text:
    663 A.2d 225
    COMMONWEALTH of Pennsylvania, Appellee, v. Leonard THIER, t/a Theta Thier Industries, Appellant.
    Superior Court of Pennsylvania.
    Argued June 27, 1995.
    Filed Aug. 8, 1995.

      Scott B. Bennett, Honesdale, for appellant.
    Michael P. Lehutsky, Asst. Dist. Atty., Honesdale, for Com., appellee.
    Before ROWLEY, President Judge, and HUDOCK and CERCONE, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed after Appellant entered a plea of guilty to one count of deceptive business practices in relation to the sale of illegal fireworks. On October 7, 1994, Appellant was sentenced to a term of imprisonment of not less than three months nor more than one year and was ordered to pay a fine of $5,000.00. In addition, the sentencing court further ordered Appellant not to engage in his present business, either as an owner, employer or employee, in any capacity. Timely filed post-sentence motions were denied by the trial court and this direct appeal followed. We affirm in part and vacate in part.

On appeal, Appellant presents two issues for our review. First, he argues that the sentencing court erred by prohibiting him from engaging in his current business in any capacity for a period of one year. Secondly, Appellant argues that the sentencing court erred in sentencing him in the aggravated range for the crime charged.

We shall address Appellant’s claims in the order presented. Appellant first argues that although he is prohibited, pursuant to his plea agreement, from operating his business in Wayne County, the trial court’s additional sentence which prohibited him from running his business anywhere for a period of one year was unauthorized. Appellant claims that such sentence is unduly punitive. Appellant points our attention to the Crimes Code which specifies that for a conviction of a misdemeanor of the second degree, a punishment shall not be more than two years, see 18 Pa.C.S.A. § 1104(2), nor more than $5,000.00, see 18 Pa.C.S.A. § 1101(4). Thus, Appellant avers that since he has already been fined $5,000.00, any further prohibition on the running of his present business is causing an additional punitive sanction. Moreover, he claims that the sale of certain fireworks, such as Class C common fireworks, is legal and that he should not be prohibited from selling them.

In support of his claim, Appellant cites Commonwealth v. Kline, 235 Pa.Super. 156, 340 A.2d 562 (1975). In Kline, the appellant was convicted of operating a motor vehicle while under the influence of alcohol or drugs in violation of 75 P.S. section 1037. The appellant was fined by the sentencing court and was further ordered by the court to forward his operator’s license to the Clerk of Courts. The appellant argued that his sentence was illegal since the sentencing court had no power to order him to surrender his license. In upholding the appellant’s claim, this Court reviewed the specified penalty provision of section 1037 and stated that “unless the penalty is specifically provided within the penalty paragraph of the statute in question, the sentencing judge [had] no power to impose it.” Id. 158, 340 A.2d at 563. This Court reasoned that the Vehicle Code specifically provided that the Secretary of Transportation of the Commonwealth was empowered to suspend operating licenses and that the sentencing court had “usurp[ed] functions that belong[ed] to the legislature.” Id.

In response to Appellant’s claim in the present matter, the Commonwealth urges this Court to find Appellant’s claim waived since he failed to include a 2119(f) statement in his brief. Pa.R.A.P. 2119(f), 42 Pa.C.S.A Because we find that Appellant’s first issue attacks the legality of the sentence rather than its discretionary aspects, it is not necessary to raise such an issue in a 2119(f) statement. The first, narrow issue raised is whether it was illegal for the sentencing court to order the prohibition of Appellant’s business in addition to Appellant’s fine and term of imprisonment.

The Commonwealth argues that Appellant’s reliance on Kline is misplaced. In Commonwealth v. Petrillo, 255 Pa.Super. 225, 386 A.2d 590 (1978), the appellant entered a plea of guilty to several counts charging him with violations of the Election Code. The appellant was sentenced to a period of two years probation and was fined. Further, the trial court ordered that the appellant be disfranchised for four years. The appellant argued that disfranchisement by order of the trial court exceeded the court’s powers since such penalty “was not included in the express terms of the penalty language of the statutes on the basis of which the information was drawn.” Id. 228, 386 A.2d at 592. This Court disagreed and stated:

Appellant apparently would have us read Kline literally. We think it clear, however, that the crucial characteristic of Kline was, not that the enabling language conferring the power to suspend was not found in a given paragraph, but that the power to suspend was nowhere conferred on the courts, instead being conferred on the secretary. Here, the enabling language conferring the power to disfranchise appears in the Election Code, 25 P.S. § 3552, and specifies that disfranchisement shall be “in addition to any of the penalties herein provided for.” Thus, unlike the situation presented in Kline, in imposing disfranchisement the court was not “usurping] functions that belong to the legislature.” [Kline, 235 Pa.Super. 156, 340 A.2d at 562].

Id. (emphasis in original). Given the holding in Petrillo, the Commonwealth argues that the sentencing court was free to look to any authority whatsoever to justify a sentence other than that found in the Crimes Code. The Commonwealth avers that specific statutory authority exists to prohibit Appellant from engaging in his fireworks business and that authority can be found in the Unfair Trade Practices and Consumer Protection Law (UTPCPL) section 201-4. Section 201-4, entitled Restraining prohibited acts, provides:

Whenever the Attorney General or a District Attorney has reason to believe that any person is using or is about to use any method, act or practice declared by section 3 of this act to be unlawful, and that proceedings would be in the public interest, he may bring an action in the name of the Commonwealth against such person to restrain by temporary or permanent injunction the use of such method, act or practice.

73 P.S. § 201 — 4 (footnote omitted). The Commonwealth notes that it was pursuant to this section that the trial court accepted the plea agreement between the parties which stated that “THE DEFENDANT ALSO AGREES TO ENTER A PERMANENT INJUNCTION CLOSING HIS FACILITY AND BARRING OPERATION IN WAYNE COUNTY PURSUANT TO THE PENNSYLVANIA CONSUMER PROTECTION LAW.” See Guilty Plea Form, at p. 6. Therefore, the Commonwealth contends that the sentencing court, pursuant to section 201-4, had the continuing power to further restrict Appellant’s business.

We cannot agree with the Commonwealth’s argument. Section 201-4 cannot be read as authorizing a sentencing court to freely impose further sentencing restrictions upon one convicted of a crime. To so hold would pervert the purposes of the sentencing guidelines and allow sentencing courts to have unbridled freedom in imposing sentences. The language of section 201-4 is clearly distinguishable from that relied upon by the sentencing court in Petrillo which allowed that court to restrict the appellant’s right of suffrage for four years. In Petrillo, the Election Code specifically stated that disfranchisement shall be “in addition to any of the penalties herein provided for.” See 25 P.S. § 3552. Section 201-4 enables the District Attorney or the Attorney General to bring an action to prevent the use or practice of an unauthorized act, but it does not authorize a sentencing court to sua sponte impose a sentence that serves the same purpose. Our careful review of other sections of the UTPCPL likewise does not reveal any relevant section which would permit a court to sentence as the sentencing court did in the present case. Section 201-4.1, entitled Payment of costs and restitution, provides:

Whenever any court issues a permanent injunction to restrain and prevent any violations of this act as authorized in [section 201-4] above, the court may in its discretion direct that the defendant or defendants restore to any person in interest any moneys or property, real or personal, which may have been acquired by means of any violation of this act, under terms and conditions to be established by the court.

73 P.S. § 201-4.1. The additional sentence imposed in the present matter does not meet the goal proposed in this section. Prohibiting Appellant from running his present business anywhere for one year in no way restores any interest to a person harmed by Appellant’s actions. Moreover, “[t]he purpose of the UTPCPL is to protect the public from fraud and unfair or deceptive business practices and the statute is the principal means for doing so in the Commonwealth.” Pirozzi v. Penske Olds-Cadillac-GMC, Inc., 413 Pa.Super. 308, 313, 605 A.2d 373, 375 (1992), alloc. den., 532 Pa. 665, 616 A.2d 985. In upholding the stated purpose, “the Legislature granted to the Attorney General the power to bring an action in the name of the Commonwealth for injunctive relief to protect the individual citizens who are the prey of unscrupulous persons.” Commonwealth by Packel v. Ziomek, 145 Pa.Commw. 675, 680, 352 A.2d 235, 238 (1976). Given the purpose of the UTPCPL, it is clear that the District Attorney or the Attorney General is the agent who must act on behalf of the citizens, not a sentencing court. For these reasons, we reject the Commonwealth’s claim.

In reviewing a sentence as imposed by the sentencing court, we recognize that the court is vested with great, but not unfettered, discretion in sentencing a defendant. Commonwealth v. Wood, 432 Pa.Super. 183, 206-07, 637 A.2d 1335, 1347 (1994). Moreover, “[a] court may not impose a sentence that exceeds the maximum penalty prescribed by statute.” Id. at 1348. The sentencing guidelines specifically provide for six sentencing alternatives. They include probation, a determination of guilt without further penalty, partial confinement, total confinement, fine, restitution or intermediate punishment. See 42 Pa.C.S.A. § 9721(a)(1)—(6). Without any statutory justification for the challenged portion of the sentence imposed by the court in the present case, we find that the trial court exceeded its powers in prohibiting Appellant from engaging in his present business anywhere for a period of one year.

The trial court reasoned that it had the authority to prohibit Appellant from running his business pursuant to 42 Pa.C.S.A. section 9754(c)(13). This section provides that as a condition to an order of probation, the court may require the defendant “[t]o satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.” 42 Pa.C.S.A. § 9754(c)(13) (emphasis added). This section, however, was improperly relied upon. This section applies only when the trial court wishes to impose a condition on a sentence of probation. No probationary sentence was imposed in the present case, and therefore, section 9754(c)(13) cannot be used to justify the sentencing court’s additional sentence.

Because we can find no authority for the sentencing court’s imposition of the additional sentence, we are constrained to vacate that portion of Appellant’s sentence.

Appellant next argues that the trial court abused its discretion in sentencing him in the aggravated range. Since this contention involves the discretionary aspects of sentencing, the requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), are called into play. Appellant, however, has failed to include a 2119(f) statement in his brief and the Commonwealth, aware of this omission, has objected. Therefore, we are precluded from addressing the merits of Appellant’s claim. Commonwealth v. Shartle, 438 Pa.Super. 403, 404-06, 652 A.2d 874, 875 (1995).

Judgment of sentence affirmed in part and vacated in part. Petition for permission to appeal denied. Jurisdiction relinquished.

