author: WIEAND, Judge.

text:
    642 A.2d 490
    COMMONWEALTH of Pennsylvania v. Anong KHAMPHOUSEANE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 10, 1994.
    Filed March 21, 1994.
    Reargument Denied May 26, 1994.
    Petition for Allowance of Appeal Denied Sept. 15, 1994.

      Clifford B. Cohn, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge.

Anong Khamphouseane was tried by jury and was found guilty of rape, statutory rape and corruption of a minor. Post-trial motions were denied, and Khamphouseane was sentenced to serve concurrent terms of imprisonment for not less than five (5) years nor more than ten (10) years for rape and not less than two and one-half &k) years nor more than five (5) years for corruption of a minor. On direct appeal from the judgment of sentence, Khamphouseane asserts that the trial court erred by permitting the Commonwealth to introduce evidence of Human Leukocyte Antigen (HLA) blood tests without laying an adequate foundation therefor. Appellant also contends that his trial counsel was ineffective for failing to object to an erroneous jury charge regarding character evidence and for failing to object to the trial court’s inadequate attempt to give curative instructions relative to an improper comment by the prosecuting attorney which highlighted appellant’s failure to testify. We will consider these issues seriatim.

The factual scenario which led to appellant’s convictions was summarized in the opinion of the trial court as follows:

The Complainant, Phimpha Bandith, was born on June 10, 1977 in the country of Laos. She moved to Philadelphia with her mother, brother and two sisters at the age of nine. She and her family resided with the Defendant (her uncle) and his family on Ormes Street in Philadelphia. On several occasions in 1989 and in 1990 the Defendant sexually assaulted the Complainant, who was then under the age of fourteen.
The first incident occurred when the Complainant, while sleeping in her bedroom, was awakened by the Defendant who entered her room and jumped on top of her. He removed her shirt and began to kiss her chest and touch her stomach. She told him to: “Stop, it’s not the right thing to do”. The Defendant threatened her by stating: “If [you] tell anybody [I] will kill [your] whole family”.
On another occasion in 1989, which also occurred at the Ormes Street residence, the Defendant hit the Complainant and placed a 12 inch knife to her throat. He forced the Complainant upstairs, removed her clothes and forced her to have sexual intercourse with him. Again the Defendant threatened the Complainant stating: “If you tell anybody else, I will kill your whole family”. Similar sexual assaults continued at the Ormes Street residence and even later when the Complainant moved, with her family, from the Defendant’s house to Rosehill Street in 1990.
It was not until the Complainant became pregnant that she reported the incidents to the Police. No one other than the Defendant ever had sexual intercourse with the Complainant.

At trial, the Commonwealth called as an expert witness Dr. Berta Huggins, the director of the laboratory at Genetic Design Inc., a paternity testing laboratory located in Greensboro, North Carolina. Dr. Huggins testified regarding the results of HLA testing done on blood samples provided by appellant, the victim and the child who was born to the victim. The results of the testing disclosed that appellant could not be excluded as the father of the victim’s child and that he was 8,754 times more likely to be the child’s father than any other random Oriental man who was unrelated to appellant. Appellant contends, however, that the results of the HLA testing should have been excluded because the Commonwealth failed to lay a proper foundation to support their admission.

“In Pennsylvania, ‘[t]he admissibility of any experimental or scientific evidence depends upon presenting an adequate foundation.’ ” Commonwealth v. Miller, 367 Pa.Super. 359, 363, 532 A.2d 1186, 1188 (1987), quoting Commonwealth v. McGinnis, 511 Pa. 520, 524, 515 A.2d 847, 849 (1986). Thus, in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977), the Pennsylvania Supreme Court held that the admissibility of scientific evidence “depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs.” Id. at 231, 369 A.2d at 1281. See: Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923). See also: Commonwealth v. Zook, 532 Pa. 79, 98-99, 615 A.2d 1, 11 (1992), cert. denied, — U.S.-, 113 S.Ct. 1420, 122 L.Ed.2d 789 (1993).

HLA testing “involves tissue typing of white cell blood groups.” Turek v. Hardy, 312 Pa.Super. 158, 160, 458 A.2d 562, 563 (1983). The results of this testing can conclusively exclude one’s paternity of a child and may also “be used to calculate the probability that a putative father is the actual father.” Id. at 160-161, 458 A.2d at 563. The process has been more fully explained as follows:

‘. The exclusion procedure comprises the identification of certain genetic markers in the blood of the mother, child, and putative father; followed by the application of “Mendelian rules of inheritance” to determine whether it would be genetically impossible for the accused to be the biological father. An exclusion may occur in two ways. First, the child may possess a genetic characteristic which had to have come from someone other than the defendant. Second, the child may lack a genetic marker that he would have to possess if the accused were the father. In either of these situations, the defendant is conclusively proved innocent without any statistical estimations. In many cases, the possibility of exclusion may approach 99% when several genetic marker systems are used. The credibility of the exclusion method is beyond reproach in the scientific community, and most courts will accept results indicating non-paternity as conclusive proof.
.., Basically, the inclusion procedure commences where the exclusion procedure terminates. In other words, when ' the typing stage (the method described above as the “exclusion method”) fails to exclude the accused, a statistical estimation of his “likelihood of paternity” is calculated. This calculation entails the use of a probability formula known as the “Essen-Moller” version of the “Bayes’ Theorem.” A simplified version of this formula may be summarized as follows: The ratio of the likelihood that the accused contributed certain genetic characteristics identified in the child, to the likelihood that one other “random man” contributed them. The “random man” variable is derived from the estimated frequencies of the particular characteristics in the relevant population. The ratio yielded by the Bayes’ formula, called the “paternity index,” is converted into a percentage value, “the likelihood of paternity,” which is then presented to the trier of facts.’

Olson v. Dietz, 347 Pa.Super. 1, 4-5, 500 A.2d 125, 126-127 (1985), quoting Case Comment, Human Leukocyte Antigen Test Results Are Admissible in Paternity Cases to Show the Likelihood of Paternity, Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983), 88 Dick.L.Rev. 565, 567-569 (1984) (footnotes omitted).

In Turek v. Hardy, supra, the Superior Court, after concluding that HLA testing is generally accepted in the scientific community as reliable, held that the results of such testing are relevant and admissible as “some evidence of paternity.” Id. at 161-163, 458 A.2d at 564-565. However, “HLA blood tests are not conclusive evidence of paternity.” Smith v. Shaffer, 511 Pa. 421, 427, 515 A.2d 527, 529 (1986). See also: Stahli v. Wittman, 412 Pa.Super. 281, 287-288, 603 A.2d 583, 586 (1992); Connell v. Connell, 329 Pa.Super. 1, 7, 477 A.2d 872, 875 (1984). Moreover, before the results of HLA testing may be admitted into evidence, a proper foundation must be laid. See: Jones v. Trojak, 402 Pa.Super. 61, 70, 586 A.2d 397, 401 (1990), aff'd, 535 Pa. 96, 634 A.2d 201 (1993); Turek v. Hardy, supra at 164, 458 A.2d at 565. In this regard, the Superior Court has observed:

The party seeking to affirmatively use the HLA results should show:
1. the effect of racial and ethnic variables
2. any factors which might invalidate the test or affect its accuracy (for example, the AMA-ABA Guidelines indicate that HLA results are most reliable when the test is conducted in conjunction with other blood group tests.)
3. The procedures of the actual test.
4. The qualifications of witnesses.
Of course, the foundation laid must suit each case and we do not consider these guidelines exhaustive. Furthermore, our holding that these test results are admissible is without prejudice to a defendant’s right to challenge the reliability of the results and test methods in an individual case.

Turek v. Hardy, supra. See also: Jones v. Trojak, supra, 402 Pa.Super. at 70-71, 586 A.2d at 401.

Appellant contends that the Commonwealth failed to explain adequately the racial and ethnic variables as they related to his specific ethnic background. More specifically, appellant argues, the results of HLA testing in this case were of doubtful accuracy because the Gene Frequency Tables utilized by Dr. Huggins were based upon a population of Japanese and Chinese Americans and not upon a population of Laotians. Dr. Huggins’ conclusions regarding the likelihood of his paternity of the victim’s child, appellant contends, were based upon a comparison with the random Oriental man and not the random Laotian man.

After careful review, we are satisfied that an adequate foundation was laid regarding the effect of racial and ethnic variables upon the results of HLA blood testing. In this regard, Dr. Huggins testified as follows:

Q. Now, I notice that there is a paternity index figure next to each of the systems that were tested here. Would you explain for the jury what that is, please?
A. Yes. The paternity index is a term that indicates a genetic odds. It tells us how many times more likely this man, the alleged father, to be the true father of the child than would be another untested random man of the same ethnic background.
Based on each of those fourteen tests and the fact that he is not excluded by any of those tests, the paternity index for each is then multiplied together to give us a combined
paternity index telling us what all fourteen tests tell us how rare are these fourteen systems that they are sharing markers and found, in this particular case, an Oriental population.
Q. And would you explain the basis of your calculations? When you say in the Oriental population or the Asian population, tell us how you calculate these genetic markers? A. The paternity index is calculated with a simple equasion [sic] of X over Y, with X being the ability of the alleged father to give the necessary genetic marker to the child, divided by Y, the ability of the random man to give the genetic marker.
Now, in order to calculate these figures, we have to use something called gene frequency tables, and these are tables in which a large number of individuals’ blood has been analyzed, and each of these different markers have been identified in that population to allow us to be able to say how frequently do we find type b blood in the Caucasian population.
How frequently do we find a particular HLA marker in the black population. How frequently can we find an ACP marker in the Oriental population.
Those gene frequency tables are utilized for the calculation of paternity index.
Q. Now, you said that you used that for the Asian population. And how many people are sampled, and what is the basis of that?
A. For this particular test using the Oriental population as our base for the red blood cells surface markers and the internal red cell markers and serum protiens [sic], that number is greater than 1600 individuals.
For the HLA A and B marker, the number of individuals tested was 693, I believe.
Q. And this gene frequency tables, who puts those together?
A. The gene frequency tables are compiled by various laboratories across the country, and then submitted to the American Association of Blood Banks to provide to their accredited organizations.
Q. And these gene frequency tables, they’re accepted for use in what areas?
A. They’re accepted for use in bone marrow transplantation. They are accepted for use in paternity testing.

