author: CERCONE, Judge.

text:
    634 A.2d 254
    COMMONWEALTH of Pennsylvania v. Robert Edward CLARK, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 20, 1993.
    Filed Nov. 15, 1993.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CAVANAUGH, BECK and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Allegheny County, dated January 15, 1992, after appellant was convicted of possession of a controlled substance, possession of a controlled substance with intent to deliver, and possession of drug paraphernalia. We affirm.

Appellant was arrested on the aforementioned charges in connection with a Pittsburgh police investigation which targeted him as a drug dealer. Pittsburgh narcotics detectives located appellant conducting a drug sale in the city’s Hill District. Police subsequently arrested appellant. A jury was impaneled for trial on September 9, 1991. The following day, the jury adjudged appellant guilty of all the charges. On January 15, 1992, the trial court sentenced appellant. This timely appeal followed in which appellant raises two issues for our review:

1. Was counsel ineffective for failing to file a motion to suppress the evidence alleging that the search was without probable cause;
2. was counsel ineffective for failing to file a motion in arrest of judgment alleging that there was insufficient evidence to establish that Mr. Clark possessed heroin with the intent to deliver it?

We shall address each of these claims.

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

In his first claim, appellant argues that trial counsel was ineffective for failing to file a motion to suppress the physical evidence in this case. In this regard he avers that the police did not have probable cause to arrest him. As we set forth in our decision in Commonwealth v. Frank, 407 Pa.Super. 500, 595 A.2d 1258 (1991),

A police officer may arrest without a warrant where there is probable cause to believe that a felony has been committed and that the arrestee is the felon. Probable cause exists where the facts and circumstances within the knowledge of the officer are reasonably trustworthy and sufficient to warrant a person of reasonable caution in believing that the arrestee has committed the offense. [Commonwealth v. Chase, 394 Pa.Super. 168, 171, 575 A.2d 574, 575 (1990) ], citing Commonwealth v. Travaglia, 502 Pa. 474, 484, 467 A.2d 288, 292 (1983). Furthermore, the standard of probable cause must be applied to the totality of the circumstances facing the police. Thus, “when we examine a particular situation to determine if probable cause exists, we consider all factors and their total effect, and do not concentrate on each individual element.... We also focus on the circumstances as seen through the eyes of a trained officer, and do not view the situation as an average citizen might.... Finally, we must remember that in dealing with questions of probable cause, we are not dealing in certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond a reasonable doubt’ standard which we apply in determining guilt or innocence at trial.” Chase, supra, 394 Pa.Super. at 172, 575 A.2d at 575-76 (emphasis in original).

Commonwealth v. Frank, 407 Pa.Super. at 505-06, 595 A.2d at 1261.

When police observe citizens engaged in seemingly suspicious transactions on public streets, the determination of whether probable cause exists can be a difficult one. Commonwealth v. Agnew, 411 Pa.Super. 63, 76, 600 A.2d 1265, 1272 (1991). Moreover, not all commercial transactions involving unidentified property give rise to probable cause to arrest. Id. (quoting Commonwealth v. Lawson, 454 Pa. 23, 28-29, 309 A.2d 391, 394 (1973). Nonetheless, probable cause to arrest may exist where the police find a known drug dealer, in an area known for its high volume of drug transactions, conducting an exchange indicative of a drug transaction. Common wealth v. Frank, 407 Pa.Super. at 509-10, 595 A.2d at 1263; Accord Commonwealth v. Burnside, 425 Pa.Super. 425, 625 A.2d 678 (1993).

In the case sub judice, the Commonwealth adduced the following evidence: On September 25,1990, City of Pittsburgh Police Officer Charles Provident, was part of a plain-clothes narcotics detail which was assigned to patrol an area of the Hill District of Pittsburgh known for its high volume of drug traffic. N.T. 9/9/91 at 26, 40. Officer Provident indicated that in his three and one-half year tenure as a police officer, he observed over 700 drug transactions. N.T. 9/9/91 at 59. Officer Provident was working with three other policemen in the investigation which specifically targeted appellant as a drug dealer. N.T. 9/9/91 at 51.

When Officer Provident, who was driving his patrol car, located appellant, he (appellant) was standing with an unknown individual. Officer Provident observed the unknown individual hand appellant an undetermined amount of United States currency. N.T. 9/9/91 at 29. Officer Provident then testified that appellant “reached into his mouth, made a motion as he took something out of his mouth, reached back out towards the unknown individual with a closed fist with his hand in a downward motion.” N.T. 9/9/91 at 31-32, 41. Officer Provident announced “roll call” and his unit proceeded towards appellant who retracted his hand and placed the unknown contents back into his mouth. As Officer Provident’s car approached the location where appellant was standing, he saw appellant attempt to swallow. Officer Provident grabbed appellant by the throat and instructed appellant to spit out the contents in his mouth. Eventually appellant ejected three small white knotted balloons which were later determined to contain .24 grams of heroin. N.T. 9/9/91 at 32-35, 58. The police also found ten dollars in appellant’s possession, as well as two syringes. N.T. 9/9/91 at 37.

Officer Provident related that it is a common practice among drug dealers to hold narcotics encased in balloons in their mouth. This is done so that they can swallow the drugs in the event the police stop them. Thus, the police cannot recover the evidence. N.T. 9/9/91 at 35. At the time Officer Provident proceeded to arrest appellant, he did not know what appellant took from his mouth. N.T. 9/9/91 at 42-43.

The facts therefore indicate that Officer Provident and his colleagues specifically targeted appellant for drug dealing activities. The police officers located appellant in an area known for a high volume of drug trafficking. Finally, they observed appellant in a commercial transaction whereby he exchanged materials kept in his mouth for money. Officer Provident testified that in his experiences, it is a common practice among drug dealers to keep their stash in their mouths so that they can swallow the evidence if they are caught. Thus, appellant’s own action of taking materials from his mouth during a commercial transaction indicated that he was engaging in the sale of controlled substances. “To rule otherwise would be to take a ‘myopic view of the facts and render a decision totally devoid of commonsensical inferences to be drawn by trained police officers with regard to drug activity.’ ” Commonwealth v. Burnside, 425 Pa.Super. at 431, 625 A.2d at 681 (1993) (quoting Commonwealth v. Mallory, 418 Pa.Super. 614, 623, 614 A.2d 1174, 1179 (1992)). Compare Commonwealth v. Agnew, supra (police observance of unknown individuals engaging in an unknown and inconspicuous exchange did not establish probable cause to stop). Since the police had probable cause to arrest appellant, appellant’s claim is without arguable merit and, accordingly, must fail.

