author: TAMILIA, Judge: CERCONE, Judge,

text:
    648 A.2d 563
    COMMONWEALTH of Pennsylvania v. John Jay SHEPPARD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 14, 1994.
    Filed Sept. 30, 1994.

      Lester G. Nauhaus, Public Defender, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before OLSZEWSKI, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

Appellant, John Jay Sheppard, was convicted of first degree murder and appeals from the mandatory judgment of sentence of life imprisonment without parole entered December 9, 1991.

The trial judge, the Honorable W. Terrence O’Brien, accurately set forth the facts of this case as follows.

On March 9, 1991, between 3:00 and 4:00 P.M., Angel Stier went to the Sheppard home on Fitzsimmons Street in Penn Hills, Allegheny County. When she arrived the defendant, his sister, Amy, his brother, Robert, and his parents were there. The defendant, Robert and Stier went to the basement where they sat, talked and watched television. James Prenter subsequently joined them. Sometime between 5:00 and 7:00 P.M. the victim, Karl Kerr, arrived. He stayed about thirty minutes to an hour and then left. About a half hour later, Kerr returned with a “party ball”, which is a round ball full of beer with a pump, similar to a keg. Then Kerr left, and the defendant, Robert, Prenter and Stier watched television, talked and drank.

Kerr returned, around 9:00 or 9:30 P.M., and brought a bottle of Jack Daniels, which everyone drank. After that, several arguments ensued. One incident involved Kerr slap boxing Robert, I.E., hitting him in the face. The defendant became angry and said, “You can’t hit my brother.” Kerr apologized to Robert and everyone resumed drinking and talking.

Kerr became more argumentative. Both he and defendant were drunk. Then defendant and Kerr argued about a mug that Kerr broke. The defendant wanted Kerr to pay for the mug, but he refused. Defendant accused Kerr of always breaking his “things”.

At one point during the evening, Kerr was sitting at the bar, resting his head on his hands. Defendant went into the utility room and returned with an ax. He swung the ax at least twice, missing Kerr and striking the bar. Kerr got up and went to sit in a chair. The defendant followed him and continued swinging. The first blow hit Kerr’s side. After defendant swung a couple more times, Kerr got up and tried to protect himself. Defendant continued his attack even after the unarmed Kerr was down, hitting him about the head, body and legs.

Detective Pat Meredith arrived at the Sheppard house at 12:50 A.M. The victim was laying on his left side, on the floor, partially on the ax. There was an enormous amount of blood on the floor and splattered on the ceiling, duct work and walls. He had numerous wounds to the head, chest and stomach area, and defensive wounds about the arm area. An autopsy revealed the cause of death to be incised wounds to the head. The long handled ax weighed 5% pounds. It was 34 inches in length with a 4% inch blade. There was blood and blood-encrusted hairs on the ax head which were consistent with the blood and hair of the victim.

(Slip Op., O’Brien, J., 6/30/93, pp. 2-4; citations to trial transcript omitted.)

As in any case where there is a factual dispute on the record as to the activities in which appellant and the victim engaged, the issues of credibility are to be determined by the jury. “[I]t is the prerogative of the fact-finder to believe all, part or none of the evidence presented.” Commonwealth v. Hlatky, 426 Pa.Super. 66, 75-77, 626 A.2d 575, 580 (1993). Appellant’s attack on the verdict avers in principle that the evidence was insufficient to convict him of first degree murder because his state of mind was such that he acted in the “heat of passion” or under an unreasonable belief the killing was in self-defense.

In reviewing the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. If a jury could have reasonably determined from the evidence adduced that all of the necessary elements of the crime were established, then the evidence will be deemed sufficient to support the verdict.

Commonwealth v. La, 433 Pa.Super. 432, 640 A.2d 1336, 1350 (1994) (citations omitted).

Appellant contends that trial counsel was ineffective in presenting his defense which resulted in conviction of first degree murder rather than a lesser degree of guilt or possible discharge. We note that the instant timely appeal was perfected after trial counsel from the public defender’s office withdrew and new counsel, also from the public defender’s office, was assigned. In these circumstances, Commonwealth v. Barnes, 406 Pa.Super. 58, 593 A.2d 868 (1991), instructs:

Because. present counsel is raising claims challenging the effectiveness of another attorney from the same office, we should remand the case for appointment of new counsel unless (1) it is clear from the record that counsel was ineffective, or (2) it is clear from the record that the ineffectiveness claim is meritless.

Id. at 60-61, 593 A.2d at 869 (emphasis added). Appellate counsel presents the following statement of questions for our consideration.

I. Was trial counsel ineffective for failing to argue that available psychiatric testimony relating to Mr. Sheppard’s state of mind was relevant in determining whether he acted in the “heat of passion” or under an “unreasonable belief the killing was justifiable?”

II. Was trial counsel ineffective for failing to argue in post-trial motions that the trial court erred in not granting a mistrial based on the prosecutor’s inflammatory remarks in his closing arguments?

Appellant’s brief at p. 3.

The standard of review in analyzing ineffectiveness is subject to a three-tiered analysis. First, the appellant must demonstrate that the underlying claim is of arguable merit. Second, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his/ her client’s interests and finally, we require a showing that establishes the manner in which counsel’s choice of action prejudiced the client. Commonwealth v. Williams, 537 Pa. 1, 640 A.2d 1251 (1994); Commonwealth v. Toro, 432 Pa.Super. 383, 638 A.2d 991 (1994). The law presumes counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the appellant, Commonwealth v. Boyles, 407 Pa.Super. 343, 595 A.2d 1180 (1991), and counsel will not be deemed ineffective for failing to assert a defense that would not have been beneficial. Williams, supra. Moreover, a claimant must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective since the appellate courts will not consider such claims in a vacuum. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).

Having established the criteria for review, we move to the issues posited by appellant. Appellant first contends trial counsel was ineffective for failing to pursue a “heat of passion” voluntary manslaughter defense by use of psychiatric (psychological) testimony, pursuant to 18 Pa.C.S. § 2503, which provides:

(a) General rule. — A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed.

This argument is without merit because at trial appellant did not testify that he acted in the “heat of passion” after Kerr had seriously provoked him. Two arguments ensued between appellant and Kerr, the first after Kerr was “slap boxing” with appellant’s brother and the second after Kerr broke a naval mug belonging to appellant. In neither situation was there sufficient aggravating circumstances to constitute serious provocation. In fact, the appellant and Kerr were categorized as best friends, and after one of the disputes, the victim apologized for striking appellant’s brother. The testimony elicited by the Commonwealth from Angel Stier concerning the two arguments and appellant’s testimony alleging self-defense preclude the possibility of a “heat of passion” finding. Under these circumstances, psychiatric (psychological) testimony was not relevant or admissible to support that position.

Appellant also claims trial counsel was ineffective for failing to argue psychiatric (psychological) testimony was relevant to help establish appellant’s state of mind when he acted “under an unreasonable belief the killing was justifiable.” This argument is more complex, but, nonetheless, no basis exists for finding ineffectiveness.

Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974), is instructive as to when prejudicial error is committed in failing to introduce psychological/psychiatric evidence to aid in establishing a defense based upon “heat of passion” or “imperfect self-defense.” It remains to be determined if error was committed when trial counsel failed to object to the denial of admission of testimony by the psychologist, Dr. Herbert Levit, as to impaired cognitive mental functioning based on paranoid ideation, exacerbated by heavy use of alcohol. As indicated above, pursuant to the standard espoused in Williams, and its predecessors and progeny, the ineffectiveness of counsel is measured by whether the course asserted to have been foregone by counsel would have reasonable merit, whether the course chosen had no reasonable basis designed to effectuate the client’s interest and, finally, how counsel’s commission or omission prejudiced him. Our analysis of the facts, admissibility of the psychological testimony and the court’s charge to the jury leads us to conclude there was no merit to the argument of “imperfect self-defense” based on impaired state of mind, and the appellant suffered no prejudice by the failure of trial counsel to omit presentation of that defense. The facts of record belie the likelihood that any objective basis existed for a subjective, although unreasonable, belief that appellant was in danger and acted in self-defense.

We consider the testimony of two witnesses, Angel Stier and appellant, in determining whether such a subjective belief could be justified on the facts as required by Light, supra, and 18 Pa.C.S. § 2503(b), Unreasonable belief killing justifiable. The two versions are diverse, Stier clearly establishing a deliberate and unwarranted attack by appellant against Kerr after Kerr had withdrawn from controversy, with appellant seeking the ax in another room and pursuing Kerr with a series of vicious onslaughts with the ax, resulting in the death of Kerr. Appellant’s version is that Kerr was continuing to hurt appellant’s sixteen-year old younger brother when appellant intervened, whereupon Kerr turned on him verbally and with finger prods, creating in appellant a fear of death which caused him to wield an ax to defend himself, the ax somehow appearing in his grasp as he was retreating. The appellant ignores the testimony of two other witnesses, called by the Commonwealth, who corroborated the account of Angel Stier. Thirteen-year old James Prenter (who also had been slapped around by Kerr) testified that Kerr was seated in a chair when struck by appellant, and Detective Meredith testified appellant told him he pushed Kerr away from his brother, then grabbed an ax and struck Kerr four or five blows which knocked him down, then a few more blows “for insurance” so he wouldn’t get up. These were not the actions of a person in fear for his life who felt the need to defend himself by deadly force. The forensic pathologist testified a total of seventeen blows were struck. From all of the evidence supplied to the court and to the jury, coupled with the charge on diminished capacity, heat of passion and self-defense, the jury properly could convict appellant of first degree murder.