On cross-examination, appellant was permitted wide latitude in exploring the specific racial and ethnic variables relative to the HLA testing in the instant case. These factors were addressed by Dr. Huggins, on re-direct examination, in the following manner:

Q. Now, you were asked about testing from the Oriental group versus a Laotian group. Do you have any statistics from just the Laotian group?
A. No; I was only able to find gene frequencies for five of the systems for Laotians. I was also able to find frequencies for six of the systems for Cambodians and for Vietnamese. There were no known published frequencies for HLA systems or for any of the other — or any of the electric baretta systems.
These are all red blood cell systems that I was able to find a few frequencies based on a small sampling of individuals.
Q. Now, how much — how many tests does that cover of the tests that you did in this case?
A. For the Laotian frequency, again, there were five tests in which I was able to locate some gene frequencies. Those were the ABO, RH, MNSS, Kell, and Duffy systems.
Q. And how about for the other groups?
A. For the Cambodian and Vietnamese frequencies, it was those same five plus the Kidd system. It’s the red blood cell surface markers.
Q. And would you explain to us what the difference is between the Laotian group and the Asians group?
A. The Laotian calculation, based on utilizing results of the five tests, using Laotian gene frequencies and then utilizing the results from the rest of this test from the Oriental population yielded a paternity index of 8,608 to one.
Q.. And what was the one as to the Asian group that you calculated originally?
A. 8,754 to one.
Q. And the one that is less than 8,754, that is just the Laotian group?
A. Just for five of the systems. That’s the only frequencies that were available. The rest are the same systems, the same paternity index as is on the Asian report.
Q. Now, you said that it was highly unlikely, in answer to counsel’s question, that a boyfriend of the mother might be the father. Would you explain why?
A. Because of the fact that the genetic marker of the child and alleged father are sharing are rare and indicate a high combined paternity index of 8,754 to one, the likelihood of a unrelated individual of the alleged father being the biological father is very small.
If the alleged father, however, had a relative, if his first-degree relative had access to the mother during the conceptive period, that likelihood that he might be the father of the child would be more likely than a random man, though still improbable.
Q. You said a first-degree relative; what do you mean by that?
• A. A first-degree relatives are considered to be brothers, or fathers and sons.
Q. So, in other words, that would have to be someone who is a blood relative of Mr. Khamphouseane?
A. That’s correct.

Review of the record discloses that the jury was fully apprised of the effect of racial and ethnic variables upon HLA blood testing in general, and also of the specific racial and ethnic variables upon which the testing in the instant case was based. We hold, therefore, that a proper foundation for admission of the HLA test results was established. That the probability of appellant’s paternity of the victim’s child was calculated in relation to a population of random Oriental men, rather than a population of random Laotian men, may have been a factor affecting the weight to be placed by the jury upon the test results, but it did not destroy the admissibility of the test results. It did not destroy admissibility of the test results any more than in cases of white males, which, of necessity include English, Polish, German, French, Italian etc. males. The trial court did not err, therefore, when it permitted Dr. Huggins to testify concerning the probability that appellant was the father of the victim’s child.

“Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant.” Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). The standard used to evaluate claims of ineffective assistance of counsel has been stated by the Pennsylvania Supreme Court in the following manner:

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). “To establish prejudice under this standard ‘requires [a] showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ ” Commonwealth v. Carter, 409 Pa.Super. 184, 187-188, 597 A.2d 1156, 1157 (1991), quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Moreover,

“[b]efore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant’s interests. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Thus, counsel’s assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis designated to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349 (1967).

Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983).

At trial, appellant presented witnesses who testified that he enjoyed a good reputation for being a truthful, law abiding and peaceful person. With respect to this testimony, the trial court instructed the jury as follows:

Now, the defense offered evidence tending to prove that the defendant is a person of good character and reputation. I am speaking of the defense witnesses who testified about the defendant’s good reputation for honesty, truthfulness, being a law-abiding person.
The law recognizes that a person of good character is not likely to commit a crime which is contrary to his nature. Evidence of good character may by itself raise a reasonable doubt of guilt and justify a verdict of not guilty.
You must weigh and consider the evidence of good character along with the other evidence in the case. If on all the evidence, you have a reasonable doubt as to the defendant’s guilt, you must find him not guilty.
However, if on all the evidence, you are satisfied beyond a reasonable doubt that the defendant is guilty, you should find him guilty.

Appellant argues that this instruction was erroneous and that his trial counsel was ineffective for failing to object thereto.

In Commonwealth v. Neely, 522 Pa. 236, 561 A.2d 1 (1989), the Supreme Court held that a defendant is entitled to a jury charge that evidence of good character may, in and of itself, create a reasonable doubt. Appellant concedes that the language required by Neely was employed by the trial court in the instant case. However, he contends that by subsequently instructing the jury that character evidence is to be weighed along with the other evidence in the case, the trial court diluted the effect of the charge mandated by Neely. Appellant asserts that, pursuant to Neely, character evidence must by viewed apart from the other evidence and may not be weighed by the jury against such other evidence. We disagree.

The law in Pennsylvania with respect to evidence of a criminal defendant’s good character was announced by the Supreme Court in Commonwealth v. Cleary, 135 Pa. 64, 19 A. 1017 (1890), as follows:

Evidence of good character is always admissible for the defendant in a criminal case; it is to be weighed and considered in connection with all the other evidence in the cause, — it may of itself, in some instances, create the reasonable doubt which would entitle the accused to an acquittal. The rule itself is not merely merciful. It is both reasonable and just. There may be cases in which, owing to the peculiar circumstances in which a man is placed, evidence of good character may be all he can offer in answer to a charge of crime. Of what avail is a good character, which a man may have been a lifetime in acquiring, if it is to benefit him nothing in his hour of peril?

Id. at 84,19 A. at 1018 (emphasis added). With its decision in Commonwealth v. Neely, supra, nearly a century later, the Supreme Court did not undertake to change the substantive law regarding evidence of a defendant’s good character. Rather, the Court set out to ensure that the defendant received the benefit of a jury instruction consistent with the law announced in Cleary.

In the instant case, appellant had the benefit of a jury instruction which fully and correctly apprised the jury of the manner in which it could consider appellant’s evidence of good character. The trial court’s charge quoted almost verbatim from the Pennsylvania Suggested Standard Jury Instruction. The court’s charge was also consistent with the decisions of both the Supreme and Superior Courts which have examined jury instructions given with respect to evidence of good character. See: Commonwealth v. Holland, 480 Pa. 202, 219-220, 389 A.2d 1026, 1034 (1978); Commonwealth v. Stoner, 265 Pa. 139, 108 A. 624 (1919); Commonwealth v. Hernandez, 404 Pa.Super. 151, 163-165, 590 A.2d 325, 331 (1991). Because appellant received the benefit of a proper jury instruction with regard to his evidence of good character, his trial counsel will not be deemed ineffective for failing to make a meritless objection thereto.

During his opening statement to the jury, defense counsel said that appellant would testify at trial and that the jury would hear his side of the story. Appellant, however, did not testify at trial. In closing argument, the prosecuting attorney commented as follows:

And counsel in his opening tells you a lot of things about what this case is about. He also told you a lot of things in his opening about who was going to testify. And promises he made to you, and that you would hear his side of the story of what happened.
You heard the defendant’s wife yesterday, and after that, you heard no one else.

After a defense objection, it was agreed that a cautionary instruction would be given by the trial court in response to the prosecutor’s comment regarding appellant’s failure to testify on his own behalf. In this regard, the trial court instructed the jury as follows:

And lastly, you are instructed, also, that a defendant may plan to take the stand and testify initially, but may change his mind during the course of the trial, and that decision may be based on a variety of reasons. And I will instruct you further in that regard. All right?

Thereafter, in its general charge to the jury, the trial court gave additional instructions as follows:

Furthermore, a defendant is presumed to remain innocent from the time of arrest and throughout the trial unless and until you conclude, based upon careful and impartial consideration of the evidence, that the Commonwealth has proven the defendant guilty beyond a reasonable doubt.
It is not the defendant’s burden to prove that he is not guilty. Instead, it is the Commonwealth that always has the burden of proving each and every element of each of the crimes charged, and that the defendant is guilty of any of those crimes beyond a reasonable doubt.
A person accused of a crime is not required to present evidence, or to prove, or say anything whatsoever in their own defense. If the Commonwealth’s evidence fails to meet its burden, then the verdict must be not guilty.

