author: PER CURIAM: TAMILIA, Judge,

text:
    648 A.2d 331
    COMMONWEALTH of Pennsylvania v. Edward MOORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 23, 1994.
    Filed Sept. 23, 1994.
    Petition for Allowance of Appeal Denied Jan. 11, 1995.

      James S. Bruno, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before TAMILIA, FORD ELLIOTT and MONTGOMERY, JJ.
   OPINION

PER CURIAM:

Appellant, Edward Moore, was convicted by a jury of involuntary manslaughter and was sentenced to a term of two and one-half to five years imprisonment. Appellant filed a direct appeal. Counsel failed to file a brief and the appeal was dismissed. Thereafter, appellant filed a petition under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., and his appellate rights were reinstated nunc pro tunc. This direct appeal followed. We affirm.

On appeal, appellant claims that trial counsel was ineffective for: (1) failing to preserve his claim that the evidence is insufficient to sustain his conviction; (2) failing to preserve his claim that the verdict of guilt is against the weight of the evidence; (3) failing to object to the prejudicial remarks made by the Assistant District Attorney during his summation to the jury; and (4) failing to request that the jury be instructed regarding appellant’s failure to testify at trial.

On November 28, 1991, Dennis Williams, the decedent, exited Smith’s Bar in Philadelphia. Appellant approached the decedent, struck him from behind, and the decedent fell to the ground. The decedent tried to get up, but appellant kicked him in the face. The decedent fell back again, hitting his head on the concrete sidewalk. The decedent died as a result of these injuries.

In general, trial counsel is presumed to be effective and appellant has the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75 (1990). In reviewing ineffectiveness claims, we must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If not, we need look no further since counsel will not be deemed ineffective for failing to pursue a meritless issue. Commonwealth v. Lennox, 250 Pa.Super. 80, 378 A.2d 462 (1977). If there is arguable merit to the claim, we will then look to see whether the course chosen by counsel had some reasonable basis aimed at promoting his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). Further, there must be a showing that counsel’s ineffectiveness prejudiced appellant’s case. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Appellant first claims that the evidence is insufficient to support his conviction. He contends that trial counsel was ineffective for failing to preserve this issue for appellate review.

In reviewing a sufficiency of the evidence claim, we view the evidence, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth. Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975). A mere conflict in the testimony does not render the evidence insufficient, Commonwealth v. Verdekal, 351 Pa.Super. 412, 506 A.2d 415 (1986), 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. Whitfield, 475 Pa. 297, 380 A.2d 362 (1977).

Involuntary manslaughter is defined as follows:

(a) General rule. — A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

18 Pa.C.S. § 2504(a).

Thus, the crucial element necessary for a finding of involuntary manslaughter is conduct that is reckless or grossly negligent. Commonwealth v. Stehley, 350 Pa.Super. 311, 504 A.2d 854 (1986).

Viewing the evidence in a light most favorable to the Commonwealth, there is sufficient evidence to sustain appellant’s conviction. Appellant approached the decedent from behind and struck him, causing him to fall to the ground. As the decedent tried to get up, appellant kicked him in the face causing him to fall back again with his head striking the concrete sidewalk. This evidence is sufficient to sustain appellant’s conviction. See, Commonwealth v. Stehley, 504 A.2d at 860, 504 A.2d 854 (Grabbing, pushing or shoving a 62-year-old man over a porch railing so that he hits the ground four feet below head first, is sufficient to support a finding of recklessness or gross negligence).

At trial, defense witness, Leroy Lawton, stated that the decedent pushed appellant and took a swing at him. Appellant punched the decedent once and he fell back hitting his head on the sidewalk.

On appeal, appellant argues that the Commonwealth failed to disprove self-defense beyond a reasonable doubt. This claim necessarily requires a finding that appellant’s version of the events in question is more credible than the testimony presented by the Commonwealth at trial. Commonwealth v. Gonzales, 415 Pa.Super. 564, 609 A.2d 1368 (1992). However, the credibility of the self-defense testimony was for the jury which could believe all, some or none of it. Commonwealth v. Ignatavich, 333 Pa.Super. 617, 482 A.2d 1044 (1984); Commonwealth v. London, 461 Pa. 566, 337 A.2d 549 (1975). The jury was properly instructed on the elements of self-defense and the Commonwealth’s burden of proof. We will not disturb the jury’s determination in this regard. Id. Because this claim is meritless, trial counsel was not ineffective for failing to preserve it. Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421 (1989).

Appellant next claims that the verdict of guilt is against the weight of the evidence. He again contends that trial counsel was ineffective for failing to preserve this issue for appellate review.

When reviewing a weight of the evidence claim, we look at all of the evidence. Commonwealth v. Sullivan, 372 Pa.Super. 88, 538 A.2d 1363 (1988). In reviewing such a claim, a new trial will not be warranted unless the verdict was so contrary to the evidence as to shock one’s sense of justice. Id. Only in this situation is the award of a new trial imperative, so that right may be given an opportunity to prevail. Id.; Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984); Commonwealth v. Gonce, 320 Pa.Super. 19, 466 A.2d 1039 (1983). However, it is not the function of this court to substitute its judgment for that of the jury on the issues of credibility and weight of the evidence. The weight to be accorded conflicting evidence is exclusively for the fact finder and such determinations will not be disturbed if they are supported by the record. Commonwealth v. Hamilton, 376 Pa.Super. 404, 546 A.2d 90 (1988). Only if the evidence is so unreliable or contradictory as to make any verdict based thereon pure conjecture is appellant entitled to a new trial on this basis. Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984).

Appellant contends the verdicts are against the weight of the evidence because of inconsistencies between the evidence presented at trial by the defense and the Commonwealth. Appellant argues that the evidence presented by the defense relating to the facts surrounding the killing was more credible than that presented by the Commonwealth. We are unable to find that the inconsistencies pointed out by appellant create such contradictions as to make the verdicts mere surmise or conjecture. Commonwealth v. Maute, supra. Where evidence is conflicting, the credibility of witnesses is for the fact finder and we will not disturb this determination on appeal. Commonwealth v. Hamilton, supra. Because this claim is meritless, trial counsel was not ineffective for failing to preserve it. Commonwealth v. Cook, supra.

Appellant next claims that trial counsel was ineffective for failing to object to the prejudicial remarks made by the Assistant District Attorney during his summation to the jury. Every objectionable remark does not automatically result in a new trial. Commonwealth v. Jones, 391 Pa.Super. 292, 570 A.2d 1338 (1990). In order to constitute reversible error, the unavoidable effect of the prosecutor’s comments must be to prejudice the jury in such a way that a fixed bias and hostility exist toward the defendant, and therefore the jury is not capable of weighing the evidence and rendering a true verdict. Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968); Commonwealth v. Brawner, 381 Pa.Super. 265, 553 A.2d 458 (1989).

Presently, the complete quote is as follows:

“People talk alot about the system, the system — what is the system; the system does not work; the system does not protect the little man; the system does everything to protect the guilty.

Well today the system is you. Mr. Dennis is a little man. I would ask you to make the system work for him.

When you walked in here a couple days ago and took a look at Edward Moore, you may have looked at him and said, I wonder what he did. Well, you have heard the evidence. You know what he did. The only question left is what are you going to do about it.”

Tr. 6/12/92, pp. 336-337.

We have reviewed the prosecutor’s entire closing statement and are unable to find that the unavoidable effect prejudiced the jury or caused a fixed bias or hostility towards appellant. Commonwealth v. D'Amato, 514 Pa. 471, 526 A.2d 300 (1987). When taken in the proper context and after review of all the evidence, we cannot hold that the prosecutor’s remarks were unfair or prejudicial. Commonwealth v. Johnson, 527 Pa. 118, 588 A.2d 1303 (1991); Commonwealth v. Ferrari, 406 Pa.Super. 12, 593 A.2d 846 (1991). It is clear that the prosecutor was summarizing the evidence and the role of the jury in the proceedings with the oratorical flair permitted during argument. Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991); Commonwealth v. Hamm, 325 Pa.Super. 401, 473 A.2d 128 (1984). Trial counsel is not ineffective for failing to assert meritless claims. Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980).

Finally, appellant claims that trial counsel was ineffective for failing to request that the jury be instructed that no inference of guilt could be drawn from his failure to testify at trial. Under the Fifth Amendment to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution, a criminal defendant is entitled to receive a specific “no adverse inference” jury instruction when a timely request is made to the trial court. Commonwealth v. Lewis, 528 Pa. 440, 598 A.2d 975 (1991); Commonwealth v. Howard, -Pa.-, 645 A.2d 1300 (1994). The explicit “no adverse inference” instruction may not be replaced by general preliminary instructions informing the jury that the defendant has no duty to testify. Id.

In the instant case, it is clear that appellant was entitled to have the jury receive a “no adverse inference” instruction. Although the jury was told that appellant had no obligation to testify in the preliminary instructions, trial counsel never requested that the jury receive a “no adverse inference” instruction before retiring to deliberate. Therefore, we find that there is arguable merit to appellant’s claim regarding trial counsel’s ineffective assistance. Id. However, even if we assume that counsel had no reasonable basis for failing to request this instruction, appellant is precluded from obtaining relief because he has failed to state how he was prejudiced by counsel’s omission. Id.; Commonwealth v. Pierce, supra. As a result, this claim of ineffective assistance must fail as well. Commonwealth v. Howard, supra.