      . 18 Pa.C.S.A. § 4107. In exchange for his plea, the Commonwealth agreed to nolle prosse the remaining charges brought against Appellant. The charges included two counts of causing or risking catastrophe, 18 Pa.C.S.A. § 3302, one count of prohibited offensive weapons, 18 Pa.C.S.A. § 908, one count of sale of fireworks prohibited, 35 P.S. § 1272, and one count of sale for permitted uses, 35 P.S. § 1275. Further, Appellant agreed to a permanent injunction wherein his Wayne County business was closed and he agreed to not operate "any business or facility for the storage, sale, manufacture, distribution or transfer of fireworks or any other dangerous or hazardous materials of any kind” in Wayne County. Stipulation, 8/31/94, at p. 3, ¶ A.

      . Obviously, Appellant must still refrain from the operation of his present business in Wayne County since he had agreed to that term at the time he entered his plea.


source: Caselaw Access Project

author: BECK, Judge.

license: Public Domain

text:
    663 A.2d 229
    COMMONWEALTH of Pennsylvania v. Robert BYRD, Appellant (at 3592). COMMONWEALTH of Pennsylvania v. Shawn BENDER, Appellant (at 3836).
    Superior Court of Pennsylvania.
    Submitted May 22, 1995.
    Filed Aug. 10, 1995.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellants.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before BECK, KELLY and FORD ELLIOTT, JJ.
   BECK, Judge.

In these consolidated appeals we determine whether, upon sentencing a defendant following revocation of probation, a trial court is limited to sentencing that defendant to a period of incarceration that is less than or equal to the previously imposed period of probation. We find that no such limitation exists. We therefore affirm.

Robert Byrd pled nolo contendere to possession of cocaine with intent to deliver, possession of cocaine, and conspiracy. Byrd was granted a section 17 disposition pursuant to 35 P.S. § 780-117 and was sentenced to probation without verdict for a period of three years. Byrd subsequently violated the terms of his probation. Following a hearing his section 17 probation was revoked and he was sentenced to ten to twenty three months’ incarceration to be followed by a two year period of probation. While in this second period of probation Byrd was arrested for various drug and firearm offenses and for otherwise violating the terms of his probation. After a hearing Byrd’s second probation was revoked and he was sentenced to two to seven years’ imprisonment.

Shawn Bender pled nolo contendere to one count of possession of cocaine with intent to deliver. Bender was granted a section 17 disposition pursuant to 35 P.S. § 780-117 and was sentenced to probation without verdict for a period of two years. During his period of probation, Bender was arrested and convicted on unrelated drug charges. Following a hearing Bender’s section 17 probation was revoked and the trial court sentenced him to three to six years’ imprisonment.

Both appellants now challenge the legality of their sentences, arguing that under this court’s opinion in Commonwealth v. Anderson, 434 Pa.Super. 309, 643 A.2d 109 (1994), a sentencing court cannot impose a term of imprisonment greater than the term of probation that was revoked. As both appellants raise identical questions for our review, we have consolidated these appeals for disposition. Pa.R.App.P. 513.

Upon revocation of probation a sentencing court possesses the same sentencing alternatives that it had at the time of initial sentencing. 42 Pa.C.S.A. § 9771(b); Commonwealth v. Pierce, 497 Pa. 437, 441 A.2d 1218 (1982); Anderson, 434 Pa.Super. at 317, 643 A.2d at 113; Commonwealth v. Miller, 358 Pa.Super. 219, 516 A.2d 1263 (1986), appeal denied, 515 Pa. 599, 528 A.2d 956 (1987). Additionally, “the setting of the term of probation is not a term of sentence, and may not act as a limitation on the court to impose a sentence for a term of years greater than the probationary period, not in excess of the maximum penalty fixed by law for the particular offense.” Commonwealth v. White, 264 Pa.Super. 495, 400 A.2d 194 (1979) (en banc) (quoting Commonwealth v. Cole, 222 Pa.Super. 229, 294 A.2d 824 (1972)); see also Commonwealth v. Fleeger, 292 Pa.Super. 310, 437 A.2d 60 (1981) (violation of probation may result in more severe sentence).

The question is whether Anderson changed the law and limited the trial court’s power to sentence after revocation of probation. We find that in the absence of circumstances unique to Anderson, no such limitation was imposed on the sentencing judge. In Anderson, the defendant pled guilty to two counts of burglary and was sentenced to a period of incarceration to be followed by a five year period of probation. Two months later, the defendant entered a negotiated guilty plea to one count of theft by unlawful taking or disposition, and one count of receiving stolen property. Pursuant to the negotiated plea agreement, the court sentenced the defendant to five years’ probation to run concurrently with the defendant’s sentence for the burglary convictions. The defendant subsequently violated the terms of her probation and, following a hearing, the trial court revoked the probation and imposed a sentence of two to five years’ incarceration for the burglary convictions and two to four years’ incarceration for the theft convictions. Contrary to the express terms of the negotiated plea agreement, the sentencing court ordered that the sentences run consecutively rather than concurrently, thereby substantially increasing the defendant’s term of incarceration.

A panel of this court held that where a trial court accepts and enforces a negotiated plea bargain in which the parties agree that the sentences shall run concurrently, the court, upon resentencing following probation revocation, may not alter the terms of the agreement by sentencing the defendant to consecutive rather than concurrent prison sentences. This is so because “by accepting the plea agreement, which included a negotiated sentence, the trial court, in effect, circumscribed its sentencing alternatives, the parameters of which were described in the plea agreement.” Anderson, 434 Pa.Super. at 316, 643 A.2d at 113. Therefore, because the sentencing court limited the sentencing alternatives available to it at the time of initial sentencing, it was bound by the same restrictions upon resentencing following revocation of probation.

The holding in Anderson is not applicable to the instant case. Neither appellant entered his plea pursuant to a negotiated plea agreement, nor was the sentencing court’s discretion otherwise limited. Neither appellant suggests that the sentences at issue would have been unavailable to the court at the initial sentencing, and the sentences in fact fall well within the statutory limitations for the crimes charged. The sentencing court was fully within its authority in imposing the judgments of sentence at issue in these cases and we reject an interpretation of Anderson that would hold otherwise.

Judgments of sentence affirmed.

      . 35 P.S. § 780-113(a)(30).

      . 35 P.S. § 780-113(a)(16).

      . 18 Pa.C.S.A. § 903.

      . 35 P.S. § 780-113(a)(30).

      . Our scope of review in an appeal from the judgment of sentence entered following a probation revocation is limited to determining the validity of the revocation proceedings and the legality of the final judgment of sentence. Commonwealth v. Gilmore, 465 Pa. 202, 348 A.2d 425 (1975); Anderson, 434 Pa.Super. at 312, 643 A.2d at 111. In the instant cases, neither appellant takes issue with the revocation proceedings. They challenge only the legality of their sentences based solely on this court’s opinion in Anderson, supra.

      . Possession of cocaine with intent to deliver carries a statutory maximum penalty of 10 years’ imprisonment and a fine of $100,000. 35 P.S. § 780-113(a)(30), (f)(l.l).


author: WIEAND, Judge: BECK, Judge,

text:
    663 A.2d 232
    Mary DIEHL, on Behalf of Michael BEAVER, Appellee, v. Wayne BEAVER, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1995.
    Filed Aug. 10, 1995.

      Gary E. Norton, Bloomsburg, for appellant.
    Before WIEAND, BECK and BROSKY, JJ.
   WIEAND, Judge:

This is an appeal from an order directing the appellant, Wayne Beaver, to contribute to the cost of providing a college education for his son. Because the trial court committed error in determining the amount of the order, we reverse and remand.

Wayne Beaver and Mary Diehl, formerly husband and wife, are the parents of two children: Michael, born on April 17, 1975, and Timothy, born on October 3, 1977. Wayne paid child support pursuant to court order until Michael was graduated from high school. The parties then agreed that Wayne was no longer required to pay support for Michael, and the order was modified to require payment of $313.00 per month for Timothy’s support. In the fall of 1993, however, Michael began attending Pennsylvania State University. On August 6, 1993, therefore, Mary filed a complaint seeking to compel support payments from Wayne for Michael’s college expenses. Following a hearing, a court-appointed master issued a recommended order for support, and both parties filed exceptions. On May 19,1994, the trial court ordered Wayne to pay $245.00 per month toward the cost of Michael’s postsecondary education, as well as $50.00 per month on account of accumulated arrearages. Wayne appealed.

In matters involving support, a reviewing court will not disturb an order of the trial court unless there has been an abuse of discretion. Ball v. Minnick, 538 Pa. 441, 448, 648 A.2d 1192, 1196 (1994); Oeler by Gross v. Oeler, 527 Pa. 532, 537, 594 A.2d 649, 651 (1991); Connor v. Connor, 434 Pa.Super. 288, 290, 642 A.2d 1136, 1137 (1994). An abuse of discretion exists if the trial court has overridden or misapplied the law, or if there is insufficient evidence to sustain the order. See: Drawbaugh v. Drawbaugh, 436 Pa.Super. 57, 59, 647 A.2d 240, 241 (1994); Kelly v. Kelly, 430 Pa.Super. 31, 34, 633 A.2d 218, 219 (1993); Fitzpatrick v. Fitzpatrick, 412 Pa.Super. 382, 386, 603 A.2d 633, 635 (1992).

Following his divorce, Wayne remarried. His second wife is an employee of Bloomsburg University. Evidence was introduced that dependent stepchildren of employees of Bloomsburg University are entitled to a waiver of tuition if they matriculate at that school. Despite testimony to the contrary, the court found that Michael could not qualify under this policy because he did not permanently “reside” with his father and stepmother and because he had not been claimed as a dependent on their income tax returns. In view of the written statement of this policy, we are reluctant to fault the trial court for rejecting the oral explanation for the manner in which its policy is applied by Bloomsburg University. Resolution of factual issues is for the trial court, and a reviewing court will not disturb the trial court’s findings if they are supported by competent evidence. See: Perlberger v. Perlberger, 426 Pa.Super. 245, 263, 626 A.2d 1186, 1196 (1993); Campbell v. Campbell, 357 Pa.Super. 483, 490, 516 A.2d 363, 366 (1986); In re Cummings Estate, 330 Pa.Super. 255, 263, 479 A.2d 537, 541 (1984). It is not enough that we, if sitting as a trial court, may have made a different finding.