As detailed above, this finding must be given deference under our standard of review. Of the various defenses proposed by counsel, the weakest to be argued is imperfect self-defense. If the evidence could possibly be construed to mitigate the murder charge, it would be operative in the diminished capacity defense. Despite the proposed testimony of the psychologist, which was directed toward a diminished capacity or heat of passion defense, nothing in appellant’s testimony or the factual situation as played out. in the courtroom can give rise to a reasonable application of a mental state of mind that could justify an imperfect self-defense claim.

The testimony indicated Kerr and appellant were best Mends and there is no evidence of prior episodes which would lead to a belief Kerr was a threat to appellant. The evidence established that the homicide occurred as a result of a steadily escalating process of drinking and horseplay until appellant used excessive and unwarranted force with an ax to retaliate for Kerr’s aggressive behavior. The behavior by Kerr was not life-threatening nor so provocative as to require or provoke retaliation. While apparently intoxicated, appellant, as an alcoholic, according to the toxicologist, dissipates alcohol at a faster rate than non-alcoholics, and the alcohol content of his blood (estimated at .335 per cent) might not have been a true indicator of the degree of intoxication. At any rate, the testimony of the toxicologist was speculative at best and was given whatever weight it was due by the jury.

The psychologist, relying on a five-year old diagnosis of borderline personality in appellant, as well as substance abuse and alcoholism, came to the same diagnosis after his own examination. He concluded these factors would result in impairment of appellant’s cognitive processes (judgment, inhibition, formulation of judgment), which in turn would be further diminished by alcohol. Dr. Levit’s testimony would not have professed that appellant’s underlying chronic condition resulted in such an exacerbated degree of stress in this case as to overcome appellant’s will or judgment. Appellant’s own testimony and that of the witnesses establishes he was operating without impairment of will or judgment. There was insufficient provocation from any of the actions of Kerr to justify heat of passion, and the voluntary intoxication and the degree of knowledge and control exhibited by the appellant prevents the application of a diminished capacity defense. Commonwealth v. Potts, 486 Pa. 509, 406 A.2d 1007 (1979); Light, supra; Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972).

To go beyond a diminished capacity defense to utilize the same testimony, which was unavailing for those purposes, to establish a greater degree of cognitive disability, thereby taking the case out of the various degrees of murder and establishing voluntary manslaughter, is untenable. The evidence would not justify the former and is less availing to justify the latter.

Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), prevents diminished capacity defense by testimony that a person had a “schizoid personality and was paranoid.” Testimony from the arresting police officers was to the effect appellant’s speech was not slurred, he did not stagger, and other than the smell of liquor on his breath, he did not appear to be intoxicated. Appellant had enough control to intervene when Kerr was annoying the three younger persons (Angel, 16, Robert Sheppard, 16, and James Prenter, 13). It was after Kerr broke a mug and smashed and discarded a Jack Daniel’s bottle that appellant attacked him.

Viewing this testimony as it would have been perceived by the trial court and as required by Light, supra, the denial of the psychologist’s testimony was not a fatal error, although the testimony was admissible to show if appellant had a bona fide belief he was in danger. As in Light, the facts of this case are such that there was no basis for a reasonable belief appellant was in danger. Self-defense must be established by showing the actor had an honest, bona fide belief he was in imminent danger; second, the belief must be reasonable in light of the facts as they appeared to him. McCusker, supra, provides that psychiatric evidence is admissible as to a defendant’s state of mind as to the bona fide belief. While the psychological evidence was admissible on the subjective state of mind under the circumstances, the prerequisite of objective elements to trigger the belief he was in danger was not present. The mere diagnosis of paranoid personality does not provide appellant with a standing immunity from any charge of homicide higher than voluntary manslaughter. Paranoia and paranoid personalities are extant throughout the population and persons with that mental condition function for the most part without committing mayhem or homicide.

It is not the appellant who determines what is a reasonable belief. There must be some standard by which this belief is measured. Commonwealth v. Fisher, 342 Pa.Super. 533, 493 A.2d 719 (1983). In a concurring opinion in Potts, supra, Justice Nix, concurring in the result, would have found that following McCusker, supra, an objective standard is required to be applied in determining whether there was sufficient provocation. When heat of passion and diminished capacity are ruled out for the same reason, the paranoid ideation cannot be applied. Zettlemoyer, supra. Recently, the legislature has determined to what degree psychosis or mental aberration relieves the individual of culpability and the requirements far exceed the alleged condition of appellant here.

Where the appellant goes astray is in the creation of a third category of mental impairment to diminish or relieve culpability by creating a subjective state of mind to permit an imperfect self-defense. Title 18 Pa.C.S. § 2503(b) does not contemplate diagnosed mental disorders as a shield to a defendant under these circumstances but rather speaks to a misperception of the factual circumstances surrounding the event. See Light, supra. The classic case is the situation where a person comes to the door in the middle of the night to ask to use the telephone because of a breakdown, and the occupant, believing a burglar or robber is attempting to gain entrance, shoots in the belief he is acting in self-defense. To extend this concept to the degree proposed by appellant to include a paranoid mental, state would open the flood gates to imperfect self-defense claims based entirely on a subjective state of mind when the objective component is not present. While appellant cites Commonwealth v. Kacsmar, 421 Pa.Super. 64, 617 A.2d 725 (1992), for that proposition, it is not relevant as Kacsmar involved a long history of abuse by the victim and psychiatric testimony was relevant to establish the state of mind thereby created in defendant of chronic fear for his life, and the reasonableness of the belief he acted in self-defense when he shot the victim. No case cited by appellant or located during our research establishes that a diagnosis of paranoid personality, without more, is applicable under section 2503(b), so as to permit a claim of imperfect self-defense. The paranoia is either not a factor which would reduce culpability or, if it is a significant factor, it must be pleaded in a “guilty but mentally ill” or insanity defense.

The legislature has perceived a problem relating to psychiatric disorders as it relates to crime, particularly homicide. Aside from the diminished capacity defense, which has to do with voluntary intoxication, at best reducing the degree of homicide (and only homicide) from first degree to third degree, the only other reduction is in the nature of heat of passion pursuant to 18 Pa.C.S. § 2503(a). An imperfect self-defense, pursuant to section 2503(b), does not fit within these categories and is more in the nature of perception based upon faulty analysis of the circumstances, or state of mind arising from a pattern or history of interaction, which would lead to a reaction based on fear of one’s safety arising out of previous abuse. This is what Kacsmar speaks to, as do those jurisdictions which have adopted the “battered wife syndrome” as a justification for homicide.

In the context of this case, if diminished capacity is not relevant and heat of passion and provocation do not apply, then any claim of acting allegedly in self-defense must be viewed in light of a psychiatric mental condition under the Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association) [“D.S.M. III”] which would carry the mental state into the category “Guilty but mentally ill,” 18 Pa.C.S. § 314.

The legislature did not abolish the M’Naghten Rule, see 18 Pa.C.S. § 314(d), and, therefore, if appellant had sufficient capacity to understand the difference between right and wrong, and his mental capacity was not diminished, or he did not operate out of the heat of passion, then counsel cannot be held ineffective for not attempting an imperfect self-defense justification. If appellant was so paranoid that he did not know the nature or quality of the act he was committing, as suggested by appellant, 18 Pa.C.S. § 314(c)(1) Definition, then “Guilty but mentally ill” was the proper defense. Obviously, this was not a desirable tactical approach by defense counsel because such a plea does not reduce jail time. See 42 Pa.C.S. § 9727, Disposition of persons found guilty but mentally ill. His only reasonable defense was diminished capacity or homicide under heat of passion.

We do not believe the failure to introduce the psychological testimony was of any consequence to appellant’s conviction as the objective evidence did not justify diminished capacity, heat of passion or imperfect self-defense. The appellant’s alleged subjective cognitive process under case law is not a factor for consideration unless and until the objective determination has been made, as in McCusker and Kacsmar, that a basis exists for such a perception. Nothing in the record in this case establishes such a basis. The entire statutory scheme as it applies to exculpatory defenses and degree of guilt evidences a carefully structured schedule of liability measuring culpability by intent, malice, capacity as inhibited by mind altering substances, personality impairment, mental illness and insanity. The category suggested by the appellant’s arguments does not fit into the legislative scheme and cannot be the basis for reversal and remand.

The final issue argued by appellant is that counsel was ineffective for failing to preserve in post-trial motions a claim of trial court error in refusing counsel’s request for a mistrial based on inflammatory comments of the prosecutor. The alleged prejudicial remarks were made during the prosecutor’s closing remarks to the jury:

There’s not a lot that can be done for Karl Kerr and his family now. That is not your role, in any event it is much, much, much too late, even if you were allowed under oath to do so, you can’t remedy it.

You know, the Commonwealth and the Kerr family have no use for tears, no use for prayers, if your verdict is just, that is all we can expect from you.

(N.T., 12/9/92, 316, 337.)

The standard which we must apply to alleged prejudicial remarks by prosecutors was enunciated by the Pennsylvania Supreme Court in Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d 28 (1991).

‘Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial.’ Rather, the focus is on what, if any, effects the comments had on a jury. A new trial is required when the effect of the District Attorney’s comments Vould be to prejudice the jury, forming in their minds fixed bias and hostility towards the defendant so that they could not weigh the evidence objectively and render a true verdict.’