Judgment of sentence affirmed.

TAMILIA, J., files a concurring opinion.

TAMILIA, Judge,

concurring.

I join the majority Memorandum but respectfully add the following analysis regarding the trial court’s failure to give a no-adverse-inference charge when it was not requested by counsel. The trial court adequately covered this aspect of the case in its voir dire to the jury (with two jurors being dismissed for unwillingness to accept the concept) and in subsequent directions and charges throughout the trial. Nevertheless the no-adverse-inference charge must be given at the close of testimony, when specifically requested by counsel, Commonwealth v. Lewis, 528 Pa. 440, 598 A.2d 975 (1991), and it may not be given when specifically waived by counsel, Commonwealth v. Edwards, 535 Pa. 575, 637 A.2d 259 (1993). In either case it is dependent upon trial strategy by counsel whether to request or waive the charge and in neither case when requested is it harmless error to refuse to honor counsel’s request. It, therefore, follows that in every case, whether a request was made or not made, new counsel could have an arguable issue as to effectiveness of counsel in selecting the path chosen, which could result in an appeal to this Court. It renders the trial judge powerless to prevent judicial error and to avoid an appeal and/or PCRA petition. In this case the charge was not requested and counsel is alleged by new counsel to have been ineffective for failing to do so. As indicated above, the status of the law is such that counsel could also have been deemed ineffective if the court had given the full charge at the close of the case and counsel had failed to request waiver of the charge.

Since the law places the burden on counsel to determine, according to trial strategy, when to request or waive the charge Commonwealth v. Howard, — Pa. -, 645 A.2d 1300 (1994), whether or not counsel was ineffective (despite the fact it is not harmless error regardless of which tack counsel takes), turns on whether or not the error so prejudiced appellant that justice did not prevail.. Fortunately, the quagmire presented by the dual error producing requirements established by Lewis and Edwards has to some degree been mitigated by the most recent pronouncement of the Supreme Court in Howard.

In Howard, counsel requested the no-adverse-inference charge after the case was sent to the jury but before the jury deliberations. While the trial court agreed to give the charge, deliberations began and a verdict was entered before the charge was given. The Supreme Court determined the charge should have been given as it was requested, even though untimely, and that failure to give the charge at the close of the case was not harmless error. The action of counsel in failing to request the charge in a timely fashion was unreasonable and ineffectiveness of counsel could be alleged. It could not be alleged that counsel’s strategy, as determined by an objective review of the record, was to waive the charge as he had requested it, although untimely. Nor could it be alleged that by taking the instructions of the court as a whole throughout trial, including during voir dire of the jurors, that the necessity that the charge be given, as required at the completion of the trial, was fulfilled.

Notwithstanding, once the court determines the action of counsel was not reasonable and not harmless error, and counsel was ineffective under Lewis or Edwards, all of the requirements pursuant to Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), are called into play before counsel’s ineffectiveness can result in reversal. Appellate counsel must show, 1) the underlying claim is of arguable merit; 2) the particular course of conduct did not have some reasonable basis designed to effectuate appellant’s interests; and 3) counsel’s ineffectiveness prejudiced his client.

As discussed above, there is merit to appellant’s claim a no-adverse-inference charge was not requested and the conduct did not have some reasonable basis designed to effectuate his interest. The appellant, however, fails in the third prong of the Pierce requirements in that counsel has failed to show actual prejudice, that is that counsel’s ineffectiveness was of such magnitude that it could have reasonably had an adverse effect on the outcome of the proceedings. Id. at 162, 527 A.2d at 977. According to the Supreme Court in Howard, supra:

This standard is different from the harmless error analysis that is typically applied when determining whether the trial court erred in taking or failing to take certain action. The harmless error standard, as set forth by this Court in Commonwealth v. Story, 476 Pa. [391] at 409, 383 A.2d [155] at 164 [ (1978) ] (citations omitted), states that “[wjhenever there is a ‘reasonable possibility’ that an error ‘might have contributed to the conviction,’ the error is not harmless.” This standard, which places the burden on the Commonwealth to show that the error did not contribute to the verdict beyond a reasonable doubt, is a lesser standard than the Pierce prejudice standard, which requires the defendant to show that counsel’s conduct had an actual adverse effect on the outcome of the proceedings. This distinction appropriately arises from the difference between a direct attack on error occurring at trial and a collateral attack on the stewardship of counsel. In a collateral attack, we first presume that counsel is effective, and that not every error by counsel can or will result in a constitutional violation of a defendant’s Sixth Amendment right to counsel. Pierce, supra.

Id. at-, 645 A.2d at 1307-08.

A careful reading of appellants’ brief on the issue of the no-adverse-inference charge fails to disclose how in fact appellant was prejudiced by counsel’s failure to request the charge. Appellant simply relies on Lewis and its progeny to establish ineffectiveness. In the words of Howard,

Under Pierce and its progeny, a defendant is required to show that counsel’s ineffectiveness was of such magnitude that the verdict essentially would have been different absent counsel’s alleged ineffectiveness. Appellant has not identified to this Court how he was in fact prejudiced. Nor can we discern from an independent review of the record how Appellant was prejudiced. Therefore, because Appellant has failed to meet the third prong of the Pierce test, this claim must fail.

(Id., at —, 645 A.2d at 1308.) The posture of the present case is precisely that of Howard, and I agree with the majority that the claim herein, likewise, must fail.

Recently in Commonwealth v. Khamphouseane, 434 Pa.Super. 93, 642 A.2d 490 (1994), this Court held appellant would clearly have been entitled to a “no adverse inference” instruction had one been requested so found it necessary to remand for an evidentiary hearing “to establish whether the failure by counsel to object to the absence of a ‘no adverse inference’ instruction was the result of a strategic decision on counsel’s part or merely the result of sloth or ignorance of available alternatives.”. Id. at 434 Pa.Super. at 111, 642 A.2d at 498. The Khamphouseane panel, however, was without the benefit of Howard and relied entirely on its interpretation of Lewis and Edwards and did not discuss the Pierce rationale which now is required by Howard. Khamphouseane, accordingly, is now of questionable precedential value.

For the above reasons and in compliance with Howard, I agree with the majority’s decision to deny the claim of ineffectiveness of counsel in all respects and affirm the judgement of sentence.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    648 A.2d 337
    Jorge MATOS, Jr., Appellant, v. Moises RIVERA, Jr., Luis Alfonso Meletiche, Queen City Pizza, Inc., D/B/A Domino’s Pizza, Inc., Thomas C. Bolger, Individually and Domino’s Pizza, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued May 24, 1994.
    Filed Sept. 27, 1994.

      Peter J. Karoly, Allentown, for appellant.
    Mark Malkames, Allentown, for appellees.
    Before CAVANAUGH, CIRILLO and BROSKY, JJ.
   CAVANAUGH, Judge:

Plaintiff/appellant Jorge Matos, Jr. appeals from the order of November 12, 1993 which granted defendants/appellees Queen City Pizza Inc., Domino’s Pizza, Inc. and Thomas C. Bolger’s motion for judgment on the pleadings and dismissed appellant’s complaint as to them. After a through review of the record, and for the reasons which follow, we affirm the decision of the trial court.

Jorge Matos, Jr. instituted the instant lawsuit by filing a praecipe for writ of summons on May 1, 1992. In his complaint, filed October 9, 1992, appellant alleged that he sustained serious injuries on May 2, 1990 when the pizza delivery car in which he was a passenger crashed into a utility pole. Appellant alleged that he and two other men had stolen the pizza delivery car when the driver of the car left the engine running while making a delivery. In his complaint appellant also alleged that the dismissed appellees were liable under the doctrine of agency and/or respondeat superior as a result of the negligent acts of the delivery car driver in failing to ensure that the car would not be stolen while making a delivery. Appellant also claimed that the motor vehicle collision was proximately caused by the negligence of the dismissed appellees which included: entrusting the delivery car to a driver they knew or should have known was incapable of adequately operating, controlling and maintaining it; failing to adequately train and supervise the driver; and maintaining a policy requiring their drivers to keep the engine of the delivery car running while making deliveries. After answering appellant’s complaint appellees Queen City Pizza, Domino’s Pizza and Thomas Bolger moved for judgment on the pleadings. After oral argument (at which appellant requested leave to amend his complaint) the Honorable Carol McGinley granted the motion and dismissed appellant’s • complaint against moving appellees. This appeal followed.

Appellant on appeal claims that the allegations of fact contained in the complaint, when viewed as a whole, are sufficient to state a cause of action under Pennsylvania law, and, in the alternative, that he should have been granted leave of court to amend his complaint to supply necessary allegations of fact more fully and precisely.

