author: CERCONE, Judge:

text:
    590 A.2d 334
    COMMONWEALTH of Pennsylvania v. Cecil L. ABLES, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 19, 1991.
    Filed April 30, 1991.
    Petition for Allowance of Appeal Denied Sept. 4, 1991.

      W. Gustave McGeorge, Erie, for appellant.
    Kenneth A. Zak, Asst. Dist. Atty., Erie, for Com., appellee.
    Before HUDOCK, CERCONE and HESTER, JJ.
   CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered after appellant’s conviction on one (1) count of rape, one (1) count of statutory rape, four (4) counts of involuntary deviate sexual intercourse, six (6) counts of indecent assault and six (6) counts of corruption of a minor. A jury found appellant guilty after a four day trial and appellant’s post-verdict motions were summarily denied at the sentencing hearing. This timely appeal ensued. For the reasons set forth below, we affirm.

Appellant raises eight issues for our review:

1. Whether the defendant is entitled to judgment of acquittal and/or a new trial on the rape conviction where the Commonwealth failed to prove access and/or forcible compulsion and on the statutory rape conviction where the defendant conclusively established nonaccess and asserts a Devlin claim.
2. Whether the judgment of sentence must be vacated where the prosecution failed to prove the dates of the alleged offenses of Involuntary Deviate Sexual Intercourse with reasonable certainty and where the verdict is contrary to the evidence.
3. Whether the trial court committed reversible error in not sua sponte ordering a mistrial when informed of jury misconduct.
4. Whether the lower court reversibly erred in refusing the defendant’s request for a charge on lack of prompt complaint.
5. Whether the lower court improperly assumed the role of prosecutorial advocate thereby mandating a new trial.
6. The defendant incorporates by reference all assignments of error set forth in his post-trial motions and not addressed by lower courts opinion.

We shall address these contentions seriatim.

The pertinent facts, as adduced in the trial testimony, indicate that Appellant initiated sexual relations with his niece, D.R., when she was thirteen years old. This conduct consisted of at least six different incidents of sexual intercourse and oral copulation, beginning in June, 1987 and continuing over the course of one year. The first incident occurred when D.R. slept overnight at appellant’s house on or about June 8, 1987. During the night, appellant approached D.R., as she lay on a sofa in the living room and asked her to pull down her underwear. She did not comply and appellant pulled off her underwear and began sexual intercourse with her. After the intercourse, appellant told the girl not to tell anybody since he would get in trouble.

Thereafter, appellant victimized D.R. by forcing her to perform oral sex. The victim testified that five incidents occurred at various times over a one year period. However, D.R. could not provide a specific date for all the incidents. The first act of oral copulation transpired when appellant called D.R. at home on a weekday in July, 1987, at approximately 12:30 in the afternoon. Appellant asked the victim to walk to a nearby grocery store to meet him. They then drove to the Elk Creek Access Area where he inserted his penis in her mouth. The second episode occurred when D.R. was at appellant’s residence. He escorted her to the basement and, again, inserted his penis into her mouth. The third occasion took place on Thanksgiving of 1987. The girl testified that she was visiting appellant and his family that evening and he took D.R. and her sister to his place of business to turn off the furnace. When they arrived at the business, appellant gave D.R.’s sister money to play a video game while he asked D.R. to accompany him to the furnace room. Once there he inserted his penis into the victim’s mouth. The fourth and fifth incidents of oral copulation occurred at appellant’s place of business. D.R. testified that she was in the storeroom, and appellant asked her to come into a back room where he coerced her to perform oral sex.

The last incident of sexual conduct occurred in appellant’s home after the Lake City Volunteer Firemen’s Picnic on June 10, 1988. D.R. testified that she was sleeping alone in her cousin’s room at appellant’s residence when he came in wearing a towel and inserted his penis into her vagina. She testified that after penetration, she rolled over and appellant left the room.

Appellant first argues that the evidence was insufficient to support his convictions of rape, statutory rape and involuntary deviate sexual intercourse. We will initially address appellant’s rape conviction. Our standard of review based on sufficiency of the evidence is quite limited:

The test for sufficiency of the evidence is whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, 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. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982); accord Commonwealth v. Robinson, 316 Pa.Super. 152, 155, 462 A.2d 840, 841 (1983).

Appellant charges that the evidence was insufficient to support his conviction for rape because the Commonwealth failed to prove forcible compulsion or access to the defendant. According to the trial testimony, appellant raped D.R. on June 10, 1988, the night after he and his wife took D.R. to the Lake City Firemen’s Picnic. The evidence shows that appellant approached D.R., who was alone in her cousin’s bedroom, wearing a towel. He took the towel off and inserted his penis into her vagina. After the penetration, she rolled over and he left. The question is now whether the evidence is sufficient to prove forcible compulsion.

Our supreme court has held that “forcible compulsion” as used in 18 Pa. C.S.A. § 3121(1) includes not only physical force or violence but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person’s will. Commonwealth v. Rhodes, 510 Pa. 537, 555, 510 A.2d 1217, 1226 (1986). In Rhodes, appellee-defendant took the victim, an eight-year-old girl, to an abandoned building, asked her to put her legs up and proceeded to have anal and vaginal intercourse with her. A panel of this court found that the evidence was insufficient to find forcible compulsion because there was not one iota of evidence that sexual intercourse was accomplished by forcible compulsion or by threat of forcible compulsion. Commonwealth v. Rhodes, 332 Pa.Super. 273, 278, 481 A.2d 610, 613 (1984), as cited in Rhodes, supra, 510 Pa. at 544, 510 A.2d at 1220.

In a detailed opinion, our supreme court reversed finding that the eight-year-old victim was so mentally deficient as a matter of law, that she was incapable of consenting to the incident of sexual intercourse, thereby proving rape under section 3121. Id., 510 Pa. at 558-59, 510 A.2d at 1228. In arriving at this result, the court analyzed the meaning of the term “forcible compulsion” in light of the purposes of the Crimes Code of 1972. Justice Larsen delineated the proper usage of the phrase “forcible compulsion,” as found in section 3121, by contrasting the comparable section of the Model Penal Code and by analyzing various dictionary definitions of the pertinent terms. He opined:

In common usage, therefore, the phrase “forcible compulsion” clearly connotes more than the exercise of sheer physical force or violence.... The phrase also connotes the act of using superior force—physical, moral psychological, or intellectual—to compel a person to do a thing against that person’s volition and/or will.

Id., 510 Pa. at 553, 510 A.2d at 1225.

The Superior Court has held that the “degree of force involved in rape ... is defined, not in terms of the physical injury to the victim, but in terms of the effect it has on the victim’s volition.” Accordingly, the force necessary to support convictions for rape ... need only be such as to establish lack of consent and to induce the woman to submit without additional resistance____ The degree of force required to constitute rape is relative and depends upon the facts and particular circumstances of the case.

Id., 510 Pa. at 554, 510 A.2d at 1226 (citations omitted) (parenthetical omitted). The court then explained various factors to guide us in determining whether forcible compulsion exists.

Such a determination is based on the totality of the circumstances that have been presented to the fact finder. Significant factors to be weighed in that determination would include the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress. This list of possible factors is not exclusive.

Id., 510 Pa. at 555-56, 510 A.2d at 1226. The court finally cautioned that it is neither desirable nor appropriate to attempt to delineate all of the possible circumstances that might tend to demonstrate that sexual intercourse was engaged in by forcible compulsion; Id., 510 Pa. at 556, 510 A.2d at 1226. Thus, our conclusion will ultimately rest on the factual circumstances unique to this case.

Various decisions of this court have discussed Rhodes in determining whether forcible compulsion is present. Compare Commonwealth v. Dorman, 377 Pa.Super. 419, 547 A.2d 757 (1988) (appellant’s conviction for the rape of his thirteen-year-old niece was upheld where he took the victim to a remote location, pushed her on the seat of his car, removed her clothes, and had sexual intercourse with her despite her protests); Commonwealth v. Ruppert, 397 Pa.Super. 132, 579 A.2d 966 (1990) (forcible compulsion found where appellant had sexual intercourse with his nine-year-old daughter despite her crying during the incidents, and he showed her sexually explicit magazines to lower her resistance); Commonwealth v. Titus, 383 Pa.Super. 54, 556 A.2d 425 (1989) (evidence was insufficient to convict appellant of the rape of his thirteen-year-old daughter where the only evidence of forcible compulsion was the parent-child relationship). While we find these cases helpful in interpreting the proper bounds of “forcible compulsion”, they do not adequately dispose of the issues presented in this case.

Here, appellant was the victim’s uncle. This relationship tends to prove that the appellant enjoyed a relationship of trust and confidence with the victim. The uncle-niece relationship, however, is more attenuated than the parent-child relationship. Therefore, the relationship alone, however, will not suffice to find forcible compulsion. Titus, supra, 383 Pa.Super. at 63, 556 A.2d at 430. Also, this incident occurred at appellant’s residence while his family was nearby. This is not the type of remote location found controlling in Dorman, supra. Further, there is no evidence to show that appellant actively lowered the victim’s resistance by piquing her interest in sexual activity, as found in Ruppert, supra. Consequently, we must apply the test set forth in Rhodes, in the spirit in which it was given—by broadly interpreting the meaning of “forcible compulsion.”

Viewing the facts in a light most favorable to the Commonwealth and all reasonable inferences therefrom, we find that despite a relationship of trust and confidence between the victim and her uncle, the uncle took advantage of this relationship to engage in sexual intercourse with her, which she resisted. N.T. 7/17/89 at 28. He then emotionally exploited her by requesting she not tell anyone about the incident or he would get into trouble. He continued the pursuit of the sexual assaults relying on the impact of his intimidation to exact B.R.’s submission. We find that these sexual assaults, committed on that basis, sufficiently frustrated B.R.’s will to resist so as to find that she was raped by forcible compulsion. Cf. Commonwealth v. Robinson, supra (where a course of conduct is sufficient to sustain convictions for sexual assault despite the Commonwealth’s failure to provide dates for all instances of sexual abuse); Commonwealth v. Ruppert, supra (evidence was sufficient to sustain convictions for sexual offenses where father repeatedly raped his nine-year-old daughter for a period of three months).

Appellant next argues that the evidence is insufficient to convict him of statutory rape. Specifically, he argues that the Commonwealth failed to establish the date of the incident with reasonable certainty. This argument is devoid of merit. The record clearly supports the finding that the incident for which appellant was convicted of statutory rape occurred on June 8, 1987. N.T. July 17, 1989, at 47.

Appellant’s next contention of error is that the evidence is insufficient to convict him of involuntary deviate sexual intercourse. Specifically, he argues that the Commonwealth failed to establish the dates for these instances with reasonable certainty. Appellant relies on our supreme court’s holding in Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975) that due process under the United States and Pennsylvania Constitutions requires that the dates of a crime be fixed with reasonable certainty. Id., 460 Pa. at 513, 333 A.2d at 891. The rationale for this rule is that it is fundamentally unfair to require the accused to defend a charge which occurred during an unreasonably large time span. The Devlin court, however, enunciated a case specific test to ascertain the exact degree of specificity required. Specifically, the court found that any leeway permissible would vary with the nature of the crime and the age and condition of the victim balanced against the rights of the accused. Id., 460 Pa. at 515-16, 333 A.2d at 892.

Appellant directs us to the case of Commonwealth v. Groff, 378 Pa.Super. 353, 548 A.2d 1237 (1988) for the proposition that a child over eleven years of age would ordinarily have a more fully developed ability to remember the time of events than would a child of six or seven. Id., 378 Pa.Superior Ct. at 364-65, 548 A.2d at 1243, n. 5. Relying on Groff appellant argues that since D.R. was thirteen at the time the sexual abuse began, and was able to tell time and remember dates, her failure to allege specific dates on various occasions denied him due process under the United States and Pennsylvania constitutions. While we agree that the age of the victim becomes important in the balancing test outlined in Devlin, appellant’s argument is misplaced.

Where the victim was a child, the crime had been repeated frequently over a lengthy period and the Commonwealth’s evidence was sufficient to establish specific dates on several occasions, the convictions will be sustained. Commonwealth v. Robinson, supra, 316 Pa.Super. at 157, 462 A.2d at 842. Instantly, appellant’s sexual abuse of D.R. occurred frequently over a one year interval. D.R. testified that one of the incidents occurred on Thanksgiving of 1987 (a specific date). Another incident occurred on June 10, 1988 while D.R. attended the Lake City Volunteer Firemen’s picnic, while yet another incident occurred in July 1987. Also, D.R. testified that other incidents of sexual intercourse occurred on June 8, 1987 and June 10, 1988. Thus, D.R. has given several specific dates. Since we find that the Commonwealth has established the dates of the offenses charged with reasonable certainty, appellant’s convictions on the counts of involuntary deviate sexual intercourse are upheld.

Implicitly, appellant argues that his convictions for rape, statutory rape and involuntary deviate sexual intercourse must be overturned because the verdicts are against the weight of the evidence. Appellant contends that his witnesses conclusively established non-access to the victim at the time of the various incidents. Our scope of review for a claim that the verdict is against the weight of the evidence is very narrow. Commonwealth v. Hamilton, 376 Pa.Super. 404, 414, 546 A.2d 90, 95 (1988), allocatur denied, 521 Pa. 629, 558 A.2d 531 (1989). The determination of whether to grant a new trial because the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent an abuse of discretion. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982). Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973). The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record. Commonwealth v. Zapata, 447 Pa. 322, 327, 290 A.2d 114, 117 (1972). A claim that the evidence presented at trial was contradictory and unable to support the verdict requires the grant of a new trial only when the verdict is so contrary to the evidence as to shock one’s sense of justice. Id. After reviewing the record, we do not find that D.R.’s testimony was so unreliable that the resulting verdicts shock our sense of justice. Accordingly, we find no basis on which to grant relief to the appellant on this claim.

Appellant’s third assertion is that the trial judge committed reversible error in failing to declare a mistrial when presented with certain juror misconduct. Trial counsel informed the trial judge of a conversation between two jurors in the woman’s restroom. The trial judge conducted a voir dire interview of the jurors and subsequently dismissed one juror who admitted to participating in conversation about the case. However, appellant’s counsel never requested a mistrial. A defendant is required to request a mistrial because of an event prejudicial to him when the event is disclosed. Pa.R.Crim.P., Rule 1118, 42 Pa. C.S.A. Since appellant failed to move for a mistrial, he cannot now complain that the court erred in failing to grant a mistrial when no such motion was made. Commonwealth v. Tallon, 478 Pa. 468, 477, 387 A.2d 77, 82 (1978). We therefore deem this issue waived.

Appellant’s fourth claim is that the trial court erred in refusing to instruct the jury on the issue of “prompt complaint.” Specifically, appellant argues that the trial court should have instructed the jury on the lack of prompt complaint by the victim because the defense relied at trial on the theory that the events alleged by D.R. never occurred. We disagree. Appellant directs us to our supreme court’s decision in Commonwealth v. Snoke, 525 Pa. 295, 580 A.2d 295 (1990). In that case, the court set out the circumstances under which a trial court must instruct the jury on “prompt complaint.”

[W]here the actual occurrence of the assault is at issue in the case, the trial judge is required to charge the jury as to the relevance of a delay in disclosure and the significance of a prompt complaint. In such an assessment the witness’ understanding of the nature of the conduct is critical. Where the victim did not comprehend the offensiveness of the contact at the time of its occurrence, the absence of an immediate complaint may not legitimately be used to question whether the conduct did in fact occur.

Id., 525 Pa. at 302, 580 A.2d at 298 (emphasis added).

While the average thirteen- or fourteen-year-old girl may have developed some knowledge regarding sexual relations, we decline to find that every girl of that age has this knowledge. Thus, where there is no conclusive evidence regarding a minor victim’s comprehension of the offensive acts in question, the trial court must consider other factors to determine whether that victim may have a legitimate reason for delay in complaining. We find the factors set out by our supreme court in Rhodes, supra, to determine whether forcible compulsion was present to prove rape equally compelling here. These factors include age of the victim, the mental and physical condition of the victim, the atmosphere and physical setting in which the incidents were alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress. Rhodes, supra, 510 Pa. at 555-56, 510 A.2d at 1226.

In this case, the trial judge erred in determining that 18 Pa. C.S.A. § 3105 precludes an instruction regarding prompt complaint. Snoke allows such a charge when the actual occurrences of the sexual assaults are in issue and where the victim comprehends the offensiveness of the sexual assaults at the time of their occurrence. The record in this case, however, is devoid of any evidence of what the victim comprehended regarding these sexual assaults. The logical inference from the victim’s testimony is that other legitimate factors may have influenced her not to tell about these incidents. Her uncle told her not to tell anyone lest he get in trouble. Moreover, the victim was at a difficult age to be able to adequately comprehend the nature of the acts perpetrated against her. The circumstances involved here lead us to conclude that the minor victim was under sufficient duress to legitimately explain her delay in complaining. Therefore, despite the trial court’s misapplication of the pertinent law, it was not error for the court to refuse to charge on prompt complaint.

Next, appellant contends that a new trial should be granted because the trial judge acted improperly by questioning witnesses and acting as a prosecutorial advocate. A new trial is required only when the trial court’s questioning is prejudicial, that is when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial. Commonwealth v. Purcell, 403 Pa.Super. 342, 356, 589 A.2d 217, 224 (1988). It is always the right and sometimes the duty of the trial judge to interrogate witnesses. However, questioning from the bench should not show bias or feeling or be unduly protracted. Id., 403 Pa.Superior Ct. at 355, 589 A.2d at 223. Instantly, appellant contends that the trial judge propounded skeptical and misleading questions to defendant’s expert, Dr. Molina. Doctor Molina was qualified as an expert witness and gave an opinion that because appellant suffered from a kidney ailment in the Spring of 1988, it would have been difficult, but not impossible, for appellant to perform sexually in June of that year. The testimony was offered to show that appellant was incapable of sexual activity during the time he was being treated. The trial judge questioned the doctor regarding appellant’s treatment for his kidney condition. He then asked whether it was impossible for appellant to engage in sexual activity during the time period in question. Dr. Molina testified that it was not impossible. N.T. 7/18/89 at 108-09.

The trial judge stated that his questioning was to clarify Dr. Molina’s testimony. N.T. 7/18/89 at 109. While such questioning is better left to the trial attorneys, we find that the questioning merely clarified Dr. Molina’s testimony. Moreover, appellant’s contention that the trial judge severely limited Dr. Molina’s testimony regarding his pain and suffering is unfounded. Appellant has not directed us any such incident in the record, nor have we found any evidence to support this contention. We see no indication in the record that the trial judge’s questioning of witnesses deprived appellant of a fair and impartial trial, and conclude the lower court’s actions were proper.

Regrettably, appellant’s last argument avers that this court should entertain all arguments appellant raised in his post-trial motions which the trial court failed to address. Such a contention is not sufficient to facilitate appellate review under Pa. R.A.P. Rules 2116 and 2119. See First Seneca Bank v. Greenville Distributing Company, 367 Pa.Super. 558, 533 A.2d 157 (1987) (where a panel of this court held that the phrase “and other reasons” tacked onto statement of questions is insufficient to argue issues not specifically presented for review). Thus, we can grant no relief on this claim.

Judgment of Sentence affirmed.

      . 18 Pa. C.S.A. § 3121.

      . Id. § 3122.

      . Id. § 3123.

      . Id. § 3126.

      . Id. § 6301.

      . Although there were five incidents to which D.R. testified, the information only contained four counts of involuntary deviate sexual intercourse.

      . Appellant’s counsel argues that since the trial judge considered whether to grant a mistrial after the Commonwealth’s refutation of the grounds for such a mistrial this issue is preserved for appellate review. However, his cursory consideration of a mistrial is insufficient to preserve the issue on appeal. Pa.R.Crim.P., Rule 1118, 42 Pa. C.S.A. In fact, appellant’s counsel was reluctant to motion the court for a mistrial. N.T. 7/19/89 at 113.

      . Reviewing the victim’s testimony, we find the following discussions:
      Q. (by the district attorney)
      Okay. And at that time did you tell anyone about this?
      A. (by the victim)
      No, I didn’t.
      Q. And I’m going to ask you why not?
      A. Because I was too scared.
      N.T. 7/17/89 at 30. This was the only reason D.R. gave to explain her delay in complaining about the sexual assaults. Subsequently, on cross-examination, D.R. testified that, as a result of a boy at her school exposing himself to her, she became traumatized and then told various school officials about her uncle’s sexual assault.
      Q. (by the defense attorney)
      At the [preliminary] hearing you testified that that was September 12th that he had been exposing himself, had this Dana exposed himself to you?
      A. (by the victim)
      Yes.
      Q. Okay. And you said that that was so traumatic that that brought [out] everything that had happened from June of ’87 until June of '88 involving your uncle, is that correct?
      A. Yes.
      N.T. 7/17/89 at 62-63.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    590 A.2d 342
    COMMONWEALTH of Pennsylvania v. J.F. LOMMA, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1991.
    Filed May 2, 1991.

      C. William Shilling, Pottsville, for appellant.
    Frank M. O’Neill, Asst. Counsel, Timothy P. Wile, Asst. Counsel-in-charge of Appellate Section, