author: ROWLEY, Judge: BROSKY, Judge,

text:
    581 A.2d 230
    COMMONWEALTH of Pennsylvania v. John Henry ORT, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 30, 1990.
    Filed Oct. 19, 1990.

      Francis M. Socha, Harrisburg, for appellant.
    Deborah S. Essis, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before ROWLEY, TAMILIA and BROSKY, JJ.
   ROWLEY, Judge:

This is an appeal by John Henry Ort from an order denying his first Post Conviction Relief Act Petition, 42 Pa.C.S. § 9541 et seq., without a hearing. In 1986, appellant was sentenced to life imprisonment following his conviction by a jury of second degree murder for the death of a person killed in an arson-connected fire of a building. The Superior Court affirmed appellant’s conviction in a direct appeal, and the Supreme Court denied his petition for allowance of appeal. In April, 1989, appellant filed the instant pro-se PCRA petition. New counsel was appointed to represent him, and an amended petition was filed. The petition was denied without a hearing, and this appeal followed.

On appeal, appellant raises four arguments: 1) was trial counsel ineffective for failing to request a voluntary manslaughter jury instruction; 2) was trial counsel ineffective for failing to request a jury instruction on third degree murder; 3) was trial counsel ineffective for failing to object to the jury instruction on the issue of the voluntariness of appellant’s confession; and 4) was trial counsel ineffective for failing to object to the cross examination of appellant regarding prior fires. Having thoroughly reviewed the record and the arguments of counsel, we affirm.

To be eligible for relief under the PCRA on the basis that counsel provided ineffective assistance, a petitioner must establish that his conviction resulted from “ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). However, in order to establish in the first instance that counsel was ineffective, the petitioner must demonstrate that the underlying issue has arguable merit, and that counsel had no reasonable basis for failure to make the objections which petitioner now claims should have been made. In addition, the petitioner must establish that he was prejudiced as a result of the ineffective assistance of counsel. Common wealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Appellant has failed to establish that there is merit to any of his underlying claims of ineffectiveness of counsel.

Appellant’s first and second arguments are similar: trial counsel was ineffective for failing to request a jury instruction on third degree murder and voluntary manslaughter, which failure resulted in depriving the jury of the opportunity to exercise their “mercy dispensing” powers. While at one time the undisputed rule in Pennsylvania was that upon request, a defendant charged with homicide is entitled to jury instructions on all the elements of the lesser degrees of homicide regardless of whether there was evidence to support a verdict on a lesser degree of homicide, see e.g., Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974), the Supreme Court itself has made inroads on the rule and questioned its continuing validity. Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983) (“unreasonable belief” voluntary manslaughter instruction must be given only where requested and only where the evidence would reasonably support such a conclusion); Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984) (“there is little or no vitality left to this practice ... ”).

We find it unnecessary to address the question of whether the rule in fact has ceased to exist in Pennsylvania because of the procedural posture of the instant case. In at least those cases where the question of instructing the jury on lesser degrees of homicide has been raised in the guise of a claim of ineffective assistance of counsel, no relief has been granted in the absence of some evidence existing in the record to support the lesser degree of homicide. Commonwealth v. Carter, supra; Commonwealth v. Ulatoski, 267 Pa.Super. 521, 407 A.2d 32 (1979).

In Carter, the appellant filed a direct appeal from a judgment of sentence for third degree murder. He argued that his trial counsel was ineffective for failing to object when the trial court instructed the jury only on “heat of passion” voluntary manslaughter [18 Pa.C.S. § 2503(a)], and not on “unreasonable belief” voluntary manslaughter [18 Pa.C.S. § 2503(b) ]. The appellant argued that regardless of the nature of the evidence actually presented, a defendant charged with murder “has an unconditional right on request to an instruction on the complete statutory definition of the offense of voluntary manslaughter.” Carter, id., 502 Pa. at 439, 466 A.2d at 1330, quoting Commonwealth v. Manning, 477 Pa. 495, 499, 384 A.2d 1197, 1199 (1978). The court noted that in Manning, it had extended the ruling in Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974). However, in Carter, the Court stated “by viewing Jones as mandating a like result in Manning, we overlooked not only the change in our statutory law but also the salutary rule that ‘a trial court should not instruct the jury on legal principles which have no application to the facts presented at trial. ’ ... [T]he vitality of the rationale that an instruction on the lesser-included offense must always be given regardless of the evidence in support of the offense is disputable.” Carter, id., 502 Pa. at 440, 442, 466 A.2d at 1332 (emphasis added).

In Carter, the Commonwealth sought to prove a premeditated killing. Appellant’s defense was that the firearm accidentally discharged during a struggle between himself, his girlfriend/victim, and his girlfriend’s brother, who was the victim who died. Because this defense had no rational relationship to the imperfect self-defense theory of § 2503(b) which appellant thought his counsel should have requested the court to instruct the jury with, appellant was not entitled to the instruction, and his counsel was not ineffective for not requesting it.

In Ulatoski, the defendant appealed from an order denying him post-conviction relief following his conviction of third degree murder. Appellant argued that his counsel was ineffective for not requesting the court to instruct the jury on voluntary and involuntary manslaughter. Following a hearing on the ineffective assistance of counsel at which trial counsel testified, the court concluded that trial counsel believed that the jury would acquit his client if he limited the jury’s options to third degree murder or acquittal. Based on this conclusion, the court found that counsel had a reasonable basis for his decision not to seek the additional instructions for the jury, and counsel was therefore not ineffective.

In the instant case, the record reveals that counsel knowingly and deliberately did not seek a jury instruction on either third degree murder or voluntary manslaughter, and there was no evidence which would support a conviction of either of these lesser degrees of homicide. Prior to trial, the Commonwealth advised the court that it was not proceeding on a first degree murder theory. In response, defense counsel stated, “I would only ask that the record reflect my request that Mr. Kleinfelter’s (the prosecutor’s) exclusion of the first degree murder theory not automatically exclude any other homicide theory that might arise. I have trouble seeing any but if any should I’d still like to have those brought before the jury.” N.T. pp. 28-29. Near the conclusion of the trial and before the jury was charged, the court asked counsel what degrees of murder he wanted the jury to be instructed with. Counsel responded by saying second degree murder and involuntary manslaughter. The court then questioned, “You’re not requesting a charge on third degree murder?” and counsel responded, “No. I don’t see where third degree or voluntary manslaughter can be at all appropriate.” N.T. p. 203.

Appellant’s defense in this case was that he did not set the fire which caused the homicide. There was no evidence of third degree murder: either appellant set the fire, and therefore was guilty of second degree murder, or he did not set the fire and was not guilty of any homicide. Trial counsel’s statement, following the presentation of evidence in this case, that a third degree murder instruction was inappropriate, was reasonable in light of the defense which appellant chose to present.

Similarly, since appellant’s defense was that he did not set the fire, a claim that the killing was only voluntary manslaughter, either because it occurred in the “heat of passion” or because it was an “unreasonable belief” killing, would have been entirely inconsistent with the position taken by appellant at trial. No evidence was presented to establish that the fire was set by appellant while he labored under the unreasonable belief that the killing was justified, and no evidence was presented that the fire was set in the heat of passion.

Since the record shows that counsel deliberately chose not to seek a third degree murder instruction and a voluntary manslaughter instruction, and since the record evidences the reasonableness of that tactical decision, the instant case is materially indistinguishable from Carter, where there was no evidence to support the lesser charge of homicide, and therefore counsel was not ineffective for not requesting it, or Ulatoski, where counsel tactically calculated that a charge on the lesser degree of homicide would have hurt his client. There being no evidence in this case to warrant the third degree murder or voluntary manslaughter instructions, and counsel having deliberately made a tactical decision not to seek those instructions, we find that there is no merit to the claim that counsel was ineffective for failing to request the instructions on third degree murder and voluntary manslaughter.

Appellant’s third argument is that counsel was ineffective for failing to object to the court’s inaccurate jury instruction regarding the voluntariness of appellant’s confession. This argument is premised on the theory that the trial court failed to instruct the jury that the Commonwealth had the burden of proving by a preponderance of the evidence that the confession was voluntary. Since the trial court adequately instructed the jury, there is no merit to this underlying claim, and counsel was not ineffective for failing to object to the court’s charge.

A trial court’s charge to the jury will be upheld so long as it adequately and accurately reflects the law and guides the jury in its deliberation. Commonwealth v. Person, 345 Pa.Super. 341, 498 A.2d 432 (1985). The trial court instructed the jury in this case as follows:

Before you may consider the statement as evidence against the Defendant you must find two things. You must find first that a crime was in fact committed; and secondly, that it was voluntary.
Secondly, you may not consider the statement as evidence against the Defendant unless you find that he made the statement voluntarily. The word voluntarily has a special meaning in the law which I’ll now talk to you about. The basic test of voluntariness is this. To be voluntary a Defendant’s statement must be the product of a rational mind and a free will. The Defendant must have a mind capable of reasoning about whether to make a statement or say nothing and he must be allowed to use his mind in that way.
This does not mean that a statement is involuntary merely because the Defendant made a hasty or a poor choice and might have been wiser to say nothing. Nor does it mean that a statement is involuntary merely because it was made in response to searching questions. It does mean, however, that if a Defendant’s mind and will were confused or burdened by promises of advantage, by threats, by physical or psychological abuse, or other improper influences, any statement which he makes in that situation is involuntary and may not be considered by you.
In deciding whether the statement in this case was voluntary, you should weigh all facts and circumstances surrounding the making of the statement which shed light on whether the statement was the product of an essentially free will and choice and not of a will and choice overborne by pressure. The facts and circumstances you should consider are the age, the intelligence, the personality, the education, the experience and mental and physical state of Mr. Ort, how the Defendant was treated, the time, place and conditions under which the statement was made, what was said and done by Mr. Ort, by the persons who questioned him, and by anyone else who was present. You should also consider whether the Defendant was told and knew that he had a right to remain silent, that anything he said could be used against him, and that he had a right to the advise [sic] and presence of his own or a free lawyer.
Now, if you have found that an arson was committed in accordance with the instructions I gave you a moment ago and if you find that Mr. Ort made the statement voluntarily, you may then consider the statement as evidence against him. You should consider in determining how much weight to give to this piece of evidence the circumstances surrounding the making of his statement along with all the other evidence in the case in judging the truthfulness of the statement and deciding how much weight you should give it.

Trial Transcript, pp. 237, 239-241.

This instruction comports with the proposed Pennsylvania Standard Jury Instructions, sections 3.04B and 3.05. Appellant has cited no authority to support his position that the jury must be specifically instructed that the Commonwealth has the burden of proving the voluntariness of the confession by the preponderance of the evidence. In addition to the instructions quoted above relating specifically to the voluntariness of the confession, the jury in the present case was instructed that the Commonwealth had to prove that the crime had been committed by proof beyond a reasonable doubt. Had the jury mistakenly applied this standard to the determination of voluntariness, the error would have redounded to appellant’s benefit. We find that the jury was amply instructed on the voluntariness of the confession, and there was no error in the instructions given to them.. Consequently, counsel was not ineffective for failing to object to the instruction.

Finally, appellant argues that trial counsel was ineffective for failing to object to the Commonwealth’s cross-examination of him with regard to prior fires. On direct examination, it was brought out that appellant stated in his confession that he had started the fire, in part, in an effort to obtain assistance from the Red Cross. On cross-examination, the Commonwealth asked appellant if he had received help from the Red Cross in the past. When he indicated that he had received such assistance, the Commonwealth asked questions to elicit when the assistance had been provided. The answers given by appellant were that he was assisted in 1983 when he lost his trailer to an electrical fire, and in 1984 when his apartment building was condemned following a fire. Appellant argues that the evidence which was brought out on cross-examination was irrelevant and prejudicial because it revealed his connection with previous fire-related incidents with regard to which he was never criminally convicted.

No suggestion was made by the Commonwealth on cross-examination that appellant was responsible for either the 1983 or 1984 fires. Thus, there was no attempt to use the circumstances of the 1983 or 1984 fires as evidence of prior criminal conduct of appellant. Moreover, the evidence was relevant to explain why appellant would think, as he stated in his confession, that a fire in his apartment building might result in aid to him from the Red Cross. Since this evidence was not irrelevant, there was no reason for trial counsel to have objected to it, and therefore counsel was not ineffective.

Finding no merit to any of the underlying issues raised by appellant, we conclude that the trial court properly determined that counsel was not ineffective.

Order affirmed.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting.

I respectfully dissent. I am constrained to find that appellant is entitled to a new trial based upon his claim in issue number one. Appellant claimed that former counsel was ineffective for failing to request a jury charge on third-degree murder. Appellant was charged, inter alia, with second-degree (felony) murder. This was the only degree of homicide upon which the trial court charged the jury. Appellant alleged that the jury was improperly precluded from exercising its mercy-dispensing power: If the trial court had included a charge on third degree murder, the jury could have returned a verdict on that charge rather than its actual verdict of guilty of second-degree murder.

My analysis of the applicable caselaw, infra, leads me to the conclusion that appellant was eligible for relief under the Post Conviction Relief Act, as appellant pled and proved by a preponderance of evidence that his conviction resulted from ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Dukeman, 388 Pa.Super. 469, 565 A.2d 1204 (1989) 42 Pa.C.S.A. § 9543(a)(2)(ii).

Appellant’s trial counsel decided at trial that the facts of the instant case only warranted a jury instruction on second-degree murder since a charge on third-degree murder was inapplicable.

Since some of the cases cited in this Dissenting Opinion, infra, were decided before the 1974 amendments to the homicide statutes, and are applicable to the instant case (a discussion will follow, infra), I will now discuss the 1974 amendments. The pre-1974 definitions, set forth in the Act of December 6, 1972, No. 334, § 2 (18 Pa.C.S.A. § 2502) (now repealed), provided as follows:

a) Murder of the first degree.—A criminal homicide constitutes murder of the first degree when it is committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing. A criminal homicide constitutes murder of the first degree if the actor is engaged in or is an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.
b) Murder of the second degree.—All other kinds of murder shall be murder of the second degree. Murder of the second degree is a felony of the first degree.

18 Pa.C.S.A. § 2502 currently states that:

a) Murder of the first degree.—A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
b) Murder of the second degree.—A criminal homicide constitutes murder of the second degree when the death of the victim occurred while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
c) Murder of the third degree.—All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.

The changes to the statute that are relevant to the instant case include moving felony murder into a separate category and shifting the former second-degree murder to the present category of third-degree murder. Pre-1974 amendment caselaw is applicable to the instant case since “the legislature did not repeal the crime of murder, they merely changed the definitions.” Commonwealth v. Matlock, 481 Pa. 521, 524, 393 A.2d 26, 28 (1978). In Matlock, the appellant was charged with murder of the first degree but was convicted of murder of the second degree. The trial court instructed the jury that it could return one of four possible verdicts: acquittal, murder of the first degree, murder of the second degree or voluntary manslaughter. The trial court’s instruction as to murder of the second degree incorrectly followed the pre-1974 definitions for murder, which meant that murder of the second degree was defined to the jury as, “all other kinds of murder shall be murder of the second degree”. Our Supreme Court held, however, that the 1974 amendment was in effect on May 13, 1974, when the murder occurred, and, therefore, the new categories and definitions for murder provided by, the 1974 amendment to the Crimes Code should have been given to the jury. Specifically, an instruction should have been given as to murder of the third degree. The court held that even though the charge was technically erroneous, the error was harmless beyond a reasonable doubt.

The 1974 amendment to the Crimes Code made “murder committed in perpetration of a felony” murder of the second degree. In the pre-1974 Crimes Code, felony murder (for specific felonies) was included in murder of the first degree. The legislature, having thus created a separate label for felony murder, created a new label for “all other kinds of murder”, namely, murder of the third degree. Id., 481 Pa. at 525, 393 A.2d at 28. “Thus, the legislature did not alter the ‘all other kinds of murder’ category, they simply changed the label from murder of the second degree to murder of the third degree.” Id., 481 Pa. at 525, 393 A.2d at 28. The only difference between the pre-1974 Crimes Code and the 1974 amendment exists in the labels of the categories for murder. Since this difference is of a technical nature only and does not affect the substance of the law, the cases decided under the pre-1974 scheme are therefore still applicable to the instant case.

In the instant case, appellant was charged with second-degree felony murder, arson-endangering persons and arson-endangering property. On December 14, 1985, firemen responded to a fire at an apartment building located at 269 Briggs Street in Harrisburg. When the fire fighters arrived, they observed heavy smoke coming from the basement and from the second floor middle apartment. Appellant was observed standing to the rear of the building. Residents told the fire fighters that there was an individual in the first floor middle apartment. After the fire fighters were able to gain entry to the structure, they found the victim, Michael Kosinski, lying on a bed. N.T., 6/23-25/86, at 40-44. The coroner determined that the cause of death of the victim was carbon monoxide poisoning, asphyxia due to smoke inhalation. Id. at 128-129. Three independent points of origin of the fire were identified and it was determined to be arson. Id. at 74-75.

The investigation began to focus almost immediately upon appellant, who resided in the building with his girlfriend. The State Police interviewed appellant on December 19, 1985, and January 9, 1986. Trooper Lotwick contacted appellant at his place of employment and asked him to take a polygraph test. Id. at 7. Appellant was told that the police suspected him of starting the fire. He was transported to the State Police Headquarters to take the polygraph test on January 9, 1986. He was not arrested, and, was told that he was not required to take the test and that he was free to leave at any time. Trooper Lotwick advised appellant of his Miranda rights, and appellant signed a waiver form. Appellant was administered the test and subsequently told that he failed. After further questioning appellant admitted that he had set fire to the building.

Appellant’s motion to suppress the confession was denied and the Commonwealth presented, inter alia, evidence of appellant’s confession at trial. Appellant testified that he did not set the fire, and, that his confession had been coerced by the police. The evidence presented at trial pointed to, if anything, second-degree (felony) murder.

Appellant’s trial counsel decided that a jury charge on third-degree murder was inappropriate, Id. at 203, and the trial court failed to charge on third-degree murder. The charge of the trial court stated, in pertinent part, that:

The first crime that the Defendant is charged with is criminal homicide. And the only homicide that’s germaine [sic] in this case is second degree murder [felony murder]. The Defendant is charged with a criminal homicide. That is taking the life of another without lawful justification or excuse. There is one type of criminal homicide that you might possibly find in this case and it is murder of the second degree. It will be your duty to decide whether or not to find the Defendant guilty of this crime.

Id. at 232-33.

The trial court stated in its opinion that, “[tjhere is no requirement that when a petitioner is charged with homicide, the jury must be instructed on the lesser degrees of murder.” Trial Court Opinion, 11/08/89 at 4. “The petitioner was charged with arson, it was undisputed that the victim died in the fire, therefore if the petitioner was guilty of arson, he was guilty of second degree murder since the murder was committed in the perpetration of a felony.” Id.

In Commonwealth v. Meas, 415 Pa. 41, 202 A.2d 74 (1974), the defendant was charged with felony murder (which was considered first-degree murder at the time Meas was decided). Our Supreme Court held that it was prejudicial error for the trial court to eliminate second-degree murder (which is presently referred to as third-degree murder) as a possible verdict. The Supreme Court held that:

A careful reading of the charge in its entirety leads us to but one conclusion, that the general effect there of was to withdraw the question of the degree of offense from the jury’s finding to either guilty of murder in the first degree or not guilty by reason of insanity. Second degree murder was eliminated as a possible verdict. This was prejudicial error.

Id., 415 Pa. at 45, 202 A.2d at 76.

The trial court in Meas failed to give a charge on second-degree murder (presently third-degree murder). The Supreme Court held that the jury has the exclusive right to fix the degree of guilt and may not be deprived of this right, even though the only evidence in the case against the defendant established that the killing was committed in the perpetration of a felony.

In Commonwealth v. McClendon, 478 Pa. 108, 385 A.2d 1337 (1978), the defendant was convicted of felony murder, arson and related charges. Our Supreme Court held that the trial court worded the jury instructions in a biased manner so that the jury had no choice but to find appellant guilty of felony murder. In its original charge, the trial court stated that:

[I]f you find that the defendant committed arson and that arson was the cause of the death ... he is guilty of murder of the second degree. If you find that the defendant is not guilty of arson or if you find that he was guilty of arson but that arson was not a cause of the death of the decedent, you should consider the charges of third degree murder and voluntary manslaughter which I shall now define for you.

Id., 478 Pa. at 111, 385 A.2d at 1338-39.

Our Supreme Court concluded that this charge informed the jury “that it should not consider third degree murder or voluntary manslaughter unless it found that appellant did not commit arson or that the arson, if committed, was not the cause of death. That is not the law in this Commonwealth.” Id., 478 Pa. at 111, 385 A.2d at 1339.

Pursuant to its mercy dispensing power or its awareness of extenuating circumstances, the jury could have returned verdicts of either voluntary manslaughter or murder of the third degree even if it found appellant guilty of arson and found that the arson caused the victim’s death. Id. If the trial court’s instructions impermissibly influence the jury’s deliberation regarding which verdict should be returned, then a defendant must be granted a new trial. Id. The court in McClendon reversed the judgment of sentence for murder of the second degree because it found that the trial court’s charge infringed upon the exclusive province of the jury to determine the appropriate degree of guilt.

In Commonwealth v. Staples, 324 Pa.Super 296, 471 A.2d 847 (1984), the appellant’s issue on appeal was whether he could be sentenced for both murder in the second degree and armed robbery in a felony-murder case without violating appellant’s right against double jeopardy. The appellant in Staples cited Commonwealth v. Collins, 436 Pa. 114, 259 A.2d 160 (1969), which was decided under the pre-1974 homicide statute. Collins held that it is not error for the trial court to give a charge on second-degree murder (third-degree under the present statute) even if the evidence presented at trial only showed, if anything, a felony murder. Although our court in Staples was not addressing the issue raised in the instant case, it cited Collins for the proposition that where the evidence in a case points to felony murder, the jury is nonetheless permitted to exercise its mercy and convict only of third-degree murder.

“The appellate courts have not specifically questioned the long-standing rule that the judge should instruct on third degree murder when the defendant is charged with first or second degree murder, regardless of whether there is a rational basis for finding third degree murder.” See Pa. Standard Jury Instructions, § 15.2501B, Subcommittee Note, (Crim.) (1988).

A jury charge must be read as a whole and considered in its entirety. Commonwealth v. Ignatavich, 333 Pa.Super. 617, 482 A.2d 1044 (1984). It is the general effect of the charge that controls. Id. Additionally, the court’s instructions may not contain any prejudicial expression of guilt or invade the province of the jury. Commonwealth v. Musolino, 320 Pa.Super. 425, 467 A.2d 605 (1983).

I find that, pursuant to Commonwealth v. Meas, supra, and Commonwealth v. McClendon, supra, appellant’s trial counsel was ineffective in failing to request a jury charge on third-degree murder. Although these cases did not deal with an ineffectiveness of counsel issue, they held that it is prejudicial error for a trial court to exclude a charge on third-degree murder when a defendant is being tried for second-degree (felony) murder. If it is error for the trial court to exclude a jury charge on third-degree murder, then it follows that a defendant’s trial counsel is certainly ineffective in not requesting such a charge if it could be of benefit to his client.

Appellant was sentenced to life imprisonment. If a charge were given on third-degree murder, which is a felony of the third degree, 18 Pa.C.S.A. § 2502(c), and the jury had found him guilty of that degree of homicide, then he could not have been sentenced to a term of imprisonment not longer than twenty years. 18 Pa.C.S.A. § 1103(1). I therefore cannot state that appellant was not prejudiced by counsel’s omission.

I find that Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983), and Commonwealth v. Ulatoski, 267 Pa.Super. 521, 407 A.2d 32 (1979), relied upon by the majority in support of its position, are distinguishable from the instant case and Commonwealth v. Meas, supra, and Commonwealth v. McClendon, supra, which support the position taken in this dissent. First, Carter and Ulatoski only dealt with the question of the necessity of a manslaughter jury charge. They did not address the necessity of a jury charge on third-degree murder when a defendant is being tried for second-degree (felony) murder. Therefore, I find that a principle alluded to in Carter, that a trial court should not give a jury charge on legal principles not supported by the facts adduced at trial, is narrowly limited to manslaughter jury charges and would not effect the scenario presented in the instant case. Second, trial counsel in Ulatoski was found to have had a reasonable basis for not requesting a manslaughter instruction. In the instant case, given the holdings in Meas and McClendon, and the vast disparities in sentencing alternatives between second and third-degree murder, appellant’s trial counsel had no reasonable basis for not requesting a jury instruction on third-degree murder. Accordingly, I would grant appellant a new trial based upon the ineffectiveness of his trial counsel.

      . Appellant incorrectly framed the issue as, "Former counsel was ineffective for failing to object to the trial court's refusal to charge the jury on third-degree murder”, but, the trial court was never requested to give a charge on third-degree murder, and, hence, never refused to give such a charge; it simply failed to give a charge on third-degree murder. Appellant was not challenging the inaction of the trial court but the inaction of his trial counsel.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    581 A.2d 239
    COMMONWEALTH of Pennsylvania v. Lola ROCHON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1990.
    Decided Oct. 17, 1990.

      David S. Rudenstein, Philadelphia, for appellant.
    Hugh T. Burns, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, McEWEN and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from a judgment of sentence entered after a júdge sitting without a jury found appellant guilty of aggravated assault, simple assault, recklessly endangering another person and endangering the welfare of children. For the reasons set forth below, we affirm.

The events underlying the instant appeal occurred on February 28, 1989. Appellant, Lola Rochon, was arrested because she beat her then seventeen-month old son, immersed him in water sufficiently cold to cause hypothermia, and repeatedly held the child’s head under water so that he could not breathe. Appellant’s motion to suppress the statement she gave to the police at the time of her arrest was denied on August 7, 1989. She was subsequently found guilty at a bench trial of the offenses listed previously. After appellant’s post-verdict motions were argued and denied, she was sentenced to serve a term of incarceration of between five and one-half (5V2) and twenty (20) years. The instant timely appeal followed in which appellant raises three questions for our review:

1. Is [appellant] entitled to a new trial wherein her pre-trial motion to suppress a statement was denied, where there was evidence that at the time the statement was taken, [appellant] was three months pregnant; locked in a detention room and handcuffed for over an hour before a statement was taken; was not offered food, water or bathroom privileges and wherein the entire psychological and physical atmosphere of the interrogation would have broken the will of a reasonable person and did, in fact, break the will of the [appellant] in question.
2. Is [appellant] entitled to an arrest of judgment on the charges of aggravated assault and recklessly endangering another person wherein evidence at trial merely demonstrated that the [appellant] negligently placed her son in a bathtub full of water which served to greatly reduce his body temperature.
3. Is the [appellant] entitled to a new trial wherein the verdict was against the weight of the evidence on the charges of aggravated assault and recklessly endangering another person where, the evidence demonstrated that the [appellant] negligently placed her son in a bathtub full of water which served to greatly reduce his body temperature.

We shall consider these claims seriatim.

Appellant first argues that she is entitled to a new trial because her confession was improperly admitted into evidence. The gravamen of appellant’s complaint is that the physical and psychological circumstances surrounding the statement she gave to the police in which she admitted “dunking” and beating her son rendered that statement involuntary. Our supreme court has ruled that “[t]he test for determining the voluntariness of a confession and the validity of the waiver of the right to remain silent is the totality of the attending circumstances.” Commonwealth v. D’Amato, 514 Pa. 471, 481, 526 A.2d 300, 305 (1987). As the court explained, appropriate areas of appellate court consideration include such factors as the duration and methods of interrogation, the conditions of detention, the manifest attitude of the police toward the accused, the accused’s physical and psychological state, and “all other conditions present which may serve to drain one’s powers of resistance to suggestion and undermine his self-determination.” Id,., citing Commonwealth v. Crosby, 464 Pa. 337, 346 A.2d 768 (1975). Additionally, we note that the following scope of review applies where a suppression court has made a determination adverse to a criminal defendant:

When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found [sic] and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.

Commonwealth v. D'Amato, 514 Pa. at 482, 526 A.2d at 305.

The prosecution evidence is that appellant was initially placed in a detention room at the Sex Crimes Unit headquarters of the Philadelphia Police Department at 12:45 p.m. N.T. 8/7/89 at 94. The interior of the room was in the full view of a police officer. Id. at 112. Appellant was seated on a bench in the detention room with one wrist handcuffed to a bar below the bench. Id. at 115. She was interviewed shortly after 2:00 p.m., and at the time of the interview appellant was not handcuffed. Id. at 81-82. The interviewing officer testified that appellant was never struck, that she was not threatened, and that no promises or inducements were offered in exchange for her statement. Id. at 85-88. The officer recalled no requests by appellant for water, food or bathroom privileges. Id. at 109-113. The officer also testified that these would have been provided if requested. Id. After appellant executed a written waiver of rights and gave a signed statement, the interview concluded at 2:45 p.m. Id. at 87.

Appellant now contends that her will was “worn away” - during her two-hour wait in the detention room. Although appellant’s brief states that she was shackled, the Commonwealth’s evidence does not support this claim. The testimony introduced by the Commonwealth indicates that appellant was handcuffed in the detention room, but that this was not the case during her interview. Id. at 82, 96. Further, the officer stated that leg shackles are used only on violent prisoners. Id. Appellant’s contention that she informed the police, that she was pregnant is belied by appellant’s testimony that she spoke to no one after her arrest. Id. at 118. Additionally, the interviewing police officer could recall no such assertion. Id. at 88.

Although the above facts may indicate that appellant was not granted any marked degree of comfort while awaiting her interview, they do not support the conclusion that her statement was involuntarily made because of a coercive atmosphere. We cannot agree with appellant that a reasonable person’s will would have been “worn away” during a less than two hour detention under such conditions. The record does not demonstrate that appellant failed to comprehend the questions she was asked when she signed the waiver form. Appellant never indicated at that time that she was suffering from any physical impairment or required medical assistance; moreover she stated that she was not under the influence of alcohol or narcotic drugs. See Commonwealth v. Carter, 377 Pa.Super. 93, 546 A.2d 1173 (1988), allocatur denied, 523 Pa. 630, 564 A.2d 1259 (1989) (voluntariness of confession was supported by the evidence where, at the time defendant executed the waiver form, he understood police officers, did not indicate that he was having any problems with his physical condition or that any medical problem was bothering him, and he did not indicate that he was under the influence of any alcohol or drugs during the course of his interview).

In light of the information contained in the pre-sentence report, we find appellant’s contention that she only gave her statement because of naivete regarding the investigative process to be disingenuous at best. The pre-sentence report discloses that appellant’s adult criminal record includes eleven arrests prior to her detention in connection with the instant case. The suppression court was free to reject appellant’s characterizations of her interview as incredible, and properly did so. See Commonwealth v. McFadden, 384 Pa.Super. 444, 559 A.2d 58 (1989), allocatur denied, 524 Pa. 595, 568 A.2d 1246 (1989) (wherein the suppression court rejected appellant’s testimony of intimidation and physical violence, and found the voluntariness of appellant’s confession was supported by the record, the confession was properly admitted). See also Commonwealth v. D'Amato, supra (confession given after fifty hours in custody was voluntary where defendant was advised of his Miranda rights prior to making statement and accused was not mistreated while in police custody).

The second issue raised by appellant is a challenge to the sufficiency of the evidence introduced at trial with regard to the charges of aggravated assault and recklessly endangering another person. It is well settled that when sufficiency of the evidence claims are raised, “an appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the record there is a sufficient basis to support the challenged conviction.” Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983) (citations omitted). The proper application of this test requires us to evaluate the entire trial record and all evidence actually received, in the aggregate and not as fragments isolated from the totality of the evidence. Commonwealth v. Harper, 485 Pa. 572, 576, 403 A.2d 536, 538 (1979). See also Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986) (explicating appropriate application of standard of review set forth in Harper, supra). This standard means that we must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine if the trier of fact could reasonably have concluded that all of the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 143, 555 A.2d 818, 823 (1989). We note that the trier of fact is free to believe all, part, or none of the evidence presented, Griscavage, supra, 512 Pa. at 546, 517 A.2d at 1259, and that “the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.” Commonwealth v. Harper, supra, 485 Pa. at 576, 403 A.2d at 538.

An accused is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life. 18 Pa.C.S.A. § 2701(a)(1). A person is guilty of recklessly endangering another person if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. Id. § 2705. The Crimes Code defines “serious bodily injury” as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Id. § 2301.

In the instant case, the evidence introduced at trial demonstrated that appellant became angry with her seventeen month old son for soiling his diaper. N.T. 8/7/89 at 19-31. She first struck her child with a sneaker, then with a belt and after that announced “I’m going to cool this m-r f-r off.” Id. Following this remark, appellant forcibly and repeatedly immersed the little boy in water while telling him to “swim, bitch, swim.” Id. at 33-35. Despite the child’s struggles to escape, appellant did not stop this torture until her victim became cyanotic and turned purple from cold. Id. at 36, 63; N.T. 8/8/89 at 29. When the child was permitted to leave the bathtub, he staggered and was unable to stand up. N.T. 8/7/89 at 36-39.

Dr. Schlitt, the attending emergency physician who treated the child testified that the immersion in water had drastically lowered the victim’s core body temperature and rendered him hypothermic. N.T. 8/8/89 at 18-21. Despite appellant’s argument to the contrary, Dr. Schlitt’s testimony is quite clear that the abuse inflicted was in actuality life threatening. Id. at 35-37. Additionally, Dr. Schlitt specifically rejected appellant’s theory that her son’s condition was merely the result of a careless bath. Id. at 38-40, 49-50.

We find appellant’s claim that she was merely exercising her right to administer corporal punishment to be totally inapposite. The statute governing the corporal punishment of minor children specifically excludes conduct that may create a substantial risk of death.

The use of force upon or toward the person of another is justifiable if ... the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.

18 Pa.C.S.A. § 509(l)(ii). Contrary to appellant’s contentions, her admission of stupidity and impatience is not enough to negate the lower court’s finding that she placed her child in danger of death. In light of the above outlined facts, we hold that the trial court correctly found the evidence sufficient to demonstrate the elements of both aggravated assault and recklessly endangering another person. We therefore can grant appellant no reliefon this claim.

Finally, appellant argues that she is entitled to a new trial as the verdict was against the weight of the evidence. We note initially that our scope of review for such a claim is very narrow. Commonwealth v. Hamilton, 376 Pa.Super. 404, 414, 546 A.2d 90, 95 (1988), allocatur denied, 521 Pa. 629, 558 A.2d 531 (1989). The determination of whether to grant a new trial because the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent abuse of discretion. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982); Commonwealth v. Hunter, 381 Pa.Super. 606, 618, 554 A.2d 550, 555 (1989). Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973); Commonwealth v. Hamilton, supra, 376 Pa.Super. at 414, 546 A.2d at 95-96. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972). A claim that the evidence presented at trial was contradictory and unable to support the verdict requires the grant of a new trial only when the verdict is so contrary to the evidence as to shock one’s sense of justice. Id.; Commonwealth v. Hunter, supra; Commonwealth v. Saksek, 361 Pa.Super. 173, 522 A.2d 70 (1987). See also Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989) (citing Commonwealth v. Nelson, 514 Pa. 262, 271, n. 3, 523 A.2d 728, 733, n. 3 (1987), cert. denied, 484 U.S. 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (1987) (under ordinary circumstances, an appellate tribunal should not entertain a challenge to the weight of the evidence since their examination is confined to the “cold record”)). See also Commonwealth v. Jenkins, 396 Pa.Super. 395, 578 A.2d 960 (1990) and Commonwealth v. McLean, 396 Pa.Super. 23, 578 A.2d 4 (1990) (explaining that a challenge to the weight of the evidence is reviewable by the Superior Court). We have carefully scrutinized the entire record and have found no basis on which to grant relief to appellant on this claim.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 2702.

      . Id. § 2701.

      . Id. § 2705.

      . Id. § 4304.

      . The record indicates that the child was born July 22, 1987.

      . Appellant has also alleged that the sentence imposed is too harsh under the circumstances of this case. This challenge to the discretionary aspects of the sentence has not been made in compliance with the pertinent procedural requirements. See 42 Pa.C.S.A. § 9781(b); Pa. R.A.P., Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). As the Commonwealth has objected to the manner in which appellant’s claim was raised, we may not consider it. See, e.g., Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987).