As to appellants first claim, we note that a motion for judgment on the pleadings

should be granted only where the pleadings demonstrate no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of law. (Citations omitted). Thus, ‘[i]n reviewing a trial court’s decision to grant judgment on the pleadings, the scope of review of the appellate court is plenary; the reviewing court must determine if the action of the trial court was based on a clear error of law or whether there were facts disclosed by the pleadings which should go to the jury.

Kelly v. Nationwide Insurance Company, 414 Pa.Super. 6, 9-10, 606 A.2d 470, 471 (1992). “Only when the moving party’s case is clear and free from doubt such that a trial would prove fruitless will an appellate court affirm a motion for judgment on the pleadings.” Id. at 10, 606 A.2d at 471-472.

It appears that the precise issue of the liability of an employer of a motor vehicle driver whose automobile is stolen and subsequently injures a third party has never been addressed by this court in a published opinion. The issue of whether the owner of a parking lot can be held liable to a person injured by the careless operation of a motor vehicle stolen from the lot has been presented to the appellate courts of this Commonwealth several times however. In Jamison v. City of Philadelphia, 355 Pa.Super. 376, 513 A.2d 479 (1986), alloc. denied, 515 Pa. 581, 527 A.2d 541 (1987) Judge Wieand collected and analyzed those cases beginning with Farley v. Sley System Garages, 187 Pa.Super. 243, 144 A.2d 600 (1958) where the Superior Court found that the plaintiffs had failed to prove the existence of a duty owed to them by the defendant. However, in Anderson v. Bushong Pontiac Co., 404 Pa. 382, 171 A.2d 771 (1961), the Supreme Court reversed a trial court’s dismissal of an action against the owner and operator of a used car lot. The Court stated:

Herein the defendant knew the keys of one of its cars located on an open lot had been stolen. Starting the motor by one who gained possession of the keys was a simple matter, even for a teenager. It also had every reason to know that children of immature years frequented this lot and used it for recreational purposes at or about the time of the theft. Despite this knowledge, it saw fit to do nothing except report the theft to the police. The car was permitted to remain on an open and unattended lot. After the keys had been stolen and such fact was known, it did not require much imagination to realize that the car itself might well be next on the list. Without the car, the keys were insignificant. To prevent the car’s theft and operation required only a very simple mechanical operation. That it might well fall into possession and control of an incompetent teenager was not difficult to visualize. However, no safety precautions ensued. Whether or not this constituted the exercise of reasonable prudence, under all of the circumstances presented, cannot be decided as a matter of law.

Id. at 385-386, 171 A.2d at 772-773. (Emphasis added). In Liney v. Chestnut Motors, Inc., 421 Pa. 26, 218 A.2d 336 (1966) the Supreme Court distinguished Anderson and affirmed the dismissal of a complaint explaining that “nothing existed in the present case to put [the defendant] on notice that the thief would be an incompetent or careless driver.” (Emphasis added) Id. at 28, 218 A.2d at 338. Later, in Jamison, Judge Wieand, writing for a panel of this court, found that

appellant’s complaint did not contain averments of fact sufficient to permit a finding that Blara either knew or should have known that the vehicle was likely to be stolen by an incompetent driver or that the thief would drive the vehicle in a negligent or reckless manner.... The thiefs careless operation of the stolen vehicle was a superseding cause of appellant’s injuries, for which appellee cannot be held liable.

Jamison, 355 Pa.Super. at 382, 513 A.2d at 481-482.

This reasoning is equally applicable to the matter before us today. In appellant’s complaint there were absolutely no averments that the delivery driver knew or should have known that the delivery car might be stolen by an incompetent driver or that the stolen car would be driven in a reckless matter. The trial court was correct, therefore, in granting appellees’ motion for judgment on the pleadings and dismissing the complaint as to them.

We next turn to appellant’s claim that the trial court erred in refusing to grant him leave to file an amended complaint. Appellant wanted to amend his complaint to indicate that he was an innocent passenger and not a thief of the delivery car. Appellant also claims that he could have successfully amended his complaint to plead that the authorized driver of the delivery car had every reason to expect that the car would be stolen and operated by an incompetent driver.

Pa.R.C.P. 1033 provides that a party, by leave of court, may amend his pleading at any time. “The decision whether to allow a proposed amendment of a pleading is within the sound discretion of the court below, and that decision will not be disturbed on appeal absent an abuse of discretion.” Pastare v. Anjo Construction Company, 396 Pa.Super. 58, 68, 578 A.2d 21, 27 (1990). There is, however, a prohibition against amendments which add a new cause of action to a complaint after the running of the statute of limitations. “Though the right to amend a pleading is to be construed liberally, amendment will not be permitted after the running of the statute of limitations if it introduces a new cause of action.” Del Turco v. Peoples Home Savings Association, 329 Pa.Super. 258, 274, 478 A.2d 456, 464 (1984). A new cause of action arises if “the amendment proposes a different theory or a different kind of negligence than the one previously raised or if the operative facts supporting the claim are changed.” Junk v. East End Fire Department, 262 Pa.Super. 473, 490-491, 396 A.2d 1269, 1277 (1978). As in Del Turco, to permit appellant the amendment he requested would introduce new operative facts and a new cause of action not raised in his complaint. The lower court was, therefore, correct in refusing appellant’s request to amend.

There is one further reason we decline to reverse the court below’s discretionary act in disallowing amendment of appellant’s complaint. We address this issue even though the trial court did not rely on it in its determination of the instant matter. (This court may affirm a trial court’s order where it is correct on any legal ground. Johnson v. Johnson, 410 Pa.Super. 631, 600 A.2d 965 (1991)). That is the question of whether appellant’s complaint, even with the proposed amendments, would allege sufficient facts to establish the requirement that appellees’ negligence be the proximate cause of appellant’s injuries. We find that it would not.

Proximate cause is “essentially an issue of law, i.e., whether the defendant’s negligence, if any, was so remote that, as a matter of law, he cannot be held legally responsible for harm which subsequently occurred.” Novak v. Jeannette District Memorial Hospital, 410 Pa.Super 603, 606, 600 A.2d 616, 618 (1991). “A determination of legal causation ‘depends on whether the conduct has been so significant and important a cause that the defendants should be legally responsible---[T]hey depend essentially on whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred.’ ” (Citation omitted). Id., 600 A.2d at 618. In Bell v. Irace, 422 Pa.Super. 298, 303, 619 A.2d 365, 367-368 (1993) this court, en banc, quoted a lower court judge writing on this issue: “At some juncture, which cannot be defined in unequivocal terms, the links which bind together the causal chain connecting conduct to injury must be severed because of [remoteness].” We believe that this is that juncture. Even had appellant been allowed to amend to plead the facts he alleged, we do not believe that they would have satisfied the above stated requirement regarding proximate causation. Accordingly, it is appropriate that , the ties which bind the dismissed appellees’ conduct to appellant’s injuries be severed. As we find no error in the lower court’s rulings, its order of November 12, 1993 is affirmed.

Order affirmed.

      . The accident which precipitated this lawsuit is alleged to have occurred on May 2, 1990. 42 Pa.C.S.A. § 5524(2) provides that an action to recover damages for injuries to the person must be commenced within two years. Appellant (apparently) first requested leave to amend on November 5, 1993 in his response to appellees' motion for judgment on the pleadings. (Appellant’s memorandum of law contra this motion which is included in the reproduced record is not part of the record certified to this court, accordingly we may not consider it. See: Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974)). Appellant did, however, argue this claim at oral argument before the trial court on November 12, 1993. We shall, therefore, consider it.


author: HOFFMAN, Judge.

text:
    648 A.2d 341
    Kenneth L. BECK and Mary Elizabeth Beck, Husband and Wife, Appellants, v. Wright S. BECK, also known as Sargent Beck.
    Superior Court of Pennsylvania.
    Submitted July 11, 1994.
    Filed Sept. 29, 1994.

      Paul J. Malizia, Emporium, for appellants.
    Paul J. Quattrone, Ridgway, for appellee.
    Before OLSZEWSKI, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from an order entered March 31, 1993, awarding appellee, Wright S. Beck, title by adverse possession to over sixty-five (65) acres of land. Appellants, Kenneth and Mary Beck, present the following question for our review:

1. Whether one may assert title by adverse possession to unenclosed uncultivated woodlands, where the parcel in question is surrounded by other unenclosed woodlands, and the claimant’s use of the tract consisted solely of sporadic hunting and timber removal.

Appellants’ Brief at 2. For the reasons set forth below, we affirm.

On June 24, 1867, the Commonwealth granted a warrant to Armel Turley, for approximately sixty-five (65) acres of land in Fox Township, Elk County, Pennsylvania (hereinafter “Armel Turley Warrant”). At the time of the conveyance, the land was unimproved woodland, which the Commonwealth believed had not yet been allocated. The narrow tract of land was bound by Warrant 4186, in the north; Moshannon State Forest land, to the west; Warrant 4900, to the south; and the Fox and Jay Townships border, to the east.

At the time of the conveyance, Warrant 4186, had been divided, from north to south, into two parcels of land (hereinafter “Smith Farm” and “No. 4186”). Sometime thereafter, No. 4186 was further subdivided to form two plots (hereinafter “Parcel I” and “Parcel IP’). By deed dated February 16, 1968, appellants acquired title to Parcel I. The deed described the land as being bordered in the south by Warrant 4900. Subsequently, on March 7, 1974, appellants acquired fee simple title to Parcel II. The deed contained no indication of what property lay on the southern border of Parcel II.

