached this figure by assigning a fair market value of $360,000.00 to the home and then deducting mortgage, real estate sales commission and transfer tax in the amount of $100,000.00. (Trial Court opinion, at 6-7). The record does not reflect how the trial court arrived at the $100,000.00 breakdown.

      . We note that in assessing the value of the marital property, the trial court is free to believe all, part, or none of the testimony presented relative to the property values. Aletto v. Aletto, 371 Pa.Super. 230, 537 A.2d 1383 (1988).

      . The record indicates that the house has a fair market rental value of between $2,200.00 and $2,800.00 per month (R.R. at 275a) and that Mrs. Powell collected approximately $50,000.00 in rent between 1981 and 1987. (R.R. at 506a; see also R.R. at 174a-178a).

      . Mr. Powell argues that his share of the fair market rental value is $31,516.00 ($2,200.00 X 21 months = $46,200.00, less expenses ($699.28 mortgage X 21 months = $14,684.00) = $31,516.00). On remand, the trial court should make an independent calculation of the actual fair market rental value of the property, (less expenses, if applicable), and should make any adjustments to the valuation that it deems necessary to determine Mr. Powell’s share. See Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987); Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983).