A court may not order support for postsecondary educational costs where “[ujndue financial hardship would result to the parent.” 23 Pa.C.S. § 4327(f)(1). In the instant case, Wayne had a monthly income of $2350.00. He was required to make monthly support payments in the amount of $313.00 for the parties’ younger child and $245.00 per month for Michael’s college education. Wayne contends on appeal that because income and expense statements which he submitted to the trial court demonstrated that he had monthly expenses in the amount of $2500.00, the court’s order imposed an undue hardship on him. This is a close question, and the trial court did not make a specific finding as to the amount, if any, which appellant could pay without undue hardship. However, the trial court determined, as appropriate under the statute, that Michael’s educational costs were $9112.00 per year. The court then determined that Wayne’s equitable share of this amount would have been $5467.00 per year, or $455.00 per month. Taking into account Wayne’s other expenses, the court reduced this to $245.00 per month and concluded that this was a “reasonable” amount. While not specifically invoking the words “undue hardship”, therefore, it is nevertheless clear that the court was concerned with Wayne’s ability to fulfill all his financial obligations. In light of Wayne’s monthly income of $2350.00, we are unable to hold that the trial court’s determination was an abuse of discretion. See: Byrnes v. Caldwell, 439 Pa.Super. 574, 578-81, 654 A.2d 1125, 1128 (1995).

Wayne also contends that Mary’s earning capacity was greater than the monthly income attributed to her by the trial court. In determining one’s ability to provide support, the focus is generally on one’s earning capacity rather than on the person’s actual earnings. Kelly v. Kelly, supra at 34, 633 A.2d at 219; Singleton v. Waties, 420 Pa.Super. 184, 190, 616 A.2d 644, 647 (1992); Monsky v. Sacks, 403 Pa.Super. 40, 44, 588 A.2d 19, 21 (1991). A person’s earning capacity “is defined not as an amount which the person could theoretically earn, but as that amount which the person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition and training.” Myers v. Myers, 405 Pa.Super. 290, 297, 592 A.2d 339, 343 (1991); Goodman v. Goodman, 375 Pa.Super. 504, 508, 544 A,2d 1033, 1035 (1988). Here, Mary was employed by Big Brothers and Big Sisters of Columbia County at a salary of approximately $16,000.00 per year. From 1980 to 1985, Mary had been employed as a teacher and had earned a substantially greater income. She testified, however, that recent attempts to find similar positions had been unsuccessful. The trial court accepted her explanation and attributed to her a monthly income of $1300.00. In light of the factual support for the trial court’s finding, this was not an abuse of discretion. See: Klahold v. Kroh, 437 Pa.Super. 150, 649 A.2d 701 (1994) (earning capacity should generally not be based on greater prior earnings where there is no evidence of a deliberate reduction in income to avoid a support obligation).

When ordering a parent to contribute to the costs of a child’s college education, a trial court must consider all relevant factors, including the “ability of the student to contribute to the student’s expenses through gainful employment.” 23 Pa.C.S. § 4327(e)(6). Here, the trial court attributed a $1140.00 earning capacity to Michael during the academic year. The court, however, allocated this sum for the payment of incidental expenses during the school year such as “snack foods, movies, clothing and social affairs,” rather than for direct educational expenditures. During the summer months the court also attributed an earning capacity of $1800.00 to Michael. The court found, however, that this income would be offset by Michael’s living expenses during the summer. These amounts, totalling almost $3000.00, represented a substantial amount for incidental or indirect expenditures. Given the limited income available to the appellant father and the absence of evidence to support the trial court’s finding of need for such incidental items, it appears that the trial court was overly generous to the son when it refused to require that he shoulder a part of the financial burden of obtaining the college education which he seeks.

This becomes abundantly clear when we consider that the trial court also refused to consider other funds which would have been available to the son if he had made any effort to obtain them. Thus, the appellant father complains that the trial court committed serious error when it refused to take into account student loans available to assist Michael in obtaining a college education. The undisputed evidence was that Stafford loans were available to Michael in the amount of $2625.00 during his freshman year, $3500.00 during his sophomore year, $5500.00 during his junior year, and at least $5000.00 during his senior year. The trial court held, however, that it was required to consider “only educational loans received by the student” and that the “financial circumstances of the parents in this case [did] not warrant that Michael avail himself of the Stafford Loan----”

The trial court’s belief that it could ignore the availability of these loans unless they were actually received by the student is based on its interpretation of the statute governing postsecondary educational costs, which provides, in part, that a court shall consider the “receipt of educational loans and other financial assistance by the student.” 23 Pa.C.S. § 4327(e)(3). However, the statute also makes clear that an “award for postsecondary educational costs may be entered only after the child or student has made reasonable efforts to apply for scholarships, grants and work-study assistance.” 23 Pa.C.S. § 4327(a). See also: McGettigan v. McGettigan, 433 Pa.Super. 102, 639 A.2d 1231 (1994) (case remanded for a “determination regarding [student’s] receipt of educational loans and other financial assistance”); Miller v. Miller, 353 Pa.Super. 194, 509 A.2d 402 (1986) (trial court erred by failing to consider student’s “potential contribution ... in light of his parents’ financial circumstances”); Commonwealth ex rel. Hanerkam v. Hanerkam, 221 Pa.Super. 182, 289 A.2d 742 (1972) (availability of loans “does not negate the duty of the parent but does merit cognizance thereof when a serious question of undue hardship is presented”). Thus, it appears that applying for financial assistance when available is generally an affirmative obligation on the part of the student, unless his or her support needs can otherwise be met by the parents with relative ease. Over the course of a four year college education, these loans would represent an amount in excess of $16,000.00 in funds available to Michael. The financial circumstances of the parties do not indicate a standard of living whereby such a significant sum of money can be readily ignored. We hold, therefore, that the trial court erred when it refused to consider student loans available to the student.

On remand, the trial court should consider some or all of the earnings of the student, as well as student loans available to him, and reduce the amount of the order accordingly.

The order of the trial court is reversed, and the case is remanded to the trial court for reconsideration and the entry of an order consistent with the foregoing opinion. Jurisdiction is not retained meanwhile.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

I agree with the majority that this matter must be remanded to the trial court for further consideration. I join in that portion of the majority opinion which holds that the trial court gave proper treatment to the Bloomsburg University tuition waiver policy but failed to give proper consideration to Michael’s ability to contribute to the costs of his own education through employment.

I -write separately because I do not agree -with the majority’s determination that the trial court evaluated whether the support order imposed an undue financial hardship on the father. I also disagree with the majority’s conclusion that the court, in fashioning the support order, was mandated to consider the Stafford loans for which Michael was eligible but did not apply.

In calculating a postsecondary support order for educational costs, the trial court must fashion a preliminary support order based on the facts before it. It must then evaluate whether the order imposes an undue hardship on the parent. 23 Pa.C.S. § 4327(f)(1). Under the undue hardship standard the court may deny postsecondary support altogether or may mold an order so that it does not impose an undue hardship.

In this case father asserts that “the imposition of the order at issue creates an undue hardship upon ... [him], given his other child support expenses, his other general expenses, and his net income.”

I conclude that the trial court issued its order without determining whether it would impose an undue hardship on the father. Rather, the court improperly and simply based its order on the support guidelines. Under the guidelines the court looked to the amount of support that father would have been required to pay for two children. The court then reduced that sum by the amount of support the father was actually paying for Michael’s sibling and arrived at a figure which the court determined to be the father’s educational obligation for Michael. This was clearly error.

The rationale underlying the guidelines is applicable to minor children and not to postsecondary education. The guidelines anticipate that parents will be required to make sacrifices and perhaps even undergo hardships in order to support their minor children. This strict standard is not appropriate for support of an adult child seeking postsecondary education. “The duty of a parent to provide postsecondary education for a child is not as exacting a requirement as the duty to provide food, clothing and shelter for a child of tender years unable to support himself.” 28 Pa.C.S. § 4327(a). The trial court therefore abused its discretion in entering an order for postseeondary educational support based on the guidelines.

The correct method to calculate support for postsecondary education is based on an analysis of educational costs as defined in the statute, 23 Pa.C.S. § 4327(j), adjusted by the student’s own.contribution to his education through grants and scholarships, 23 Pa.C.S. § 4327(d), and consideration of the relevant factors listed in 23 Pa.C.S. § 4327(e). The amount is then molded, if necessary, to avoid an undue financial hardship on the parent. 23 Pa.C.S. § 4327(f)(1).

Most postsecondary students have resources other than their parents to finance their education; for example, their own earnings, work study earnings, scholarships, grants and possibly loans. A parent, however, is expected to contribute except where an undue financial burden exists. A question arises as to whether a parent’s obligation is reduced if the student is eligible for loans. The majority’s view is that the trial court erred in this case because the trial court did not consider the student’s eligibility for loans. I find the majority has misread the statute.

Section 4327 of the Domestic Relations Code, 23 Pa.C.S. § 4327, addresses parental obligation for postsecondary education. Section 4327(a) requires that the student make “reasonable efforts to apply for scholarships, grants and work-study assistance.” The section does not cover loans. Loans are specifically covered in section 4327(e)(3) which instructs the court to consider “receipt of educational loans and other financial assistance” as a factor in determining the appropriate amount of a parent’s contribution to educational costs. Under § 4327(a) the student is required to make reasonable efforts to apply for scholarships, grants, and work-study assistance. Under 4327(e)(3) there is no parallel requirement that the student make reasonable efforts to apply for loans. Rather, that section requires consideration only of loans actually received by the student. Furthermore, loans are treated differently from scholarships and grants in calculating educational costs under the statute. Loans are treated as a factor to be considered in determining the amount of the parent’s obligation and are not required to be deducted from educational costs prior to determining that obligation. On the other hand, scholarships and grants must be deducted from educational costs before the court calculates the parent’s obligation. 23 Pa.C.S. § 4327(d).

It is thus clear from the structure of 23 Pa.C.S. § 4327 that loans are treated differently from other financial awards. As to loans the trial court has a measure of discretion which it does not have with respect to grants and scholarships. The language of section 4327(e)(3), the section relating to loans, permits, but does not require, the court to deduct some or all of the amount of loans the student receives from the parent’s support obligation. The statute recognizes that loans impose an indebtedness upon the student which it may or may not be equitable for the student to undertake. By contrast, other forms of financial assistance which do not impose the obligation of repayment on the student are always automatically deducted under section 4327(d).

Of course, the order fashioned by the court by application of the process set out in the statute may, as a practical matter, require the student to apply for loans if there is a shortfall between the parents’ obligations and total educational costs. Nevertheless the statute itself imposes no obligation to apply for loans and clearly provides that it is receipt of the loan, not eligibility for it, which may be considered by the court in fashioning a support order. It is a misreading of the statute for this court to remand for the trial court to reduce a parent’s obligation based on the eligibility of the student to receive loans where the student did not apply for and never received loans.

This construction of the statute does not make student loans irrelevant to the financing of postsecondary education. As noted above, proper application of the statute will in many instances result in an order which makes it helpful or necessary for the student to apply for loans. It is appropriate for the court, in considering the various factors which, under the statute, are relevant to the amount of the support obligation, to remember that the parents’ funds are not the only source of financing for education and that loans may be available to the student to fund his education if the parents are unable to do so. See Commonwealth ex rel. Hanerkam v. Hanerkam, 221 Pa.Super. 182, 289 A.2d 742 (1972) (although availability of loans does not negate parent’s duty of support, it “does merit cognizance ... when a serious question of undue hardship is presented”). I recognize that for many, if not most, families, loans are an indispensable part of the total financial package for postsecondary education. However, our legislature has determined that for purposes of determining the postsecondary educational support obligations of parents, loans are to be treated differently from other monetary awards.

Accordingly, I cannot conclude that the trial court erred in failing to consider the amount of loans for which Michael was eligible but for which he did not apply.

Like the majority, I would reverse the order of support and remand for further proceedings.

      . Michael did not apply for admission at Bloomsburg University.

      . This income and expense statement is not part of the certified record before this Court.

      . Although the majority states that such a determination was made, I am unable to find any indication in the trial court's opinion that the undue hardship standard was applied, despite appellant's specific exception based on an undue financial hardship. Moreover, even if such a determination were made, this record lacks findings as to appellant’s legitimate and reasonable living expenses. Such findings are necessary to support a determination regarding undue hardship. See Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102 (1989).
      Although the transcript of the master’s hearing in this matter reflects that appellant submitted evidence sufficient to allow the trial court to make the required findings regarding his expenses, the trial court failed to do so. The trial court did not conclude that appellant failed to meet his burden of proving undue hardship by the fair weight and preponderance of the evidence. Compare Byrnes v. Caldwell, 439 Pa.Super. 574, 578-81, 654 A.2d 1125, 1127-28 (1995). Rather, the trial court ignored the evidence submitted regarding expenses and failed to make any finding whatsoever regarding undue hardship.

      . McGettigan v. McGettigan, 433 Pa.Super. 102, 639 A.2d 1231 (1991), cited by the majority, does not hold to the contrary. In that case we remanded for consideration of the student’s “receipt of educational loans and other financial assistance.” This disposition was entirely in keeping with my interpretation of sections 4327(a) and 4327(e)(3).


author: KELLY, Judge.

text:
    663 A.2d 238
    COMMONWEALTH of Pennsylvania v. Christopher HARRISON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1995.
    Filed Aug. 14, 1995.

      Daniel M. Preminger, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before McEWEN, TAMILIA, and KELLY, JJ.
   KELLY, Judge.

In this opinion, we are called upon to determine whether a defendant’s trial counsel can be found to have rendered ineffective assistance to his client by failing to request a jury instruction on criminal trespass in a case where burglary is the offense at issue. We hold that trial counsel cannot be found ineffective because criminal trespass is not a lesser included offense of burglary, and thus, a jury instruction thereon would not have been warranted by the facts. Accordingly, we affirm.

This appeal involves a challenge to appellant’s conviction of burglary following a trial by jury. The relevant facts and procedural history are as follows. On July 29, 1989, at approximately 3:00 a.m., the victim, Ms. Rita Ross, awoke from her sleep when she felt a hand over her mouth and was told to roll over onto her stomach. The victim testified that she complied because she saw “something shiny” in the assailant’s hand, which she believed was a knife. The assailant covered her head with a piece of cloth so she could not see him. The victim testified that the assailant pinned her arms above her head, climbed on top of her, pulled her legs apart with his knee and had forcible intercourse with her. Immediately afterwards, the assailant stood up and forced the victim to her feet. The victim struggled free, started to scream and hit him in an effort to escape. The assailant told her to shut up and punched her in the mouth and on the head. The victim later testified that she recognized the voice as belonging to Christopher Harrison, a co-worker she had dated a few months prior to this attack. The victim continued to scream causing the perpetrator to run from room to room in an effort to flee from the apartment. As this occurred, the victim ran out the front door of her apartment to her next door neighbor’s apartment.

The police were summoned and arrived a few minutes later. After receiving a description from the victim of her assailant and the car she recognized as belonging to the assailant, the officers conducted a search of the surrounding area. While searching the area, Sergeant Ronald Lopit of the Philadelphia Police Department observed appellant walking on Godfrey Avenue and then stepping back behind a tree. Sergeant Lopit questioned appellant and asked him for his name, to which appellant replied, “Christopher Harrison.” This name matched the name that appeared on the identification in the wallet found in the victim’s bathroom through which her assailant entered the victim’s apartment. This name also matched the listed owner of the black car parked outside the victim’s apartment. Appellant was arrested and charged with rape, indecent assault, aggravated assault and simple assault, unlawful restraint, criminal trespass, burglary, theft by unlawful taking and theft by receiving stolen property.

On October 2, 1990, a jury trial commenced. The Commonwealth proceeded only on the charges of rape and burglary. At trial, counsel for appellant, Thomas Edwards, argued to the jury that Harrison was not the perpetrator of these offenses and that he should be found not guilty on both charges. On October 4, 1990, the jury found appellant guilty of burglary and not guilty of rape. On October 15, 1990, appellant filed post-verdict motions challenging the sufficiency of the evidence and jury instructions on burglary. Subsequently, on November 7, 1990, the trial court denied these post-verdict motions and imposed a sentence of not less than eight (8) nor more than twenty (20) years imprisonment. On November 15, 1990, appellant filed a notice of appeal to this Court. However, on December 6, 1991, the appeal was dismissed without prejudice for failure to file a brief.

Subsequently, appellant filed a pro se Post Conviction Relief Act petition alleging ineffectiveness of trial counsel. Present counsel was appointed for appellant and an amended petition was filed on January 27, 1994, requesting a reinstatement of petitioner’s appellate rights. On April 18, 1994, the trial court entered an order reinstating appellant’s right to a direct appeal. This appeal now comes to us for review.

The appellant presents the following issue for our review: DID NOT TRIAL COUNSEL RENDER INEFFECTIVE ASSISTANCE BY FAILING TO REQUEST THAT THE TRIAL COURT INSTRUCT THE JURY ON THE CHARGE OF CRIMINAL [TRESPASS].

Appellant’s Brief at 2.

Our standard of review when faced with a claim of ineffective assistance of counsel is well-settled. First, counsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant. Commonwealth v. Durst, 522 Pa. 2, 4, 559 A.2d 504, 505 (1989); Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 975 (1987). To prevail on a claim of ineffectiveness, appellant must show that his underlying contentions possess arguable merit. Commonwealth v. Durst, supra 2, 559 A.2d 504; Commonwealth v. Davis, 518 Pa. 77, 88, 541 A.2d 315, 318 (1988); Commonwealth v. Pierce, supra 153, 527 A.2d 973. Finding no merit, our inquiry would cease because counsel will not be deemed ineffective for failing to pursue a baseless or meritless claim. Id.; Commonwealth v. Pursell, 508 Pa. 212, 224, 495 A.2d 183, 189 (1985). If appellant’s contention is found to be of arguable merit, he must also establish that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Id. Finally, appellant must show how counsel’s commission or omission prejudiced appellant. Commonwealth v. Durst, supra 2, 559 A.2d 504; Commonwealth v. Davis, supra 77, 541 A.2d 315; Commonwealth v. Pierce, supra 153, 527 A.2d 973.

In the instant case, appellant asserts that trial counsel was ineffective for failing to object to the jury instruction with regard to burglary. Appellant contends that because criminal trespass is a lesser included offense of burglary that trial counsel should have requested a criminal trespass instruction to the jury as a matter of law.

After careful review of appellant’s contention, we hold that it is meritless. Criminal trespass is not a lesser included offense of burglary. Commonwealth v. Carter, 482 Pa. 274, 276, 393 A.2d 660, 661 (1978); Commonwealth v. Franklin, 306 Pa.Super. 422, 429-30, 452 A.2d 797, 801 (1982). Knowledge is not an element of the crime of burglary, and “thus, one defending against a burglary charge would have no reason to establish that (albeit falsely), he believed his presence in a building or occupied structure was privileged or licensed.” Commonwealth v. Carter, supra at 277, 393 A.2d at 661; Commonwealth v. Casella, 312 Pa.Super. 375, 376, 458 A.2d 1007, 1008 (1983); see Commonwealth v. Simpson, 316 Pa.Super. 115, 126, 462 A.2d 821, 826 (1983) (stating that the test for determining whether an offense is a lesser included offense is whether or not all of the key elements of the lesser offense are contained in the greater offense). Thus, it is appropriate that criminal trespass and burglary be indicted as separate offenses. Commonwealth v. Cadogan, 297 Pa.Super. 405, 409 n. 2, 443 A.2d 1185, 1187 n. 2 (1982).

Additionally, at trial the Commonwealth chose only to prosecute the offenses of rape and burglary even though appellant was charged with several additional offenses, including criminal trespass. Therefore, because appellant was not on trial for criminal trespass, he was not entitled to an instruction on finding appellant guilty of criminal trespass. Accordingly, appellant’s argument is meritless. See generally Commonwealth v. Ferrari, 406 Pa.Super. 12, 22, 593 A.2d 846, 850 (1991), appeal denied, 533 Pa. 607, 618 A.2d 398 (1992) (where appellant not entitled to jury instructions on offenses at issue, trial counsel not ineffective for failing to request such instructions).

Upon finding no merit to appellant’s claim, our inquiry would normally cease. However, even if appellant’s claim had merit, trial counsel had a reasonable basis for his trial strategy which was designed to effectuate his client’s interests. Our review of the record discloses that trial counsel sought a full acquittal for appellant on both charges of rape and burglary. Trial counsel contested throughout the case that appellant either raped the victim or committed burglary.