On October 11, 1983, appellee recorded, a deed conveying the Armel Turley Warrant from appellee and his wife, as grantors, to themselves. Shortly thereafter, appellee and his wife instituted an action in trespass against the Mallery Lumber Corp., which had been removing timber from the western portion of the Armel Turley Warrant. Mallery Lumber Corp. then filed a complaint joining appellants as additional defendants. Subsequently, on February 8, 1990, appellants instituted an action against appellee to quiet title. Appellants asserted that appellee did not have ownership in any land to the south of Parcels I & II. Moreover, appellants claimed that the Armel Turley Warrant, described in appellee’s October 11, 1983 deed as existing to the south of Parcels I and II, was instead land properly included in Parcels I and II. Appellee filed an answer and new matter asserting that he had superior title to the disputed land or in the alternative, had acquired title by adverse possession. Appellants subsequently filed a motion to consolidate appellee’s action in trespass and appellants’ action to quiet title. On June 27, 1991, the motion to consolidate was granted.

A bench trial was conducted on November 13 and 14, 1991. On December 17,1992, the trial court entered an order finding that appellants had record title of the Armel Turley Warrant but that appellee had acquired the property by adverse possession. Post trial motions were filed and denied. This timely appeal followed.

Appellants contend that the trial court erred in finding that appellee had acquired title to the unenclosed, uncultivated woodland by adverse possession. We disagree.

In order to acquire title to property though adverse possession, a trespasser must demonstrate that he had actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land in question for twenty-one (21) years. Williamstown Borough Authority v. Cooper, 404 Pa.Super. 516, 591 A.2d 711 (1991), appeal granted 529 Pa. 651, 602 A.2d 861 (1992). Where entry is made under an invalid deed or other written instrument, which the trespasser believes is valid, he is deemed to have “color of title.” Arcadia Co. v. Peles, 395 Pa.Super. 203, 210, 576 A.2d 1114, 1117 (1990); 3 American Law of Property § 15.11. “ ‘Color of title’ is merely the appearance of title without its reality ... [and] contributes nothing to the fiber of title as affecting the adverse character of possession____” Arcadia Co., 395 Pa.Super. 203, 576 A.2d 1114. However, a disseisor who enters under “color of title” and demonstrates actual possession for the requisite twenty-one year period, of a portion of property described in the invalid instrument, may thereby establish constructive possession of entire tract described therein. Id.

In the instant case, Armel Turley obtained a warrant from the Commonwealth in 1867, for approximately 65 acres of land, bordered by Smith Farm and No. 4186, in the north. However, at the time of the purchase, the owner of No. 4186 had proper record title of the western portion of Warrant 4186, which also included the western portion of the Armel Turley Warrant. As the Commonwealth can only convey that title in property which it has, its conveyance of the Armel Turley Warrant to Mr. Turley was invalid. 3 American Law of Property § 12.23.

Following purchase of the Armel Turley Warrant, however, Mr. Turley constructed a saw mill on the western portion of the tract. Occasional timbering is too sporadic to establish title by adverse possession. Niles v. Falls Creek Hunting Club, Inc., 376 Pa.Super. 260, 265, 545 A.2d 926, 929 (1988). However, where as here, the disseisor constructs a mill, the title owner is afforded notice of the adverse claim, in like manner as he would have been, had the disseisor built a home or cultivated the premises. Glenn v. Shuey, 407 Pa.Super. 213, 595 A.2d 606 (1991) (what constitutes actual possession depends on the facts of the case and the character of the premises); Niles, 376 Pa.Super. 260, 545 A.2d 926 (actual possession may be taken by residence or cultivation of part of a tract of woodland); 3 American Law of Property § 15.3 (“actual use of property as the average owner would use it, so that people residing in the neighborhood would be justified in regarding the possessor as exercising the exclusive dominion and control incident to ownership, establishes adverse possession”). Therefore, the construction of the saw mill was sufficient to demonstrate Mr. Turley’s actual possession of the premises. Further, deeds to adjoining property and several surveys conducted throughout the years, recognized Mr. Turley’s ownership right in the property. 3 American Law of Property § 15.11 (“the plot must be recognized in the community as a defined parcel owned by a private owner”). Moreover, there is no evidence that during the one hundred and twenty-three years spanning Mr. Turley’s purchase of the property and the filing of this action, any of appellants’ predecessors asserted their ownership rights over the western portion of the Armel Turley Warrant. Arcadia Co., 395 Pa.Super. 203, 576 A.2d 1114 (adverse possession thorough “color of title” is defeated where owner is, at the same time, in actual possession of part of the land, claiming title to the whole); Reed v. Wolyniec, 323 Pa.Super. 550, 471 A.2d 80 (1983) (attempt to interrupt adverse possession is only valid where it results in actual interruption). As appellee and his predecessors constructively possessed the Armel Turley Warrant, under color of title for over twenty-one years without obstruction by appellant and his predecessors, appellee has now acquired title to the land by adverse possession. Accordingly, we affirm the order of the trial court.

Affirmed.

      . At trial, appellants conceded that all land south of Smith Farm had been acquired by appellee, through adverse possession.


author: ROWLEY, President Judge:

text:
    648 A.2d 532
    ANTRIM MINING, INC., Appellant v. PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION, Rockwood Insurance Company, and Cynthia Maleski, Pa. Insurance Commissioner.
    Superior Court of Pennsylvania.
    Argued April 7, 1994.
    Filed Aug. 11, 1994.
    Reargument Denied Oct. 21, 1994.

      Dean Piermattei, Lancaster, for appellant.
    Michael M. Badowski, Harrisburg, for appellees.
    Before ROWLEY, President Judge, and KELLY and POPOVICH, JJ.
   ROWLEY, President Judge:

Antrim Mining, Inc. (hereinafter “Antrim”) appeals from a trial court order sustaining preliminary objections in the nature of a demurrer filed by the Pennsylvania Insurance Guaranty Association (hereinafter “PIGA”). The main issue which has been presented for our review is whether the trial court erred in deciding that PIGA was not liable for the failure of Antrim’s insurance carrier to defend or indemnify Antrim against a suit brought by the Pennsylvania Environmental Defense Foundation (hereinafter “PEDF”) after Antrim’s insurance carrier became insolvent. In deciding this issue, we have carefully reviewed the record and the relevant legal principles, and we now conclude that the trial court did not err. Accordingly, we affirm the trial court’s order sustaining PIGA’s preliminary objections in the nature of a demurrer.

The factual and procedural background of this case is as follows: At all times relevant to this appeal, Antrim operated a surface mining concern in Tioga County, Pennsylvania. In the course of its mining operation, Antrim purchased several insurance policies from Rockwood Insurance Company (hereinafter “Rockwood”). Specifically, in 1988, Antrim purchased a Commercial General Liability Policy (hereinafter “CGL policy”) covering the period of January 1,1988 to January 1,1989, which was then renewed for the period of January 1,1989 to January 1, 1990. Antrim also bought a Pollution Liability Insurance Policy (hereinafter “POL policy”) which covered the period from January 1, 1988 to January 1, 1989. The CGL policies carried coverage limits of $600,000.00 per occurrence and a $1,000,000.00 aggregate limit, while the POL policy coverage was limited to an aggregate of $500,000.00, as well as a per occurrence limit of $500,000.00.

The portion of Antrim’s surface mining operations which are relevant to this appeal were located on top of a large underground mine complex, which had been operated during the late 1800’s and early 1900’s by mining companies other than Antrim. The underground mine complex measures between 1,200 and 1,500 acres. Antrim does not own the underground mine complex, but only the right to mine coal on the surface of the land above that complex. Antrim’s surface mining operation is connected with the underground mine complex by Antrim Deep Mine Tunnel Number One. A polluting discharge of mine drainage has flowed by force of gravity from the mouth of the underground mine complex into the Babb’s Creek Watershed since before the commencement of Antrim’s surface mining operations.

On December 2, 1988, PEDF, a non-profit organization of approximately 70 members which exists for the purpose of conserving and maintaining the environment in Pennsylvania, gave notice to Antrim that it intended to file suit against the mining concern pursuant to the Federal Clean Water Act (hereinafter “FCWA”), 33 U.S.C. § 1365 et seq., and the Pennsylvania Clean Streams Law (hereinafter “CSL”), 35 P.S. § 691.601 et seq., because, allegedly, Antrim’s surface mining operation had further polluted the existing underground mine complex discharge without the proper discharge permits.

An amended complaint was filed by PEDF against Antrim on August 26, 1989. Antrim, in turn, notified its liability insurance carrier, Rockwood, of the PEDF claim; but Rock-wood refused to defend and/or indemnify Antrim in that action because it maintained that the PEDF claim was not within the coverage provided by any of the Rockwood policies.