When, at the conclusion of the jury charge, the trial court asked if counsel had anything further, appellant’s trial counsel replied that he had no objections to the court’s charge.

Appellant now argues that his trial counsel was ineffective for failing to object to the absence of an explicit instruction that no adverse inference could be drawn from his failure to testify at trial. The Commonwealth asserts that no such instruction was necessary because the prosecuting attorney’s reference to appellant’s failure to testify was a fair response to arguments which had been made by defense counsel. The Commonwealth further suggests that the cautionary instructions provided by the trial court, along with those contained in its general jury charge, were sufficient to cure any prejudice which may have resulted from the prosecutor’s reference to appellant’s not testifying at trial. Finally, the Commonwealth suggests that appellant’s counsel may, as a matter of strategy, have decided not to request a “no adverse inference” instruction in order to avoid calling any further attention to appellant’s failure to testify at trial.

Pursuant to both the Fifth Amendment to the United States Constitution and Article I, Section 9, of the Pennsylvania Constitution, a criminal defendant is entitled to receive, upon timely request, a specific instruction which informs the jury that it may draw no adverse inference from the fact that the defendant did not testify at trial. Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981); Commonwealth v. Lewis, 528 Pa. 440, 598 A.2d 975 (1991). See: Pennsylvania Suggested Standard Jury Instructions (Criminal) 3.10A. The availability of such an instruction does not depend upon whether or not the prosecution has made a reference to the accused’s failure to testify. In addition, the Pennsylvania Supreme Court has held that the explicit “no adverse inference” instruction may not be adequately replaced by general instructions which inform a jury that the defendant has no duty to testify on his own behalf. In this regard, the Court reasoned as follows:

The specific constitutionally mandated “no-adverse-inference” charge may not be replaced by a patchwork of less direct instructions. The entire premise ‘underlying our requirement of the “no-adverse-inference” charge to the jury, under Article I, Section 9, is that the trial judge is vested with an obligation to protect the defendant’s right to remain silent, free from the insidious danger of adverse inference presented by a jury left free to wander in speculation. Experience teaches us that the very exercise of an individual’s right not to testify, under Article I, Section 9, may endanger that right if the jury is left free to draw negative inferences from the defendant’s decision to exercise his or her constitutional privilege. The trial court, being in a unique position to protect a defendant’s constitutionally secured right through the jury charge, is the only bulwark to ensure that the exercise of a fundamental right does not turn into an act of constitutional suicide. Having determined in this Commonwealth that a “no-adverse-inference” charge is necessary to secure the guarantees of Article I, Section 9, the judge has either given the charge or he has not. Make-shift substitutes will not suffice. Juries must be told in no uncertain terms that no adverse inference may be drawn from a defendant’s failure to take the stand; otherwise, we are left to mere guesswork as to the meaning juries have ascribed to tangentially related words of the court.

Commonwealth v. Lewis, supra at 450, 598 A.2d at 980 (footnote omitted).

In the instant case, appellant would clearly have been entitled to a “no adverse inference” instruction. No such instruction, however, was requested by trial counsel, even after the prosecuting attorney, in his closing argument, called direct attention to the fact that appellant had not testified at trial. We are constrained to conclude, therefore, that there is arguable merit in appellant’s contention that his trial counsel was ineffective for failing to request, or to object to the absence of, a “no adverse inference” instruction in the trial court’s charge to the jury. Because no hearing has been held, however, we do not know the reason for counsel’s failure to request such an instruction. The Supreme Court has recognized “that, for strategical reasons, a defendant and his or her counsel may determine that defendant’s right to remain silent under Article I, Section 9, is best served by requesting that a ‘no-adverse-inference’ charge not be given to the jury, in order to avoid drawing attention to defendant’s failure to testify.” Commonwealth v. Lewis, supra at 455 n. 14, 598 A.2d at 983 n. 14.

“ ‘When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the [trial court] to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing.’ ” Commonwealth v. McBride, 391 Pa.Super. 113, 121, 570 A.2d 539, 543 (1990), quoting Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987). Instantly, there also is a need for an evidentiary hearing to establish whether the failure by counsel to object to the absence of a “no adverse inference” instruction was the result of a strategic decision on counsel’s part or merely the result of sloth or ignorance of available alternatives. See: Commonwealth v. Collins, 519 Pa. 58, 65, 545 A.2d 882, 886 (1988); Commonwealth v. Mickens, 409 Pa.Super. 266, 280, 597 A.2d 1196, 1203 (1991). If, after an evidentiary hearing, it is determined that counsel was ineffective, a new trial must be granted. If, however, it is determined that counsel was not ineffective, the judgment of sentence may be reimposed.

The judgment of sentence is vacated, at least for the time being, and the case is remanded for an evidentiary hearing consistent with the foregoing opinion.

Jurisdiction is not Retained.

      . With respect to the testimony of Dr. Huggins, the trial court specifically charged the jury as follows:
      Now, regarding the expert testimony of Doctor Huggins, in deciding whether to accept the witness’ opinion, you must consider the racial and ethnic variables in the blood testing procedure referred to, and that was referred to as HLA testing.
      Also, remember that said tests cannot as a matter of law determine conclusively or absolutely that the defendant or any other person is the father of the child born to Phimpha Bandith.
      Also, that that particular testimony is only a part of all of the evidence you should consider and not the only evidence you should consider.

      . Pennsylvania Suggested Standard Jury Instruction (Criminal) 3.06 provides, in pertinent part, as follows:
      (1) The defense offered evidence tending to prove that the defendant is a person of good character. I am speaking of the defense witnesses who testified about the defendant’s good reputation for (honesty) (truthfulness) (sexual morality) (peaceableness) (being a law-abiding person) ().
      (3) The law recognizes that a person of good character is not likely to commit a crime which is contrary to his nature. Evidence of good character may by itself raise a reasonable doubt of guilt and justify a verdict of not guilty.
      (4) You must weigh and consider the evidence of good character along with the other evidence in the case. If on all the evidence you have a reasonable doubt of the defendant’s guilt you must find him not guilty. However, if on all the evidence, you are satisfied beyond a reasonable doubt that the defendant is guilty you should find him guilty.

      . We need not decide, therefore, whether the prosecuting attorney’s reference to appellant's failure to testify was improper.

      . Indeed, the Supreme .Court has recently held that it is “per se reversible error if a judge instructs the jury concerning a defendant’s right not to testify when the defendant has requested that no such instruction be given.” Commonwealth v. Edwards 535 Pa. 576, 579, 637 A.2d 259, 261 (1993).


source: Caselaw Access Project

author: TAMILIA, Judge.

license: Public Domain

text:
    642 A.2d 498
    In re ESTATE OF Evelyn BLOM a/k/a Eva Blom, Deceased. Appeal of John LUCAS, Mary Mitchell and Evelyn Andriola.
    Superior Court of Pennsylvania.
    Argued April 13, 1994.
    Filed May 17, 1994.

      David Hiscox, Wilkes-Barre, for appellants.
    Michael J. Hudacek, Plymouth, participating party.
    Before TAMILIA, SAYLOR and HOFFMAN, JJ.
   TAMILIA, Judge.

John Lucas, Mary Mitchell and Evelyn Andriola appeal from the August 16, 1993 Order granting appellee Jane Scott McCrorie’s motion for judgment on the pleadings and making absolute the Register of Wills grant of Letters of Administration.

This lawsuit originated from a disagreement among heirs as to whom should administer the estate of the decedent, Evelyn Blom a/k/a Eva Blom, a Luzerne County resident who died intestate on January 3, 1993. The decedent’s next-of-kin include Helen Hurley, sister, Nicholas Sabbath, brother, Mary Mitchell, sister, Evelyn Andriola, Jane Scott McCrorie and William McCrorie, children of deceased sister Anna McCrorie, and John Lucas, child of deceased sister Catherine Lucas. Only Hurley and Sabbath remain residents of Luzerne County. On February 8, 1993, niece Jane Scott McCrorie (Scott) presented the Luzerne County Orphans’ Court with the renunciations and nominations of Hurley and Sabbath, and the joinder of nephew, William McCrorie, giving her an 8/15 interest in the estate, and petitioned for a grant of letters of administration. Subsequent to the grant of letters, on February 23, 1993, Scott’s counsel filed a certificate of notice certifying each of decedent’s beneficiaries had been served with a notice of beneficial interest. Two weeks later, on March 9, 1993, nephew Lucas (appellant) filed a petition for Citation to Revoke Letters of Administration Granted which was denied by the Register of Wills but certified to the Court of Common Pleas, Orphans’ Court Division, where Lucas filed an appeal challenging the grant of letters. Appellant, who held a 7/15 interest in the estate due to nominations by Andriola and Mitchell, alleged Scott’s petition for grant of letters was defective because she failed to list the name, relationship and address of each heir, and also because Scott failed to notice all heirs regarding her petition. It was nephew’s position he, as a Pennsylvania resident -with a 1/5 interest in the estate, was entitled to letters of administration rather than niece Scott, who resides in Hawaii and holds only a 1/15 interest. After due consideration, the administratrix’s motion for judgment on the pleadings was granted August 16, 1993 by the Orphans’ Court Division of the Court of Common Pleas of Luzerne County. This appeal followed.