Appellant next argues that trial counsel was ineffective for failing to file a motion in arrest of judgment since the evidence was insufficient to establish his conviction for possession of a controlled substance with intent to deliver. In determining whether appellant’s claim has arguable merit, we must necessarily consider the sufficiency of the evidence used to convict him. It is well settled that when sufficiency of the evidence claims are raised, “an appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the record there is a sufficient basis to support the challenged conviction.” Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983) (citations omitted). The proper application of this test requires us to evaluate the entire trial record and all evidence actually-received, in the aggregate and not as fragments isolated from the totality of the evidence. Commonwealth v. Harper, 485 Pa. 572, 576, 403 A.2d 536, 538 (1979). See also Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986) (explicating appropriate application of standard of review set forth in Harper, supra). This standard means that we must view the evidence in the light most favorable to the Commonwealth as the verdict winner and, drawing all proper inferences favorable to the Commonwealth, determine if the jury could reasonably have concluded that all of the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 143, 555 A.2d 818, 823 (1989); We note that the trier of fact is free to believe all, part, or none of the evidence presented, Griscavage, 512 Pa. at 546, 517 A.2d at 1259, and that “the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.” Commonwealth v. Harper, 485 Pa. at 576, 403 A.2d at 538.

Appellant contends that, according to his testimony, his actions indicate that he was purchasing drugs and not selling them. We disagree. Officer Provident observed appellant receive money from an unknown individual. After receiving the money, appellant reached into his mouth and pulled away with a closed fist reaching towards the unknown individual. After the police announced “Roll call,” appellant placed the unknown materials back into his mouth and attempted to swallow the contents. Officer Provident extracted the unknown materials from appellant’s mouth and found balloons containing heroin. Officer Provident’s testimony indicated that drug dealers commonly place controlled substances into balloons and then place the balloons into their mouths so that they can swallow the substances if caught. Even though the police found only a small amount of heroin in appellant’s possession, this fact becomes insignificant when coupled with other facts concerning the manner in which the drug transaction occurred. Compare Commonwealth v. Smagala, 383 Pa.Super. 466, 557 A.2d 347 (1989), allocatur denied, 524 Pa. 619, 571 A.2d 382 (1989) (facts unequivocally indicated that the defendant was merely a drug user; no evidence was adduced to link the defendant with cocaine distribution). The police observations of appellant accepting money from an unknown individual and, in return attempting to give the individual a balloon containing heroin which was housed in his mouth is sufficient to convict appellant of possession with intent to deliver. Thus, appellant’s ineffectiveness claim in this regard is meritless.

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(16).

      . Id. § 780-113(a)(30).

      . Id. § 780-113(a)(32).


source: Caselaw Access Project

author: WIEAND, Judge.

license: Public Domain

text:
    634 A.2d 258
    Darrell W. ATKINS and Carol E. Atkins, Appellants, v. POTTSTOWN MEMORIAL MEDICAL CENTER, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1993.
    Filed Nov. 23, 1993.

      Lindley M. Cowperthwait, Jr., Norristown, for appellants.
    R. Bruce Morrison, Philadelphia, for appellee.
    Before WIEAND, CIRILLO and HESTER, JJ.
   WIEAND, Judge.

Darrell W. Atkins, a patient at Pottstown Memorial Medical Center, fell while he was out of bed to go to the bathroom before surgery. He and his wife filed suit against the medical center, contending that the nurse, an employee of the medical center, had been negligent in allowing Atkins to go to the bathroom after administering pre-operative shots. The jury which heard the case agreed and found the medical center’s employee negligent. The jury further found, however, that such negligence had not been a substantial factor in causing the injury for which Atkins sought to recover damages. The findings were molded into a verdict for the defendant, post-trial motions were denied, and judgment was entered on the verdict. Plaintiff appealed.

In the complaint it was alleged that Atkins had sustained contusions of the head and damage to the ligaments and nerve roots of the lower back. At trial, the evidence was that his head injuries had been superficial, and the focus of his damage testimony was the alleged injury to the lower back. Because Atkins had previously been involved in an automobile accident and his scheduled surgery was intended to correct a shoulder injury, the defendant took the position at trial that plaintiffs back injury had not been caused by his hospital fall but had existed prior thereto. The cause of the back injury, therefore, was an issue of fact for the jury to decide. The jury did so by finding that the nurse’s negligence was not a substantial factor in causing husband-appellant’s back injury. On appeal, it is argued that the jury’s verdict was contrary to the weight of the evidence because the jury failed to award damages for the head contusions.

We reject this argument. As appellee’s counsel has suggested, “this was a complicated back injury case, not a superficial head wound case.” Medical bills of approximately $55,000, lost wages in the amount of approximately $232,000 and the alleged permanency of injuries were all attributable to back injury, not to contusions of the head. The closing argument made by plaintiffs’ counsel referred frequently to Atkins’ back injuries but not once to head injuries; and the trial court’s charge to the jury, without objection, made reference only to damages for the back injury allegedly sustained by the husband-plaintiff. Under these circumstances, appellants cannot now complain that the jury found that the nurse’s negligence had not been a substantial factor in causing the back injury and awarded no damages. The jury’s verdict, in view of plaintiffs’ trial strategy, was not contrary to the weight of the evidence. It was consistent with competent evidence, the specific claim made by plaintiffs at trial, and the issues defined for the jury by the trial court’s instructions. There is in the jury’s findings no basis for awarding a new trial.

Appellants argue also that the trial court erred when it disallowed evidence of the contents of an “incident report” made following Atkins’ fall. This report had been prepared for use by a risk manager (who sometimes reviewed incident reports with a Quality Assurance Committee), was marked “confidential” and was not made a part of the patient’s hospital records. The trial court ruled that the report was inadmissible under the provisions of the Peer Review Protection Act. These provisions appear at 63 Pa.S. § 425.4 as follows:

§ 425.4 Confidentiality of review organization’s records
The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof: Provided, however, That information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings.

After careful review of the purposes to be achieved by the statute, we conclude that the trial court erred when it excluded evidence of the incident report. This document contained information “otherwise available from original sources.” It was not derived from nor part of an evaluation or review by a peer review committee. It was, rather, a report of an incident based on information also available to plaintiffs. As such, the report did not come within the need for confidentiality which the statute was intended to provide. Indeed, it is questionable whether a risk manager is a “review organization” to whom the protection of the statute extends. The report, therefore, was a business record not subject to the confidentiality safeguards of the statute. Cf. Sanderson v. Frank S. Bryan, M.D., Ltd., 361 Pa.Super. 491, 501, 522 A.2d 1138, 1143 (1987), allocatur denied, 517 Pa. 624, 538 A.2d 877 (1988). See also: Hanzsek v. McDonough, 44 Pa.D. & C.3d 639 (Leh.1987); Trent v. Lancaster General Hospital, 44 Pa.D. & C.3d 606 (Lanc.1986); Mazzucca v. Methodist Hospital, 14 Phila. 573 (1986).

It does not follow, however, that the trial court’s erroneous evidentiary ruling requires the grant of a new trial. As the Superior Court observed in Wilson v. Donegal Mutual Ins. Co., 410 Pa.Super. 31, 598 A.2d 1310 (1991),

When the basis of the request for a new trial is the lower court’s ruling(s) on evidence, to constitute reversible error, such ruling “must be shown not only to have been erroneous but harmful to the party complaining....” Hart v. W.H. Stewart, Inc., 523 Pa. 13, 16, 564 A.2d 1250, 1252 (1989) (citations omitted). “An evidentiary ruling which did not affect the verdict will not provide a basis for disturbing the jury’s judgment.” Id.