Thereafter, on January 12, 1990, Antrim entered into a Modified Consent Decree with the PEDF, which was approved by the United States District Court for the Middle District of Pennsylvania. In the decree, Antrim agreed to the following:

(1) to pay $10,000.00 to the United States Treasury for civil penalties;

(2) to cause payments to be made to the Babb’s Creek Watershed Pollution Abatement Fund;

(3) to pay $25,000.00 to the Babb’s Creek Fund to provide immediate funding for a water quality improvement project on the Babb’s Creek Watershed and to make payments of $.25 per ton of waste disposed of at certain waste disposal facilities;

(4) to pay $17,500.00 to PEDF in full and complete settlement of the costs and fees incurred by PEDF in this matter;

(5) to cease coal extraction on areas overlaying the underground mine complex;

(6) to immediately commence reclamation of its surface mining operations;

(7) to complete backfilling of affected areas and to plant trees to complete the reclamation of that area; and

(8) to monitor and sample the water flowing from the underground mine complex on a quarterly basis, and if necessary, to select and implement abatement or treatment projects if the quality of the water should deteriorate any further.

In August of 1991, Rockwood, Antrim’s insurance carrier, was declared insolvent and the company was liquidated; PIGA then undertook the adjustment and payment of Rockwood’s claims. Antrim filed suit on May 8, 1992 against PIGA, pursuant to 40 P.S. § 1701.201(b). Also named in the suit were Rockwood, and the Pennsylvania Insurance Commissioner, Cynthia Maleski. In this action, Antrim sought to recover damages suffered by it in settlement of the PEDF claim. PIGA filed preliminary objections to Antrim’s complaint on June 17, 1992 and on August 7, 1992, Antrim filed an amended complaint.

On August 26, 1992, PIGA filed preliminary objections to Antrim’s amended complaint, as well as a praecipe requesting the prothonotary to list the matter for oral argument. In its preliminary objections to Antrim’s amended complaint, PIGA claimed, inter alia, that coverage of the PEDF claim is excluded by the terms of the Rockwood insurance policies. Thereafter, on September 9, 1992, the parties filed a stipulation that the action filed by Antrim would be discontinued as to Rockwood and Cynthia Maleski. On October 30, 1992, Antrim filed a memorandum in opposition to PIGA’s preliminary objections. PIGA’s preliminary objections in the nature of a demurrer were ultimately sustained by the trial court on August 13, 1993, and Antrim then timely filed the instant appeal contending that the trial court abused its discretion and erred as a matter of law by deciding that the CGL and POL policies did not provide coverage with regard to the PEDF action against Antrim.

Initially, we note the standard of review to which we must adhere in this case, as it has been previously stated by this Court:

In reviewing an order sustaining preliminary objections in the nature of a demurrer, it is necessary for this [C]ourt to accept as true all well-pleaded facts and the reasonable inferences therefrom, and only sustain the demurrer if it is certain that no recovery is permitted.

Humphreys v. Niagara Fire Insurance Co., 404 Pa.Super. 347, 353, 590 A.2d 1267, 1270 (1991), appeal denied, 528 Pa. 637, 598 A.2d 994 (1991). We also observe the well-established principle that “the burden of establishing a valid policy claim falls upon the insured.” Riehl v. Travelers Insurance Co., 772 F.2d 19, 23 (3rd Cir.1985).

In addressing the merits of appellant’s arguments in the instant case, we note that there are really two separate issues before this Court, which are: (1) whether there was a duty on the part of Rockwood to defend Antrim against the PEDF action under either the CGL or POL policies; and (2) if so, whether Rockwood had the further duty to indemnify Antrim for the damages it incurred in resolving the PEDF action under the terms of those same policies. Our decision on these issues will depend upon our interpretation of the insurance policies issued to Antrim by Rockwood. As this Court stated in D’Auria v. Zurich Insurance Co., 352 Pa.Super. 231, 507 A.2d 857 (1986):

The duty to defend is separate from and greater than the duty to indemnify, [citation omitted]. In purchasing insuranee, the appellant here purchased not only the insurer’s duty to indemnify when claims which fall within the policy’s coverage are successful, but also protection against those groundless, false or fraudulent claims regardless of the insurer’s ultimate liability to pay. [citation omitted].

Id. at 233-34, 507 A.2d at 859 (emphasis added).

In order to determine whether Antrim is or is not entitled to recover from PIGA for Rockwood’s failure to defend under the facts alleged in the instant claim, we must focus solely on the factual allegations appearing on the face of the complaint filed by PEDF against Antrim in the underlying action.

Not all claims asserted against an insured, however, activate the insurer’s duty to defend. In analyzing whether the insurer has a duty to defend, we must first look to the [underlying] complaint filed against the insured, [citation omitted]. “It is not the actual details of the injury, but the nature of the claim which determines whether the insurer is required to defend.” [citations omitted]. After discerning the facts alleged in the [underlying] complaint, we then must decide whether, if those facts were found to be true, the policy would provide coverage. If it would, then there is a duty to defend.

If the factual allegations of the [underlying] complaint on its face state[ ] a claim to which the policy potentially applies, the insurer must defend, [citations omitted].

Thus, the insurer owes a duty to defend if the [underlying] complaint against the insured alleges facts which would bring the claim within the policy’s coverage if they were true. It is the face of the [underlying] complaint and not the truth of the facts alleged therein which determines whether there is a duty to defend.

Id. at 234-35, 507 A.2d at 859 (emphasis added).

“In making this determination, the factual allegations of the [underlying] complaint are taken to be true and the [underlying] complaint is to be liberally construed with all doubts as to whether the claims may fall within the coverage of the policy to be resolved in favor of the insured.” O’Brien Energy Systems, Inc. v. American Employers’ Insurance Co., 427 Pa.Super. 456, 462, 629 A.2d 957, 960 (1993), quoting Biborosch v. Transamerica Insurance Co., 412 Pa.Super. 505, 509, 603 A.2d 1050, 1052 (1992), appeal denied, 532 Pa. 653, 615 A.2d 1310 (1992). “The duty to defend may exist even though ultimately there may be no duty to indemnify.” Heffernan & Co. v. Hartford Insurance Co., 418 Pa.Super. 326, 332, 614 A.2d 295, 298 (1992).

Thus:

[o]ur [initial] inquiry is whether, based upon the allegations in the ... federal complaint, there are any alleged facts, which, if proven to be true, could possibly bring the claim within the scope of the coverage of the [insurance] policies].

Humphreys, supra 404 Pa.Super. at 355, 590 A.2d at 1271 (emphasis added). Having taken all of the allegations made by PEDF in the underlying action against Antrim as true, we conclude, as did the trial court, that Rockwood had no duty to defend Antrim against the PEDF action because the facts alleged therein were not of the sort which could possibly bring the claim within the scope of coverage provided by either the CGL or the POL policies.

The CGL Policy

The CGL policy issued to Antrim by Rockwood was comprehensive in that it provided coverage for bodily injury and property damage which occurred during the policy period. In this regard, the “Insuring Agreement” of the CGL policy stated that:

(a). We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under SUPPLEMENTARY PAYMENTS — COVERAGES A AND B. This insurance applies only to “bodily injury” or “property damage” which occurs during the policy period. The “bodily injury” or “property damage” must be caused by an “occurrence.” The “occurrence” must take place in the “coverage territory.” We will have the right and duty to defend any “suit” seeking those damages.

(Reproduced Record, p. 81a). (emphasis added).

Importantly, however, the CGL policy also provided, under the heading “Exclusions,” that:

This insurance does not apply to:

sjc s¡{ s}{

(f)(1) “Bodily injury” or “property damage” arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants:

(a) at or from premises you own, rent or occupy.

Id. (emphasis added). In the policy, “pollutants” is defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalies, chemicals and waste” (Reproduced Record, p. 82a).

Antrim contends that inasmuch as it did not “own, rent or occupy” the underground mine complex, from which the pollutants were actually released, the CGL pollution exclusion simply should not apply in this case. The essence of Antrim’s argument is that because Antrim merely owned the mining operation above the underground mine complex, rather than the underground mine complex itself, the fact that it conducted surface mining operations which allegedly worsened the acid mine drainage already flowing via gravity down through Antrim Deep Mine Tunnel Number One to the mouth of the underground mine complex should not be considered by us in deciding whether Rockwood was required to defend and/or indemnify Antrim against the PEDF suit. We decide that Antrim’s argument in this regard is without merit.

In O’Brien Energy Systems v. American Employers’ Insurance Co., supra, this Court interpreted a provision identical to the one at issue herein and concluded that it was intended by both the insurer and insured to be an absolute pollution exclusion. Judge Wieand, writing for this Court, clearly and unequivocally stated that:

[i]t must be said in this case, therefore, that the policy language in the several policies contains an unambiguous, all encompassing disclaimer of coverage for damages caused by a migration of polluting [substances]. See: Guilford Industries, Inc. v. Liberty Mutual Insurance Co., 688 F.Supp. 792, 794 (D.Me.1988), aff'd, 879 F.2d 853 (1st Cir.1989); Alcolac Inc. v. California Union Ins. Co, 716 F.Supp. 1546, 1549 (D.Md.1989); League of Minn. Cities Insurance Trust v. City of Coon Rapids, 446 N.W.2d 419, 421-422 (Minn.Ct.App.1989).
!¡i $ ‡ ‡ ‡
The language of the several policies is clear. There is no coverage for claims which are based on the escape of pollutants, and this is so irrespective of the role which the insured is alleged to have played in the pollution.