This Court has stated that “[bjefore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Garcia, 370 Pa.Super. 132, 137, 535 A.2d 1186, 1188 (1988), appeal denied, 519 Pa. 652, 546 A.2d 57 (1988) (citing Commonwealth v. Nauman, 345 Pa.Super. 457, 462, 498 A.2d 913, 915 (1985)). Additionally, “[s]o long as counsel’s tactical decisions may be objectively viewed as having a reasonable basis designed to effectuate the client’s interests, his stewardship cannot be deemed ineffective and the defendant cannot be said to have been denied a fair trial.” Commonwealth v. Petras, 368 Pa.Super. 372, 380, 534 A.2d 483, 487 (1987) (citations omitted).

Instantly, the record reveals that trial counsel competently chose a defense strategy with the goal of complete acquittal. Trial counsel was successful in achieving that goal on the charge of rape. However, he was not successful on the charge of burglary. Appellant was not entitled to a jury instruction for the offense of criminal trespass, and therefore, his trial counsel was not ineffective in failing to request it.

The goal of seeking complete acquittal of all charges does not constitute ineffective assistance of counsel. Commonwealth v. Garcia, supra at 138, 535 A.2d at 1189. Therefore, we conclude that trial counsel provided a sound, competent and reasonable defense strategy that was designed to effectuate appellant’s interests. Consequently, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 3121.

      . 18 Pa.C.S.A. § 3126.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 2902.

      . 18 Pa.C.S.A. § 3503.

      . 18 Pa.C.S.A. § 3921.

      . 18 Pa.C.S.A. § 3925.

      . 42 Pa.C.S.A. § 9541 et seq.

      . We note that appellant refers to the charge of criminal conspiracy in the statement of questions presented portion of his brief. However, in the summary of argument and argument sections of his brief (Appellant's Brief at 7-11), appellant focuses solely on the issue of criminal trespass. The Commonwealth never charged appellant with criminal conspiracy. Therefore, we will consider the ineffectiveness of counsel claim surrounding the failure to seek criminal trespass instructions, and overlook this apparent typographical error.

      . Burglary is defined in 18 Pa.C.S.A. § 3502(a) as follows:
      A person is guilty of burglary if he enters a building or occupied structure or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.

      . Criminal trespass is defined in 18 Pa.C.S.A. § 3503(a) as follows:
      (1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he:
      (i) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion therefore; or
      (ii) breaks into any building or occupied structure or separately secured or occupied portion thereof.


author: CIRILLO, Judge.

text:
    663 A.2d 699
    COMMONWEALTH of Pennsylvania v. Phillip J. PERSICHINI, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1995.
    Filed May 2, 1995.
    Reargument Denied July 13, 1995.

      Gregory A. Henry, Bradford, for appellant.
    Charles J. Duke, Asst. Dist. Atty., Bradford, for Com., appellee (submitted).
    Before CAVANAUGH, CHULLO and SAYLOR, JJ.
   CIRILLO, Judge.

Phillip J. Persichini, Jr., appeals from a judgment of sentence entered in the Court of Common Pleas of McKean County. We affirm.

Appellant Persichini was charged with failure to control or report dangerous fires, 18 Pa.C.S.A. § 3301(e)(2), following an investigation into the fire which occurred on Persichini’s property on February 12, 1992. In a jury trial presided over by the Honorable J. Quint Salmon, Persichini was convicted of failure to control or report a dangerous fire pursuant to Section 3301(e)(2) and was sentenced to a term of six months to twenty-three months imprisonment. Persichini’s post-sentence motions were denied and he raises five issues for review on appeal:

(1) Did the trial court correctly charge the jury about the corpus delicti rule and its proper application to 18 Pa.C.S.A. § 3301(e)(2)?
(2) Did the Commonwealth prove the corpus delicti of 18 Pa.C.S.A. § 3301(e)(2) beyond a reasonable doubt independent of the Appellant’s statements and admissions?
(3) Did the trial court err by proscribing the Appellant from using a 5' by 5' sign during cross-examination, by proscribing the introduction of the sign into evidence, by proscribing the Appellant’s use of the sign during closing argument, and by proscribing the Appellant from arguing to the jury that the Appellant’s conduct did not satisfy all statutory elements of the offense charged?
(4) Whether it was improper for the trial court to admonish Appellant’s counsel, within the hearing of the jury, for seeking to place, on the record, an objection to the trial court’s jury charge?
(5) Did the trial court properly correct the Commonwealth’s representation during closing argument that the Appellant’s closing argument pertaining to the corpus delicti was incorrect?

Initially, we note that, at trial, counsel for the respective parties stipulated that Persichini, at the times here involved, owned the real estate located at 87 and 89 Main Street, in Bradford, Pennsylvania, which is the property damaged by the fire. Also, it was stipulated that the cause of the fire is undetermined.

Persichini contends that the trial court improperly charged the jury concerning the corpus delicti rule and its proper application to 18 Pa.C.S.A. § 3301(e)(2). Specifically, Persichini submits that the trial court’s corpus delicti jury charge was both “infirm on its face [and] inadequate” because the court instructed the jury that the corpus delicti may be deemed proven where less than all the elements of the crime alleged are proven beyond a reasonable doubt independent of Persichini’s admissions. Persichini argues, throughout the span of his brief, that each and every element of the crime must be proved independent of a defendant’s admissions and beyond a reasonable doubt before the admissions may be considered by the jury. Persichini’s assertion of the law is incorrect.

The well established corpus delicti rule provides that “a criminal conviction may not stand merely on the out of court confession of one accused, and thus a case may not go to the fact finder where independent evidence does not suggest that a crime has occurred.” Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980); Commonwealth v. Buck, 426 Pa.Super. 26, 28-29, 626 A.2d 176, 177 (1993); Commonwealth v. Forman, 404 Pa.Super. 376, 379, 590 A.2d 1282, 1284 (1991). This rule is rooted in the hesitancy to convict a person of a crime solely on the basis of that person’s statements. Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (1940); Buck, 426 Pa.Super. at 29, 626 A.2d at 177; Forman, 404 Pa.Super. at 380, 590 A.2d at 1284; Commonwealth v. Sestina, 376 Pa.Super. 441, 449, 546 A.2d 109, 113 (1988), appeal denied, 520 Pa. 616, 554 A.2d 508 (1989).

The corpus delicti consists of two elements: the occurrence of a loss or injury, and some person’s criminal conduct as the source of that loss or injury. Commonwealth v. Ware, 459 Pa. 334, 365, 329 A.2d 258, 274 (1974) (citing 7 Wigmore, Evidence § 2072 at 401 (3d ed. 1940)); Commonwealth v. Hogans, 400 Pa.Super. 606, 609, 584 A.2d 347, 349 (1990) (quoting Packel & Poulin, Pennsylvania Evidence (1987), § 424 Corpus Delicti, pp. 280-281); Forman, 404 Pa.Super. at 381, 590 A.2d at 1284; Summ Pa Jur 2d, Criminal Law § 1:3. The identity of the party responsible for the act is not part of the corpus delicti. Commonwealth v. Tessel, 347 Pa.Super. 37, 500 A.2d 144 (1985).

Courts have stated that “[p]roof that the accused was the perpetrator of the crime is not required.” ... The crucial determination in applying the corpus delicti rule is whether, at the close of the case, the proof of the corpus delicti was sufficient to permit the fact finder to consider defendant’s admission or confession [citations omitted].

Hogans, 400 Pa.Super. at 609, 584 A.2d at 349 (1990) (citing Packel & Poulin, Pennsylvania Evidence (1987), § 424 Corpus Delicti, pp. 280-81)).

Importantly, “[b]efore introducing an extra-judicial admission, the Commonwealth is not required to prove the existence of a crime beyond a reasonable doubt.” Commonwealth v. Edwards, 521 Pa. 134, 144, 555 A.2d 818, 823 (1989) (emphasis added); see also Byrd, 490 Pa. at 556, 417 A.2d at 179; Forman, 404 Pa.Super. at 381, 590 A.2d at 1285; Hogans, 400 Pa.Super. at 610, 584 A.2d at 350. Rather, it is enough for the Commonwealth to prove beyond a reasonable doubt that the injury or loss is consistent with the crime having been committed. Hogans, 400 Pa.Super. at 610, 584 A.2d at 350 (citing 27 Standard Pennsylvania Practice 2d § 135:112); Commonwealth v. Rieland, 324 Pa.Super. 115, 119-20, 471 A.2d 490, 492 (1984).

“While the burden of establishing the corpus delicti ‘is not equivalent to the Commonwealth’s ultimate burden of proof [and] the Commonwealth need not prove the existence of a crime beyond a reasonable doubt’ in order to introduce an incriminating out-of-court statement, ... the evidence of a corpus delicti is insufficient if it is merely equally consistent with noncriminal acts as with criminal acts.” Forman, 404 Pa.Super. at 381, 590 A.2d at 1285 (citing Edwards, 521 Pa. at 144, 555 A.2d at 823, and Byrd, 490 Pa. at 556, 417 A.2d at 179); see also Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900 (1967); Commonwealth v. McMullen, 420 Pa.Super. 130, 616 A.2d 14 (1992), appeal granted, 535 Pa. 632, 631 A.2d 1005 (1993). Furthermore, it is axiomatic that corpus delicti may be proved by circumstantial evidence. Forman, 404 Pa.Super. at 382, 590 A.2d at 1285; Hogans, 400 Pa.Super. at 610, 584 A.2d at 349 (1990); Commonwealth v. Herman, 288 Pa.Super. 219, 231, 431 A.2d 1016, 1022 (1981).

Presently, Persichini argues that the Commonwealth must prove each and every element of a crime beyond a reasonable doubt before a defendant’s admissions can be considered by the jury. We reject this interpretation of the corpus delicti principle. “The [corpus delicti] rule does not require that the existence of a crime be proved beyond a reasonable doubt prior to admission of the confession but is satisfied where independent evidence, beyond the statement of the accused, suggests that a crime has occurred.” Buck, 426 Pa.Super. at 29, 626 A.2d at 177; Byrd, supra, at 544, 417 A.2d 173; Forman, supra, at 376, 590 A.2d 1282. An extrajudicial admission or confession of one accused of a crime cannot be admitted until the corpus delicti has first been established by independent proof, but it is not necessary that the Commonwealth preliminarily and independently establish all elements of the charge, since the corpus delicti is not synonymous with the whole of the charge. Turza, 340 Pa. at 134, 16 A.2d at 404; accord Rieland, supra, at 115, 471 A.2d 490.

In addition, if we were to accept Persichini’s interpretation of the corpus delicti rule in this case, it would render his admission superfluous and unnecessary because all elements of the crime have already been proven thereby establishing the defendant’s guilt beyond a reasonable doubt. This holding is supported by the Pennsylvania Supreme Court’s analysis of corpus delicti in Byrd, supra, at 544, 417 A.2d 173.