Id. at 77, 595 A.2d at 39 (citations omitted). The remarks were neither prejudicial nor inflammatory and simply implied that the jury could reach a just result, based upon the evidence, without being swayed by compassion for the victim’s family. The court properly charged that the arguments of counsel are not evidence and the jury should not consider them such in its deliberation (N.T. at 366). Finding no prejudice in the prosecutor’s remarks which could change the result of the verdict, trial counsel cannot be deemed to be ineffective for failing to preserve this issue in' post-verdict motions. See Commonwealth v. Pate, 421 Pa.Super. 122, 617 A.2d 754 (1992), appeal denied, 535 Pa. 656, 634 A.2d 219 (1993).

For the foregoing reasons we affirm the judgment of sentence.

Judgment of sentence affirmed.

CERCONE, J., concurs and dissents.

CERCONE, Judge,

concurring and dissenting.

I would hold that appellant’s claim of trial counsel ineffectiveness for failure to proffer psychiatric testimony as to imperfect self-defense has arguable merit. I join the majority’s determination in all other respects. Accordingly, I concur and dissent. The trial judge, the Honorable W. Terrence O’Brien, aptly set forth the background of this case as follows:

On March 9, 1991, between 3:00 and 4:00 P.M., Angel Stier went to the Sheppard home on Fitzsimmons Street in Penn Hills, Allegheny County. (T-60, 61,108) When she arrived the [appellant], his sister, Amy, his brother, Robert, and his parents were there. (T-109) The [appellant], Robert and Stier went to the basement where they sat, talked and watched television. (T-109, 110) James Prenter subsequently joined them. (T-113) Sometime between 5:00 and 7:00 P.M. the victim, Karl Kerr, arrived. He stayed about thirty minutes to an hour and then left. (T-110) About a half hour later, Kerr returned with a “party ball”, which is a round ball full of beer with a pump, similar to a keg. (T-111, 112) Then Kerr left, and the [appellant], Robert, Prenter and Stier watched television, talked and drank. (T-113)

Kerr returned, around 9:00 or 9:30 P.M., and brought a bottle of Jack Daniels, which everyone drank. (T-115, 116) After that, several arguments ensued. (T-118) One incident involved Kerr slap boxing Robert, I.E. [sic], hitting him in the face. (T-118) As a result, Robert’s lip was cut. The [appellant] became angry and said, “You can’t hit my brother.” Kerr apologized to Robert and everyone resumed drinking and talking. (T-119)

Kerr became more argumentative. (T-121) Both he and [appellant] were drunk. (T-158) Then [appellant] and Kerr argued about a mug that Kerr broke. (T-119, 132) The [appellant] wanted Kerr to pay for the mug, but he refused. [Appellant] accused Kerr of always breaking his “things”.

Lower court opinion, 6/30/93 at 2-4.

At this point the evidence diverges. The Commonwealth’s principal witness, Angel Stier, testified that appellant went into a utility room and returned wielding an ax. At that time, Kerr was sitting by the bar with his head resting on his hands. Stier recounted that appellant began swinging the ax, but missed Kerr. Kerr then went to sit in another chair. Appellant continued to swing at Kerr and struck him with the ax several times. Kerr died from the wounds which appellant inflicted. Commonwealth witness James Prenter corroborated Stier’s testimony that appellant left the room to obtain the ax.

Appellant’s version of the events contrasted markedly. He claimed that he drank a. substantial amount of alcoholic beverages that evening. He testified that after Kerr smashed a bottle of whiskey against a wall and broke appellant’s Naval mug, he [appellant] told Kerr to settle down or leave. After-wards, appellant claimed that he saw Kerr hunched over his brother, choking him, and heard his brother crying. At that point, appellant pushed Kerr away from his brother and confronted him. Kerr turned on appellant and cornered him in such a manner that he feared for his life. Appellant was able to reach an ax located behind him. He grabbed the ax and hit Kerr in the chin with the butt of the handle. The blow did not stop Kerr who then mumbled that he was going to kill appellant. Appellant indicated that although he and Kerr were best of friends, he had never seen Kerr act in such a manner. He further indicated that after seeing what he believed to be Kerr choking his brother, he feared for his own life. Therefore, he began swinging the ax, fatally wounding Kerr.

Our standard of review for allegations of ineffective assistance of counsel is well-established and quite narrow. Ineffectiveness claims are subject to a three-part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his or her client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client. Commonwealth v. Tavares, 382 Pa.Super. 317, 321, 555 A.2d 199, 201 (1989), appeal denied 524 Pa. 619, 571 A.2d 382 (1989). Prejudice in the context of a claim of ineffective assistance of counsel is determined by an evaluation of whether “but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different.” Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987). The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. Commonwealth v. Smith, 380 Pa.Super. 619, 624, 552 A.2d 1053, 1056 (1989), appeal denied, 525 Pa. 581, 575 A.2d 112 (1990). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Cook, 383 Pa.Super. 615, 623, 557 A.2d 421, 425 (1989). Moreover, in making assertions of ineffectiveness, a claimant must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective since the appellate courts will not consider such claims in a vacuum. Commonwealth v. Durst, 522 Pa. 2, 4, 559 A.2d 504, 505 (1989).

Appellant contends that trial counsel was ineffective for failing to argue that the testimony of his expert witness, Dr. Herbert Levit, concerning appellant’s paranoid personality disorder, was relevant to appellant’s defense of imperfect self-defense. William E. Brennan, counsel for appellant before and during trial, was a member of the Allegheny County Public Defender’s office. Mr. Brennan filed notice that appellant intended to offer a diminished capacity defense based on appellant’s paranoid personality disorder. Before trial, the Commonwealth filed a petition seeking to limit appellant’s psychiatric testimony. The Commonwealth argued that evidence of appellant’s personality disorder was not relevant to appellant’s diminished capacity defense. The ¡ trial court agreed with the Commonwealth and excluded Dr. Levit’s testimony. See Commonwealth v. Zettlemoyer, 500 Pa., 16, 454 A.2d 937 (1982) (personality disorders are not relevant to a diminished capacity defense). On appeal, without contesting the trial court’s ruling, appellant contends that trial counsel was ineffective for failing to argue the relevance of Dr. Levit’s testimony as to “heat of passion” and “imperfect self-defense” voluntary manslaughter. I would find that such evidence would have been relevant to appellant’s defense of imperfect self-defense and failure to offer it for that purpose might have been ineffective assistance of counsel.

The Pennsylvania Crimes Code defines voluntary manslaughter in pertinent part as follows:

(a) General rule. — A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed; ...
(b) Unreasonable belief killing justifiable. — A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.

18 Pa;C.S.A. § 2503.

Appellant testified at trial that he acted in self-defense. Therefore all of the essential elements of evidence surrounding a self-defense claim become relevant and admissible. In so concluding, it is necessary to analyze the nature of self-defense. On that point, our Supreme Court has written:

It has long been the law in Pennsylvania that in order to establish the defense of self-defense, three essential elements must be proved by the defendant by a preponderance of the evidence: ‘(1) The slayer must have been free from fault in provoking or continuing the difficulty which resulted in the killing.... (2) The slayer must have reasonably believed that he was in imminent danger of death, great bodily harm, or some felony, and that there was a necessity to kill in order to save himself therefrom---- (3) The slayer must not have violated any duty to retreat or avoid the danger----’

Commonwealth v. Light, 458 Pa. 328, 333, 326 A.2d 288, 291 (1974) (emphasis in original) (citations omitted); Commonwealth v. Samuel, 527 Pa. 298, 590 A.2d 1245 (1991); Commonwealth v. Galloway, 336 Pa.Super. 225, 485 A.2d 776 (1984). The Commonwealth then has the burden of disproving self-defense beyond a reasonable doubt. The Commonwealth may meet this burden with evidence tending to disprove any of the three elements set forth in Light, supra. Commonwealth v. Dinkins, 272 Pa.Super. 387, 391, 416 A.2d 94, 96 (1979). The jury alone determines whether the defendant’s belief is reasonable. Commonwealth v. Fisher, 342 Pa.Super. 533, 541, 493 A.2d 719, 723 (1985). If the jury concludes that the killing was justified, then the defendant is properly acquitted. If the jury determines that the killing was not justified, but that the defendant subjectively believed the killing was necessary and committed the killing pursuant to that belief, then the defendant may be convicted of voluntary manslaughter. Galloway, 336 Pa.Super. at 239, 485 A.2d at 783.

Even a cursory review of appellant’s testimony demonstrates that the evidence was sufficient to place the issue of self-defense before the jury. Appellant testified that when Kerr turned on him, he feared for his life. This claim was bolstered by appellant’s testimony that Kerr threatened to kill him. Appellant stated that he feared Kerr because Kerr’s actions on that evening, including the smashing of the bottle and mug, were completely out of character. Appellant testified that he had never seen Kerr act so violently. Appellant’s evidence was sufficient to allow the jury to consider the issue of self-defense. Therefore, it must be determined whether the testimony of Dr. Levit would have been admissible and helpful to appellant’s self-defense claim.

The Pennsylvania Supreme Court has previously discussed the admissibility of psychiatric evidence- at trial where the defendant claims that he acted in self-defense. In Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974), the defendant was charged with homicide. On the night in question, Light allowed various acquaintances to enter his home to wait for his brother, with whom he lived. While the defendant left the house to purchase beer, two of the guests went to the second floor of his house. When the defendant returned, he noticed lights in an upstairs bedroom and thought that prowlers might have entered. He grabbed a gun from his car and proceeded to enter the house. When the two guests came downstairs, the defendant shot and killed them. Id. at 331, 326 A.2d at 290. Based on these facts, a jury convicted appellant of voluntary manslaughter.