O’Brien, supra 427 Pa.Super. at 466-68, 629 A.2d at 961-63 (emphasis added).

Based on O’Brien, we hold that the CGL policy at issue in the instant case does not provide coverage for the type of claim advanced by PEDF against Antrim and therefore, Rock-wood had no duty to defend Antrim against that claim. Because there was no duty on the part of Rockwood to defend Antrim pursuant to the CGL policy, there could be no duty to indemnify it under the terms of that policy, either. Accordingly, the trial court did not err in granting PIGA’s preliminary objections in the nature of a demurrer as to the CGL policy because it is certain that no recovery by Antrim could be permitted under the facts and circumstances of this case.

The POL Policy

The POL policy issued by Rockwood to Antrim stated under the heading, “Insuring Agreement — Bodily Injury and Property Damage Liability,” that:

(a). We will pay those sums that the insured becomes legally obligated to pay as compensatory damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend any “suit” seeking those damages.
(b). This insurance applies only to “bodily injury” and “property damage” caused by a “pollution incident” that commences on or after the Retroactive Date [of January 1, 1987] shown in the Declarations. The “pollution incident” must be from an “insured site” or “waste facility” in the “coverage territory.”
The insured’s responsibility to pay damages because of the “bodily injury” or “property damage” must be determined in a “suit” on the merits in the “coverage territory” or in a settlement we agree to.

(Reproduced Record, p. 129a). (emphasis added). The following “Exclusions” were then noted in that same policy:

This insurance does not apply to:

(a) “Bodily injury” or “property damage” caused or contributed to by any “pollution incident ” that commences prior to the Retroactive Date [of January 1, 1987] shown in the Declarations.
(b) “Bodily injury” or “property damage” expected or intended from the standpoint of the insured.
(1) “Bodily injury” or “property damage” arising out of a “pollution incident” which results from or is directly or indirectly attributable to failure to comply with any applicable statute, regulation, ordinance, directive or order relating to the protection of the environment and promulgated by any governmental body, provided that failure to comply is a willful or deliberate act or omission of ... [t]he insured....

(Reproduced Record, p. 129a-130a). (emphasis added).

In its complaint against Antrim, PEDF alleged that although Antrim was aware of the fact that its surface mining business was discharging pollutants into the Babb’s Creek Watershed, it failed to obtain the proper permits pursuant to the FCWA and Pennsylvania’s CSL, and thus, any damages that it suffered in connection with the PEDF action were expected and intended in that they were the result of Antrim’s willful failure to comply with the relevant statutes. In support of this allegation, PEDF pointed to the fact that Antrim had submitted background monitoring reports to the Department of Environmental Resources (in connection with other permits it held) since at least 1983 acknowledging that discharges from its surface mining operations to the underground mine complex were greater with regard to both iron and manganese than those permitted under state or federal law (Reproduced Record, p. 24a). Taking this allegation as true, we conclude that under the terms of this policy, Rock-wood was not required to defend or indemnify Antrim in the PEDF action, and thus, PIGA is not liable to Antrim for the damages it suffered in connection therewith.

Furthermore, even if the failure on the part of Antrim to comply with the FCWA and the CSL was other than deliberate, and the damages flowing therefrom were other than expected, we would nevertheless conclude that the POL policy does not apply to the facts of this case because the “pollution incident” here in question began well before the retroactive effective date of that policy. According to the allegations in the PEDF complaint, which we must take as true, the pollution incident for which Antrim is being sued commenced prior to 1984. The retroactive effective date of the POL policy was January 1, 1987. Therefore, on this basis also, Antrim is not entitled to coverage under the POL policy issued to it by Rockwood.

“It is not the actual details of the injury, but the nature of the claim which determines whether the insurer is required to defend.” O’Brien, supra at 462, 629 A.2d at 960. “Once an insurer looks to the facts alleged in the complaint and determines that if those facts were found to be true, coverage would not apply, then the insurer properly may refuse to provide a defense.” Humphreys, supra 404 Pa.Super. at 356, 590 A.2d at 1272. In the instant case, the nature of the claim by PEDF was simply not one that Rockwood was required to defend, and therefore, PIGA is not liable to Antrim for any damages that it incurred in connection with the PEDF action. Because there was no duty to defend, there could be no duty to indemnify, and we therefore conclude that the trial court did not err in granting PIGA’s preliminary objections in the nature of a demurrer as to both the CGL or POL policies.

Order affirmed.

      . We note that:
      The interpretation of an insurance contract is a matter of law for the court. The primary objective of contract interpretation is to ascertain and effectuate the intent of the parties as it is reasonably manifested by the language of their written contract. The words of an insurance policy which are unambiguous should be construed according to their plain and ordinary meaning. The court must assess the writing as a whole, and not in discrete units, when determining whether a writing is ambiguously drafted. A contract term or provision may properly be deemed ambiguous if reasonable minds can differ as to its meaning. While the court will not allow an overly-subtle or technical interpretation to defeat the reasonable expectations of the insured, it will not convolute the plain meaning of a writing merely to find an ambiguity, [citations omitted],

        O’Brien v. Energy Systems, Inc. v. American Employers’ Insurance Co., 427 Pa.Super. 456, 461-62, 629 A.2d 957, 960 (1993) (emphasis added).

      . In this regard, the POL policy provides that:
      "Pollution incident” means emission, discharge, release, or escape of pollutants into or upon land, the atmosphere, or any watercourse or body of water, provided that such emission, discharge, release or escape results in "environmental damage.” The entirety of any such emission, discharge, release, or escape shall be deemed to be one “pollution incident.”
      (Reproduced Record, p. 134a). (emphasis added).
      From the above-noted definition, it appears that the "pollution incident” referred to in the POL policy is analogous to and synonymous with an "occurrence" as it is referenced in D’Auria v. Zurich Insurance Co., supra. Here, much like the situation in D’Auria, the "pollution incident” antedated the relevant policy period because the effects of the injury manifested themselves prior to January 1, 1987; therefore, Rockwood was under no duty to defend Antrim against the PEDF action pursuant to the POL policy.

      . Further, although Antrim argues that our interpretation and application of this exclusion would effectively preclude the possibility of coverage for any pollution incident whatsoever under the POL policy, we would remind Antrim that our scope of review is limited only to the specific question of whether the acid mine drainage which was discharged by it in 1983 via Antrim Deep Mine Tunnel Number One into the underground mine complex can be considered property damage to which the Rockwood POL policy is applicable. As discussed above, we conclude that it cannot.


author: CIRILLO, Judge:

text:
    648 A.2d 538
    COMMONWEALTH of Pennsylvania v. William L. GRIMES, Appellant.
    Superior Court of Pennsylvania.
    Argued April 26, 1994.
    Filed Aug. 22, 1994.
    Reargument Denied Oet. 26, 1994.

      Thomas A. Crawford, Jr., Pittsburgh, for appellant.
    Thomas S. Ling, Dist. Atty., Bedford, for Com., appellee.

      Before ROWLEY, President Judge, and CIRILLO and OLSZEWSKI, JJ.
   CIRILLO, Judge:

William L. Grimes appeals from the judgment of sentence entered in the Court of Common Pleas of Bedford County. We affirm in part and reverse in part.

On April 18, 1992, Chief Wayne Emerick and Officer Brian Fletcher of the Everett Borough Police Department, while parked, heard someone revving the engine of a blue Chevrolet pickup truck and yelling in front of Granatelli’s Bar. After approximately five minutes of continuous engine revving, the officers decided to investigate. Upon arriving at the vehicle, Chief Emerick observed two individuals inside, Grimes, who was in the driver’s seat, and Leroy Wallace, who was asleep in the passenger’s seat and who had apparently vomited on the passenger side door. Chief Emerick then opened the driver’s side door and asked Grimes what he was doing. Before Grimes could answer, Chief Emerick smelled alcohol on his breath and noticed that his eyes were watery and his complexion flushed. Chief Emerick asked Grimes to step out of the vehicle and inquired whether Grimes had been drinking. Grimes replied that he had been drinking that evening at Granatelli’s Bar, located just across the street from where his truck was parked. As Grimes exited the truck, Chief Emerick noticed several empty beer bottles, a Pepsi can fashioned into a pipe, a spoon, and a paper bag containing white powder. The Chief then asked Grimes if he would consent to a blood/alcohol test. Grimes refused and indicated that he had a suspended driver’s license.

At this point, Chief Emerick read Grimes his Miranda rights and placed him under arrest. Grimes was charged with possession of a controlled substance, possession with intent to deliver a controlled substance, possession of drug paraphernalia, driving under the influence of alcohol, and driving under the influence of alcohol and a controlled substance. Later that evening, Chief Emerick took the statement of Leroy Wallace. Wallace told Chief Emerick that the cocaine in the paper bag found in the pickup truck was supplied by Grimes.