Id. 410 Pa.Super. at 34, 598 A.2d at 1312. Here, the information contained in the incident report pertained to the circumstances surrounding Atkins’ getting out of bed and using the bathroom. With respect to this aspect of the case, the jury found in favor of the plaintiff. It found that the medical center’s employee had been negligent in allowing Atkins to get out of bed and go to the bathroom after pre-operative shots had been administered. The verdict for the defendant medical center was based upon the jury’s finding that Atkins had failed to prove that the nurse’s negligence was a substantial factor in causing his back injury. With respect to this issue, the incident report did not speak. We conclude, therefore, that the trial court’s evidentiary ruling, although erroneous, did not affect the verdict and, therefore, does not require a new trial.

Judgment affirmed.


author: WIEAND, Judge:

text:
    634 A.2d 261
    Clinton ZEIGLER and Craig Butler, Appellees, v. CONSTITUTION STATE SERVICE COMPANY and Pennsylvania Financial Responsibility Assigned Claims Plan, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1993.
    Filed Dec. 1, 1993.

      Mark T. Ritcher, Philadelphia, for appellants.
    Milton J. Frank, Philadelphia, for appellees.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge:

The issue in this appeal is whether occupants of a vehicle which is neither insured nor registered in Pennsylvania are entitled to recover benefits under the Pennsylvania Assigned Claims Plan for injuries received when the vehicle collided with another uninsured vehicle in Philadelphia. The trial court held that the occupants were eligible for such benefits. After careful review, we reverse.

On August 7, 1988, an uninsured and unregistered motor vehicle operated by Anthony Edwards collided with an uninsured vehicle owned by Carol Porter and operated by Crestón Gregory. Clinton Zeigler and Craig Butler, both residents of Pennsylvania, were occupants of the unregistered vehicle and sustained injuries as a result of the accident. Because neither Zeigler nor Butler owned an automobile or resided with an automobile owner and did not otherwise have insurance coverage available to them, they made claims against the Assigned Claims Plan for first party and uninsured motorist benefits. Their claims were assigned to Constitution State Service Company which, after investigation, denied the claims.

Zeigler and Butler then filed a civil action against the Assigned Claims Plan and Constitution State Service Company to recover such benefits. The action was tried non-jury on an agreed statement of facts and resulted in a verdict in favor of the claimants. Post-trial motions were denied, and judgment was entered on the verdict. Both the Plan and the assigned insurance carrier appealed.

According to the agreed statement of facts, the vehicle in which Zeigler and Butler had been riding was not and never has been registered in Pennsylvania. As far as the parties were able to ascertain, the vehicle was last registered in Alabama in the name of Jammy Brown, an Alabama resident. Brown’s registration expired in January, 1988. Prior to expiration of the registration, however, the vehicle had been repossessed by the Mercury Finance Company of Columbus, Georgia, on November 9, 1987. ' On November 13, 1987, Mercury Finance sold the vehicle to Sunbelt Motor Company, a Georgia corporation which is now defunct. Neither Brown, nor Mercury Finance, nor Sunbelt Motor Company resides in Pennsylvania or has a place of business in Pennsylvania. Anthony Edwards, the driver of the vehicle at the time of the accident, was a Pennsylvania resident who had a Pennsylvania driver’s license.

The Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) allows certain “eligible claimants” who are injured in an automobile-related accident and who are otherwise unable to recover insurance benefits, to recover limited statutory benefits from or through the Assigned Claims Plan (the Plan). See generally: Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 427 Pa.Super. 105, 628 A.2d 847 (1993). In order to recover any benefits through the Plan, a claimant must satisfy the eligibility requirements set forth at 75 Pa.C.S. § 1752. Section 1752 provides as follows:

(а) General rule. — A person is eligible to recover benefits from the Assigned Claims Plan if the person meets the following requirements:
(1) Is a resident of this Commonwealth.
(2) Is injured as the result of a motor vehicle accident occurring in this Commonwealth.
(3) Is not an owner of a motor vehicle required to be registered under Chapter 13 (relating to registration of vehicles).
(4) Is not the operator or occupant of a motor vehicle owned by the Federal Government or any of its agencies, departments or authorities.
(5) Is not the operator or occupant of a motor vehicle owned by a self-insurer or by an individual or entity who or which is immune from liability for, or is not required to provide, benefits or uninsured and underinsured motorist coverage.
(б) Is otherwise not entitled to receive any first party benefits under section 1711 (relating to required benefits) or 1712 (relating to availability of benefits) applicable to the injury arising from the accident.
(7) Is not the operator or occupant of a recreational vehicle not intended for highway use, motorcycle, motor-driven cycle or motorized pedalcycle or other like type vehicle required to be registered under this title and involved in the accident.

The trial court interpreted the language of subsection (a)(5) as speaking only to ownership of a motor vehicle which is either known or determinable. The exclusionary language, the trial court concluded, had no application to those cases in which the ownership of an uninsured vehicle could not be ascertained. Considering the intent of the legislature in promulgating the statute and construing the statute liberally to afford the greatest possible coverage to injured claimants, the trial court determined that the appellees were eligible to receive benefits from the Plan. Our own review causes us to disagree.

Section 1752(a)(5) of the MVFRL clearly provides that a person is not eligible to receive benefits from the Plan if he or she has been an operator or occupant of a motor vehicle which was not required to provide benefits. At 75 Pa.C.S. § 1711, the legislature has mandated that vehicles which are registered and operated in the Commonwealth of Pennsylvania provide coverage for benefits under the MVFRL. Therefore, a vehicle which is not registered in Pennsylvania is not required to provide coverage for the benefits provided by the MVFRL. The vehicle in which Zeigler and Butler were riding as passengers was not registered in Pennsylvania; and, therefore, they are not eligible claimants under the Assigned Claims Plan. This is not altered merely because the ownership of the vehicle is unknown or because the vehicle is not registered anywhere. Such a vehicle does not come within the express mandate of the MVFRL; and, therefore, occupants of such vehicles are not entitled to recover benefits under the Assigned Claims Plan. The language of the statute is clear; if it is to be changed, that change must be made by the legislature and not by the courts.

Recently, in Bridges v. Gary, 429 Pa.Super. 572, 633 A.2d 170 (1993), this court determined that a passenger of a vehicle registered in a state other than Pennsylvania was ineligible to receive benefits through the Assigned Claims Plan. There, Gerald Bridges had been injured when the automobile in which he was riding as a passenger struck a parked car. At the time of the accident, the host vehicle had been registered in the State of Florida. Bridges did not own a motor vehicle and therefore did not have his own insurance coverage. He sought to recover benefits from the Plan. Affirming the trial court’s entry of summary judgment in favor of the Plan and the assigned insurance carrier, the Superior Court applied 75 Pa.C.S. §§ 1711 and 1752(a)(5) and concluded:

A vehicle registered in Florida is not required to provide first party benefits under the Pennsylvania MVFRL, and an occupant of such a vehicle is not entitled to recover benefits from the Assigned Claims Plan.