[A] case may not go to the fact finder where independent evidence does not suggest that a crime has occurred. Nevertheless, as our cases establish, this threshold requirement is not equivalent to the Commonwealth’s ultimate burden of proof. Although independent corroborative evidence is insufficient if it is merely equally as consistent with accident as crime, the prosecution has no duty to exclude the possibility of accident in order to establish the corpus delicti.

Byrd, 490 Pa. at 556, 417 A.2d at 179 (citations omitted) (emphasis added).

We conclude that the trial court was not required to instruct the jury as Persichini suggests in this appeal. Also, when a defendant claims that the trial court erred in the charge to the jury, the appellate court must examine the charge in its entirety against the background of the evidence to determine whether or not error was, in fact, committed and whether that error was prejudicial to the defendant. Commonwealth v. Woodward, 483 Pa. 1, 4, 394 A.2d 508, 510 (1978). After a review of the record, we are satisfied that the trial court correctly charged the jury regarding the corpus delicti rule and its proper application to Section 3301(e)(2).

Persichini next argues that he should be acquitted because the Commonwealth failed to prove the corpus delicti. More specifically, Persichini claims that the Commonwealth failed to prove each element of the crime beyond a reasonable doubt independent of his admissions. As discussed, we reject Persichini’s articulation of the requirements of the corpus delicti rule. Moreover, an analysis of the facts in this case establish that the Commonwealth did prove the corpus delicti, thereby enabling them to subsequently present Persichini’s admissions to the jury.

To establish the corpus delicti in this case, the Commonwealth presented the testimony of two women who stated that, around 8:00 p.m. on February 12,1992, they smelled smoke as they walked on Main Street in Bradford past the buildings owned by Persichini. The women also testified that they then noticed Persichini exit the building from a second floor doorway, act nervously, cross the street and drive away in his truck. The two women further testified that, at approximately 8:07 p.m., they witnessed smoke pouring out of the second floor of the building. The women also testified that they noticed a man standing at a fire alarm box, who was not Persichini, who told them that he had pulled the fire alarm. Finally, the women testified that they then went a short distance to a club to notify friends who called the police and that after the call was made, they observed that the building was on fire and that the sky was “really orange.”

The Commonwealth also presented the testimony of firemen who stated that three alarms for the fire were received at approximately five or ten minutes after 8:00 p.m. and that none of the alarms came from Persichini, who is personally known to the individuals who received the notices of the fire. Also, firemen testified that when they arrived at the scene minutes after receiving notice of the fire, the building was engulfed in flames.

In addition, fire investigators testified that, although several buildings were damaged or destroyed by the fire, the fire apparently started on the second floor of the defendant’s building. Fire Chief Frank Frontino testified that, in his opinion, the fire had been burning approximately fifteen to thirty minutes by the time he had arrived at the scene a short time after receiving a call just after 8:15 p.m.

In addition to this testimony, it was stipulated that the fire occurred in buildings owned by Persichini and that the cause of the fire is undetermined. This evidence shows that, at the time Persichini left the second floor of his building at approximately 8:00 p.m. on February 12,1992, Persichini knew that a fire, on the second floor of a building that was within his custody or control, was endangering the life or property of another and that he failed to either take reasonable measures to put out the fire or give a prompt fire alarm. See 18 Pa.C.S.A. § 3301(e)(2). This is especially true in view of the nervous manner in which Persichini exited the building and the closeness in time between his departure and the building being engulfed in flames. In view of this evidence, we are satisfied that the Commonwealth proved that the corpus delicti existed and that Persichini’s acts were more consistent with a crime having occurred than with noncriminal acts, thus enabling the Commonwealth to present Persichini’s admissions to the jury.

Persichini also claims that the trial court improperly prevented him from using a 5' by 5' sign dining cross-examination and closing argument, and from introducing the sign into evidence. Initially, we note that appellate review of a trial court’s determination of admissibility of evidence is narrowly defined. The admissibility of evidence is a matter committed to the sound discretion of the trial court, and absent an abuse of that discretion, a trial court’s rulings on admissibility will not be overturned on appeal. Commonwealth v. Wharton, 530 Pa. 127, 607 A.2d 710 (1992); accord Commonwealth v. Kunkle, 424 Pa.Super. 499, 623 A.2d 336, appeal denied, 536 Pa. 621, 637 A.2d 281 (1993).

The five foot square sign which Persichini wished to use at trial contained the wording of 18 Pa.C.S.A. § 3301(e) in its entirety, thereby including not only section (e)(2), but section (e)(1) as well. In order to determine whether the trial court improperly excluded Persichini’s use of the sign at trial, we must ascertain whether the sign would have been relevant to the issues in this case.

The Pennsylvania Supreme Court has held that relevant evidence is that evidence which “tends to prove or disprove some material fact or tends to make a fact at issue more or less probable.” Commonwealth v. McGowan, 535 Pa. 292, 295, 635 A.2d 113, 115 (1993) (citations omitted). Furthermore, visual aids may be used to assist the jury in understanding evidence in appropriate cases, and permission to do so is within the sound discretion of the trial judge. Commonwealth v. Pelzer, 531 Pa. 235, 612 A.2d 407 (1992). Since Persichini was charged with section (e)(2) of the statute, and not section (e)(1), we find that use of the sign was not relevant to what the jury needed to consider concerning Persichini’s guilt as to section (e)(2). McGowan, supra, at 292, 635 A.2d 113. Additionally, even if the sign was relevant, it does not follow that the sign would necessarily be properly admitted because the trial court may exercise its discretion to exclude evidence that, although relevant, may confuse, mislead, or prejudice the jury. Commonwealth v. Stark, 363 Pa.Super. 356, 372, 526 A.2d 383, 392 (1987), appeal denied, 517 Pa. 622, 538 A.2d 876 (1988) (quoting Commonwealth v. Lumpkins, 324 Pa.Super. 8, 15, 471 A.2d 96, 100 (1984)). Since the sign contained section (e)(1) of the statute with which Persichini was not charged, the sign would only have served to confuse or mislead the jury. Thus, the trial court did not abuse its discretion in preventing Persichini from admitting the sign. Wharton, supra, at 530 Pa. 127, 607 A.2d 710; Pelzer, supra, at 235, 612 A.2d 407.

Persichini also contends that, by proscribing the use of the sign, the trial court erroneously prevented him from arguing to the jury that his conduct did not satisfy all statutory elements of the offense charged. That is, Persichini claims that he was erroneously proscribed from asserting that the Commonwealth failed to prove that the fire was started by a person. This argument is incorrect for two reasons. First, since the sign was not relevant, and would have only tended to confuse the jury, we reject Persichini’s argument that by being prohibited from using the sign he was prevented from arguing to the jury that the Commonwealth failed to prove all elements of the offense charged.

Second, and most important, Persichini most certainly was permitted by the trial court to argue to the jury during closing argument that the Commonwealth failed to prove all elements of the offense, including the argument that they failed to prove that the fire was started by a person. Several times during his closing argument, Persichini’s attorney stated to the jury that “you may not consider the defendant’s admissions as evidence of his guilt of the crime charged unless and until the Commonwealth has produced evidence sufficient to convince you beyond a reasonable doubt that the crime charged was committed by someone.” Persichini repeated this argument to the jury no less than four times throughout his closing presentation, while instructing the jury to “apply the statute.” Consequently, Persichini’s argument that, under the wording of the statute, his guilt would be improper due to the Commonwealth’s failure to prove that the fire was started by someone was undoubtedly made to the jury. The jury was free to accept or reject such a defense.

Persichini’s next argument is that the trial court improperly admonished his counsel, within the hearing of the jury, for seeking to place an objection on the record to the trial court’s jury charge. Persichini claims that he was prejudiced by the court’s remark and that the jury was improperly influenced by the trial judge. Persichini contends that this remark, therefore, resulted in the rendition of an impartial verdict, thereby depriving him of a fair trial. This argument is without merit as the record clearly reveals that the trial judge’s instructions were made at sidebar discussion, outside the hearing of the jury. Also, the trial judge did not “admonish” counsel, rather, he instructed counsel that all counsel needed to do concerning his objections to the jury charges was to make his exception and then address his concerns to the Superior Court later if need be. The trial court concluded its comment by noting that it didn’t object to what counsel was doing.

Finally, Persichini maintains that the Commonwealth, in its closing argument, improperly stated to the jury that defense counsel’s statement of the law was incorrect. The record reveals that, in his closing argument, the prosecutor said, “I don’t believe what he told you the law was is correct. ... The Judge is going to give you the law. I suggest you listen to the Judge.”

The law of this Commonwealth is clear that a prosecutor “may argue all reasonable inferences that may be derived from the evidence.” Commonwealth v. McNair, 529 Pa. 368, 375, 603 A.2d 1014, 1018 (1992). The prosecution is given reasonable latitude to fairly present its version of the case to the jury. Commonwealth v. Zettlemoyer, 500 Pa. 16, 55, 454 A.2d 937, 958 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). In addition, comments made by the prosecutor must be viewed within the context of defense counsel's conduct, Commonwealth v. Clayton, 516 Pa. 263, 285, 532 A.2d 385, 396 (1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988), and a prosecutor is entitled to counter the arguments of defense counsel with comments that may otherwise be improper. See Commonwealth v. Graham, 522 Pa. 115, 123 n. 6, 560 A.2d 129, 133 n. 6 (1989).

Presently, defense counsel repeatedly referred to what constituted the law during his closing argument. The prosecution’s reference to defense counsel’s characterization of the law was, therefore, appropriate as a response to defense counsel’s conduct. See Zettlemoyer, supra, at 16, 454 A.2d 937; Graham, supra, at 115, 560 A.2d 129. Thus, we find that no harm resulted from the prosecutor’s comment. Further, even if harm did result, any harm was cured by the trial court’s instructions to the jury that they must not accept the attorneys’ statements of what constitutes the law and must rely on the court as the source of the law.

Judgment of sentence affirmed.

      . The relevant portion of the statute provides:
      (e) Failure to control or report dangerous fires. — A person who knows that a fire is endangering the life or property of another and fails to take reasonable measures to put out or control the fire, when he can do so without substantial risk to himself, or to give a prompt fire alarm, commits a misdemeanor in the first degree if:
      (2) the fire was started, albeit lawfully, by him or with his assent, or on property in his custody or control.
      18 Pa.C.S.A. § 3301.