On December 7, 1992, the case proceeded to a jury trial before the Honorable Daniel L. Howsare, President Judge. At the close of evidence, the jury found Grimes not guilty of possession with intent to deliver, but guilty on all other charges. Post-verdict motions were filed and denied and President Judge Howsare sentenced Grimes to a term of five to twelve months imprisonment for possession of a controlled substance and possession of drug paraphernalia, and to a term of one to twenty-three and one-half months imprisonment for driving under the influence of alcohol and driving under the influence of alcohol and a controlled substance, to run consecutively with the previous sentence. On December 28, 1992, Grimes filed motions for a new trial and in arrest of judgment, which, following argument, were denied. This appeal followed.

Grimes presents the following issues for our consideration:

(1) Was Grimes denied adequate representation of counsel when trial counsel failed to move to suppress the search of his vehicle, his arrest, and any statements made thereafter?

(2) Was there insufficient evidence to support the verdict of driving under the influence of alcohol?

(3) Did the trial court erroneously permit the Commonwealth to impeach its own witness with prior inconsistent statements?

(4) Did the trial court err by instructing the jury that it could consider the prior inconsistent statements of the prosecution witness as substantive evidence for the prosecution?

(5) Did the trial court err by permitting Chief Emerick to testify as an expert?

(6) Did the trial court err by permitting Chief Emerick to testify as to the ultimate issue?

(7) Did the trial court err by failing to enforce Rule 305 of the Pennsylvania Rules of Criminal Procedure as to the discovery of the expert witness’ qualifications and reports?

Grimes first argues that he received ineffective assistance of counsel when trial counsel failed to move to suppress evidence from the search of his vehicle, his subsequent arrest, and any statement made after his arrest. We disagree.

Our standard of review when evaluating a claim of ineffective assistance of counsel is well settled. We presume that trial counsel is effective and place on the defendant the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 230, 570 A.2d 75, 81 (1990). We are first required to determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991). If the claim is without merit, our inquiry ends because counsel will not be deemed ineffective for failing to pursue an issue which is without basis. Id. Even if the underlying claim has merit, the defendant still must establish that the course of action chosen by his counsel had no reasonable basis designed to effectuate the client’s interests and, finally, that the ineffectiveness prejudiced his right to a fair trial. Id.; Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Here, Grimes contends that his trial counsel was ineffective in failing to move to suppress any and all items found in the truck and any ipre-Miranda warning statements made by him, because “clearly the officer had no reasonable cause [sic] to believe that the defendant was engaged in any criminal activity.” We first note that Grimes has failed to cite any authority to support his position. See Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982). Nonetheless, his claim is without merit.

On the morning in question, Chief Emerick and Officer Fletcher heard someone revving the engine of a late model pickup truck for approximately five minutes in front of Granatelli’s Bar. The officers approached the truck and found two individuals positioned inside. With the engine still being revved, Chief Emerick opened the driver’s side door and asked Grimes what he was doing. Immediately upon opening the door, Chief Emerick smelled alcohol on Grimes’ breath and noticed that Grimes’ eyes were very watery and his complexion flushed. Chief Emerick also noticed what appeared to be vomit on the passenger’s side door and window. At this point, Chief Emerick asked Grimes to step out of the truck and asked Grimes whether he had been drinking. Chief Emerick’s conduct was in total compliance with the law.

Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), an individual must be warned of his or her right to remain silent before the initiation of custodial interrogation. “Custodial interrogation” includes questioning conducted “after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way,” id. at 444, 86 S.Ct. at 1612, or while he or she is the focus of an investigation. Commonwealth v. Feldman, 432 Pa. 428, 432, 248 A.2d 1, 3 (1968). Warnings are not required, however, where general on-the-scene investigatory questioning is conducted to determine whether a crime has been committed or is in progress. Miranda, 384 U.S. at 477-78, 86 S.Ct. at 1629-30.

Here, Chief Emerick’s conduct and questioning of Grimes were merely investigatory in nature. The question was not accusatory and was not intended to elicit a confession of driving under the influence of alcohol. Grimes points to nothing which would suggest that the question was asked under circumstances that were hostile or coercive. Only after smelling a strong odor of alcohol and observing Grimes’ watery eyes and flush complexion did Chief Emerick instruct Grimes to step out of the truck. Under these facts, Chief Emerick’s conduct cannot be considered a custodial interrogation. Miranda, supra; see also Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1974). Trial counsel, therefore, cannot be deemed ineffective for failing to move to suppress Grimes’ statement that he had been drinking at Granatelli’s Bar on the evening or early morning in question. Johnson, supra.

Grimes also contends that trial counsel was ineffective for failing to move to suppress the evidence seized as a result of the warrantless search of his truck. This argument is also without merit.

“The Fourth Amendment protects all citizens from unreasonable searches and seizures by government officials.” Commonwealth v. Shiflet, 431 Pa.Super. 444, 447, 636 A.2d 1169, 1170 (1994). To properly seize evidence, an official must act pursuant to a valid search warrant or one of the well known exceptions to the warrant requirement. Id. at 445-49, 636 A.2d at 1170-71. When the search involves automobiles, however, the warrant requirement is somewhat relaxed.

While searches and seizures conducted outside the judicial process, without prior approval by a magistrate, are generally unreasonable under the Fourth Amendment, there is an established departure from the warrant requirement for certain automobile searches based on the inherent mobility of vehicles[,] with the ... problems in obtaining a warrant prior to infringing a legitimate expectation of privacy which is accorded automobiles because of their function, and their subjection to a myriad of state regulations.

Commonwealth v. Rodriquez, 526 Pa. 268, 272, 585 A.2d 988, 990 (1991). In fact, under the plain view exception, evidence in plain view of the police can be seized without a warrant, if:

(1) the initial intrusion is lawful — the officer does not violate the Fourth Amendment in arriving at the place from which the evidence can be plainly viewed;

(2) the incriminating character of the object is immediately apparent; and

(3) the officer has a lawful right of access to the object.

Commonwealth v. McCullum, 529 Pa. 117, 132, 602 A.2d 313, 320 (1992) (citing Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)); see also Commonwealth v. Hendrix, 426 Pa.Super. 616, 627 A.2d 1224 (1993); Commonwealth v. Parker, 422 Pa.Super. 393, 619 A.2d 735 (1993).

Here, Chief Emerick was lawfully in a position from which he could observe the contraband, as he was lawfully investigating a possible case of driving while under the influence of alcohol. Next, when Chief Emerick looked into the truck and observed the white powder, the flattened Pepsi can, the spoon, etc., probable cause existed to believe that these items were evidence of a crime so as to justify a search and seizure. Parker, supra. Because of the foregoing, trial counsel cannot be deemed ineffective for failing to file meritless motions to suppress. Johnson, supra.

Grimes next argues that there was insufficient evidence to support the verdict of driving under the influence of alcohol or a controlled substance. 75 Pa.C.S.A. § 3731. Specifically, Grimes asserts that the Commonwealth failed to adduce sufficient evidence that he was in physical control of the movement of the vehicle, as the truck was parked and incapable of being started. We disagree.

In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Swann, 431 Pa.Super. 125, 128-29, 635 A.2d 1103, 1105 (1994).

The offense of driving under the influence of alcohol or a controlled substance provides, in pertinent part:

(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle:
(1) while under the influence of alcohol to a degree which renders the person incapable of safe driving;
(2) while under the influence of any controlled substance ... to a degree which renders the person incapable of safe driving.

75 Pa.C.S.A. § 3731(a)(1), (2).

As Grimes does not dispute the fact that he was under the influence of both alcohol and controlled substances at the time of his arrest, our task is to determine whether the Commonwealth adduced sufficient evidence which shows that Grimes drove, operated, or was in actual physical control of the movement of his vehicle. It is well settled that in order to be convicted under this statute, the Commonwealth need not prove that the vehicle was in motion at the time of the incident, but rather, must simply prove that the defendant was in actual physical control over the vehicle, and was, thus, a threat to public safety. Commonwealth v. Crum, 362 Pa.Super. 110, 113-17, 523 A.2d 799, 801-02 (1987). The concept of “actual physical control” involves the control of the movements of either the machinery of a motor vehicle or of the management of the vehicle itself, without a requirement that the entire vehicle be in motion. Commonwealth v. Bobotas, 403 Pa.Super. 136, 141-43, 588 A.2d 518, 521 (1991).

In the case at hand, the Commonwealth has met this burden. Chief Emerick testified that he observed Grimes revving the engine of the truck for some five minutes before investigating the situation. Moreover, when Chief Emerick arrived at the scene, he witnessed Grimes sitting in the driver’s seat of the pickup truck continuing to rev the engine. Accordingly, there was sufficient evidence to show that Grimes was in physical control of the truck. Compare Crum, 362 Pa.Super. at 113-17, 523 A.2d at 801-02 (finding that evidence that defendant was found slumped across the front seat of a car with the motor running and lights on was sufficient to support the inference that the defendant was in control of the machinery of the motor vehicle as is required for a conviction of driving under the influence of alcohol) with Commonwealth v. Price, 416 Pa.Super. 23, 610 A.2d 488 (1992) (holding that evidence that defendant was sitting in the driver’s seat of the car, which was not running, and held keys to trunk in his hand did not rise to the level of actual physical control necessary to support a conviction for driving under the influence of alcohol).