Id., 430 Pa.Super. at 129, 633 A.2d at 171-172. See also: Rosado v. Constitution State Service Co., 425 Pa.Super. 561, 625 A.2d 1239 (1993). These decisions are controlling.

Also similar to the instant case is Johnson v. Pennsylvania Financial Responsibility Assigned Claims Plan, 12 D. & C.4th 471 (Phila.1991). There, neither the operator nor the passenger owned the vehicle in which they were riding at the time of the accident. The vehicle was uninsured and was not registered in Pennsylvania. At the time of the accident, the vehicle was owned by a person having a New York address, and its expired registration had been issued under the name of a New Jersey resident. The trial court held that under sections 1711 and 1752(a)(5) of the MVFRL, the vehicle was not a vehicle required to provide coverage for benefits under the MVFRL and occupants thereof were not entitled to recover benefits under the Assigned Claims Plan. The court said:

This court finds that plaintiffs must be denied the benefits coverage they are seeking under subchapter “E” of MVFRL, 75 Pa.C.S. § 1751 et seq. In section 1711 of the MVFRL the Pennsylvania Legislature set out the requirement that first-party benefits would only be available to vehicles which are both “registered and operated in this Commonwealth of Pennsylvania.” 75 Pa.C.S. section 1711. Also, pursuant to section 1752(a)(5) of the MVFRL, operators or occupants of those vehicles are also ineligible for any benefits under the plan. Therefore, plaintiffs are expressly excluded from eligibility under the plan because the vehicle they were driving was not registered in Pennsylvania and as an operator/occupant of such a vehicle this exclusion is thereby extended to them.

Id. at 473.

Because the express language of the MVFRL clearly provides that only motor vehicles which are registered and operated in the Commonwealth of Pennsylvania are required to provide benefits, it is clear that Zeigler and Butler, as occupants of an unregistered vehicle, were occupants of a vehicle which was not required to provide benefits under the MVFRL. Thus, they fail to satisfy the eligibility requirement set forth at 75 Pa.C.S. § 1752(a)(5) and are not eligible to receive benefits under the Assigned Claims Plan.

For these reasons, we conclude that the trial court erred when it awarded benefits to the occupants of an uninsured vehicle not registered in Pennsylvania. The occupants were not eligible claimants under MVRFL.

Judgment reversed.

      . The Plan administers limited statutory insurance benefits to eligible claimants pursuant to Sub-chapter E of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. §§ 1701, et seq.

      . The complaint erroneously named Travelers Insurance Company as the assigned carrier, and this error has been perpetuated throughout subsequent proceedings. We have substituted Constitution State Service Company in the caption of the present appeal.


author: BECK, Judge:

text:
    634 A.2d 264
    Michael SANTILLO, Appellant, v. Clement REEDEL and Robert Piermatteo, Sandra Adams and Martine Ross (Mary Doe I).
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1993.
    Filed Nov. 30, 1993.

      Carla E. Connor, Norristown, for appellant.
    Christine M. Mooney Brenner, Philadelphia, for Reedel & Piermatteo, appellees.
    Before ROWLEY, President Judge, and OLSZEWSKI and BECK, JJ.
   BECK, Judge:

This is an appeal of a order granting summary judgment in favor of appellees on all claims by appellant. We affirm.

In 1987, appellant, a former police officer, ran for the office of district justice in Montgomery County. Prior to the election, a young woman informed the press that eight years before, when she was sixteen years old, appellant made unwanted sexual advances toward her. The newspaper articles revealed that Sandra Adams (Adams), the girl’s mother, made a formal complaint to the police department and sought to press charges against appellant. The police began an investigation of the complaint and interviewed the alleged victim. She was given a polygraph test which indicated that she was telling the truth. After some discussion with the police, the mother signed a release stating that she would not press criminal charges nor bring a civil action against appellant provided he resigned from the police force. One week after the mother signed the release, appellant resigned from his position as a police officer.

In response to questions by newspaper reporters, Upper Merion Township Chief of Police Clement Reedel (Reedel) and Lieutenant Robert Piermatteo (Piermatteo), appellees herein, confirmed that a complaint had been made by Adams and that a polygraph test had been administered in the investigation of the complaint. However, neither officer revealed the nature or findings of the investigation.

Appellant brought suit against the publishers of the newspapers, the reporters, Adams and her daughter and Reedel and Piermatteo for defamation, invasion of privacy and intentional infliction of emotional distress, seeking both compensatory and punitive damages. The parties filed Answers denying the allegations and after some preliminary discovery, Reedel and Piermatteo filed a motion for summary judgment. The motion was granted and this timely appeal followed.

We begin by noting that the trial court’s order granted summary judgment on all claims against Reedel and Piermatteo. However, appellant’s brief addresses only the invasion of privacy claims. Therefore, any appellate challenge to the other claims against Reedel and Piermatteo has been waived and we address only those issues briefed by appellant. See Pa.R.A.P. 2116(a); Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 551 A.2d 1112, 1114 (1988).

Summary judgment is appropriate in matters which are free and clear from doubt and in which there are no issues of material fact. The moving party must be entitled to judgment as a matter of law. Intili v. Salak, 403 Pa.Super. 578, 589 A.2d 761, 764 (1991). We review the record in the light most favorable to the non-moving party, accepting as true all well-pleaded facts and giving to that party the benefit of all reasonable inferences. Carns v. Yingling, 406 Pa.Super. 279, 594 A.2d 337 (1991). Our review is not limited to the pleadings, but includes depositions, answers to interrogatories, admissions and affidavits. Pa.R.C.P. 1035(b).

Tort claims based on invasion of privacy can be one of four types: 1) intrusion upon seclusion, 2) appropriation of name or" likeness, 3) publicity given to private life, and 4) publicity placing a person in a false light. Culver by Culver v. Port Allegheny Reporter Argus, 409 Pa.Super. 401, 598 A.2d 54, 56 (1991), alloc. denied, 533 Pa. 600, 617 A.2d 1274 (1992); Restatement (Second) of Torts §§ 652B-E. Appellant claims that in confirming the existence of Adams’ complaint and the subsequent investigation and polygraph test, Reedel and Piermatteo gave publicity to appellant’s private life and placed him in a false light.

In order to make out a claim of publicity to private life, a plaintiff must establish that a private fact was publicized and that such fact was of a type highly offensive to a reasonable person and not of legitimate concern to the public. Harris by Harris v. Easton Publishing Company, 335 Pa.Super. 141, 483 A.2d 1377, 1384 (1984). The trial court found that summary judgment was proper on this claim because “no genuine issues of material fact exist[ed] ... as to whether the publicity given to the contents of [appellant’s] personnel file was highly offensive to a reasonable person or was of legitimate public concern.” Trial Court Op. at 7. We disagree that release of the information here could not cause a reasonable person of ordinary sensibilities to be offended. The nature of the allegations, sexual abuse of a minor, are of a type that could indeed cause shame or humiliation for its subject. See Harris, supra, 335 Pa.Super. at 159, 483 A.2d at 1387 (whether publication of welfare applicant’s history is highly offensive is question of fact precluding summary judgment).