On appeal, the defendant claimed that the trial court erred in excluding the testimony of a psychiatrist as to whether the defendant believed he was acting in self-defense. The Supreme Court agreed with the defendant, holding that when self-defense is alleged, psychiatric testimony may be admitted to show the defendant’s state of mind at the time of the incident. Id. at 335, 326 A.2d at 292 (emphasis added). Specifically, Justice Pomeroy, writing for the Court, held:

It will be noted that the requirement that the defendant be operating under the reasonable belief that he is in imminent danger of death, great bodily harm or some felony, involves two elements. First, the defendant in fact must have acted out of an honest, bona fide belief that he was in imminent danger. Second, the belief must be reasonable in light of the facts as they appeared to him. The first element is entirely subjective; the second, clearly objective.... [W]e believe that psychiatric testimony should be admissible as to the first element, i.e., the subjective element of the defendant’s state of mind at the time of the occurrence. As stated below, it is not relevant as to the objective factor of reasonableness of the defendant’s belief.

Light, 458 Pa. at 334, 326 A.2d at 292. Accord Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977). Cf. Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972) (psychiatric evidence permitted to show that the defendant acted in the heat of passion at the time of the killing). Thus, our Supreme Court has expressly approved of a defendant’s use of expert testimony as it is relevant to his subjective belief that he is in imminent danger. It must also be noted that neither the Supreme Court’s opinion in Light nor the cases citing that decision have limited the types of expert testimony which is admissible on this point, or the types of neuroses which may cause a defendant to honestly believe he is in imminent danger. Compare Commonwealth v. Zettlemoyer, supra (expert testimony on paranoid personality disorder is irrelevant to a diminished capacity defense to murder).

In the present case, the trial court reasoned that appellant’s claim of ineffectiveness was meritless because Dr. Levit’s testimony did not address appellant’s defense of self-defense. I cannot agree with this conclusion. Dr. Levit examined appellant and administered a series of tests to him. The results of those tests, in conjunction with background information Dr. Levit acquired concerning appellant, formed the basis of Dr. Levit’s opinion that appellant suffered from a paranoid personality disorder. N.T. 12/5/91 at 6-8. Dr. Levit’s conclusions are found in the following colloquy which occurred before trial began:

Q: [By defense counsel] Now, Doctor, the mental disorder that he [defendant] indeed suffers from, would that indeed affect the cognitive functions of deliberations in premeditation?
A: It certainly would.
Q: Would you please tell the Court how.
• ******
A: I think that certainly there would be a distortion in his cognitive processes. His judgment would be impaired. He does have a history of rage reactions, of impulsively acting violently under the influence of drugs, which includes alcohol.
His inhibitions would be impaired, his judgment would certainly be impaired, and his ability to formulate reasonable judgments in my opinion would be quite impaired.
Q: Okay. Would they be impaired separate and distinct from the abuse of alcohol, simply suffering from a paranoid personality disorder?
A: I think so, yes, because people who are paranoid misperceive what’s going on in their environment.
* * . * * * *
Q: Now, Doctor, separate from the issue of deliberation and premeditation, would his paranoid personality plus the abuse of alcohol have an effect upon his subjective state of mind at the time of the killing as well?
A: Yes.
Q: To what extent?
A: His state of mind would have been altered from what we consider normal, it would have been impaired, he would he prone to misperceive the things going on around him.

N.T. 12/5/91 at 9-10, 12 (emphasis added). Thus, expert psychiatric testimony revealed that appellant suffered from a paranoid personality disorder. Dr. Levit stated that this disorder distorted appellant’s cognitive functions and impaired his ability to form reasonable judgments. N.T. 12/5/91 at 9-10. Contrary to the holding of the trial court, this evidence may have been relevant to show that appellant misconstrued the events in question and that he held an honest and bona fide belief that he was acting in self defense. Commonwealth v. Light, 458 Pa. at 334, 326 A.2d at 292. Dr. Levit’s testimony concerning appellant’s disorder could have given legitimacy to appellant’s defense, which the jury might have otherwise construed as appellant’s uncorroborated and desperate attempt to absolve himself of liability.

The Commonwealth argues that appellant’s desire to introduce psychiatric testimony is nothing more than a veiled attempt to reduce the charge of murder to voluntary manslaughter based on his intoxicated condition at the time of the killing. This argument is sheer speculation and without a scintilla of fact to support it. Dr. Levit testified that appellant’s paranoid condition would affect his ability to reason, separate and apart from his abuse of alcohol. N.T. 12/5/91 at 10. Because of the psychiatric testimony, the jury could have found that appellant’s reasoning was hampered regardless of his intoxication, and might have served to reduce the killing to voluntary manslaughter. Cf. Commonwealth v. Potts, 486 Pa. 509, 406 A.2d 1007 (1979) (plurality) (evidence of intoxication is not incompatible with evidence concerning heat of passion voluntary manslaughter).

Moreover, this evidence is almost identical to that found in Commonwealth v. Potts, supra. In that case, the Supreme Court found trial counsel ineffective for failing to present psychiatric testimony that the defendant suffered from a condition which caused him to perceive reality inaccurately, and which was exacerbated when the defendant was under the influence of alcohol. Id. at 512, 406 A.2d at 1008. The Supreme Court opined that when the defendant’s state of mind is the only disputed issue at trial, failure to present determinative psychiatric testimony constitutes ineffective assistance of counsel. Id. at 513, 406 A.2d at 1009.

In the present case appellant’s state of mind was not the only disputed issue which the jury was required to resolve. Nonetheless, it was a critical issue. The certified transcripts reveal that trial counsel attempted to prove that appellant believed he was acting in self-defense. Moreover, appellant was the only person to testify that he was acting in such a manner. Without a full disclosure of evidence relating to self-defense, the accused was effectively denied his day in court. Therefore, psychiatric testimony, such as was explained by Dr. Levit, would have been probative of appellant’s state of mind. See Commonwealth v. Fierst, 423 Pa.Super. 232, 620 A.2d 1196 (1993) (where critical issue was the voluntariness of appellant’s actions, failure to offer expert testimony concerning appellant’s seizure disorder was arguably ineffective assistance of counsel). Accordingly, I would hold that appellant’s claim of ineffectiveness has arguable merit.

      . 18 Pa.C.S. § 2502(a).

      . The standard of review is of significant importance in this case as appellant ignores the Commonwealth’s evidence and places all of his emphasis on his recital of the facts, drawing only those inferences therefrom which are favorable to him.

      . While appellant refers to the testimony as psychiatric testimony, the proposed testimony was to be presented by Dr. Herbert Levit, a psychologist, and therefore, as expert testimony, it is properly described as psychological testimony. Since the testimony was never admitted, we leave to another time whether a psychologist may qualify as an expert in presenting “psychiatric testimony” when the qualifications do not meet the standard required of psychiatric certification.

      . 18 Pa.C.S. § 2503. Voluntary manslaughter
      (b) Unreasonable belief killing justifiable. — A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.
      (c) Grading. — Voluntary manslaughter is a felony of the second degree.

      . Only Justices Manderino and Roberts held the view that failure to introduce psychiatric evidence as to state of mind at the time of shooting was ineffectiveness of counsel.

      . 18 Pa.C.S. § 308. Intoxication or drugged condition
      Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative the element of intent of the offense, except that evidence of such intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.

      . 18 Pa.C.S. § 314. Guilty but mentally ill
      (a) General rule. — A person who timely offers a defense of insanity in accordance with the Rules of Criminal Procedure may be found "guilty but mentally ill” at trial if the trier of facts finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.
      (b) Plea of guilty but mentally ill. — A person who waives his right to trial may plead guilty but mentally ill. No plea of guilty but mentally ill may be accepted by the trial judge until he has examined all reports prepared pursuant to the Rules of Criminal Procedure, has held a hearing on the sole issue of the defendant’s mental illness at which either party may present evidence and is satisfied that the defendant was mentally ill at the time of the offense to which the plea is entered. If the trial judge refuses to accept a plea of guilty but mentally ill, the defendant shall be permitted to withdraw his plea. A defendant whose plea is not accepted by the court shall be entitled to a jury trial, except that if a defendant subsequently waives his right to a jury trial, the judge who presided at the hearing on mental illness shall not preside at the trial.
      (c) Definitions. — For the purposes of this section and 42 Pa.C.S. § 9727 (relating to disposition of persons found guilty but mentally ill):
      (1) “Mentally ill.” One who as a result of mental disease or defect, lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.
      (2) "Legal insanity.” At the time of the commission of the act, the defendant was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know he was doing what was wrong.
      (d) Common law M’Naghten’s Rule preserved. — Nothing in this section shall be deemed to repeal or otherwise abrogate the common law defense of insanity (M’Naghten’s Rule) in effect in this Commonwealth on the effective date of this section.

      . The other mental illness category is detailed in section 315, Insanity, which requires that the actor be legally insane at the time of commission of the offense. Section 315(b), Definition, provides:
      (b) Definition. — For purposes of this section, the phrase "legally insane” means that, at the time of the commission of the offense, the actor was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the act, that he did not know that what he was doing was wrong.
      It is clear that since the M'Naghten rule continues to abide in Pennsylvania, a person may have a personality disorder without being mentally ill, and mentally ill without being insane, and of diminished capacity without falling into any of the mental disability categories.