      . Although appellant testified that nobody offered her any food or water, she never indicated that she asked for food, water or bathroom privileges or that any such request was denied. N.T. 8/7/89 at 117-130.

      . At trial, appellant specifically stated that she understood the form at the time she signed it. She also demonstrated her ability to read and understand written English. N.T. 8/7/89 at 124, 128.

      . As the Commonwealth correctly points out, appellant has not questioned the sufficiency of the evidence relating to simple assault and endangering the welfare of children.

      . The emergency room physician also testified that he found evidence consistent with a finding that the child had experienced recent physical violence. The child had fresh abrasions on the left side of his face, in particular on his left ear, his left cheek and underneath his right nostril. N.T. 8/8/89 at 30-33. The victim also displayed older evidence of trauma on his back, his rear end and on his foot. Id.


author:
HUDOCK, Judge:
      BECK, Judge,

text:
    581 A.2d 578
    Samuel C. HUTCHISON v. Father Francis LUDDY, Bishop James Hogan, Monsignor Thomas Madden, Monsignor Roy F. Kline, Monsignor Paul Panza, Monsignor Ignatius Wadas, Diocese of Altoona-Johnstown, St. Mary’s Roman Catholic Church, Cardinal John Krol, and the Arch-Diocese of Philadelphia. Appeal of Bishop James HOGAN, Monsignor Thomas Madden, Monsignor Roy F. Kline, Monsignor Paul Panza, Monsignor Ignatius Wadas, Diocese of Altoona-Johnstown and St. Mary’s Roman Catholic Church.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1990.
    Filed Aug. 27, 1990.
    Reargument Denied Nov. 9, 1990.

      Maria Zulick, Pittsburgh, for appellants.
    Richard M. Serbin, Altoona, for Hutchison, appellee.
    Scott E. Henderson, Pittsburgh, interested party.
    Before McEWEN, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from an order which denied, with certain limited exceptions, a Motion to Seal all pleadings, discovery matters, and pretrial proceedings in the underlying action, filed on behalf of Bishop James Hogan and the Diocese of Altoona-Johnstown (hereinafter “appellants” or “Church Parties”). Plaintiff, Samuel C. Hutchison (hereinafter referred to as “Hutchison”) filed a civil action claiming damages against defendant, Father Francis Luddy (hereinafter “Luddy”), as a result of various sexual acts allegedly performed by Luddy while he served his pastoral duties in the Borough of Windber, Somerset County, Pennsylvania. The complaint also asserted causes of action against the appellants, Cardinal John Krol, and the Arch-Diocese of Philadelphia, alleging a breach of supervisory duties, as well as personnel and program control.

Several Pittsburgh newspapers engaged in coverage of the civil and criminal actions against Luddy. The contested Motion to Seal ensued, after which the Pittsburgh Press Company (hereinafter “appellee” or “Pittsburgh Press”) filed a Petition to Intervene. On the basis of the first amendment to the United States Constitution, and the common law, the Pittsburgh Press asserted that it possesses a right of access to the materials sought to be sealed. The court, following a hearing, granted appellee’s Petition to Intervene “for the limited purpose of opposing the defendant’s motion for order of [c]ourt to seal records,” Notes of Testimony, 12/1/88, p. 5, and, with certain limited exceptions, denied appellants’ Motion to Seal. The Church Parties appeal. We affirm in part, and reverse in part.

At the outset, we note that our Court possesses subject matter jurisdiction over this appeal pursuant to the “collateral order” exception to the final judgment rule. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Pugar, supra. This is so because the order in dispute satisfies the three-prong test articulated in Cohen. First, the order is “separable from and collateral to the main cause of action.” Pugar, 483 Pa. at 71, 394 A.2d at 545 (citing Cohen, 337 U.S. at 546, 69 S.Ct. at 1225). The rights which the Church Parties assert, i.e. the right to a fair and impartial civil trial, and defendant Luddy’s right to a fair criminal trial, are independent of the underlying action, although the information which appellants would seal may in fact impact on the principal actions against themselves and against defendant Luddy. See P.G. Publishing Co. v. Commonwealth by Dist. Attorney, 389 Pa.Super. 86, 566 A.2d 857 (1989). Second, “the right involved is too important to be denied review.” Id. See Commonwealth v. Cassidy, 390 Pa.Super. 359, 361, 568 A.2d 693, 695 (1985) (second prong of Cohen test met as order disqualifying defendant’s counsel implicates sixth amendment right of United States Constitution). Third, “the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.” Id. If review is delayed until after final judgment, any opportunity to provide appellants with a fair trial will have vaporized, and there will be no way to undo whatever prejudice may have been sustained by their reputations. Because all three prongs of the Cohen test are therefore satisfied, it follows that our Court possesses subject matter jurisdiction over this appeal.

On appeal the Church Parties argue that the trial court erred in allowing appellee Pittsburgh Press to intervene and oppose their effort to obtain a protective order pursuant to Pa.R.C.P. 2327, which provides: “At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if ... (4) the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action.” Appellants further contend that the trial court’s denial of their Motion to Seal amounted to an abuse of discretion and that, in the alternative, appellants should have at least been granted their request to engage in a pre-filing exchange of documents, said exchange allowing the parties to review the materials and to object to their unsealed filing before its occurrence.

The grant or denial of a petition to. intervene is a matter which is vested within the sound discretion of the trial court, and the trial court’s decision will not be disturbed on appeal absent a manifest abuse of that discretion. Stenger v. Lehigh Valley Hosp. Center, 382 Pa.Super. 75, 78, 80, 554 A.2d 954, 954, 956 (1989) (citing Wilson v. State Farm Mut. Ins. Co., 512 Pa. 486, 517 A.2d 944 (1986); M. London, Inc. v. Feddlers Corp., 306 Pa.Super. 103, 452 A.2d 236 (1982)); Ginter v. Nationwide Mut. Fire Ins. Co., 359 Pa.Super. 200, 201, 518 A.2d 850, 851 (1986). “A trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable or the result of partiality, prejudice, bias, or ill-will.” Stenger, at 80, 554 A.2d at 956.

Because we ultimately conclude that the current state of the law appears to confirm appellee Pittsburgh Press’ right to access the pleadings as well as the pretrial proceedings of the case at bar, we conclude that appellee Pittsburgh Press has a right to intervene in order to secure its right of access to these pleadings and proceedings. Any other holding would recognize appellee Pittsburgh Press’ right of access, while denying it the opportunity to enforce this right in the face of an effort by appellants to obtain a protective order which, if granted, would squarely usurp this right. It follows that the Pittsburgh Press possesses a “legally enforceable interest”, pursuant to Pa.R.Civ.P. 2327, in the resolution of appellant’s motion to seal pleadings and pretrial proceedings, and that the trial court’s decision to allow intervention, insofar as it related to appellee’s right to access these pleadings and pretrial proceedings, did not amount to discretion manifestly abused. See Matter of Seegrist, 517 Pa. 568, 572 n. 17, 539 A.2d 799, 803 n. 17 (1988). The record does not reveal judgment which is manifestly unreasonable, nor does it indicate that the trial court’s decisions were the result of partiality, prejudice, bias, or ill-will. Stenger, at 80, 554 A.2d at 956.

We next turn to the issue of whether the trial court erred in denying the Church Parties’ Motion to Seal all pleadings and pretrial proceedings. The Pittsburgh Press contends that it possesses a right of access to these materials and proceedings based on the common law, the United States Constitution, and the Pennsylvania Constitution.