      . Testimony of fire investigators revealed that, during investigatory interviews concerning the fire, Persichini initially denied being in his building on the night of the fire just before 8:00 p.m. when it is estimated that the fire began. The fire investigators also testified that, during a subsequent interview, Persichini admitted being in his building and exiting the building as witnesses testified. Also, Persichini admitted seeing the fire at the rear of the second floor and that he was frightened.

      . It is important to note that the corpus delicti rule does require that the jury may not consider a confession or admission as evidence of the defendant’s guilt of the crime charged, unless the Commonwealth has produced evidence sufficient to convince the jury beyond a reasonable doubt that the crime charged was committed by someone. Commonwealth v. Fried, 382 Pa.Super. 156, 555 A.2d 119, appeal denied, 522 Pa. 623, 564 A.2d 915 (1989).

      . In Commonwealth v. Boykin, 450 Pa. 25, 298 A.2d 258 (1972), the Pennsylvania Supreme Court held that a cause of death consistent with either criminal homicide or accident was sufficient proof of corpus delicti to permit introduction of the defendant’s extra-judicial statement. Prior to Boykin, however, and as set forth above, independent corroborative evidence was insufficient to establish corpus delicti if it was merely equally as consistent with accident as with crime. Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900 (1967). Nevertheless, the Pennsylvania Supreme Court appears to have reverted back to its pre-Boykin position.
      [The Pennsylvania Supreme Court in Byrd, supra, in 1980,] cited Leslie for its holding [that] evidence equally consistent with a crime as a noncrime was insufficient to establish corpus delicti. As recently as 1991 the Honorable Justin Johnson of this Court relied on Byrd ... [in Commonwealth v. Forman, supra ].... We find that although not expressly overruled, the corpus delicti principle adopted by the Boy-kin Court as it pertains to [this issue] has been impliedly overruled by subsequent caselaw.

        Commonwealth v. McMullen, 420 Pa.Super. 130, 135-36, 616 A.2d 14, 17 (1992), appeal granted, 535 Pa. 632, 631 A.2d 1005 (1993).

      . We recognize that cases may arise where a defendant’s admissions would not be superfluous or unnecessary despite the fact that all elements of the crime have already been proven. For example, a defendant’s admission would not be superfluous in cases where the identity of the defendant must still be established. In such cases the defendant’s admission would establish his identity as the perpetrator of the proven crime. This type of situation is not present in the instant case, however, as Persichini’s identity has been established through eyewitness testimony and, therefore, is not dependent upon his admission.

      . Without question, the fire in Persichini’s building endangered the life or property of another. First, Persichini’s building was next to other buildings which, together, made up a row of buildings. Second, many firefighters were called to extinguish this fire and, as a result, their lives were endangered.

      . Although the prosecution did object at one point during defense counsel’s closing argument, the trial court implicitly overruled the Commonwealth’s objection and defense counsel was permitted to continue as the court plainly stated ”[a]ll right we will let you [Persichini] proceed.”

      . Additionally, we fail to see the merit to Persichini’s argument as the statute simply states that the fire was started “albeit lawfully ... on property in his custody or control” and does not expressly require that the fire was started by “someone.” We do not understand how the term "albeit lawfully” must be interpreted as requiring the involvement of human agency. Indeed, the fire may have started through an electrical short-circuiting or spontaneous combustion. We interpret the term "albeit lawfully” to mean "even though the fire may have started lawfully.” Thus, the persuasiveness of Persichini’s argument that the Commonwealth had to prove that the fire must have been started by "someone” or "by a person” is questionable at best. In fact, the parties stipulated at trial that the cause of the fire is undetermined.
      Also, evidence proving corpus delicti must be sufficient to convince a jury beyond a reasonable doubt that the crime charged was committed by someone. Fried, supra; Rieland, 324 Pa.Super. at 119, 471 A.2d at 492. It does not follow in this case, however, that the fire was started "by someone” as Persichini contends. Persichini is not charged with the crime of starting a fire. Therefore, the Commonwealth does not have to prove that the fire was started by someone. Rather, Persichini is charged with the crime of failing to control or report a dangerous fire. Thus, the evidence proving corpus delicti is sufficient in this case if it convinces the jury beyond a reasonable doubt that the crime charged, “failure to control or report dangerous fires,” was committed by someone; namely, Persichini. Fried, supra; Rieland, supra.


author: CIRILLO, Judge:

text:
    663 A.2d 707
    COMMONWEALTH of Pennsylvania v. Steven C. LYTLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 15, 1995.
    Filed Aug. 2, 1995.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CIRILLO, FORD ELLIOTT and HESTER, JJ.
   CIRILLO, Judge:

Steven C. Lytle appeals from a judgment of sentence entered in the Court of Common Pleas of Allegheny County. We affirm.

Lytle was charged with one count of criminal homicide following the death of his three-month-old daughter, Samantha. Lytle waived his right to a jury trial, and a bench trial commenced before the Honorable James R. McGregor. On April 18, 1994, Lytle was found guilty by Judge McGregor of first-degree murder and was sentenced to life imprisonment. Lytle filed a timely notice of appeal and raises two issues for our consideration:

(1) Whether the evidence was insufficient to prove first-degree murder, in that the Commonwealth failed to disprove that Appellant was so intoxicated at the time of the murder as to be incapable of forming the specific intent to murder?
(2) Whether the trial court erred in permitting testimony of “other crimes” evidence?

When we evaluate 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 crimes 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), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990)); Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9 (1994). Furthermore, a mere conflict in the testimony of the witnesses does not render the evidence insufficient, because “it is within the province of the fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence.” Commonwealth v. Moore, 436 Pa.Super. 495, 501, 648 A.2d 331, 333 (1994) (citations omitted); see also Commonwealth v. Rivers, 537 Pa. 394, 409, 644 A.2d 710, 717 (1994) (the credibility of a witness is a question for the fact finder).

“A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.” 18 Pa.C.S.A. § 2502(a). An “intentional killing” is defined as “[k]illing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.” 18 Pa.C.S.A. § 2502(d).

Lytle claims that, at the time he punched his daughter, he was so intoxicated that he was unable to form the specific intent necessary for a conviction of murder in the first degree. Lytle argues that his intoxication worked to reduce murder from a higher degree to a lesser degree.

Evidence of voluntary intoxication or drugged condition may be used to reduce murder from a higher degree to a lower degree. 18 Pa.C.S.A. § 308. The theory of this rule of law is that a person overwhelmed by the effects of alcohol or drugs cannot form a specific intent to kill. As this court stated in Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977):
“Where the question of intoxication is introduced into a murder case its only effect could be to negate the specific intent to kill which is required for a finding of murder of the first degree____ If intoxication does render an accused incapable of forming the necessary intent the result is to reduce the crime to a lesser degree of murder. In no event does the reduction change the character of the crime from murder to manslaughter.”
Id., 474 Pa. at 19-20, 375 A.2d at 1301. Further, in order for intoxication to reduce murder from a higher to a lower degree, it must be proven that the actor was overwhelmed to the point of losing his faculties and sensibilities. Commonwealth v. Reiff, 489 Pa. 12, 15, 413 A.2d 672, 674 (1980).
In this case, although Breakiron testified that he drank a number of sixteen ounce beers and one or more shots of whiskey during the evening of March 23-24, 1987, and that he ‘had a “buzz” on,’ he also testified that he had no trouble driving, that he drove away from the bar____ Because there was evidence of intoxication in the case, the trial court instructed the jury on voluntary intoxication, but it is apparent the jury did not believe that Breakiron’s faculties and sensibilities were so overwhelmed with alcohol that he could not form the specific intent to kill. It is equally obvious that such a determination was for the jury to make....

Commonwealth v. Breakiron, 524 Pa. 282, 295-96, 571 A.2d 1035, 1041 (1990) (emphasis supplied).

Accordingly, for a defendant to succeed in reducing murder from first-degree to third-degree by reason of his intoxication, he must demonstrate that he was overwhelmed to the point of losing his faculties and sensibilities so that he could not form the specific intent to kill. Breakiron, supra.

Lytle maintains that the evidence was insufficient because the Commonwealth failed to disprove that his intoxication negated the intent required for first-degree murder and that, therefore, the Commonwealth did not prove the intent element of the crime beyond a reasonable doubt. See Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078 (1993) (once a defendant has demonstrated that he was overwhelmed to the point of losing his faculties and sensibilities, it then rests upon the Commonwealth to disprove this defense and to establish, beyond a reasonable doubt, that the specific intent to kill did exist). The Commonwealth, on the other hand, argues that Lytle did not establish that he was overwhelmed, by reason of his intoxication, to the point of losing his faculties and sensibilities. We must determine, therefore, 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 the element of intent was established beyond a reasonable doubt. Jarman, supra, at 529 Pa. 92, 601 A.2d 1229; Swann, supra, at 431 Pa.Super. 125, 635 A.2d 1103.

The facts of this case are as follows. On August 13, 1993, Lytle purchased a case of beer and began drinking it with his brother, Daniel, and Lytle’s girlfriend, Bonnie Windhorst. Lytle began consuming the beer around 7:30 p.m. Lytle consumed approximately twelve twelve-ounce cans of beer between 7:30 p.m. and midnight.

Throughout the evening, as Lytle drank, he played cards with Bonnie and Daniel. Lytle also played video games and darts. Lytle did not eat at all during this time. At approximately 10:30 p.m., Daniel fed Samantha and then left the apartment. Immediately after Daniel left, Lytle burped Samantha and put her down to sleep. Up to this point, Samantha appeared to be fine. While Lytle was laying Samantha down, Bonnie was in the bathroom. Bonnie heard the baby cry once and asked Lytle what had happened. Lytle told Bonnie that Samantha had dropped her pacifier. Samantha did not cry again.

Lytle returned to the living room and continued to play video games. Bonnie returned from the bathroom and laid down on the couch; she had not checked on Samantha. Sometime later, Bonnie awoke to a “bang,” which was caused by Lytle dropping his beer. Bonnie got up, got Lytle another beer, and then laid back down on the couch.

Sometime around midnight, Lytle woke Bonnie up and the couple went into their bedroom. Lytle went into Samantha’s room and Bonnie heard him scream and hit the wall. Bonnie ran into Samantha’s room and saw Samantha laying in the bassinet with blood coming from her ear. Samantha did not appear to be breathing. The paramedics were called. Lytle then punched a hole in a wall, knocked a closet door off of its hinges, threw things, and screamed. Bonnie testified that she tried to calm Lytle down and that Lytle got another beer and began to cry.