      . Voluntary manslaughter based on an imperfect self-defense is defined in 18 Pa.C.S.A. § 2503(b).

        . The majority holds that the facts belie appellant’s claim of self-defense and, instead, overwhelmingly demonstrate that appellant committed first-degree murder. The majority also finds appellant’s theory as to self-defense to be incredible. In making these determinations, the majority has engaged in a fact-finding determination as to whether the evidence weighed in favor of appellant’s defense. 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, 376 Pa.Super. 404 at 414, 546 A.2d at 90, 95-96. (1988). 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). An appellate court, reviewing the cold record, cannot deny appellant relief based on its disbelief of his defense. Accordingly, review of the instant issue must focus upon whether sufficient evidence of self-defense exists and whether expert testimony would have been helpful to appellant’s cause.

      . Although the Supreme Court held that the trial court had erred by excluding this evidence at trial, the Court found the error to be harmless since the evidence was only relevant to reduce the charges to voluntary manslaughter, of which appellant had already been convicted. Id. at 336, 326 A.2d at 292.

      . I find it appropriate to address three additional points made in the majority opinion. First, the majority would find that the evidence overwhelmingly supported the Commonwealth’s version of the events. Had the jury had the benefit of hearing Dr. Levit’s testimony, however, it could have still reconciled the Commonwealth’s version of the events with appellant’s mistaken belief that he was acting in self-defense.
      Second, the majority finds that "Dr. Levit did not testify that appellant’s underlying chronic condition resulted in such an exacerbated degree of stress in this case as to overcome appellant’s will or judgment.” Majority opinion at 9-10. Dr. Levit testified that appellant’s disorder caused impaired judgment and a distortion of reality. Ultimately, the jury must determine whether appellant’s judgment may have been sufficiently impaired so that he thought he was acting in self-defense. Commonwealth v. Hill, 427 Pa.Super. 440, 446, 629 A.2d 949, 952 (1993). Further, I concede that appellant’s will was not affected by his disorder. The defense of self-defense assumes that the actor intended the results of his actions while defending himself. See 18 Pa.C.S.A. § 2503(b) (a person who intentionally kills under an unreasonable belief that the killing was justified commits voluntary manslaughter). The jury must then look to the actor’s state of mind to determine the second element of self-defense — whether his actions were justified or whether he truly believed them to be justified. See Commonwealth, v. Light, 458 Pa. at 335-36, 326 A.2d at 292 (expert psychiatric testimony highlights the psychological differences between justifiable homicide and voluntary manslaughter).
      Finally, the majority would find that a diagnosis of paranoid personality disorder "does not provide appellant with a walking immunity from any charge of homicide higher than voluntary manslaughter” because such personalities are "extant throughout the population.” Notwithstanding that these characterizations concerning the general population are unsupported by the record in this case, I do not deign to imply that appellant may only be convicted of voluntary manslaughter. Certainly the evidence is sufficient to convict appellant of first-degree murder. My point is that if the evidence supports a finding of voluntary manslaughter as well, the defendant is entitled to prepare a full defense to support his position.

      . Under 18 Pa.C.S.A. § 308, evidence of voluntary intoxication may only be used to reduce murder from a higher degree to a lower degree; not to reduce murder to voluntary manslaughter.


source: Caselaw Access Project

author:
DEL SOLE, Judge.
      WIEAND, Judge,

license: Public Domain

text:
    648 A.2d 576
    AMERICAN INSURANCE COMPANY, Appellant, v. FORD MOTOR CREDIT COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued March 16, 1994.
    Filed Oct. 4, 1994.

      Robert F. McCabe, Jr., Pittsburgh, for appellant.
    Charles E. Blume, Pittsburgh, for áppellee.
    Before WIEAND, DEL SOLE and HUDOCK, JJ.
   DEL SOLE, Judge.

This is an appeal from a trial court order granting Summary Judgment and dismissing Appellant’s Complaint on the ground that it is barred by a two year statute of limitations. At issue on appeal is whether a two or a four year limitation period is applicable to the claims set forth by Appellant in its Complaint.

The Complaint alleges that Appellant was the surety for Michael F. Yaconis as Tax Collector for the Township of West Deer and for Deer Lakes School District. It avers that Mr. Yaconis diverted tax monies for his own personal use, and that on one occasion Mr. Yaconis issued a check to Appellee for $17,506.77. The Complaint makes further allegations that because the check was clearly labeled “Mike Yaconis Tax Collector,” Appellee knew or should have know that the money represented by the check was not Mr. Yaconis’ personal property but rather belonged to the taxing bodies. Appellant’s complaint concludes that it had to make payment to the taxing bodies under the terms of its bond, and that Appellee is required by law to return the funds which had been wrongfully converted by Mr. Yaconis.

In ruling on Appellee’s motion for Summary Judgment the trial court applied the two year statute of limitations contained in 42 Pa.C.S.A. § 5524(3). It provides that an “action for taking, detaining or injuring personal property, including actions for specific recovery thereof’, must be commenced within two years. Id. The trial court characterized Appellant’s Complaint as an action for taking or detaining of another’s property, a conclusion with which we agree. In its Complaint Appellant contends that Appellee either intentionally or negligently retained possession of property of another. The Complaint alleges that Appellee knew or should have known that it was in possession of money belonging to the taxing bodies, which the tax collector was not authorized to use for his own personal needs. The allegations of “taking” or “detaining” money to which it had no right, cause the claim made in Appellant’s Complaint to fall under the two year limitation period contained in § 5524(3).

Appellant argues that prior case law requires us to consider this case as a suit for “money had and received.” As such Appellant reasons that the four year limitation period of 42 Pa.S.C.A. § 5525(4) would apply for action upon a contract implied in law. In support of its position Appellant cites to Columbia Casualty Company v. Westmoreland County, 365 Pa. 271, 74 A.2d 86 (1950), and United States Steel and Carnegie Pension Fund v. Decatur, 364 Pa.Super. 294, 528 A.2d 165 (1987).

The trial court, however, has rightfully recognized that the decision in Columbia supra., while markedly similar in factual background, did not comment on the issue presented in this case. Questions of the nature of the action or the applicable limitation period were not at issue in Columbia. Likewise, in United States Steel, supra., although the plaintiff pension fund brought an action for what it termed “monies had and received,” the relevance of this characterization in terms of the applicable statutory limitation period was never discussed.

A reply to the analysis offered by the Dissent may be appropriate. First, the Dissent characterizes the Appellee as “... a third person who has received funds which, in equity and good conscience, should be paid to another.” Unfortunately, there is no analysis of the reason for the payment of the funds to the Appellee which it claims was in compliance of all laws. It does not strain credibility to surmise that the funds were paid for goods received by the payor.

Second, while a claimant has four years to seek recovery under the bond of a public official, this is not dispositive of the issue before us. Since any claim against a bonding company could be brought on the last day of this four year period, and since payment may be resisted for some time thereafter, it may often be that the bond company’s payment will occur more than four years from the conversion. Under this scenario, the bonding company would be prevented from making its claim even if the statute of limitations was four years. The Dissent’s view that our decision today is absurd and unfair is no less “unfair” to the bonding company than a situation where the claimant waits four years before making a claim on the bond.

The four year statute of limitations for making a claim on a bond for a public official is to protect the public interest. The premium charged by the company contemplates this extended claim period. It is not intended to extend the time in which claims can be made against third parties.

Finding no contrary precedent, we conclude that the trial court did not error in applying the two year limitation period of § 5524(3), in this action.

Summary Judgment Affirmed.

WIEAND, Judge, files a dissenting opinion.

WIEAND, Judge,

dissenting.

This is an action to recover township moneys misappropriated by a township employee to pay a personal debt. The plaintiff is the corporate bonding company which paid the township for the losses caused by the unfaithful employee. The defendant is the creditor which accepted a township check in payment of the employee’s personal debt. The trial court dismissed the complaint, holding that the action was barred by the two year statute of limitations applicable to actions for the conversion of property. A majority of this Court agrees. Because I am unable to accept this analysis, I must dissent. The plaintiff-appellant’s cause of action is based on a contract implied in law, i.e., for money had and received, and the applicable statute of limitations is four years.

According to the averments of the complaint, Michael Yaconis, the tax collector for the Township of Deer, issued a township check in the amount of $17,506.77 and delivered it to Ford Motor Credit Corporation in payment of a personal debt. American Insurance Company, a corporate surety, paid the township for the loss which had been caused by the tax collector’s peculation and then brought an action against Ford Motor Credit Company to recover the moneys wrongfully paid to and accepted by Yaconis’s creditor. Because the check, on its face, was a township check, the complaint averred, the creditor knew or should have known that the Yaconis debt was being paid with municipal funds. On motion for summary judgment by the defendant, the trial court dismissed the action, holding that it was untimely under the two year statute of limitations contained in 42 Pa.C.S. § 5524(3).

This section of the statute establishes a two year period within which to commence an “action for taking, detaining or injuring personal property, including actions for specific recovery thereof.” 42 Pa.C.S.A. § 5524(3). The limitation is intended to apply to actions for the conversion of personal property and/or for damage to personal property. Conversion is a tort whereby the defendant interferes with the plaintiffs use or possession of property without the plaintiffs consent and without justification. See: Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 451, 197 A.2d 721, 726 (1964); Bank of Landisburg v. Burruss, 362 Pa.Super. 317, 321, 524 A.2d 896, 898 (1987), allocatur denied, 516 Pa. 625, 532 A.2d 436 (1987).