Grimes next argues that the trial court erred both in permitting the Commonwealth to impeach its own witness, Leroy Wallace, with prior inconsistent statements, and in allowing such statements to be admitted as substantive evidence. This argument arose from the following factual situation: On the night of Grimes’ arrest, Chief Emerick took Wallace’s statement regarding the ownership and use of the cocaine discovered in Grimes’ truck. At this time, although under the influence of both cocaine and alcohol, Wallace stated that the cocaine belonged to Grimes and that earlier in the evening both he and Grimes smoked some of it. Wallace subsequently signed this written statement.

At trial, Wallace testified as a Commonwealth witness. When asked to whom the cocaine found in Grimes’ vehicle belonged, Wallace recanted his written statement, claiming that the cocaine did not belong to Grimes, but belonged to his brother. The Commonwealth then, over the objection of defense counsel, confronted Wallace with his earlier statement and attempted to use the earlier statement both to impeach Wallace’s current testimony and as substantive evidence.

Grimes first argues that the Commonwealth was not sufficiently surprised by Wallace’s recantation to enable it to impeach the testimony through the use of his written statement. We disagree.

It is well settled that it is within the trial court’s discretion to permit a party to impeach its own witness with prior inconsistent statements. Such discretion is properly invoked after the trial court considers the following factors:

(1) whether the testimony was unexpected;

(2) whether the testimony was contradictory;

(3) whether the testimony was harmful to the party calling

the witness and beneficial to the opposing side; and

(4) whether the scope of cross-examination was excessive.

Commonwealth v. Waller, 498 Pa. 33, 39, 444 A.2d 653, 656 (1982). The factor of surprise, moreover, should be liberally construed and not raised to an indispensable requirement. Commonwealth v. Brady, 510 Pa. 123, 134-35, 507 A.2d 66, 72 (1986). Accordingly, a party may impeach one’s own witness without the element of surprise, when truth and justice so require. Id.

In the case at hand, the trial court did not err in permitting the Commonwealth to impeach Wallace’s recanted testimony through the use of his prior inconsistent statement to Chief Emerick. Although the Commonwealth was not strictly surprised by Wallace’s testimony, all other elements were met and, given the fact that the prosecution first learned of Wallace’s recantation the previous day, justice requires that the Commonwealth have the opportunity to confront him with his earlier statement.

Next, Grimes claims the trial court committed reversible error in admitting the prior inconsistent statement as substantive evidence. Specifically, Grimes argues that, because the Commonwealth did not sufficiently validate the reliability of Wallace’s earlier statement, the Commonwealth was not entitled to its admission as substantive evidence. We agree with this contention.

In the seminal case of Commonwealth v. Brady, supra, the Pennsylvania Supreme Court announced that the “prior inconsistent statements of a declarant who is a witness in a judicial proceeding and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein.” Brady, 510 Pa. at 130-32, 507 A.2d at 70. Thus, under Brady, when confronted with a witness who recants a previous statement on the stand, a party has the unfettered right to admit the earlier statement as substantive evidence.

The Brady rule, however, has been significantly modified by our Supreme Court. This change, brought on by an onslaught of criticism over Brady expansiveness, now requires that only those prior inconsistent statements “that are demonstrably reliable and trustworthy” may be admitted as substantive evidence. Commonwealth v. Lively, 530 Pa. 464, 469-71, 610 A.2d 7, 10 (1992). To this end, the Lively Court required as a requisite to admissibility, that the prior statement be:

(1) given under oath at a formal legal hearing;

(2) reduced to a writing which was signed or adopted by the witness; or

(3) a contemporaneous verbatim recording of the witness’s statements.

Id.; see also Commonwealth v. Johnson, 536 Pa. 153, 638 A.2d 940 (1994) (holding that, to be admissible, a prior inconsistent statement must have been uttered under highly reliable circumstances which would render inferences to be drawn from it more probable than not).

Applying this standard to the case at hand, we are convinced that the Commonwealth did not sufficiently prove that Wallace’s statement on the night in question was demonstrably reliable and trustworthy. Johnson, supra. The statement was taken while Wallace was under the influence of both alcohol and cocaine. Moreover, Wallace had consumed so much of these substances that he was unconscious and lying in his own vomit, when initially observed by Chief Emerick. To admit this statement as substantive evidence of Grimes’ possession of the cocaine found in his vehicle flies in the face of the reliability requirement announced in Lively, supra, and reaffirmed in Johnson, supra, and will not be tolerated. Accordingly, as Wallace’s previous statement was instrumental in connecting Grimes to both the cocaine and drug paraphernalia found in the pickup truck, we are obliged to vacate the judgment of sentence and remand for a new trial on the possession counts. See, e.g., Johnson, supra (holding that a statement made by a six-year-old to a four-year-old carries no indicia of reliability when the declarant denies ever making the statement, the listener has no recollection of when or under what circumstances the statement was made, and the listener is related to the defendant/appellant).

Although we vacate and remand this case for a new trial on the possession counts, we still question the efficacy of Brady and its progeny. We believe that the Pennsylvania Supreme Court, in deciding Brady, mistakenly discarded a well tried rule of jurisprudence.

Before the Court’s decision in Brady, it had long been the law of this Commonwealth that prior inconsistent statements were admissible only for impeachment purposes. See Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976). The primary concern was, and still is in many jurisdictions, that the use of prior inconsistent statements for substantive purposes created hearsay problems. The concern was that hearsay generally, and prior inconsistent statements specifically, are too unreliable to be admitted as substantive evidence, because the declarant of the prior inconsistent statement was not under oath, not subject to cross-examination, and not in the presence of the trier of fact when the statement was made. Id. at 134-35, 354 A.2d at 880; 3A Wigmore, Evidence, § 1018 (Chadbourn rev. 1970).

It is no evidence whatever that the facts are as he formerly stated them; and, though appeals are sometimes made to a jury that it is so, it is the province of the Court to inform them that it is not so.

Gould v. Norfolk Lead Co., 63 Mass. (9 Cush.) 338, 346 (1855) (emphasis added).

Justice Larsen, writing for the majority in Brady, opined that “the usual dangers of hearsay are largely nonexistent where the witness testifies at trial.” Brady, 510 Pa. at 129, 507 A.2d at 69 (citing California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 1933, 26 L.Ed.2d 489 (1970)). Specifically, the majority intimated that the fact that cross-examination is not contemporaneous with the out-of-court statement is of no concern, because the availability of cross-examination at trial cures this alleged defect. Id. Finally, the Brady majority stated that the former statement made by the declarant may be considered to “possess superior indicia of reliability” when compared to the latter, because the former statement was made closer in time to the event in question, when, arguably, the memory is fresher and the opportunity for fabrication is abated. Id. at 130, 507 A.2d at 69.

This court has considered the criticisms of the orthodox rule, but is not persuaded that this Commonwealth should have departed from the well entrenched former rule. We do not agree that an in-court cross-examination, sometimes several years after the former statement was made, and certainly after the declarant has had time to ponder both responses, can replace contemporaneous cross-examination. In-court cross-examination can be essentially trumped, for example, where the declarant comes into court and simply avers a loss of memory.

We also disagree with the argument that the out-of-court statement “possesses superior indicia of reliability” to the in-court statement. Id. For instance, errors can arise in the initial transcription of the statement, in the misstatement by the police officer preparing the statement for the declarant’s signature, or from the surrounding circumstances of the questioning — e.g., leading questions asked by the police officers— which may cause confusion and/or misunderstanding on the part of the declarant. Regarding this last concern, the Supreme Court of West Virginia reasoned that, “[fjrequently, witnesses in criminal cases are implicated in the criminal activity at issue ... and the prosecutorial authorities can induce fear, a sense of guilt, and panic, in such a way as to cause distortion of facts.” State v. Spadafore, 159 W.Va. 236, 220 S.E.2d 655, 661 (1975).

Notwithstanding the hearsay problems in admitting prior inconsistent statements for substantive purposes, this court is most concerned with the possibility of unfairness to defendants arising from Brady and its progeny. Offering such evidence to prove the truth of the matter asserted alleviates the Commonwealth’s burden of proving, in court, every element of the crime with which the defendant is charged, and makes it possible for defendants to be convicted upon the presentation of unsworn testimony. It is fundamentally unfair to allow defendants to be convicted upon statements the veracity of which the declarant refuses to affirm in a judicial proceeding.

We affirm in part and reverse in part.

ROWLEY, President Judge, concurs in the result.

      . Subsequent analysis determined that the bag contained 19.9 grams of cocaine.

      . We note that in Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), the United States Supreme Court eliminated the inadvertence requirement from the plain view exception analysis.

      . The district attorney was made aware of this fact one day before calling Wallace as a witness at trial.

      . Because we vacate the judgment of sentence and remand with respect to the possession counts, we need not address Grimes’ remaining contentions.