The Register of Wills may exercise discretion in appointing an administrator from within the class of persons eligible for appointment to oversee the estate of one who has died intestate. Friese’s Estate, 317 Pa. 86, 176 A. 225 (1934); Brokans v. Melnick, 391 Pa.Super. 21, 569 A.2d 1373 (1989). In Pennsylvania, the person entitled to a grant of administrative letters is determined by the application of 20 Pa.C.S. § 3155(b), Persons entitled, set forth in pertinent part below:

(b) Letters of administration. — Letters of administration shall be granted by the register, in such form as the case shall require, to one or more of those hereinafter mentioned and, except for good cause, in the following order:
(3) Those entitled under the intestate law as the register, in his discretion, shall judge will best administer the estate, giving preference, however, according to the sizes of the shares of those in this class.
(6) If anyone of the foregoing shall renounce his right to letters of administration, the register, in his discretion, may appoint a nominee of the person so renouncing in preference to the persons set forth in any succeeding clause.

Id. Those persons wishing to be granted letters of administration shall petition the Orphans’ Court, stating, under oath, so far as they are known:

(1) The decedent’s name, age, state or country of domicile, his last family or principal residence, and the place and day of his death.
(2) If the decedent died intestate, the name and residence address of the surviving spouse, if any, and the names, relationships and residence addresses of other heirs.
(4) If the decedent was domiciled in the Commonwealth at the time of his death, the estimated value of all his personal property, and the estimated value and the location of his real property situated in the Commonwealth.
(6) The name and residence address of each person to whom letters are requested to be granted.
(7) Any other facts necessary to entitle the petitioner to letters.

Id., § 3153, Contents of petition.

On appeal, Lucas repeats his arguments raised in the trial court. To wit: the Register of Wills abused its discretion by granting letters of administration on the basis of a defective petition and without giving notice of said petition to all heirs who had not renounced in favor of appellee Scott.

The petition for a grant of letters of administration filed by Scott on February 8, 1993 listed the names and addresses of all decedent’s living siblings, but failed to specifically name the two nephews and two nieces, stating only the decedent was survived by “4 Nephews and Nieces.” After letters were granted, appellee’s certificate of notice was filed stating all those with a beneficial interest were made aware they stood to inherit from Blom’s estate. It was this notice to all interested parties, including Lucas, which cured any alleged defect in Scott’s petition. Moreover, no case law reviewed by this Court mandates notice prior to the grant of letters be given to nonresident heirs. We have found no controlling case law which held such lack of notice to be reversible error.

Next, although Lucas chose to challenge the grant of letters to his cousin by filing a citation to revoke, he failed to request a hearing on the matter. Because a hearing is not required by law and because Lucas chose not to request oral argument, the Register of Wills simply reviewed the merit of Lucas’ petition, in light of all attendant circumstances, exercised its discretion and- ruled the grant of letters to Scott would stand. When the Register of Wills certified the matter to Orphans’ Court due to the complexity of the matter, Lucas appealed the Register’s decision but once again chose to stand on the record and did not request oral argument. Accordingly, as stated above, appellant cannot now allege a due process violation on the basis he was not afforded a hearing.

Appellant’s argument his 1/5 beneficial interest in his aunt’s estate, versus Scott’s 1/15 interest, necessarily entitled him to administer the estate is equally without merit, fractional interests of the parties vying for the role of administrator/administratrix being only one of several factors considered by the Register of Wills. In any case, assuming arguendo “right does make right”, when the final mathematical calculations are complete, Lucas’s 7/15’s interest is obviously inferior to administratrix’s 8/15. Lastly, the fact appellee lives in Hawaii, which indeed could have proved cumbersome in administering an estate 5,000 miles away, has not proved detrimental to the efficient management of decedent’s estate.

When reviewing a decision granting judgment on the pleadings, this Court must accept as true all well-pleaded statements of fact, admissions and any documents properly attached to the pleadings presented by the party against whom the motion is filed. Steiner v. Bell of PA 426 Pa.Super. 84, 626 A.2d 584 (1993). Judgment on the pleadings will be granted only where the moving party’s right to succeed is certain and so free from doubt trial would be a fruitless exercise. Id. Appellant Lucas has pled no facts indicating an abuse of discretion on administratrix’s behalf, nor has he alleged any legitimate grounds upon which to base Scott’s removal as administratrix. We have reviewed this case, bearing in mind the aforestated standards, and have found appellant’s arguments devoid of merit.

Order affirmed.

      . This petition is not contained in the record but administratrix admitted knowledge of this document via her answer filed April 15, 1993 and written notification via Orphans’ Court.

      . These representative fractions reflect the parties’ beneficial interest in the estate rather than the aforementioned fractional interest which reflected their representative interest(s).

      . Resident heirs are those residing in the same county as the decedent at the time of his or her demise.

      . The renunciations of Andriola and Mitchell in appellant’s favor were not included in his petition to revoke, but were filed on March 23, 1993, as Consent and Joinder documents to Lucas’s March 17, 1993 appeal from the Register of Wills’ denial of his petition.

      . Although we have found no error of law or abuse of discretion on the part of the trial court, we hasten to add the procedure by which letters of administration are granted is in dire need of overhaul. We offer this comment as constructive criticism, in an effort to promote regulations designed to more closely scrutinize those individuals to whom the administration of estates, some substantial, is entrusted. In support of this observation, we refer readers to the footnote addressing this issue, included in an Opinion penned by our colleague, the Honorable Zoran Popovich, and set forth below:
      11. We take this opportunity to alert the Legislature, the Pennsylvania Supreme Court and local rules committees to the absolute ease with which letters of administration may be obtained in the hope that new standards will be enacted. Though we presume our brethren act legally, the current method of granting letters of administration is ripe for the perpetration of fraud upon an estate. As this case demonstrates, at least in Philadelphia, a complete stranger to an estate can obtain letters of administration without so much as a hearing to determine whether the information supplied in his petition is true. It is entirely conceivable that a n’eer-do-well could obtain letters based upon a fraudulent petition, use the letters of administration to withdraw funds from the decedent’s bank account and quietly abscond with the estate before the true heirs or the Commonwealth even learn of the decedent’s death. While we do not herein propose a new system for granting letters — that is not our function — we are certain that allowing a clerk in the local register’s office to grant a petition, without so much as a cursory investigation into the veracity of the averments in the petition, does not adequately protect the interest of heirs of the Commonwealth.

        Brokans v. Melnick, 391 Pa.Super. 21, 31 n. 11, 569 A.2d 1373, 1377 n. 11 (1989).


author: CIRILLO, Judge:

text:
    642 A.2d 502
    COMMONWEALTH of Pennsylvania v. Harry BRIGHT, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 17, 1994.
    Filed May 18, 1994.

      Edward C. Greco, Kulpmont, for appellant.
    Robert B. Sacavage, Dist. Atty., Mt. Carmel, for the Com., appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   CIRILLO, Judge:

Harry Bright appeals from the judgment of sentence entered in the Court of Common Pleas of Northumberland County. We affirm.

On April 22,1992, at approximately 11:00 p.m., Officer Brian Chowka stopped Bright at a sobriety checkpoint in Shamokin, Pennsylvania. Noticing the smell of alcohol on his breath, Officer Chowka asked Bright to step out of the vehicle. Once outside of the vehicle, Bright was escorted off the roadway and asked by Corporal Marlin Marose to perform a field sobriety test, consisting of two tests of physical and mental acuity. Unable to complete either test successfully, Bright was arrested and taken to the police station.

Upon reaching the station, Corporal Marose read Bright his Miranda warnings and inquired how much alcohol he had consumed. Bright replied that he had six mugs of beer, one shot of whiskey, and a pork chop dinner. Corporal Marose then administered two blood/alcohol (hereinafter “BAC”) tests on Bright, using the Intoximeter 3000. The results of these tests, taken at 11:57 p.m. and 11:59 p.m., were .121 and .133 percent, respectively. Bright was immediately charged with driving under the influence. 75 Pa.C.S.A. § 3731(a)(4).

On March 23, 1993, the case proceeded to a jury trial before the Honorable Barry F. Feudale. At trial, the jury, after hearing testimony from Officer Chowka and Corporal Marose, and viewing the videotape of Bright’s booking at the police station, heard testimony from John J. Spikes, a forensic pathologist. Spikes testified that in his expert opinion, based upon Bright’s weight, the time he left the bar, how much alcohol he had consumed, and the results of the BAC tests, Bright’s minimum BAC level at the time he was stopped at the sobriety checkpoint was .12 percent. Upon the close of evidence, the jury found Bright guilty of driving under the influence. Post-verdict motions were filed and denied and Judge Feudale, after considering the pre-sentence report and hearing testimony from Bright, sentenced Bright to the mandatory term of 48 hours to 23 months imprisonment, with parole to commence after the minimum period of 48 hours incarceration. Bright was additionally ordered to pay $700.00 in fees, fines, and costs. This appeal followed.

Bright presents the following issues for our review:

(1) Whether the evidence presented was insufficient to support the verdict?
(2) Whether the court abused its discretion by imposing an unduly harsh sentence?

Bright first argues that the evidence presented at trial was insufficient to sustain the conviction. In reviewing the sufficiency of the evidence, we must view the evidence and all reasonable inferences therefrom in the light most favorable to Commonwealth as the verdict winner. Commonwealth v. Jarman, 529 Pa. 92, 94, 601 A.2d 1229, 1230 (1992). “The test is whether the evidence, when so viewed, is sufficient to prove every element of the crime beyond a reasonable doubt.” Id. at 94-95, 601 A.2d at 1230.

Bright argues that, because his BAC level was determined approximately one hour after he was stopped at the sobriety checkpoint, the BAC tests did not accurately reflect the content of alcohol in his blood at the time he was driving. Specifically, Bright claims that the expert testimony adduced by the Commonwealth did not sufficiently show that his BAC level exceeded .10 percent while he was driving and that, as such, the jury was left to impermissibly speculate as to his true level of intoxication. We disagree.

In order to withstand a challenge to the sufficiency of the evidence under the statute in question, 75 Pa.C.S.A. § 3731(a)(4), the Commonwealth must present expert testimony relating back a subsequent BAC test result to the time when the accused was driving. Jarman, supra. In other words, the Commonwealth must show that at the time the accused was driving, his BAC level exceeded .10 percent. Absent such a finding, a conviction for driving under the influence cannot stand. Jarman, supra (judgment of sentence vacated because the Commonwealth’s expert could not state that the accused’s BAC level exceeded .10 percent when driving, despite a .113 percent finding one hour later); Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992) (judgment of sentence vacated as the Commonwealth’s expert could not show that the defendant’s BAC level exceeded .10 percent when driving, despite a .108 percent finding one hour and fifty minutes later); Commonwealth v. Osborne, 414 Pa.Super. 124, 606 A.2d 529 (1992) (judgment of sentence vacated because no expert testimony was presented relating a .1488 percent BAC finding back to when the defendant was driving, 50 minutes earlier).

In the case at hand, however, the Commonwealth presented ample evidence relating back the BAC test result taken in the station to the time when Bright was driving. The Commonwealth’s expert, John J. Spikes, testified that, based upon Bright’s weight, the amount of drinks he had consumed, and the .121 and .133 percent BAC test results, at the time Bright passed through the sobriety checkpoint his BAC level was at the very least .12 percent. Because Spikes’ testimony went unrefuted, the jury did not have pause to impermissibly speculate as to Bright’s BAC level when driving. Accordingly, Bright’s argument is without merit.

Bright’s final argument is that the trial court abused its discretion in imposing a sentence of imprisonment without addressing or considering his rehabilitative needs. We do not reach the merits of this claim, because Bright failed to preserve this issue for our review. We have long held that in order to properly preserve an issue for review of the discretionary aspects of sentencing, an appellant first must timely file a motion for reconsideration of sentence. Pa.R.Crim.P. 1410. Commonwealth v. Scullin, 414 Pa.Super. 442, 446, 607 A.2d 750, 752 (1992); Commonwealth v. Penrod, 396 Pa.Super. 221, 229, 578 A.2d 486, 490 (1990). Here, Bright failed to file a motion for reconsideration of sentence and, thus, failed to preserve this issue for our review.

Judgment of sentence affirmed.

      . This device is proven accurate with a 10% margin of error.

        . (a) Offense defined — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
      (4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.
      75 Pa.C.S.A. § 3731(a)(4) (emphasis added).

      . The terms of the parole included mandatory mental health counseling.

      . We note that Bright also challenged the verdict as against the weight of the evidence. A careful review of the record, however, discloses that Bright baldly asserted this issue without citing any case law or developing any legal argument in support thereof. Accordingly, we will not address this issue.

      . Spikes also testified that, in relating back from the BAC test results to the BAC level present while Bright operated his vehicle, he gave Bright the benefit of assuming that he consumed his final drink upon exiting the bar. By making this assumption, Spikes' BAC calculation represented the lowest possible result, as the final drink would not have metabolized into his bloodstream until after he was stopped at the checkpoint.

      . We note that Bright failed to comply with Pa.R.A.P. 2119(f) by not including within his brief to this court a concise statement of reasons for allowance of appeal. Additionally, Bright’s substantive arguments are without merit. Judge Fepdale did not commit an abuse of discretion, as he sentenced Bright to the mandatory minimum term as provided by 75 Pa.C.S.A. § 373l(e)(l)(i). Equally meritless is Bright's claim that Judge Feudale failed to consider his rehabilitative needs in imposing sentence, as the terms of his probation expressly require mandatory mental health counseling.


author: POPOVICH, Judge.

text:
    642 A.2d 504
    COMMONWEALTH of Pennsylvania, Appellee v. Patricia Ann SWINEHART Appeal of Thomas DEBLASE.
    Superior Court of Pennsylvania.
    Argued March 16, 1994.
    Filed May 24, 1994.
    Petition for Allowance of Appeal Granted Oct. 21, 1994.

      Samuel C. Stretton, West Chester, for appellant.
    Mary M. Killinger, Exec. Asst. Dist. Atty., Norristown, for Com., appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge.

This is an appeal from the judgment of sentence entered on January 19, 1994, in the Court of Common Pleas of Montgomery County holding appellant in criminal and civil contempt for his refusal to testify. We affirm.

The record reveals that in January of 1994, the Commonwealth served a subpoena on appellant for the purpose of seeking his testimony in the trial of Patricia Ann Swinehart, appellant’s co-defendant in a capital murder case. Thereafter, appellant filed a motion to quash that subpoena and to deny the grant of immunity. On January 19, 1994, the lower court held a hearing on appellant’s claim that statutory use immunity pursuant to 42 Pa.C.S.A. § 5947, was unconstitutional. Upon hearing arguments presented by both parties, the court below entered an order denying appellant’s motion to quash the subpoena, and the lower court granted the Commonwealth’s request of immunity to compel appellant to testify. Further, the court held appellant in criminal and civil contempt for his refusal to testify and sentenced appellant to imprisonment for five (5) months and twenty-nine (29) days. This appeal followed.

Herein, appellant poses the following questions for our review:

I. Did the Honorable Lawrence A. Brown err in granting use immunity to Thomas DeBlase and finding him both in civil and criminal contempt when he refused to testify since the statutory use immunity, pursuant to 42 Pa.C.S.A. 5947, is not co-extensive with the Pennsylvania State Constitutional Protection against self-incrimination found at Article
I, Section 9, and only the grant of transactional immunity would satisfy the Pennsylvania Constitution?
II. Did the Honorable Lawrence A. Brown err in granting use immunity to Thomas DeBlase and finding him in both civil and criminal contempt when he refused to testify when he was being forced to testify in a capital murder trial against a co-defendant when his case charging Mr. DeBlase with capital murder was still pending since this would violate Mr. DeBlase’s right of due process under the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 9, of the Pennsylvania Constitution since his ability to defend his case would be impaired including tainting of potential jurors and presentation of witnesses?

Appellant’s Brief, p. 4.

“In considering an appeal from a contempt order, great reliance must be placed upon the discretion of the trial judge.” Commonwealth v. Hawkins, 322 Pa.Super. 199, 207, 469 A.2d 252, 256 (1983), citing, In re Grand Jury, April Term, 1977, Wayne County, 251 Pa.Super. 43, 50, 379 A.2d 323, 326 (1977). Guided by that standard of review, we proceed to address appellant’s first point of error. Appellant challenges the constitutionality of 42 Pa.C.S.A. § 5947. That statute reads in pertinent part:

§ 5947. Immunity of witnesses
(a) General rule. — Immunity orders shall be available under this section in all proceedings before:
(1) Courts.
(2) Grand juries.
(8) Investigating grand juries.
(4) The minor judiciary or coroners.
(c) Order to testify. — Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding specified in subsection (a), and the person presiding at such proceeding communicates to the witness an immunity order, that witness may not refuse to testify based on his privilege against self-incrimination.
(d) Limitation on use. — No testimony or other information compelled under an immunity order, or any information directly or indirectly derived from such testimony or other information, may be used against a witness in any criminal case, except that such information may be used:
(1) in a prosecution under 18 Pa.C.S. § 4902 (relating to perjury) or under 18 Pa.C.S. § 4903 (relating to false swearing);
(2) in a contempt proceeding for failure to comply with an immunity order; or
(3) as evidence, where otherwise admissible, in any proceeding where the witness is not a criminal defendant.

42 Pa.C.S.A. § 5947.

Appellant maintains that use immunity provided under § 5947 is not coextensive with the right against self-incrimination found at Article I, § 9, of the Pennsylvania Constitution. Instead, appellant asserts that only transactional immunity satisfies the safeguards afforded by that article.

In Commonwealth v. Webster, 323 Pa.Super. 164, 470 A.2d 532 (1983), our Court articulated the following analysis distinguishing transactional immunity from use immunity:

Witness immunity is characterized as either transactional immunity or use immunity. Transactional immunity provides a witness full immunity from prosecution for crimes arising from any transaction concerning which the witness was compelled to testify.... Use immunity, on the other hand, prohibits the use or derivative use of any testimony compelled over a claim of privilege.... Use immunity does not prohibit prosecution for all crimes arising out of the transaction testified to so long as the prosecution’s evidence is obtained from a source wholly independent of the compelled testimony.