The instant action, however, is an action for money had and received. “Where one has in his hands money which in equity and good conscience belongs and ought to be paid to another, an action for money had and received will lie for the recovery thereof.” First Nat’l Bank of Monongahela City v. Carroll Township, 150 Pa.Super. 241, 246, 27 A.2d 527, 530 (1942), quoting McAvoy & McMichael, Ltd. v. Commonwealth Title Ins. & Trust Co., 27 Pa.Super. 271, 276-277 (1905). See also: Brubaker v. Berks County, 381 Pa. 157, 112 A.2d 620 (1955); New Holland Turnpike Road Co. v. Farmers’ Mut. Ins. Co., 144 Pa. 541, 22 A. 923 (1891); Solomon v. Gibson, 419 Pa.Super. 284, 615 A.2d 367 (1992); 58 C.J.S. Money Received, § 1. A cause of action for money had and received exists where money is wrongfully diverted from its proper use and falls into the hands of a third person who, in equity and good conscience, has an inferior right thereto. In such cases, the law implies a promise to pay the same to the person entitled thereto. 3 P.L.E. Assumpsit, § 10. An action for money had and received, therefore, is in assumpsit and is based upon a contract implied at law. Cf. Hughey v. Robert Beech Assoc., 250 Pa.Super. 6, 10, 378 A.2d 425, 427 (1977); 42 C.J.S. Implied Contracts, § 11; 58 C.J.S. Money Received, § 1.

Public moneys which have been paid in violation of the law may be recovered in an action for money had and received. 58 C.J.S. Money Received, § 21. In Columbia Casualty Co. v. Westmoreland County, 365 Pa. 271, 74 A.2d 86 (1950), the Pennsylvania Supreme Court addressed a fact situation similar to that in the present action. There, the county tax collector had used public funds to pay a personal obligation owed to the defendant. In an action to recover those funds, the plaintiff alleged that the tax collector had converted public money and that the defendant knew or should have known that the payment to him was improper. If these facts were proven, the Court held, the plaintiff would be entitled to recover in an action for money had and received. Id. at 275, 74 A.2d at 88.

Because an action for money had and received is based on a contract implied in law, I would hold that the statute of limitations for such an action is four (4) years. See: 42 Pa.C.S. § 5525(4). An action of the type here being reviewed is more akin to an action in assumpsit than to an action for the wrongful taking or detention of personal property. Appellee is not a converter of personal property but a third person who has received funds which, in equity and good conscience, should be paid to another. Its obligation to repay the same is based on a contract implied by law.

Any other interpretation would have unfortunate consequences. An action upon an official bond of a public official, officer or employee may be brought within four years. 42 Pa.C.S. § 5525(5). If, as the majority holds, the surety on such an official bond must file an action to recover moneys wrongfully paid to a third person within two (2) years of the conversion, the bonding company will in many cases, if not most, be precluded from bringing any action to recover the moneys from such third person. In the instant case, the tax collector wrote a check for $17,506.77 to Ford Motor Credit Company on December 30, 1989; a proof of loss was filed by the township on April 20, 1992; and the claim was paid by American Insurance Company on May 19, 1992. The present action against Ford Motor Credit Company was filed a year later, on May 19, 1993. Under the majority’s application of the statute of limitations, however, American Insurance Company’s claim for moneys had and received against Ford Motor Credit Company was barred even before the township made any claim on the tax collector’s official bond.

Because I do not believe the legislature intended such an absurd and unfair result, I am unable to agree with the majority’s analysis. Therefore, I must respectfully dissent. Appellant’s action for moneys had and received, in my best judgment, was timely filed.

I would reverse the order of the trial court and remand for further proceedings.


author: OLSZEWSKI, Judge:

text:
    648 A.2d 793
    Tildon J. SIDES and Karen S. Sides, Husband and Wife; Geary W. Huntsberger and Rosemary C. Huntsberger, His Wife; and Robert B. Fowler and Ruth L. Fowler, Husband and Wife, Appellants, v. George CLELAND and Alice Cleland, Husband and Wife, Appellees.
    Superior Court of Pennsylvania.
    Argued June 22, 1994.
    Filed Aug. 11, 1994.
    Reargument Denied Oct. 24, 1994.

      Bruce F. Bratton, Harrisburg, for appellants.
    James L. Goldsmith, Harrisburg, for appellees.
    Before OLSZEWSKI, POPOVICH and JOHNSON, JJ.
   OLSZEWSKI, Judge:

All of the litigants to this dispute live on Hill Island in the Susquehanna River. The island houses few permanent residents, is largely recreational, and has gained a reputation for the occupants’ somewhat riotous behavior. Vacationers and residents alike ride motorcycles and all-terrain vehicles over the mountainous land. When George and Alice Cleland purchased their riverfront property in 1983, their tract was undeveloped; the foliage provided a place for the Cleland family to discover the wonders of nature. Only one thing prevented the property from remaining in its pristine state: a recorded plan established a right-of-way over the Clelands’ property. It is the scope of this right-of-way that is at issue in this suit.

The plan describes the right-of-way as a “logging trail,” but also refers to it as a “30 foot trail,” which is expressly designated for the “common use of the residents of Hill Island.” When the Clelands bought the property, the trail was covered by forestation and used by no one. This did not last long, however, as the Clelands, in order to appreciate nature’s full beauty, cleared part of the trail as a footpath. Several years later, in 1990, the Clelands granted one of the plaintiffs, Geary Huntsberger, the right to clear a path wide enough for vehicles to pass; he wanted to drill a well on his property and found that the trail would provide the most direct route by which he could transport his equipment. What Cleland saw as a favor, however, led to the industrialization of the trail. Although it is still described by many of the islanders as “basically a dirt road,” the inhabitants poured shale and other rock debris over the road to prepare it for vehicular use.

The once idyllic condition of the trail traversing the Clelands’ property quickly became symbolic of man’s excesses: the neighbors and their vacationers drive their motorcycles at dangerous speeds across the Clelands’ property. Young children (one was seven years old) ride cycles there. Inhabitants throw beer parties and permit their guests to ride the trail after drinking. All of this was too much for Mr. Cleland. He feared for his family’s safety and was annoyed by the use of the trail at all hours of the day and night. He undertook a concerted effort to stop the abuses being wrought upon his land by erecting a fence across the right of way. He did not lock the fence, but erected it to keep the cyclists from travelling at dangerous speeds. He later felled a large tree across the trail and refused to remove it.

Cleland’s efforts were not accepted by the neighbors. They claimed that they had a right to use the designated trail for any purpose they saw fit. One of the neighbors (it is unclear from the record exactly who) removed the fence and Geary Huntsberger corralled a group of inhabitants to vindicate their right to use the trail — he wanted to forcibly remove the Clelands’ felled tree. Knowing that his vigilantism would not be met without resistance, he asked one of his gang to videotape the confrontation and two of his band to arm themselves with chainsaws. When the group arrived at the Clelands’ property, Cleland perched himself in the tree. “Bring on the chainsaws!” Huntsberger cried. The sawyers began to cut around the tree, but after noticing Cleland’s resolve, stopped when it was clear that he would not budge. Cleland’s resistance, however, did nothing to deter this lawsuit.

Cleland’s neighbors, the Sides, and several other Hill Island inhabitants brought this suit in equity. They sought an injunction prohibiting the Clelands from interfering with their use of the trail. The Clelands countersued asking that use of the trail be limited to ingress and egress by abutting property owners and for compensation for damages caused by plaintiffs’ trespasses. Mr. Cleland also claimed that he was assaulted by Mr. Huntsberger during the confrontation over the felled tree. After hearing two days of testimony, viewing the videotape, and actually visiting the trail to evaluate its present condition, the Honorable Sebastian Natale found the facts as we described them and concluded that the trail’s current use is unreasonable. He therefore decreed that although Hill Island’s residents had a right to use the trail, it would be “restricted to daylight walking [and] vehicles travelling no more than ten miles per hour,” and that plaintiffs were enjoined from doing any further damage to the land. Judge Natale also held that Mr. Huntsberger assaulted Mr. Cleland, but that Mr. Cleland suffered no compensable damage.

We begin by noting that where a deed incorporates a plan which makes specific reference to a right of way, an easement is implied over that property. Reed v. Reese, 473 Pa. 321, 374 A.2d 665 (1976); Potis v. Coon, 344 Pa.Super. 443, 496 A.2d 1188 (1985); see also, McAndrews v. Spencer, 447 Pa. 268, 290 A.2d 258 (1972) (easement implied over road which bounded property where recorded plan incorporated road, even though road was never dedicated for public use). There is thus no question, and no one argues to the contrary, that the plan creates a private right in each of Hill Island’s residents to to use the trail on the Clelands’ property. The Clelands’ deed specifically refers to the plan which adopts the trail as one for the “common use” of the residents of Hill Island. Appellants, plaintiffs below, complain that Judge Na-tale erred in enjoining them from further developing the trail and limiting its use to daylight walking and slow moving vehicles. Their biggest gripe is that Judge Natale’s restrictions were based on his view of how the trail is used today instead of what the grantor contemplated when the trail was created. We disagree.