We agree, however, that there is no question that the information was of legitimate concern to the public. Appellant was running for public office. As candidate for district justice, he sought a position that would enable him to judge the conduct of others and determine whether that conduct was in conformity with the law. A claim that he violated the law was relevant and newsworthy. Whether or not the substance of the complaint was true, Reedel and Piermatteo’s confirmation of the complaint and the ensuing investigation presented a matter of public concern, therefore, appellant’s claim of publicity to private life must fail. See Culver, supra.

Appellant’s second claim, false light, also fails. In order for such a claim to be successful, appellant must show that a highly offensive false statement was publicized by appellees with knowledge or in reckless disregard of the falsity. Neish v. Beaver Newspapers, Inc., 398 Pa.Super. 588, 581 A.2d 619, 624 (1990), alloc. denied, 527 PA. 648, 593 A.2d 421 (1991). None of the statements made by appellees Reedel and Piermatteo was false. The trial court found, and after reviewing the record we agree, that appellees presented ample evidence that the complaint was made and an investigation commenced. Neither Reedel nor Piermatteo commented on the outcome of the investigation; they did not offer to the press their evaluation of the merits of the complaint. Their statements confirming the existence of the controversy simply were not false.

In Larsen v. Philadelphia Newspapers, Inc., 375 Pa.Super. 66, 543 A.2d 1181 (1988), we recognized that a false light claim can be established where true information is released if the information tends to imply falsehoods. Id. at 82, 543 A.2d at 1189. “Literal accuracy of separate statements will not render a communication ‘true’ where the implication of the communication as a whole was false.” Id. (citing Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 448 A.2d 6, 15 (1982)). In order to prevail on this theory of false light invasion of privacy, appellant must show discriminate publication of true statements, that is, appellees must have created a false impression by knowingly or recklessly publicizing selective pieces of true information. The question is whether appellees made “discrete presentation^] of information in a fashion which rendered] the publication susceptible to inferences casting [appellant] in a false light....” Id.

We do not find discriminate publication in this case. Reedel and Piermatteo were asked by reporters to confirm the existence of the complaint, the details of which were already known to reporters. Appellees confirmed that a complaint was made and a polygraph test was given, but refused to give any additional information. Appellant misapprehends the meaning of discriminate publication when he insists that appellees should have told reporters that appellant also received commendations as a police officer. Reedel and Piermatteo did not selectively publicize portions of appellant’s personnel file and appellant’s claim for false light invasion of privacy properly was dismissed on summary judgment.

Order granting summary judgment in favor of appellees affirmed.

      . The newspaper publishers and reporters were dismissed from the suit by stipulation of the parties. Adams and her daughter apparently remain as defendants.


author: HUDOCK, Judge: ROWLEY, President Judge,

text:
    634 A.2d 614
    COMMONWEALTH of Pennsylvania v. Ardella MILLER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1993.
    Filed Nov. 18, 1993.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com.
    Before ROWLEY, President Judge, and WIEAND, CIRILLO, DEL SOLE, TAMILIA, KELLY, POPOVICH, HUDOCK and FORD ELLIOTT, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed after Appellant was convicted of murder of the third degree at a nonjury trial. Post-trial motions were denied, and Appellant was sentenced to five to twelve years imprisonment. A petition for reconsideration of sentence was denied by the court below and this direct appeal followed. We vacate Appellant’s third degree murder conviction and remand for an evidentiary hearing.

The facts, when viewed in the light most favorable to the Commonwealth as the verdict winner, are as follows: Appellant and the victim, Mark Smith (Smith), had lived together on and off for several years, a relationship that resulted in the birth of their son, Mark, Jr. In the early morning hours of July 29, 1990, Appellant and Smith had an argument during which Smith burned Appellant with a cigarette, poked her in the chest and slapped her. Moments later, Appellant’s uncle, Nate Durah, telephoned. Appellant informed Mr. Durah of the argument, but told him that everything was okay. Nevertheless, Mr. Durah, accompanied by his wife, Barbara, arrived at Appellant’s home approximately forty-five minutes later. He testified that he escorted Smith from the house, and the two men argued as they walked up the street. Upon returning to the house, Mr. Durah lost sight of Smith momentarily and then heard his -wife scream. He further testified that Smith at some point took off his clothes in the street and looked like he was reaching for something in his pants. Mrs. Durah testified that after the two men had walked back down the street, Smith took his pants off as Mr. Durah briefly walked to his car to return a baseball bat that he had been carrying. Mrs. Durah further testified that at this point Smith came up behind Appellant, “snatched her arm” and then stated, “Is this what you want?” or words to that effect. N.T. 4/2/91, at p. 55. Shortly thereafter Appellant plunged a kitchen knife into Smith’s heart, causing his death. The depth of the wound was nine centimeters. Neither Mr. or Mrs. Durah testified that they saw Smith in possession of the knife at any time.

In a taped statement introduced by the Commonwealth in its case-in-chief, Appellant’s version of the events was consistent with the testimony of the Durahs. Appellant, however, stated that Smith walked over to her and said, “Did I want to join my brother[?]” N.T. 4/3/91, at p. 111. Appellant’s statement then indicates that, at the time Smith was removing his pants, a knife fell out and both parties reached for it. Appellant picked it up, told Smith that she “was tired of his shit,” and stabbed Smith in the heart. Id. at 112.

Appellant claimed she acted in self-defense and now points to the following evidence: 1) Statements by Mr. Durah that Smith physically assaulted her, as well as other female relatives, on prior instances, and that he had removed Smith from the house on several occasions due to the couple’s troubled relationship; 2) the testimony of Smith’s probation officer that, on occasion, Appellant called him to tell him Smith was abusing her, particularly when Smith was intoxicated; 3) the probation officer’s testimony about a specific incident where he visited the house and was told Smith hit Deborah Brooks, Appellant’s sister, with a baseball bat and had pointed a gun at Appellant, and an incident where Smith threatened to throw an electrical appliance in a bathtub in which Appellant was sitting; 4) the probation officer’s testimony that Smith was referred to outpatient treatment for alcohol abuse and violence in the home, although, to the probation officer’s knowledge, Smith had never attended these programs; 5) the testimony of Deborah Brooks which corroborated the probation officer’s testimony as to these other incidents between Appellant and Smith, as well as her testimony as to an additional incident where Smith allegedly threatened to burn the house down; 6) testimony that Appellant had once sought a protection from abuse order; and 7) the testimony of the victim’s mother, who lived next door to Appellant, in which she acknowledged that her son and Appellant fought often. Mrs. Smith also testified regarding the occasion where victim threatened to electrocute Appellant while she was in the bathtub.