The party who seeks closure bears the burden of establishing that closure is appropriate under the circumstances. Katz v. Katz, 356 Pa.Super. 461, 466, 514 A.2d 1374, 1379 (1986). A trial court’s decision to grant or to deny closure will be reviewed on appeal only to determine if the trial court abused its discretion. Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir.1984).

In Pennsylvania, the common law, the first amendment to the United States Constitution, and the Pennsylvania Constitution, all support the principle of openness. “All courts shall be open.” Pa. Const. Art. I, § 11. See Commonwealth v. Fenstermaker, 515 Pa. 501, 504, 530 A.2d 414, 417 (1987) (quoting Richmond Newspaper, Inc. v. Virginia, 448 U.S. 555, 573, 100 S.Ct. 2814, 2825, 65 L.Ed.2d 973 (1980)). More than one basis for the public right of access to civil trials has been articulated. See Publicker, supra. Nonetheless, the presumption of public access is rebuttable. Bank of America Nat’l and Sav. Ass’n v. Hotel Rittenhouse Associates, 800 F.2d 339, 344 (3d Cir. 1986).

Two methods have emerged in the Third Circuit by which one may attempt to overcome the presumption of openness and to limit public access. First, if attempting to achieve closure under a first amendment analysis, “there must be a showing that the denial serves an important governmental interest and there is no less restrictive way to serve that governmental interest.” Publicker, 733 F.2d at 1070 (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 102 S.Ct. 2613, 2619-20, 73 L.Ed.2d 248 (1982)). Also, it must be established “that the material is the kind of information that courts will protect and that there is good cause for the order to issue.” Publicker, 733 F.2d at 1071. “Good cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure.” Id.

Second, a party who attempts to establish that the common law presumption in favor of access does not extend to certain records or proceedings must show that “the interest in secrecy outweighs the presumption.” Bank of America, 800 F.2d at 344. In deciding whether to grant the motion of the party who seeks to seal records or proceedings under the common law approach, the court engages in a balancing test, weighing on the one hand the factors in favor of access, and, on the other, those against it. Id. (citing United States v. Criden, 648 F.2d 814, 818 (3d Cir.1981)).

The presumption that the public may inspect and copy judicial records extends to pleadings. Stenger, at 83, 554 A.2d at 960. Moreover, the prevailing trend appears to indicate that pretrial proceedings are also subject to the presumption in favor of public access. See Zenith Radio Corp. v. Matsushita Elec. Indus. Co., Ltd., et al., 529 F.Supp. 866 (E.D.Pa.1981).

We have examined appellant’s arguments in favor of sealing the pleadings and pretrial proceedings in the case at bar in light of both the Publicker “good cause” (first amendment) analysis, and the Bank of America (common law) balancing test. It is our conclusion that appellants have failed to satisfy their burden under both, and that the trial court did not abuse its discretion in denying their Motion to Seal. This decision was within the court’s discretion, and we see no reason to disturb it on appeal.

We next address the question of whether the trial court abused its discretion in allowing the Pittsburgh Press to intervene in order to oppose the Motion for Order of Court to Seal the Record with respect to depositions and discovery matters, and in not granting the Church Parties’ Motion to Seal pretrial discovery materials. The court granted the motion to seal with regard to discovery directed at defendant Luddy, but denied the motion to seal other discovery, deeming the motion to do so premature. Appellants, nonetheless, were granted permission to “present objections or motions for protective orders in accordance with the Pennsylvania Rules of Civil Procedure, as the circumstances may warrant.” Trial Court Order, Dec. 23, 1988.

In Stenger, supra, the trial court, following its issuance of a protective order which limited public access to pretrial discovery materials in a civil suit, denied intervention and rejected the exceptions filed by a newspaper. Finding an absence of discretion abused, our Court concluded that civil discovery materials are not presumptively accessible “judicial records”, and that the newspaper which sought intervention had no common law right to access and inspect discovery materials. Moreover, it was found that limiting access to this information did not violate the First Amendment rights of the newspaper.

Stated the Stenger Court:

... [Pjrivate documents collected during discovery are not judicial records. In re Alexander Grant and Company, 820 F.2d [352] at 355 [11th Cir.1987]; Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir.1986); see also Seattle Times v. Rinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) ... [Discovery is essentially a private process. As stated by the Supreme Court in Seattle Times, “pretrial depositions and interrogatories are not public components of a civil trial.” Seattle Times, 467 U.S. at 33, 104 S.Ct. at 2207. Thus, wrote the Court, “such proceedings were not open to the public at common law.” Id. Justice Burger wrote separately in another Supreme Court opinion that “it has never occurred to anyone, so far as I am aware, that a pretrial deposition or pretrial interrogatories were other than wholly private to the litigants.” Gannett Company v. DePasquale, 448 U.S. 368, 396, 99 S.Ct. 2898, 2914, 61 L.Ed.2d 608.

Stenger, 89-90, 554 A.2d at 960-961.

In the aftermath of Stenger, it appears that this Commonwealth does not view discovered information produced in the preparation of civil litigation as material to which the public has a common law, presumptive right of access. It follows that there is no inexorable “legally enforceable interest”, in satisfaction of Pa.R.C.P. 2327(4), which would justify intervention in order to obtain said information. The court below, as such, erred in granting intervention to appellee Pittsburgh Press insofar as the Pittsburgh Press sought access to discovery materials. Moreover, once it granted intervention, it further erred in declining to apply Stenger by denying the motion to seal all discovery information, including those not directed at defendant Luddy. By not applying Stenger, the trial court merely caused a delay which decelerates the wheels of justice by requiring future motions and possibly even appeals over a matter which has already been squarely laid to rest by our case law.

Appellee Pittsburgh Press attempts to distinguish Stenger; inter alia, on the basis that in that case:

[T]his Court was requested to only consider the issue of access to discovery documents. Access to judicial records and proceedings was not in issue ... The scope of the requested seal [in the instant case] was more expansive than that at issue in Stenger. Here the Church Parties sought a seal also for records including pleadings and all pretrial proceedings. The trial court disagreed and found that ‘the public possesses both a common law and constitutional right of access to civil judicial proceedings and records.’ [citation omitted]. Because the trial court recognized that right, it is patently clear that the Press had a corollary right to intervene in order to have such right vindicated.”

Appellee Brief at 12-13.

The Pittsburgh Press notes that in the case at bar, unlike Stenger, presumptively accessible pleadings and pretrial proceedings were sought in addition to pretrial discovery materials. It implies that the seeking of these additional materials provides the “legally enforceable interest” which Pa.R.C.P. 2327(4) requires, and proceeds to argue in favor of a right of intervention, based upon this interest, presumably for all of the materials which it seeks, the results of discovery proceedings, by implication, included. The basis for this right is, at best, murky. If civil discovery materials are not considered judicial records for purposes of public access, it does not follow that the mere attempt to seek other records which may be accessible over and above these private documents automatically transforms the latter into appropriate subjects for intervention purposes. It follows that intervention for purposes of attempting to access pleadings and pretrial proceedings, as stated earlier, was properly granted, but that the court, based upon Stenger, abused its discretion in allowing appellee Pittsburgh Press to intervene in order to oppose the Motion to Seal insofar as it related to discovery matters.

We emphasize that our holding will in no way affect the openness of the trial below. No party seeks closure, the trial will remain open to the public, and at that time all relevant and admissible evidence will not only be admitted, but will also be available for public consumption.