Our review of the plan and the deeds in this case leads to the inescapable conclusion that the plan is ambiguous with regard to the trail’s contemplated purpose. The plan refers to the trail as a “logging trail,” but also refers to it as a “30 foot trail,” which is held for the “common use” of the residents. We quite agree that the term “common use” contemplates something more than logging, since the island was developed as a residential and recreational community. We must thus determine why the trail was created in the first place, and reference to the plan alone offers little conclusive help. As was stated in Lease v. Doll, 485 Pa. 615, 403 A.2d 558 (1979), the circumstances attendant to the easement’s creation are important when defining the easement’s purpose:

In ascertaining the scope of an easement created by express grant, the intention of the parties to the grant must be advanced. “Such intention [of the parties] is determined by a fair interpretation and construction of the grant and may be shown by the words employed construed with reference to the attending circumstances known to the parties at the time the grant was made.” Moreover, when the terms of an express grant of an easement are general, ambiguous, and not defined by reference to the circumstances known to the grantee at the time of the grant, the express easement is to be construed in favor of the grantee, and the easement may be used in any manner that is reasonable.

Id. at 621, 403 A.2d at 562-563 (quoting Merrill v. Mfgrs. Light and Heat Co., 409 Pa. 68, 73, 185 A.2d 573, 575 (1962)) (other citations omitted).

Here, the trial court made reasonable efforts to determine the intent of the parties when the easement was created. It reviewed the maps, heard testimony from the parties with regard to the customary use of the trail, and actually viewed the trail in its current state. Although there was scant evidence with respect to the actual grant of the residents’ trail, plaintiffs presented a land surveyor, Charles Cook, who surveyed the property in 1991. He stated that when he surveyed the property, he saw what he considered “just a dirt road” which “looked more like what I would consider a logging trail.” N.T. 4/8/92 at 78. Nearly every person who testified, moreover, simply characterized the trail as “basically a dirt road.” Geary Huntsberger, the Clelands’ grantor and owner of the property when the original plan was filed, claimed that he did not even know that a trail existed until sometime in 1982, two years after the original plan was filed. Thus, we can hardly question the veracity of the Clelands’ claim that the trail was undeveloped when they purchased their tract.

This testimony makes it abundantly clear that the “trail” reserved for the common use of Hill Island residents in the 1980 plan is nothing more than “a track made by passage through the wilderness.” Webster’s New Collegiate Dictionary (9th Ed., 1984) (defining “trail”). As such, the grantees — the plaintiffs and Hill Island’s residents — are entitled to use the trail in every manner consistent with a wilderness trail: they may walk on it and enjoy the natural setting of the island, they may use it reasonably to carry supplies from one person’s tract to another’s, or, if they so desire, use it in conjunction with their logging pursuits. It is not, therefore, a highway or a gathering place. Nor is it an amusement park where thrill seekers can drive all-terrain vehicles at potentially dangerous speeds at any time during the day and night. The trial court’s prohibitions on plaintiffs’ use of the trail — that they do no further damage to the Cleland’s land, that they not drive vehicles over ten miles per hour, and that they walk on it only during the daylight hours — implements the intent behind the trail’s creation by allowing the residents to use the trail and by preserving so much of its natural state that is consistent with that use. Judge Natale’s decree gives plaintiffs everything to which they are entitled (use of the trail) and protects the Clelands’ right to insist that the trail will be used reasonably.

Furthermore, we reject plaintiffs’ contentions that the trial court focused on the current use of the trail to impose restrictions on its use. The trial court heard testimony from plaintiffs and everyone seemed to agree that the trail was “just a dirt road,” and has been a dirt road from time immemorial. Geary Huntsberger testified that the trail, as it exists today, is “pretty well the same as when the first Indian walked down the trail.” N.T., 4/8/92, at 110. Thus, when Judge Natale viewed the trail in 1994, he viewed the same trail, with minor exceptions, that was preserved in the 1980 plan. We have no reason to believe that Huntsberger’s grant- or contemplated preserving the trail for anything other than logging and reasonable recreational uses. Again, Judge Na-tale’s decree is consistent with this contemplation.

Finally, we disagree with Geary Huntsberger’s claim that the evidence was insufficient to prove that he assaulted Mr. Cleland. An assault occurs when an actor intends to cause an imminent apprehension of a harmful or offensive bodily contact. Restatement (Second), of Torts, § 21. When a person approaches another with two associates wielding chainsaws, screams “Bring on the chainsaws!,” to which the sawyers respond by dismembering the tree in which the person sits, a factfinder could reasonably conclude that an assault has occurred. Frankly, we are at a loss to understand how a factfinder could arrive at any other conclusion.

Judge Natale’s decree is affirmed in all respects.

POPOVICH, J., concurs in the result.

      . One of the plaintiffs, Tildón "Butch” Sides, acknowledged that this reputation has earned the island the cognomen "The Land of Beer and Honey.”

      . No one in this case argues that the right-of-way, which essentially runs parallel to the island's beach, is necessary for ingress and egress to other properties from the beach. It appears that using the right-of-way makes it easier for the adjoining property owners to reach their fellow islanders’ property without having to navigate the river.

      . The videotape was admitted into evidence at the trial, and we are urged to view it. Much to our chagrin, however, it has not been certified as part of the record on appeal. As a result, we reconstruct the scene from the trial court's findings of fact and evidence at trial, which surely does not capture the confrontation’s true drama.

      . We must note that since the trail was created by reference to Hill Island's recorded plan — and not described in the residents' deeds — the right to use the trail is characterized as an implied easement, not an easement by express grant. Potis, supra at 344 Pa.Super. at 448-49, 496 A.2d at 1191-1192. We cite Lease only for the proposition that when a court interprets language which creates a right-of-way (such as the wording of Hill Island’s plan), ambiguous language must be interpreted in light of the grantor’s intentions.

      . We understand that when a grantor reserves a right-of-way for the public that he envisions certain evolutionary advances which might affect its use. Thus, although we cannot expect that many Indians rode all-terrain vehicles over the trail, such use might be appropriate in 1994. Judge Natale’s decree acknowledges this and permits vehicular traffic on the trail. He has merely defined what "reasonable” use of the trail encompasses under the circumstances. We have absolutely no reason to question the judge’s perception.


author: CIRILLO, Judge:

text:
    648 A.2d 797
    COMMONWEALTH of Pennsylvania, v. Charles STEWART, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1994.
    Filed Oct. 13, 1994.

      Matthew R. Gover, Harrisburg, for appellant.
    Before ROWLEY, President Judge, and CIRILLO and SAYLOR, JJ.
   CIRILLO, Judge:

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

On November 30, 1992, at approximately 11:00 a.m., Officer Norman Patterson of the Harrisburg Police Department received a dispatch regarding a domestic disturbance involving appellant Charles Stewart and the complainant, Sheri Alton. Officer Patterson was informed by the dispatcher that Stewart had a weapon. Officer Patterson pulled his vehicle alongside Stewart’s at the intersection of 6th and Riley Streets in Harrisburg. Ms. Alton was in the vehicle in front of Stewart’s. Officer Patterson, who was in uniform, got out of his vehicle, a marked police car, and approached Stewart’s vehicle. Officer Patterson drew his gun and ordered Stewart to put his hands on the dashboard. Stewart drove off, following Ms. Alton’s vehicle. He was pursued by the Harrisburg Police and was taken into custody without incident approximately twenty minutes later.

Stewart was charged with escape, resisting arrest, and four summary motor vehicle violations. He was tried before the Honorable Joseph H. Kleinfelter and convicted of escape and three of the motor vehicle offenses. On appeal, Stewart raises the following claim for our review:

Whether the evidence was sufficient to sustain the trial court’s verdict of guilty on the charge of escape, specifically, whether official detention exists when an individual, seated in his automobile, is told under gunpoint by a uniformed officer investigating a domestic complaint, to place his hands on the wheel and turn his car off?

In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crime charged was established beyond a reasonable doubt. Commonwealth v. Jarman, 529 Pa. 92, 94-95, 601 A.2d 1229, 1230 (1992); Commonwealth v. Swann, 431 Pa.Super. 125, 635 A.2d 1103 (1994). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Swerdlow, 431 Pa.Super. 453, 458, 636 A.2d 1173, 1176 (1994) (citing Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988)). See also Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9 (1994). Furthermore, it matters not whether the appellant' finds a witness’s testimony lacking in credibility; such matters are solely within the province of the trier of fact and, as such, will not be assailed on review by this court. Swerdlow, supra.

Stewart argues that there was insufficient evidence to find that he was under “official detention” as required by the escape statute. 18 Pa.C.S.A. § 5121. The statute provides:

(a) Escape. — A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.
(e) Definition. — As used in this section the phrase “official detention” means arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail.

18 Pa.C.S.A. § 5121 (emphasis added).

We must decide whether the phrase “any other detention for law enforcement purposes” extends to a pre-arrest situation such as that described above. 18 Pa.C.S.A. § 5121. Officer Patterson’s testimony, that he was in uniform, in a marked police car, had his gun drawn because the dispatcher had alerted him that Stewart had a weapon, and had ordered Stewart to turn the car off, was, in our opinion, sufficient to alert Stewart that he was being “officially detained.” It is not necessary that the suspect be physically restricted by bars, handcuffs, or locked doors. Escape encompasses more than the traditional notion of a prisoner scaling a prison wall. See Matter of Welsh, 327 Pa.Super. 112, 475 A.2d 123 (1984). See generally Summ.Pa.Jur.2d, § 18:34.