Appellant raises the following issues on appeal:

I. Do the federal and state constitutions compel a new trial because trial counsel overrode the defendant’s expressed desire and refused to allow the defendant to testify[?]
II. Does the Commonwealth disprove self defense by speculating that the victim was unarmed, and by arguing that his previous violence had not caused serious bodily injury and that the defendant had remained in the abusive relationship?
III. Does the Commonwealth disprove self defense and prove malice, if the only evidence of malice is the possible inference from use of a deadly weapon and the Commonwealth itself offers evidence of self defense which negates malice?
IV. Was trial counsel ineffective for failing to corroborate the self defense claim with the folio-wing available evidence:
1. The deceased’s prior criminal record;
2. Ms. Miller’s hospital record;
3. Police reports from Smith’s arrests for acts of violence against Ms. Miller;
4. Ms. Miller’s testimony;
5. Expert testimony regarding the battered woman syndrome;
And was counsel ineffective for failing to object to the admission of unauthenticated altered and prejudicial evidence, and for failing to object to the Commonwealth’s improper impeachment of a Commonwealth witness?

Appellant’s Brief on Reargument at p. 3.

We note that Appellant’s first issue was not raised in post-trial motions, but rather, was first raised in her 1925(b) statement of matters complained of on appeal. The trial court acted correctly in not considering this claim because, once an appeal had been filed, it was divested of jurisdiction to act further in the case. See generally, Commonwealth v. Picker, 293 Pa.Super. 381, 439 A.2d 162 (1981). Thus, the issue is waived. See Pa.R.Crim.P. 1123 (only those issues included in written post-verdict motions are considered preserved for appellate review); see also, Commercial Credit Corp. v. Cacciatiore, 343 Pa.Super. 430, 435, 495 A.2d 540, 543 (1985) (“failure to preserve issues in post-trial documents cannot be rectified by proffering them in response to a rule 1925(b) order of court”). We do note, however, Appellant has claimed in her fourth issue that trial counsel was ineffective for failing to present her testimony. Thus, as shall be discussed infra, because we are remanding for an evidentiary hearing on these claims of ineffectiveness, the issue of whether Appellant was prevented from testifying on her own behalf may be determined at the evidentiary hearing.

We now turn to the second and third issues enumerated above, both of which deal with the sufficiency of the evidence with respect to Appellant’s conviction. The test for reviewing a sufficiency claim is well-settled:

Where a defendant challenges his conviction on appeal the test of sufficiency of evidence is whether, viewing all evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Torres, 396 Pa.Super. 499, 501, 578 A.2d 1323, 1324 (1990) (citations omitted). “A person may be convicted of third-degree murder where the murder is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice aforethought.” Commonwealth v. Pigg, 391 Pa.Super. 418, 425, 571 A.2d 438, 441 (1990), alloc. den., 525 Pa. 644, 581 A.2d 571. Malice has been defined as a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.” Id. at 425, 571 A.2d at 441 (quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868). “[M]alice imports the absence of justification.” Commonwealth v. Hill, 427 Pa.Super. 440, 444, 629 A.2d 949, 951 (1993), (citing Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973)). Thus, when a defendant claims self-defense, the Commonwealth must disprove the claim beyond a reasonable doubt. Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068 (1978), cert. den., 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663.

Because both the second and third issues involve the relationship between a claim of self-defense and the element of malice necessary to support a conviction for third degree murder, we address them together.

In discussing this relationship, our Supreme Court has stated:

The relationship between a claim of self-defense and the element of malice has been described as follows: “[i]n a prosecution for murder, evidence of provocation or self-defense tends to negate the malice required to prove murder.” Commonwealth v. Heatherington, 477 Pa. 562, 568, 385 A.2d 338, 341 (1978). Further, in order to meet its burden of proof on the element of malice, the Commonwealth must exclude self-defense beyond a reasonable doubt. Id.
# # # * * *
Although the Commonwealth is required to disprove a claim of self-defense arising from any . source beyond a reasonable doubt, a jury is not required to believe the testimony of the defendant who raises the claim. See Commonwealth v. Hinchcliffe, 479 Pa. 551, 556, 388 A.2d 1068, 1071 (1978) (fact finder may believe any, all, or none of any witness’s testimony), cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663.
Moreover, where there is evidence from which a jury can reasonably infer malice, the Commonwealth has met its burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. Hinchcliffe, supra, 479 Pa. at 557, 388 A.2d at 1071. It has long been the law of this Commonwealth that “the use of a deadly instrument on a vital part of the body is sufficient to establish the specific intent to kill required for a conviction of first degree murder.” Commonwealth v. Butler, 446 Pa. 374, 378, 288 A.2d 800 (1972). There is no dispute herein that appellee stabbed the victim with a knife in his back and chest, inflicting a fatal wound to the heart. The jury was justified therefore in finding that the Commonwealth had established the element of malice beyond a reasonable doubt.

Commonwealth v. Carbone, 524 Pa. 551, 560-563, 574 A.2d 584, 589-590 (1990), modified, 526 Pa. 226, 585 A.2d 445 (footnote omitted). The inference serves a dual purpose; it permits the factfinder to infer malice, as well as a specific intent to kill. Commonwealth v. Carbone, 375 Pa.Super. 261, 544 A.2d 462 (1988), rev’d on other grounds, 524 Pa. 551, 574 A.2d 584 (1990). Thus, “[i]t is well settled that the intentional use of a deadly weapon on a vital part of the body raises a permissible inference of malice.” Commonwealth v. Hunter, 381 Pa.Super. 606, 613, 554 A.2d 550, 553 (1989) (citations omitted). As can be inferred from the above quoted language of our Supreme Court in Carbone, such an inference of malice established through use of a deadly weapon on a vital part of the body is alone sufficient to sustain a finding of murder. See also, Commonwealth v. Torres, supra. In the case at bar, Appellant plunged a kitchen knife nine centimeters into the heart of Smith. The parties stipulated to the coroner’s report which concluded that this stab wound, which entered the pericardial cavity and perforated the right ventricular wall, was the cause of death. This evidence clearly gives rise to an inference of malice.

Appellant, citing to our Supreme Court’s previous decisions in Commonwealth v. McGuire, 487 Pa. 208, 409 A.2d 313 (1979) and Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975), argues that the use of a knife to the decedent’s chest in the case at bar cannot give rise to the inference of malice because such inference is negated by evidence presented by the Commonwealth which suggests that Appellant acted in self-defense, a concept mutually exclusive to malice. Contrary to Appellant’s assertions, we are hard-pressed to conclude that the eyewitness testimony of either Mr. or Mrs. Durah presented evidence of self-defense such that the inference of malice is negated. The Commonwealth’s use of Appellant’s statement in its case-in-chief does not mean that the Commonwealth vouched for its truthfulness, Commonwealth v. Mahoney, 460 Pa. 201, 331 A.2d 488 (1975), or otherwise qualify it as “Commonwealth’s evidence” as referred to in McGuire. This evidence comes from the criminal defendant herself, and is therefore subject to a credibility determination by the factfinder, and does not, therefore, negate the inference. See our Supreme Court’s decision in Carbone, supra (fact that a homicide defendant makes a self-defense claim in her confession does not itself prevent the Commonwealth from proving a malicious homicide).