323 Pa.Super. at 170, 470 A.2d at 535 (citations omitted). Our Supreme Court has determined that under Pennsylvania law only use immunity is available to a witness. Commonwealth v. Parker, 531 Pa. 90, 93-94, 611 A.2d 199, 201 (1992). “Transactional immunity is not required in order to compel testimony over a Fifth Amendment claim of privilege against self-incrimination.” Webster, 323 Pa.Super. at 170, 470 A.2d at 535. “Immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader.” Id. at 170-71, 470 A.2d at 535, quoting, Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212, 222 (1972), reh. denied, 408 U.S. 931, 92 S.Ct. 2478, 33 L.Ed.2d 345. See, Hawkins, 322 Pa.Super. at 203-07, 469 A.2d at 254-56 (1983) (Superior Court rejects appellant’s argument that he refused to testify because the Commonwealth threatened to prosecute him for perjury if his immunized testimony failed to conform to his prior statement).

In light of the aforesaid decisions, we hold that appellant’s constitutional challenge to the legality of use immunity clearly fails. Our Legislature and our Supreme Court have provided that only use immunity is available to a witness under Pennsylvania law. We are not prepared to deviate from this established principle.

We also reject appellant’s second contention raised herein. Appellant asserts that use immunity would deny him fundamental rights to due process under the United States Constitution and the Pennsylvania Constitution if he were to testify against his co-defendant. Appellant argues as follows:

[Appellant] respectfully contends that being forced to testify would deny him fundamental due process rights in that his ability to pick a fair jury could be impaired, his ability to present a defense could be impaired, his ability to present character witnesses would be precluded, his ability to make a decision whether to testify could be infringed upon and his ability to be secure that the prosecution was not taking advantage of his testimony could not be adequately protected.

Appellant’s Brief, p. 14. Appellant fails to cite any legal authority to support those alleged due process violations. Nevertheless, upon review of 42 Pa.C.S.A. § 5947, we find due process violated only in the case where the Commonwealth uses information against the witness which is derived from the witness’ immunized testimony. Compare Parker, 531 Pa. at 93-94, 611 A.2d at 201 (appellant cannot complain that the Commonwealth is estopped on due process grounds from prosecuting him with independent evidence when his immunized testimony was not used against him); 42 Pa.C.S.A. § 5947(d). Further, we also conclude that appellant’s due process claim pursuant to the United States Constitution is without merit. See Kastigar v. United States, supra (use immunity is coextensive with the scope of privilege against self-incrimination and is therefore sufficient to compel testimony over a claim of privilege); United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980) (neither the immunity statute nor the Fifth Amendment precludes the use of witness’ immunized testimony at subsequent prosecution for making false statements); 18 USCS §§ 6001-6005.

Having scrutinized appellant’s two assignments of error, we find that the lower court did not abuse its discretion in holding appellant in criminal and civil contempt for his refusal to testify.

Judgment of sentence affirmed.

      . Article I, § 9, of the Pennsylvania Constitution states in relevant part as follows:
      § 9. Rights of accused in criminal prosecutions
      [H]e cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land....


author: OLSZEWSKI, Judge.

text:
    642 A.2d 507
    COMMONWEALTH of Pennsylvania, Appellant, v. Michael DiMAURO, Appellee.
    Superior Court of Pennsylvania.
    Argued March 30, 1994.
    Filed May 24, 1994.

      Louis G. Stesis, Asst. Dist. Atty., Media, for Com., appellant.
    John J. List, Media, for appellee.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge.

This is the Commonwealth’s appeal from the judgment of sentence imposed upon Michael DiMauro.

On February 8, 1992, DiMauro fired several shots at John Peck’s truck. While a number of bullets hit the truck, Peck and his three passengers escaped injury. DiMauro pled guilty to four counts of aggravated assault, 18 Pa.C.S.A. § 2702(a)(4), on November 23, 1992. Four concurrent sentences of six months to five years less one day were imposed. He was given 30 days credit for time served in an in-patient treatment program and the remainder of his sentence was to be served at home subject to electronic monitoring.

The Commonwealth contends that the imposition of a sentence of home monitoring for the crime of aggravated assault is illegal pursuant to 42 Pa.C.S.A. § 9729(c). We agree. Section 9729 provides:

(a) General rule. — The court may, pursuant to section 9763 (relating to sentence of intermediate punishment), sentence an eligible offender to a county intermediate punishment program....
(c) Ineligibility.—
(1) A person convicted of any of the following offenses shall be ineligible for sentencing under this section:
18 Pa.C.S. § 2702 (relating to aggravated assault).

Section 9763 does not specifically define intermediate punishment, but it does provide that electronic monitoring is a permissible condition to impose under intermediate punishment. 42 Pa.C.S.A. § 9763(b)(17). The statute clearly excludes those convicted of aggravated assault from being eligible to receive a sentence of intermediate punishment.

DiMauro argues that he was not sentenced under the Intermediate Punishment Act. Appellee’s brief at 9-10 (citing N.T. 1/26/93, hearing on motion to modify sentence, at 9 (by the court)). DiMauro contends that the sentencing judge used his discretion under 42 Pa.C.S.A. § 9721 to sentence him to home monitoring as a form of partial confinement. DiMauro argues that the Sentencing Code does not define partial confinement and that home monitoring falls within the scope of partial confinement. We disagree. Section 9755 provides:

In imposing a sentence involving partial confinement the court shall specify at the time of sentencing ... whether the confinement shall commence in a correctional or other appropriate institution.

42 Pa.C.S.A. § 9755(a) (emphasis added). The statute also outlines the purposes for partial release, such as work release or attending school. Id. at § 9755(c). We find the legislature’s use of the word institution instructive. Clearly “institution” implies that confinement is to take place somewhere other than in the defendant’s home. “When the language of a statute is clear and unambiguous, the judiciary must read its provisions in accordance with their plain meaning and common usage.” Commonwealth v. Bell, 512 Pa. 334, 339, 516 A.2d 1172, 1175 (1986) (citing 1 Pa.C.S. § 1903(a) (Supp.1986)). Thus, we find the legislature intended one sentenced to partial confinement to be confined in a penal institution with permission to leave the facility to go to work, school or other proper activity. Construing the relevant statutes together, we find that imposing a sentence of home monitoring upon one convicted of aggravated assault was illegal under the sentencing statute. Thus, we must vacate and remand for resentencing.

Because we find the sentence imposed illegal under 42 Pa.C.S.A. § 9729(c)(1), we do not need to address the Commonwealth’s second issue — that the sentencing court abused its discretion in imposing an unreasonable sentence. We respond briefly, however, to a statutory construction argument that DiMauro makes in this portion of his brief.

In ascertaining the intent of the General Assembly in the enactment of a statute, it is presumed that the General Assembly does not intend a result that is absurd or unreasonable. The Commonwealth’s suggestion that the Trial Court abused its discretion by imposing a sentence [home monitoring] upon appellee that was more restrictive than another sentence lawfully available to it [probation] is an absurd and unreasonable interpretation of the law and therefore, should be dismissed.

Appellee’s brief at 17 (citations omitted). While it may be true that allowing a judge to sentence one convicted of assault to a term of probation but not house arrest is unreasonable, we cannot ignore the plain language of the statute. The legislature has deemed intermediate punishment inappropriate for those convicted of certain crimes, including aggravated assault. If we were to uphold the sentence imposed here, we would effectively write 42 Pa.C.S.A. § 9729(c) out of the statute.

Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished.


author: CIRILLO, Judge.

text:
    642 A.2d 509
    Ronald PECK, Appellant, v. Mark Frederick HABERLE.
    Superior Court of Pennsylvania.
    Argued April 6, 1994.
    Filed May 24, 1994.
    Petition for Allowance of Appeal Denied Oct. 13, 1994.

      David M. Kozloff, Wyomissing, for appellant.
    Jeffrey L. Schmehl, County Sol., Reading, for appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   CIRILLO, Judge.

This is an appeal from a judgment entered in the Court of Common Pleas of Berks County. We affirm.

Appellant Ronald Peck was awarded a jury verdict in the amount of $6,530.00. The jury had determined that appellee Mark Frederick Haberle was 100% liable for an automobile accident involving his- vehicle and Peck’s vehicle. Peck was stopped in the eastbound lane at the intersection of Route 422 and Hill Road in Berks County. Haberle was travelling eastbound and, upon observing Peck’s stopped vehicle, Haberle applied his brakes, skidded for approximately 75 feet, struck the rear of Peck’s vehicle, and propelled Peck’s vehicle approximately 100 feet. Peck was thrown about the interior of the car.

The jury awarded Peck damages as follows: $750.00 for medical expenses; $5,280 for lost earnings; and $500.00 for remaining damages. The trial judge, the Honorable Frederick Edenharter, molded the verdict to $780.00 to reflect the receipt of applicable first party automobile insurance benefits ($750.00 in medical benefits and $5,000.00 in lost wages).

Peck filed post-trial motions, seeking additur or, in the alternative, a new trial. Peck contended that the award of $500.00 for general damages, including pain and suffering, humiliation, and loss of life’s pleasures, was inadequate. This motion was denied. Thereafter, the verdict was reduced to judgment and this appeal followed. See Pa.R.A.P. 301. Peck raises one issue for our review:

When the jury concluded that plaintiff/appellant Ronald Peck was injured, disabled, and sustained general damages for a period of thirteen (13) weeks, was an award of five hundred dollars ($500.00) for general damages so inadequate as to require the grant of a new trial?

Following the car accident, Peck was taken to Pottstown Memorial Medical Center suffering from lower back and neck pain. Two days later, Peck sought treatment from his family physician, complaining of pain in his neck, lower back, and left leg. Peck’s family physician referred him to Dr. Gregory Lignelli, a neurosurgeon.