Not all interactions between the police and citizens involve seizure of persons. Only when the police have restrained the liberty of a person by show of authority or physical force may we conclude that a seizure has occurred. “An evaluation as to whether a seizure has occurred must be viewed in light of all the circumstances and whether a reasonable person would have believed he or she was free to leave.”

Commonwealth v. Jackson, 428 Pa.Super. 246, 255, 630 A.2d 1231, 1236 (1993) (quoting Michigan v. Chesternut, 486 U.S. 567, 572, 573, 108 S.Ct. 1975, 1978, 1979, 100 L.Ed.2d 565 (1988)).

Under the circumstances presented in this case, it is clear that Officer Patterson exhibited a show of authority. It is inconceivable that a reasonable person would believe he or she is free to leave when a uniformed officer with a gun drawn has requested that person to turn the car off and to place his or her hands on the dashboard. We conclude, therefore, that Officer Patterson’s show of authority was sufficient to place Stewart in official detention as described in 18 Pa,C.S.A. § 5121. Stewart’s decision to drive off in his car, despite Officer Patterson’s clear instructions, constituted the crime of escape, a flagrant and unlawful removal from official detention.

Judgment of sentence affirmed.


author: CAVANAUGH, Judge:

text:
    648 A.2d 799
    In the Interest of C.L., Born 2/19/79, P.G., Born 5/12/80, Minor Children. Appeal of William PIERSON.
    Superior Court of Pennsylvania.
    Submitted July 5, 1994.
    Filed Oct. 14, 1994.

      Louis J. Kober, II, Greensburg, for appellant.
    Lewis F. Morrison, Jr., Greensburg, for appellees.
    John Casario, Jeannette, for Children and Youth Services, participating party.
    Jennie Bullard, Greensburg, for mother, C.P., participating party.
    Before CAVANAUGH, DEL SOLE and BROSKY, JJ.
   CAVANAUGH, Judge:

William Pierson appeals from the order of the court of Common Pleas of Westmoreland County which, on December 30, 1993, adjudicated the minor children C.L. and P.G. dependent. The adjudication resulted from findings that the children were without proper parental care and upon a finding of sexual abuse by appellant who is the paramour of C.P., the natural mother of both children. C.P. has not appealed the findings of dependency. Upon review of appellant’s claims, the record, the relevant authority and the comprehensive and well-reasoned opinion of the trial judge, we affirm.

Appellant raises three issues before this court: whether the trial court’s finding that P.G. was competent to testify was an abuse of discretion; whether the court abused its discretion by admitting evidence of appellant’s prior criminal conviction; and whether the court’s finding of sexual abuse was supported by clear and convincing evidence.

Before we address these three stated issues, we must determine of whether appellant, who is neither the parent or step-parent nor the legal guardian or custodian of either of the children has standing to bring this appeal. This issue is determined by our holding in In re M.K., 431 Pa.Super. 198, 636 A.2d 198 (1994). In In re M.K. this court was called upon to determine whether the natural mother’s paramour had standing to appeal her child’s dependency adjudication when the adjudication was based on the finding that the paramour sexually abused the child. We stated that since the trial court made a direct finding of appellant’s complicity in the sexual abuse, since the court ordered that appellant have no contact with the children, and since the court’s directives implicitly required appellant to undergo rehabilitation he had a “substantial, direct and immediate interest in the outcome of the case.” Id. at 201, 636 A.2d at 200.

In the matter before us today appellant William Pierson was present and represented by counsel at the dependency hearing which resulted in the adjudication now at issue. The trial court specifically based its finding of dependency on the sexual abuse by appellant and ordered him to have no contact with the children as a result. Clearly, the holding of In re M.K. applies and appellant is properly before this court.

We turn now to the issues raised on appeal. Appellant first claims that the trial court abused its discretion when it found that the minor child P.G. was competent to testify in the dependency hearing.

P.G. is C.P.’s natural child. At the time of the dependency hearing he was 13 years old. Appellant claims that P.G. did not have a consciousness of the duty to speak the truth and did not show an understanding of the word “oath” or an understanding of the seriousness of the courtroom proceedings.

The law in this Commonwealth is that the court must conduct a “searching judicial inquiry” into a potential witness’s mental capacity if the proposed witness is under fourteen years old. Commonwealth v. Anderson, 381 Pa.Super 1, 8, 552 A.2d 1064, 1068 (1988), alloc. denied, 524 Pa. 616, 571 A.2d 379 (1989). The competency investigation is to determine if the proposed witness has the: “(1) capacity to observe or perceive the occurrence with a substantial degree of accuracy; (2) ability to remember the event which was observed or perceived; (3) ability to understand questions and to communicate intelligent answers about the occurrence, and (4) consciousness of the duty to speak the truth.” Id. quoting Commonwealth v. Fultz, 316 Pa.Super 260, 267, 462 A.2d 1340, 1343 (1983). However, “[bjecause a trial judge has a superior opportunity to assess the competency of a witness, an appellate court should virtually never reverse a competency ruling. (Citation omitted.) Thus, the determination of a witness’s competency to testify will not be disturbed on appeal absent a clear abuse of discretion.” Anderson, 381 Pa.Super. at 6, 552 A.2d at 1067. We see no abuse in discretion in the trial judge’s finding P.G. competent to testify.

P.G., who testified in camera, was subject to the required “searching judicial inquiry” of his mental capacity. During the testimony, P.G. testified that it was: “Good to tell the truth. If you don’t tell the truth you’re lying.” P.G. further testified that “[yjou’ll get nowhere if you don’t tell the truth. You don’t get nowhere if you don’t tell the truth,” and that he understood the importance of telling the truth. P.G. did however, display some confusion over what it meant to be “under oath” and the purpose of his testimony.

The lower court, in its opinion, indicated that it carefully reviewed P.G.’s testimony and was convinced that he answered truthfully and that he understood the questions and answers put to him, specifically those having to do with the alleged sexual abuse. The court further stated that its competency ruling was based not only on P.G.’s answers at voir dire but also because of its observations of P.G.’s “demeanor and sincerity”. Upon review of this record we find no abuse of discretion in the court’s determination that P.G. was competent to testify.

Appellant next argues that it was error for the trial court to admit into evidence appellant’s prior criminal record.

In 1983 appellant was convicted of involuntary deviate sexual intercourse with a six year old child. This information was admitted into evidence during the dependency proceedings. Appellant claims that the prior conviction was not relevant in this case, a civil proceeding where appellant’s character was not in issue.

“The decision to admit evidence of prior bad acts is committed to the discretion of the trial judge and will not be reversed on appeal absent an abuse of discretion.” Commonwealth v. Melson, 432 Pa.Super. 1, 637 A.2d 633, 642 (1994). Generally, evidence of other crimes “is not admissible to show the accused’s bad character and his inclination to engage in criminal activity”, it may, however, be admissible “in certain special circumstances where it is relevant for some other legitimate reason.” Commonwealth v. Telford, 523 Pa. 305, 329, 567 A.2d 610, 621 (1989).

We first note that appellant was not an “accused” in this proceeding. The appeal comes from the decision entered in a dependency adjudication. As stated by the lower court in its opinion, the issue before it was whether or not the two children should be adjudicated dependent as a result of being sexually abused by the appellant, the childrens’ mother’s paramour, and whether the children were dependent as being without proper parental care and control. The lower court stated that Mr. Pierson’s criminal record reflected upon the dependency of the children in that their mother had knowledge of appellant’s guilty plea to sexually abusing his stepson and of the condition of his probation that he not be alone with minors. The evidence of the mother’s knowledge of this information, and her testimony that she did nothing to guard against a possible sexual abuse situation reflected upon the childrens’ dependency. We agree with the trial court that the disclosure of appellant’s criminal record was necessary for its determination of the dependency of the children. 42 Pa.C.S.A. § 6341(d) states that in a dependency hearing “all evidence helpful in determining the questions presented ... may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition.” We find that the information was relevant for this legitimate reason and find no abuse of discretion in its admittance.

Appellant’s last claim on appeal is that the court’s finding that C.L. and P.G. were sexually abused was not supported by clear and convincing evidence. Specifically, appellant claims that P.G. was an incompetent witness and that C.L.’s testimony was not convincing in that his complaint of abuse was stale as it was made one year after the alleged incident.

“A finding of dependency must be based on clear and convincing evidence.” In the Matter of B.R., 408 Pa.Super 345, 351, 596 A.2d 1120, 1123 (1991). “While our standard of review in dependency cases is generally quite broad, we must defer to the fact finding of the hearing judge who had the opportunity to observe and rule upon the credibility of the witnesses and parties who appeared.” In re S,M., 418 Pa.Super. 359, 362, 614 A.2d 312, 313 (1992). We have already determined that P.G. was competent to testify and that his testimony was correctly admitted. Along with this was the testimony of C.L. who also testified as to sexual abuse on the part of the appellant. The court below extensively discussed the reasons for its decisions in its opinion. That court based its findings on the testimony of C.L. and P.G. which it found clear, credible and unrefuted. The court below believed the testimony of the children. The trial court found that the minor children had been sexually abused by the appellant. This finding was amply supported by competent evidence in the record. “We will not overrule the findings of the trial court if they are supported by competent evidence.” In re M.K., supra, 636 A.2d at 201. Accordingly, appellant cannot prevail on this claim.

We have reviewed all of the issues raised by the appellant and found them to be without merit. The lower court’s order adjudicating the minor children C.L. and P.G. dependent is affirmed.

Order affirmed.