The only evidence of self-defense came from Appellant herself. As is apparent from the guilty verdict, the trial court disbelieved Appellant’s self-defense claim, and.found the requisite malice to support the third degree murder conviction. After reviewing the record in the light most favorable to the Commonwealth, and granting all reasonable inferences in favor of the Commonwealth, we find sufficient evidence to support the conviction. Appellant’s claims to the contrary are without merit.

As noted above, the inference of malice from the use of a deadly weapon on a vital part of the victim’s body is a permissible one. Commonwealth v. Hunter, supra. Moreover, as stated by our Supreme Court in Carbone, as quoted above, if there is evidence from which the factfinder can infer malice, the Commonwealth has disproved self-defense beyond a reasonable doubt. However, the factfinder need not draw the inference. In the present case the theory of self-defense was placed at issue. While the evidence of the use of deadly force in self-defense can come from any source, it must speak to three specific elements: 1) the defendant was free from fault in provoking or continuing the difficulty which resulted in the killing; 2) the defendant must have reasonably believed that she was in imminent danger of death or great bodily harm, and that there was a necessity to use such force to save herself therefrom; and 3) the defendant did not violate any duty to retreat or avoid the danger. See generally, Commonwealth v. Mayfield, 401 Pa.Super. 560, 585 A.2d 1069 (1991) (en banc). While a claim of self-defense must include all three of these elements, and no burden is placed on the defendant, the Commonwealth need only disprove one of the elements in order to defeat a claim of self-defense. Commonwealth v. McClain, 402 Pa.Super. 636, 587 A.2d 798 (1991), alloc. den., 528 Pa. 636, 598 A.2d 993. On appeal, Appellant claims that her trial counsel was ineffective for failing to introduce additional information and/or testimony, which was available at the time of trial, to corroborate her claim of self-defense. Thus, we reach the merits of Appellant’s fourth issue.

The test used to evaluate claims of ineffectiveness of counsel is well-settled:

First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client.... The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant.

Commonwealth v. Nelson, 389 Pa.Super. 417, 423, 567 A.2d 673, 676 (1989) (citations omitted). Appellant’s claims of ineffectiveness are summarized as follows: 1) trial counsel’s failure to present the victim’s prior criminal arrest and conviction records, as well as police reports from Smith’s arrests for acts of violence against Appellant, which would be most relevant in supporting her claim that the victim was a violent individual, that he was in fact the aggressor on the evening of his death, and that her fear of him was entirely reasonable; 2) trial counsel’s failure to produce medical records documenting Appellant’s hospital visits necessitated by beatings administered by Smith, which would also substantiate her claim that her fear of the decedent was reasonable; 3) the severe prejudice she suffered because of trial counsel’s failure to present expert testimony that she was a battered woman who, by definition, was unable to resist her continued relationship with Smith, and who continued to love him, despite the abuse he inflicted upon her; 4) trial counsel’s failure to present her testimony, despite Appellant’s clear desire to testify on her own behalf; and 5) trial counsel’s failure to object to the admission of “unauthenticated altered and prejudicial evidence” (Smith’s blue hospital pants), and for failing to object to the improper impeachment of a Commonwealth witness (Mrs. Durah). Appellant’s Brief on Reargument at p. 46.

After a thorough examination of the record, we conclude that there is arguable merit to each of Appellant’s contentions that counsel was ineffective at trial. See Commonwealth v. Guerrisi, 297 Pa.Super. 245, 443 A.2d 818 (1982) (counsel’s failure to present favorable demonstrative evidence, documentary evidence, and expert testimony constitutes ineffective assistance of counsel); Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976) (counsel ineffective for failing to introduce evidence of defendant’s hospitalization, most relevant to defendant’s claim of self-defense); Commonwealth v. Stonehouse, 521 Pa. 41, 555 A.2d 772 (1989) (plurality) (where trial counsel was found ineffective for failing to present expert testimony-on the battered woman syndrome as a defense to homicide charges); Commonwealth v. Preston, 418 Pa.Super. 125, 613 A.2d 603 (1992) (standard described for ineffectiveness where counsel has not fully consulted accused of his right to testify; accused must demonstrate that counsel interfered with accused’s freedom to testify, or counsel gave unreasonable advice; the decision to testify ultimately lies with the accused); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975) (where judgment of sentence was vacated pending an evidentiary hearing on appellant’s ineffective assistance of counsel claim).

In the case before us there has not been an evidentiary hearing to determine whether trial counsel had a reasonable basis for his actions and/or omissions. Case law dictates that such a hearing is necessary. “When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the court below to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing.” Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987) (citation omitted). We therefore vacate the judgment of sentence and remand to the lower court to determine what evidence, if any, was knowingly available to' the defense and to determine whether or not counsel had a reasonable basis for not presenting such evidence and/or objecting to the admission of physical evidence by the Commonwealth. If counsel is found to be ineffective, the proper remedy is new trial. If counsel was not ineffective, then the judgment of sentence shall be reinstated.

One matter to be considered on remand is the “battered woman syndrome.” Clearly, to date this syndrome has not been adopted as a separate defense in Pennsylvania. Moreover, the use and acceptance of such evidence, while discussed in several recent cases, remains unclear. In determining to what extent, if any, Appellant’s previous counsel was ineffective for failing to introduce this expert testimony, it becomes necessary to determine the precise level of acceptance this evidence has garnered in this state’s jurisprudence. It is for this reason that a brief review of the “battered woman syndrome,” as discussed in recent Pennsylvania appellate decisions, is in order.

In Commonwealth v. Stonehouse, supra, Justice Larsen in a lead opinion joined by Justices Papadakos and Stout, held that counsel in a homicide trial was ineffective for failing to request jury instructions which would require the jury to consider the cumulative effects of psychological and physical abuse when assessing the reasonableness of a battered person’s fear of imminent danger of death or serious bodily harm with respect to her claim of self-defense, and when considering what constitutes sufficient provocation to support a conviction for voluntary manslaughter. Such instructions were necessary, wrote Justice Larsen, to instruct the jury as to the legal relevance of the history of abuse presented at trial on Appellant’s behalf. Although the issue was not before the court, the lead opinion next addressed whether “trial counsel was ineffective in failing to present expert testimony regarding the characteristics of the victims of psychological and physical abuse, where uncontradicted testimony revealed that appellant was the victim of such abuse, and the jury, without the aid of expert testimony, rendered a verdict based upon erroneous myths concerning the victims of such abuse.” Id., 521 Pa. at 61, 555 A.2d at 782. Finding that there was no reasonable basis for trial counsel not to call an expert witness to “counter the erroneous battered woman myths upon which the Commonwealth' built its case[,]” and finding the absence of such testimony prejudicial, the lead opinion stated, “where a pattern of battering has been shown, the battered woman syndrome must be presented to the jury through the introduction of relevant evidence.” Id. at 65-66, 555 A.2d at 784-785 (footnote omitted) (emphasis added).