For the reasons set forth herein, the order is affirmed in part, and reversed in part; the case is remanded for the entry of an order consistent with this opinion. Jurisdiction is relinquished.

BECK, J., files a concurring and dissenting opinion.

BECK, Judge,

concurring and dissenting:

I concur with the majority in its conclusion that our court possesses subject matter jurisdiction over this appeal. In addition, I concur in the majority’s finding that the Pittsburgh Press possesses the right to intervene to vindicate its right of access to all pleadings and pretrial proceedings. However, I must dissent from the majority’s findings regarding the Pittsburgh Press’ right of access to pretrial discovery information.

After substantively evaluating the claims of the Church Parties and the Pittsburgh Press regarding access to pretrial discovery materials, the majority concludes that the trial court erred both in granting intervention to the Pittsburgh Press to assert its right of access to the discovery materials and in denying the Church Parties’ motion to seal all discovery information.

With regard to the discovery issue, Judge Fike of the Court of Common Pleas of Somerset County ruled that:

The motion for seal of other discovery is denied at this time as premature. If such other discovery is initiated, the parties may present objections or motions for protective orders in accordance with the Pennsylvania Rules of Civil Procedure, as the circumstances may warrant. Copies of all notices, interrogatories, requests and other documents shall immediately be served upon all other parties.

Trial Court Order, Dec. 23, 1988.

The trial court denied appellants’ motion to seal discovery as premature, but invited appellants to “present objections or motions for protective orders in accordance with the Pennsylvania Rules of Civil Procedure, as the circumstances may warrant.”

In effect, Judge Fike’s order has postponed a decision on discovery until the discovery phase is initiated and the defendants have registered a complaint. We cannot, as the trial court could not, decide the motion to seal discovery where discovery has not yet commenced. It is quite possible that in the future the court may rule in favor of a motion to seal discovery. However, until such time as the trial court makes a specific appealable ruling and the appellant is aggrieved thereby, the discovery question is not ripe for review. Thus, clearly the majority’s substantive evaluation of this issue was improper as premature. I would, therefore, affirm the trial court’s December 23, 1988 Order in its entirety.

      . Although this motion was filed by Bishop Hogan and the Altoona-Johnstown Diocese, Monsignor Thomas Madden, Monsignor Roy F. Kline, Monsignor Ignatius Wadas, and St. Mary’s Roman Catholic Church, have also appealed. The terms "appellants” and "Church Parties”, as such, refer to all of the above.
      Although named defendants in the suit below, Father Francis Luddy, Cardinal John Krol, and the Arch-Diocese of Philadelphia, are not parties to this appeal.

      . Criminal charges, pending at the time that this civil suit was instituted, were also filed against Luddy due to these alleged acts.

      . Bishop James Hogan and the Altoona-Johnstown Diocese claimed that the absence of a seal would make it "impossible for [all of the] defendants to obtain a fair and impartial jury and a fair and impartial trial of this case and [would] result in irreparable prejudice and harm to the rights of these defendants, their good names, reputations [sic] and standing in the community.” Motion for Order of Court to Seal Record, p. 3. They also asserted that the absence of a seal would prejudice Luddy’s ability to obtain a fair trial in the related criminal prosecution.
      Only a complaint and a motion to amend the complaint were on file at the time that this Motion to Seal was filed.

      . The Pittsburgh Press petitioned to intervene "for the limited purpose of opposing the closure of proceedings and records and to fully participate in any hearing on the defendants’ Motion to Seal Record.” Petition of the Pittsburgh Press Company to Intervene in Opposition to Motion to Seal Records, Nov. 21, 1988, p. 4.

      . The full Order of Court reads as follows:
      ORDER
      NOW, this 23rd day of December, 1988, it is hereby ORDERED that:
      1. Defendants’ motion to seal completely all pleadings and pretrial proceedings thereon is denied.
      2. For the purpose of protecting defendant Luddy’s fair trial right, however, it is ORDERED that pending completion of defendant Luddy’s criminal trial, the party intending to file a pleading or document in the civil case, shall first examine the pleading or document and determine whether it contains information, publication of which is prohibited by Rule of Professional Conduct 3.6, which information, for purposes of this Order, is defined as follows:
      (a) Statements relating to the character, credibility, reputation or criminal record of a party or witness in the criminal case, or expected testimony of such a party or witness;
      (b) Statements relating to the possibility of a plea of guilty to the criminal offenses or the existence or contents of any confession, admission or statement by defendant in the criminal case, or that person’s refusal or failure to make a statement;
      (c) Statements relating to the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented in the criminal case;
      (d) Any opinion as to the guilt or innocence of defendant in the criminal case;

        (e) Information a lawyer knows or reasonably should know is likely to be inadmissible as evidence in the criminal case and would, if disclosed, create a substantial risk of prejudicing an impartial trial.
      In the event the pleading or document contains such information, the pleading shall be filed under seal in the office of the Prothonotary of Somerset County and the contents thereof shall not be disclosed to persons other than the parties to the civil action and their counsel, unless otherwise ordered.
      3. If pretrial arguments or hearings are necessary, the parties may apply for further relief if the circumstances warrant.
      4. Defendants’ motion for seal of discovery material is granted in part and denied in part as follows:
      (a) Pending completion of Defendant Luddy’s criminal trial, interrogatories and other discovery directed to defendant Luddy and responses thereto shall be disclosed only to the parties and their counsel, and if filing is necessary, shall be filed under seal in the Prothonotary’s office.
      (b) The motion for seal of other discovery is denied at this time as premature. If such other discovery is initiated, the parties may present objections or motions for protective orders in accordance with the Pennsylvania Rules of Civil Procedure, as the circumstances may warrant. Copies of all notices, interrogatories, requests and other documents shall immediately be served upon all other parties.
      /s/
      Eugene E. Fike, II, P.J.

      . The order in dispute is not final because it neither ends the litigation nor disposes of the entire case. Pugar v. Greco, 483 Pa. 68, 70, 394 A.2d 542, 544 (1978).

      . Gottschall v. Jones & Laughlin Steel Corp., 333 Pa.Super. 493, 482 A.2d 979, cert. denied, 474 U.S. 845, 106 S.Ct. 134, 88 L.Ed.2d 110 (1984), relied on by Hutchison, who aligns himself with the Pittsburgh Press in this appeal, is not dispositive. Unlike Gottschall, the issue here is not access to documents which could determine issues of liability, because pretrial documents and proceedings are accessible to both parties. Rather, the issue is whether the press may access these documents or whether such public access would prejudice the Church Parties’, and defendant Luddy’s, right to a fair trial. It is clear that this right is separable from and collateral to the main cause of action, and Gottschall does not apply.

      . We are aware that the Stenger court found that limiting access to information in that case did not violate any first amendment rights of the United States Constitution, in addition to not being in contravention of the common law. We have reviewed appellee’s attempts to distinguish Stenger, and find that denying intervention here would also have been the only proper manner within which the court could have exercised its discretion under both the United States Constitution, and our common law.
      This conclusion is not altered by the fact that in Stenger all of the parties, including the plaintiff, favored a protective order, while in the instant appeal Hutchison joins the Pittsburgh Press. This is so because the substance of the Stenger holding, and the rationale supporting it, clearly remain unaffected by the postures adopted by the various parties in the case before us.

      . Discovery materials, however, are private, and, until trial of this matter, should not be used, directly or indirectly, in any pleadings or other materials filed of record and without seal.