Lytle went into Samantha’s room, sat down on the floor, and began to rock back and forth with Samantha’s baby blanket,while talking to the blanket as if it were Samantha. Bonnie testified that Lytle did not say anything, but that when Bonnie was on the telephone with her mother she thought she heard him say, “what did I do?”

Samantha was life-flighted to Children’s Hospital by helicopter, and Bonnie went to the hospital immediately thereafter. Lytle, however, remained at the apartment with a neighbor, Martin Kauer, in an attempt to become sober before he went to the hospital. After Lytle had arrived at the hospital, doctors explained that the injuries which Samantha had sustained did not result from a fall, but, rather, resulted from blows to the head. At that point, Bonnie asked Lytle, “What did you do?” Lytle responded by striking Bonnie in the face, and Lytle was then removed from the area.

Mary Pierce, M.D., examined the child at the hospital’s emergency room and noted multiple skull fractures. She determined that the injuries were very recent, due to the fluids oozing from Samantha’s ear. Dr. Pierce stated that had the injuries been older, then Samantha would have lost complete consciousness and would not have been able to whimper. Dr. Pierce advised Samantha’s family members that Samantha would not survive due to the severity of her injuries.

On August 14, 1993, Lytle was questioned by police. He eventually confessed to striking Samantha three to four times in the head with his fist sometime between 10:30 p.m. and 12:00 p.m. on August 13th. Lytle told police that he had been drinking that night and that, although he had consumed about twelve beers, he did not feel intoxicated. Lytle described his condition to police as having “a little buzz on.” Lytle also stated that he was a heavy drinker and consumed this amount of alcohol on a regular basis. Lytle testified at trial that “my kind of drunk is falling over when you get up. When I say I am buzzed, I can walk. I am stumbling a little bit, but I can walk. That is a buzz to me.” Lytle also testified that it was “unusual” for him to drink ten, twelve, or thirteen beers because he usually drinks more.

On the night that Lytle punched Samantha in the head three to four times with his fist, he claims that he was so intoxicated that he was overwhelmed to the point of losing his faculties and sensibilities. The record, however, does not support this contention. Lytle testified that it was not uncommon for him to consume twelve beers on one occasion as he did on August 13th. On that night, Lytle drank approximately twelve beers and his testimony reflects that he was not “falling down” drunk, as he puts it, but that he only had “a little buzz on.” Thus, Lytle’s own testimony shows that, although he had consumed twelve beers, he was not so intoxicated as to overwhelm his faculties and sensibilities. Moreover, the Pennsylvania Supreme Court noted in Breakiron, supra, that a defendant’s statement that he “had a ‘buzz’ on” is insufficient to establish that the person’s faculties and sensibilities were so overwhelmed by alcohol that he could not form the specific intent to kill. Breakiron, 524 Pa. at 296, 571 A.2d at 1041-42.

In addition, while Lytle claims that his level of intoxication at the time he struck Samantha prevents him from remembering what he had done to Samantha or why he had done it, he still possessed recollection of details surrounding the incident. For example, Allegheny County Detective Gary Tallent testified that he interviewed Lytle at around 10:00 a.m. on August 14,1993. Lytle remembered what time his brother Daniel left the apartment the previous evening, what time the assault occurred, what time he and Bonnie went to bed (around midnight), and Lytle’s recollection comported with the testimony of other witnesses. Also, Lytle could describe Samantha’s position in the bassinet when he hit her. This description comported with. Samantha’s physical injuries. Lytle knew that he had struck Samantha with his right fist and he estimated the number of blows. Also, at trial, Lytle agreed that he did not “blackout” on the evening of August 13th, and that he had no trouble remembering “certain events” the day-following the incident. Lytle’s testimony and “selective recollection” indicates that he was in control of his faculties and sensibilities at the time he struck Samantha and that he was not so intoxicated as to be unable to form a specific intent to kill. See Commonwealth v. Stantz, 353 Pa.Super. 95, 107, 509 A.2d 351, 357 (1986) (holding that defendant’s “selective, but vivid recollection” of details surrounding incident indicates that defendant was in control of his faculties).

The testimony of witnesses as to Lytle’s conduct on August 13th and during the early morning hours of August 14th also establishes that Lytle was not so intoxicated that his faculties and sensibilities were overwhelmed by alcohol. Dr. Pierce, who spoke with Lytle and the rest of Samantha’s family at the emergency room, testified that Lytle’s speech was not slurred, that he walked normally and that his reflexes were quick in the sense that he was very quick to strike Bonnie when she confronted him about what he did to Samantha. Dr. Pierce also testified that Lytle did not seem to have a decreased level of awareness or alertness and by no means appeared to be intoxicated. Also, Kauer testified that, when he arrived at Lytle’s apartment, Lytle was not staggering and his speech was not slurred.

Evidence which further supports the conclusion that Lytle was not overwhelmed by his drinking was that, immediately after Samantha was taken to the hospital, he denied responsibility for what had occurred. Specifically, when questioned by Bonnie, Lytle initially denied any knowledge of what could have happened to Samantha. Lytle then told Kauer and ambulance personnel that Samantha could have fallen or been dropped into the crib. Lytle also spoke with Thomas O’Toole, an on-call social worker from Children’s Hospital, at about 2:00 a.m. at the hospital. Lytle told O’Toole that, the previous day, he had dropped Samantha about six to eight inches on the couch. Lytle’s attempts to deny responsibility immediately after the situation suggests that he was sufficiently in control of himself at that point to realize the gravity of his conduct and to feel the need to deflect blame. See Stantz, 353 Pa.Super. at 107, 509 A.2d at 357 (holding that facts indicating a “plan of deception” negate a finding that a defendant was intoxicated to the point that his faculties and sensibilities were overwhelmed).

In his defense, Lytle offered the testimony of Dr. Charles L. Winek, Chief Toxicologist for Allegheny County. Dr. Winek estimated that, under the facts of this case, Lytle’s blood alcohol content on the night he struck Samantha was .20. Dr. Victor Adebimpe, a board certified psychiatrist, testified that he had diagnosed Lytle as suffering from two separate mental conditions: alcohol dependence, and affective disorder, which meant that Lytle had previous episodes of depression. Dr. Adebimpe agreed, however, that neither depression nor alcohol dependency would prevent someone from forming the intent to kill and that the crucial factor was the level and quality of the intoxication.

“Evidence of intoxication, if believed, may operate to negate the intent necessary for a conviction of murder in the first degree. Such evidence is submitted for the consideration of the factfinder.” Stantz, 353 Pa.Super. at 106, 509 A.2d at 357 (emphasis added). Thus, it was for the trial court, sitting as the finder of fact, to determine whether the evidence submitted by Lytle was convincing. Moore, supra, at 495, 648 A.2d 331 (holding that matters of credibility are solely within the province of the trier of fact). After carefully reviewing the record, we conclude that, 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 the specific intent required for first-degree murder was established beyond a reasonable doubt. Jarman, supra, at 529 Pa. 92, 601 A.2d 1229; Swann, supra, at 431 Pa.Super. 125, 635 A.2d 1103.

In his second issue, Lytle argues that the trial court erred in admitting evidence of Lytle’s prior abuse of Samantha. Evidence of other criminal activity is generally inadmissible against a defendant at his trial on another charge. Commonwealth v. Martinez, 301 Pa.Super. 121, 447 A.2d 272 (1982). Evidence of other crimes is admissible, however, if it falls within one of the well-defined exceptions to the general rule. Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989). It is important to note that even if a particular exception applies, the probative value of the “other crimes” evidence must outweigh its prejudicial effect. Commonwealth v. Seiders, 531 Pa. 592, 596, 614 A.2d 689, 691 (1992).

One of the legitimate purposes for admitting evidence of a defendant’s distinct crimes is to prove intent. Seiders, supra. When evidence of other crimes is relevant and important to prove intent, it is generally conceded that the prejudicial effect may be outweighed by the probative value. Commonwealth v. Marsh, 388 Pa.Super. 610, 619-20, 566 A.2d 296, 300 (1989) (citing Commonwealth v. Clayton, 516 Pa. 263, 287 n. 8, 532 A.2d 385, 392 n. 8 (1987) (quotations omitted)). In addition, the Pennsylvania Supreme Court has stated:

[Ejvidence concerning the previous relations between a defendant and a homicide victim is relevant and admissible for the purpose of proving ill will, motive or malice. Evidence of prior occurrences in which the accused threatened, assaulted, or quarreled with the decedent may be admissible for this purpose.

Commonwealth v. Ulatoski, 472 Pa. 53, 60-61, 371 A.2d 186, 190 (1977) (footnotes omitted).

In this case, the evidence which was admitted included Lytle’s admission that he had punched Samantha in the stomach on a prior occasion. Also, Lytle told Detective Tallent that he would normally hit Samantha when she was crying.

Other evidence included Bonnie’s testimony that she had noticed black and blue marks on Samantha, and that when she questioned Lytle about these marks he either denied knowledge of them or stated that he might have squeezed Samantha too hard while changing her. Daniel, Lytle’s brother, testified that he had previously told Lytle not to be so rough with Samantha, as he witnessed Lytle squeeze Samantha’s arms and feet. Further, there was testimony presented that Lytle had difficulty dealing with Samantha’s crying because he believed that she cried all the time. Finally, Lytle never sought medical treatment for Samantha’s injuries.

Lytle contends that this evidence should not have been admitted because his intent was not at issue in this case. Lytle’s contention is without merit. His intent was most certainly at issue in this case, as is reflected by Lytle’s first argument. The admission into evidence of Lytle’s prior treatment of Samantha was legitimate for purposes of proving intent, and the probative value of the evidence outweighed any prejudicial effect. Seiders, supra, at 531 Pa. 592, 614 A.2d 689; Ulatoski, supra, at 472 Pa. 53, 371 A.2d 186.

Judgment of sentence affirmed.

      . Dr. Leonid Rozin, of the Allegheny Coroner’s Office, performed an autopsy on Samantha and his opinion as to the cause of death was severe cranial trauma.

      . In addition, Lytle’s friend Kauer testified that Lytle knew who Kauer was when he arrived at Lytle’s apartment and that Lytle calmed down when Kauer told him to do so.

      . Lytle also attempted to direct blame at Bonnie when first questioned by Detective Gary Tallent on the morning of August 14th. Lytle implied that Bonnie inflicted Samantha’s injuries; he told Detective Tallent that Bonnie may have entered Samantha's room while he was playing video games.