Justice Larsen’s lead opinion in Stonehouse did not garner enough joinders to establish it as precedent. In a concurring opinion joined by Justice Flaherty, Justice Zappala stated his agreement -with the lead opinion’s disposition of the ineffectiveness claims for failing to request the various jury instructions, but stated that he would not have addressed the question of whether the “battered woman syndrome” was recognizable as a separate defense under the law in Pennsylvania. Recognizing that Stonehouse, in her own brief, stated that the self-defense issue was not to be mischaracterized on appeal as a failure to raise the syndrome, Justice Zappala concluded that resolution of the issue was best left to a time when the issue was squarely before the Court. In dissent, Chief Justice Nix, joined by the late Justice McDermott, also recognized that the “battered woman syndrome” was not properly before the Court.

Two years later, our Supreme Court was squarely faced with an issue involving the battered woman syndrome, but curiously, the majority opinion, authored by Justice Larsen, did not mention it in reaching its determination. In Commonwealth v. Dillon, 386 Pa.Super. 236, 562 A.2d 885 (1989), a panel of this Court affirmed the trial court’s decision in a homicide case to exclude as irrelevant testimony of appellant’s stepson that the victim became mean and vicious when he was drunk and its decision to exclude expert testimony regarding the battered woman syndrome, because it was not recognized in this Commonwealth as a defense in homicide cases. The high court, however, reversed this Court’s decision by finding error in our analysis of the former while not addressing the latter. See generally, Commonwealth v. Dillon, 528 Pa. 417, 598 A.2d 963 (1991). In his concurring opinion, Chief Justice Nix, joined by Justice Flaherty and the late Justice McDermott, stated that “evidence regarding the cumulative effects of wife-beating and general spousal abuse must be admissible to bear upon the ‘reasonableness’ of the conduct by a party who claims self-defense to a charge of spousal homicide.” Id. at 422, 598 A.2d at 966 (Nix, C.J., concurring) (emphasis added). Chief Justice Nix then wrote:

Presently, the law of this Commonwealth does not recognize the battered woman syndrome as a separate and distinct defense to homicide, and I am not proposing that we do so now. What I am suggesting is that, when presenting all relevant evidence in a proper analysis of justification under section 505(a), the defendant may offer evidence relating to the battered woman syndrome as additional probative information relating to the “reasonable-belief’ requirement.
% s-: sH tfr ‡ #
I am not suggesting that once a defendant has established that she was a victim of the deceased’s habitual emotional and/or physical abuse, the matter is resolved. I only recommend this as one factor to be considered in determining the reasonableness of the defendant’s belief at the time of the homicide that deadly force was necessary.

Id. at 425-426, 598 A.2d at 967 (footnote omitted). In his concurring opinion joined by Justices Larsen and Papadakos, Justice Cappy recognized that the issue of whether the trial court erred in excluding expert testimony relating to the battered woman syndrome in a self-defense case was properly before the Court and should be resolved. Justice Cappy would find that such testimony was admissible both as an aid to the jury in explaining matters beyond common knowledge and experience, and as relevant evidence of the defendant’s state of mind. Justice Cappy wrote:

As the cases cited herein demonstrate, permitting expert testimony in a case such a[s] this is in complete accord with our existing case law. I do not believe we would be creating a new “battered woman’s defense” by permitting expert testimony in the case sub judice, nor would I suggest that we attempt to do so here. The defense asserted is self-defense. The testimony of the expert is relevant to the defendant’s state of mind concerning self-defense and is helpful to the jury in evaluating the testimony.

Id. at 437, 598 A.2d at 973. Thus, it appears Justice Cappy agrees with Chief Justice Nix that competent expert testimony would establish additional probative evidence of the defendant’s reasonable belief in using deadly force at the time of the incident giving rise to the homicide charges.

Although the several justices of the Supreme Court have given their own opinions in Stonehouse and Dillon about the use of expert testimony in presenting evidence as to the reasonableness of the defendant’s belief that deadly force was necessary to protect oneself from imminent death or serious bodily injury, no case decided in this Commonwealth to this day has stated that expert testimony regarding the battered woman syndrome is inadmissible or admissible as probative evidence of the defendant’s state of mind as it relates to the theory of self-defense. Given the tenor of the various opinions quoted above, and the reasons given therein, today we hold that such evidence is admissible as probative evidence of the defendant’s state of mind as it relates to a theory of self-defense. The syndrome does not represent a defense to homicide in and of itself, but rather, is a type of evidence which may be introduced on the question of the reasonable belief requirement of self-defense in cases which involve a history of abuse between the victim and the defendant. To the extent this Court’s decision in Dillon states to the contrary, we now disapprove of such rationale. Further, we state our disapproval of the statement in Commonwealth v. Kacsmar, 421 Pa.Super. 64, 617 A.2d 725 (1992), that our Supreme Court in Stonehouse “held that trial counsel rendered ineffective assistance by failing to present expert testimony on the battered woman syndrome as a defense to homicide charges.” Id. at 77, 617 A.2d at 731. We also disapprove of any inference from that decision that a new defense to homicide has been created. We do, however, agree with the statements of the panel that expert testimony regarding a “battered person syndrome” was relevant to the appellant’s state of mind and is not introduced to improperly bolster the credibility of the defendant, but rather, to aid the jury in evaluating the defendant’s behavior and state of mind given the abusive environment which existed. While finding expert testimony with regard to the battered woman syndrome admissible, we do not hold, however, that failure to present such evidence equates to a finding of per se ineffectiveness, particularly in cases such as the instant matter, where trial counsel has stated on the record that he was prepared to explain why he chose not to call an available expert witness. Thus, it is with this guidance that we remand for a hearing on trial counsel’s alleged ineffectiveness in failing to present expert testimony as to the battered woman syndrome, as well as all other claims enumerated above.

The judgment of sentence is vacated and the case remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

WIEAND, J., concurs in the result.

ROWLEY, P.J., files a concurring statement joined by TAMILIA and POPOVICH, JJ.

ROWLEY, President Judge,

concurring.

I join in the Majority’s decision in all regards, save for its statement “that [battered woman syndrome] evidence is admissible [in a homicide trial] as probative evidence of the defendant’s state of mind as it relates to a theory of self-defense.” It is my belief that the Majority’s conclusion in this regard is dicta because it is unnecessary to a disposition of the instant appeal. A specific holding concerning the admissibility of battered woman syndrome evidence in homicide cases is better left for a day when that issue has been squarely presented to this Court.

TAMILIA and POPOVICH, JJ., join in this concurring statement by ROWLEY, P.J.

      . 18 Pa.C.S. § 2502(c).

      . We are unpersuaded by Appellant’s argument that evidence of prior violent acts, in and of themselves, negates malice. Rather, we concur with the Commonwealth’s analysis that such acts must be viewed in combination with the act which gives rise to the killing. While Mr. Durah provided testimony that Smith physically assaulted Appellant in the past, he provided little testimony as to the actual confrontation leading to Smith’s death.

      . This Court also found that it would have been improper to allow expert testimony under the facts presented because, unlike the uncontradicted testimony that the defendant in Stonehouse was a battered woman, whether the defendant was a battered woman was sharply disputed by the Commonwealth. This Court further opined that the use of expert testimony to explain the statement’s made by the defendant after the killing would invade the province of the jury. Additional claims of error with regard to the jury instructions were found to be waived or otherwise without merit.