Peck had first seen Dr. Lignelli several times over the fourteen years preceding the car accident. In 1974, Peck sought relief from Dr. Lignelli following a work-related accident in which Peck had strained his back lifting castings at Doehler-Jarvis Company. Peck saw Dr. Lignelli again in 1977, after another work-related back injury. Peck suffered from a herniated disc and Dr. Lignelli performed surgery. Ten years later, in July of 1987, Peck suffered pain in his right leg and lower back as a result of tripping on a piece of broken flooring while working at Doehler-Jarvis Company. Peck developed severe pain and once again saw Dr. Lignelli. Dr. Lignelli performed a myelogram which indicated a ruptured disc and also performed a second surgery. Peek returned to work in December of 1987. The car accident occurred two months later, on February 13, 1988.

Peck saw Dr. Lignelli two days after the accident. A physical examination revealed a full range of motion and, as Dr. Lignelli testified on cross-examination, x-rays taken at the hospital after the accident were “essentially normal.” Dr. Lignelli prescribed Darvocet for several weeks. Thereafter, Peck saw Dr. Lignelli approximately once a month for the next three months. Dr. Lignelli discharged Peck from his care in late April or early May of 1988.

Approximately three years later, on March 22, 1991, Dr. Lignelli performed a third surgery on Peck, a laminectomy. Peck was also treated for depression.

At trial, Dr. Lignelli testified that Peck had an underlying degenerative disc disease in his lumbar spine which had necessitated the two prior operations. Dr. Lignelli testified that the stress and strain of the automobile accident aggravated Peck’s previous injuries. Additionally, Dr. Lignelli testified that Peck would have a permanent foot drop, necessitating that he wear a foot brace, and that he would be unable to return to the work he was doing prior to the accident, but might be able to do some kind of sedentary work eventually.

Peck was also examined by defendant Haberle’s expert, Dr. Ellis F. Friedman, an orthopedic surgeon. Dr. Friedman opined, to a reasonable degree of medical certainty, that the symptoms which led to the 1991 surgery could not have been caused by the automobile accident. Dr. Friedman stated:

[T]hese symptoms that led to the 1991 surgery did not come on until three full years after the accident when he had the-sudden onset of severe pain and weakness with foot drop. It is physically and physiologically and anatomically impossible for an event to occur at one time and three years later the disc then shrivels, breaks off, and ruptures and lies free in the spinal canal, which is the condition that Dr. Lignelli (the neurosurgeon who had been treating Peck since two days after the accident) found when he did surgery shortly after those symptoms came on. Those pieces of disc broke off and were lying free in the spinal canal at the time of the March, 1991 surgery because of something the patient did in February, 1991. It could have been something as simple as bending over a sink or bending down to pick something up or sneezing or coughing or straining to have a bowel movement. Anything of that type can cause a piece of disc to literally blow out and lie free in the spinal canal. It is impossible for a piece of disc to blow out and lie free in the spinal canal for three years and not cause any symptoms. These symptoms, as the patient so carefully told me came on (snap of fingers) that quickly____ Three years after the accident some event occurred which did make pieces of the disc break off, and that’s what led to the patient’s immediate onset of pain.

It is axiomatic that the amount of a damage award is an issue for the jury which should rarely be altered on appeal. Hawley v. Donahoo, 416 Pa.Super. 469, 471, 611 A.2d 311, 312 (1992).

[A] trial court’s decision to grant or deny a new trial is aided by an on-the-scene evaluation of the evidence^] an appellate court’s review rests solely upon a cold record. Because of this disparity in vantage points an appellate court is not empowered to merely substitute its opinion concerning the weight of the evidence for that of the trial judge.

Read v. Shu, 419 Pa.Super. 227, 230, 615 A.2d 109, 110 (1992). Our review, then, is limited to a determination of whether the trial court committed a palpable abuse of discretion. Id. This court must examine the record and assess the weight of the evidence in order to reach this determination. Id.

In Elza v. Chovan, 396 Pa. 112, 152 A.2d 238 (1959), our Supreme Court stated:

It is the province of the jury to assess the worth of the testimony and to accept or reject the estimates given by witnesses. If the verdict bears a reasonable resemblance to the proven damages, it is not the function of the court to substitute its judgment for the jury’s. The mere fact that the verdict is low does not mean that it is inadequate.

Id. at 115, 152 A.2d at 240. In other words, a reversal based on the inadequacy of the verdict is appropriate only where “the injustice of the verdict stands forth like a beacon,” id. at 118, 152 A.2d at 241, or, as Justice Musmanno eloquently stated, when “the figure of Justice totters on her pedestal.” Lupi v. Keenan, 396 Pa. 6, 16, 151 A.2d 447, 453 (1959) (Musmanno, J., dissenting).

When the jury’s verdict, at the time of its rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to the judicial conscience.

Id. at 15-16, 151 A.2d at 452.

The jury’s authority in this area, however, is not absolute. It may not “in law, ignore what is patent to the eye, obvious to the mind, and clear to the normal process of ordinary computation.” Thompson v. Ianuzzi, 403 Pa. 329, 169 A.2d 777 (1961). In Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988), the Pennsylvania Supreme Court stated that “(p)ersons may indeed suffer pain that they attribute to a cause, but at law the cause they assert must be accepted as the cause of their pain.” Id. at 168, 542 A.2d at 519.

Utilizing these standards, our review of the record does not reveal a palpable abuse of discretion. Read, supra. The verdict of $500.00 for non-economic damages, although low, is not so glaringly inadequate as to shock the conscience of the court. Bortner v. Gladfeltner, 302 Pa.Super. 492, 448 A.2d 1386 (1982). The evidence reveals no disagreement that the accident aggravated Peck’s back condition. The experts did disagree, however, as to what created the necessity for the third back surgery. This point of disagreement was crucial to Peck’s damage recovery. The jury, in its province, could reasonably conclude that the car accident caused Peck additional pain, but that the car accident was not necessarily the legal cause or impetus for a third surgery occurring almost three years after the accident and Peck’s resultant back, neck, and leg pain. The jury could have properly determined from this evidence that the lapse of approximately three years between the accident and the operation severed the chain of causation. In this respect, the jury could properly find that Peck’s pain and suffering caused from the car accident was limited to the thirteen weeks following the accident; its award, consequently, reflects that limited time period. We find no palpable abuse of discretion. Read, supra.

Judgment affirmed.


author: CIRILLO, Judge. DEL SOLE, Judge,

text:
    642 A.2d 512
    Zebbie J. CLIFTON, Janos M. Toth, III v. SUBURBAN CABLE TV COMPANY, INC., and Daniel McMonigle. Appeal of Zebbie J. CLIFTON.
    Superior Court of Pennsylvania.
    Submitted Aug. 23, 1993.
    Filed May 24, 1994.
    Petition for Allowance of Appeal Denied Oct. 7, 1994.

      Zebbie J. Clifton, appellant, pro se.
    Kenneth A. Roos, Blue Bell, for appellees.
    Before CIRILLO, DEL SOLE and JOHNSON, JJ.
   CIRILLO, Judge.

This is an appeal from an order entered in the Court of Common Pleas of Montgomery County sustaining the preliminary objections of appellee Suburban Cable Television Company, Inc. (Suburban) in the nature of a demurrer and dismissing the complaint of appellant Zebbie J. Clifton (Clifton). We affirm.

Clifton is a prisoner incarcerated at the Graterford Correctional Institution (the Prison) in Graterford, Pennsylvania. In June, 1992, the Commonwealth and Perkiomen Home-Vue, Inc. (Perkiomen) entered into a contract which provided that Perkiomen would install and maintain cable television service to 1,942 individual prison cells in the Prison. The original term of the contract was 15 years, to continue thereafter on a year-to-year basis.

For administrative convenience, the contract required the Commonwealth to collect payments from or on behalf of the inmates and then remit these payments to Perkiomen on a monthly basis. Perkiomen assumed responsibility for maintaining and keeping in good repair the cable equipment necessary for good and safe reception from each outlet. The inmates were responsible for the cable equipment installed and placed in their cells. In fact, the inmates were required to sign a responsibility retainer in which they agreed to pay up to $50.00 if the cable converter was damaged or destroyed. Finally, the contract provided that upon one year’s written notice to the Commonwealth, Perkiomen could renegotiate its cable rates, subject to the Commonwealth’s written acceptance. In 1986, Perkiomen sold all franchise and company rights to Suburban.

In December, 1987, Clifton signed a responsibility retainer in order to receive cable television services in his cell. Suburban sent a notice to the Commonwealth that a $1.00 price increase would be placed on all cable service, effective March 1, 1989. The notice was not given to the Commonwealth within the requisite time period stated in the contract. Clifton, therefore, filed a complaint with the Prison, objecting to the rate increase. The record is not clear regarding the outcome of Clifton’s initial complaint.

In November, 1989, Suburban sent a second notice to the Commonwealth informing it that basic service would be discontinued at its regular price as of January 1, 1990, and that, instead, a contracted package would be offered at a slightly higher price. Again, Clifton filed a complaint with the Prison. On January 1, 1990, Suburban, as promised, eliminated its basic package and replaced it with a higher priced combination package.

Clifton filed a complaint against Suburban in the Court of Common Pleas of Montgomery County claiming that Suburban breached its contract with the Commonwealth (the Prison) in that Suburban was bound to provide cable services to the Prison at a set price. Clifton sought a preliminary injunction, as well as compensatory and punitive damages. In response to Clifton’s complaint, Suburban filed preliminary objections in the nature of a demurrer. Following a hearing, the Honorable Albert R. Subers denied Clifton’s motion for injunctive relief. Thereafter, the Honorable Bernard- A. Moore sustained Suburban’s preliminary objections and dismissed Clifton’s complaint. This appeal followed.

On appeal, Clifton presents one issue for our review: Whether the trial court erred in granting Suburban’s preliminary objections in the nature of a demurrer and holding that Clifton, as a prisoner and a subscriber of cable services, has no standing or remedy at law as a third-party beneficiary to the contract between Suburban and the Commonwealth?

In an appeal from an order sustaining preliminary objections in the nature of a demurrer, this court applies the same standard employed by the trial court: all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purposes of review. Kyle v. McNamara & Criste, 506 Pa. 631, 634, 487 A.2d 814, 815 (1985); Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 192, 500 A.2d 470, 472 (1985). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer. Kyle, supra; Baker, supra.

Although the contract between the Commonwealth and Perkiomen/Suburban may have been consummated with the intent to benefit the inmates at the Graterford Correctional Institute (e.g., to provide cable television services to the inmates), the nature of this contract and the public policy of this Commonwealth preclude a finding that the inmates have standing to sue under the contract as third-party beneficiaries.

In Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983), the Pennsylvania Supreme Court adopted the Restatement (Second) of Contracts § 302 (1979) as the law of this Commonwealth concerning third-party beneficiary rights. Section 302 states:

Intended and Incidental Beneficiaries
(1) Unless otherwise agreed ... a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

Restatement (Second) of Contracts § 302 (1979) (emphasis added); see also Scarpitti v. Weborg, 530 Pa. 366, 609 A.2d 147 (1992); Strutz v. State Farm Mut. Ins. Co., 415 Pa.Super. 371, 609 A.2d 569 (1992).

Pursuant to Section 302, two requirements must be met in order to assert a claim under a contract as an intended third-party beneficiary. The first prong of the test sets forth a standing requirement which empowers the trial court to determine, in its discretion, whether third-party beneficiary status is appropriate in a particular case. Restatement (Second) of Contracts § 302(1) (1979); Scarpitti, 530 Pa. at 371, 609 A.2d at 150. The second prong requires satisfaction of either subsection (a) or (b). Subsections (a) and (b) of section (1) define the two types of claimants who may be intended as third-party beneficiaries under any given contract. Restatement (Second) of Contracts § 302(l)(a), (b) (1979); Scarpitti, 530 Pa. at 371, 609 A.2d at 150.

Here, Judge Moore exercised his discretion and found it to be inappropriate to confer third-party beneficiary status to prison inmates under these circumstances. Specifically, Judge Moore held that “state prisoners] do not have standing to enforce contracts entered into by the Commonwealth.” Scarpitti, supra. Judge Moore, therefore, was not required to analyze the second prong of the Restatement test.

Government contracts, such as the one in this case, pose unique difficulties in the area of third-party beneficiary rights because, to some extent, every member of the public is directly or indirectly intended to benefit from such a contract. The Commonwealth/Bureau of Corrections enters into contracts for food, services, equipment, clothing, etc., to regulate and maintain its correctional facilities. The public at large benefits from these government contracts to the extent that they assure that those who ought to be incarcerated will be incarcerated, and that those who are already incarcerated will pay their debts to society. To grant all members of the public, including those incarcerated, standing to enforce such government contracts, however, would be contrary to the public policy of this Commonwealth. Consequently, the courts of this Commonwealth must take a more narrow view of third-party beneficiary status in this context and apply a more stringent test to determine whether a third party qualifies for beneficiary status.

The Restatement (Second) of Contracts § 313 speaks to government contracts. In pertinent part, Section 313 provides:

(1) The rules stated in this Chapter apply to contracts with a government or governmental agency except to the extent that application would contravene the policy of the law authorizing the contract or prescribing remedies for its breach.

Restatement (Second) of Contracts § 313(1) (1979) (emphasis added). See Nguyen v. United States Catholic Conference, 548 F.Supp. 1333 (W.D.Pa.1982); Flamini v. General Acc. Fire & Life Assur., 328 Pa.Super. 406, 477 A.2d 508 (1984). Comment a to Section 313 articulates a few circumstances in which it is not advisable to confer third-party beneficiary status under government contracts:

Among factors which may make inappropriate a direct action against the promisor are arrangements for governmental control over the litigation and settlement of claims, the likelihood of impairment of service or of excessive financial burden, and the availability of alternatives such as insurance.

Restatement (Second) of Contracts § 313 cmt. a (1979) (emphasis added).

With these standards in mind, we agree with Judge Moore and find it wholly inappropriate to permit the inmates at Graterford to attempt to enforce the contract for cable television services entered into by the Commonwealth and Suburban. Allowing such intervention may hamper the flow of these and other services, and may drive up the costs of regulating and maintaining the prisons of this Commonwealth.

Notwithstanding the above-mentioned considerations, third-party beneficiary status is inappropriate in this case because the language of the contract demonstrates that the Commonwealth did not intend to confer standing upon the inmates to sue under the contract. First, the opening paragraph of the agreement names Perkiomen/Suburban and the Commonwealth as the parties to the agreement. No prisoner is named as a party to this contract. Second, and more important, the contract states that only the Commonwealth and Suburban may enforce the terms of the agreement. Specifically, the contract provides that Suburban may renegotiate its rates upon one year’s written notice to the Commonwealth and upon the Commonwealth’s written approval. Under the express terms of the contract, therefore, the prisoners have no standing to challenge either the negotiation of rates or the unilateral changes thereof. Why the Commonwealth did not challenge or question the apparently unauthorized rate increases is beyond the purview of this appeal.

Accordingly, we affirm the trial court’s order sustaining preliminary objections in the nature of a demurrer and dismissing the complaint.

Order affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting.

Appellant is a prisoner incarcerated at the Graterford Correctional Institution in Graterford, Pennsylvania. In June of 1982, the Commonwealth and Perkiomen Home-Vue, Inc. contracted for Perkiomen to install, maintain and sell cable television service to the prison. This agreement contained a list of the buildings to be wired for service which included all 1,942 cells at the prison.

Inmates were to subscribe to the service and were responsible for payment of the monthly charge. No change of the amount of the charge was permitted unless the company notified the Commonwealth one year in advance of its request to renegotiate the rate with the Commonwealth. Appellant is an inmate and subscriber to the service. Suburban Cable Television Company, Inc. is the successor to Perkiomen, and Daniel M. McMonigle is its manager. On November 10, 1989 the company gave notice to the users that a new price was effective on January 1,1990. There was no prior notice to the Commonwealth nor did it agree to the increase.

Appellant filed suit seeking an injunction and declaratory relief to prevent the increase. The trial court sustained Appellees’ Preliminary Objections finding that Appellant was not entitled to enforce the terms of the agreement between the Commonwealth and the Defendants. The Majority affirms; however, since I view the underlying agreement created benefits for persons situated as is Appellant, I must dissent.

The question simply put is — does the contract with the Commonwealth create a class of persons who are intended beneficiaries that can seek its enforcement? The Majority correctly states that the law in this area was substantially changed by the Supreme Court in Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983) when Restatement (Second) of Contracts § 302 was adopted. Previously, to be a third party beneficiary of a contract, both parties to the contract must have expressed the intention in the agreement that the promisor’s obligation was to that third party.

Given this change, the Supreme Court went further and in Scarpitti v. Weborg, 530 Pa. 366, 609 A.2d 147, 150 (1992) permitted the plaintiffs to enforce an agreement as “intended third party beneficiaries of the implied contract.” In so doing the court stated:

Accordingly, we hold that a party becomes a third party beneficiary only where both parties to the contract express an intention to benefit the third party in the contract itself, Spires [v. Hanover Fire Ins. Co.], supra [364 Pa. 52, 70 A.2d 828], unless, the circumstances are so compelling that recognition of the beneficiary’s right is appropriate to effectuate the intention of the parties, and the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance. Guy [v. Liederbach], supra [501 Pa. 47, 459 A.2d 744],

Applying that standard we can readily conclude that Appellant was not expressly mentioned in the contract. Nor does the performance of the agreement by the Appellees satisfy an obligation owed Appellants by the Commonwealth. However, I conclude that the circumstances lead to the conclusion that the promisee, (Commonwealth) intended to give the benefit of the promised performance, renegotiated rate increases, to the inmates.

We must keep in mind that Appellant entered into a separate contract for the cable service under the terms of the master agreement. The terms of that agreement were binding on the inmates and dictated how they would pay for their service and their responsibility for the equipment. The contract manifests an intention or the part of Appellee and the Commonwealth that it is the inmates who are intended to benefit from the installation of the cable service. Appellant, although not specifically mentioned by name, certainly falls within the class of persons who are intended to benefit from the contract, and who, by subscribing for the service, became a part of that class.

Nor do I agree that this is the type of government contract that precludes third party enforcement. Here the class of persons sought to be affected was determined by those persons contracting with the promisor, a contemplated event which was sought by the promisor. This is not a contract that provides in general for the public good, and therefore not subject to individual enforcement, or one that provides for a purely public purpose, such as road maintenance. Therefore, I dissent.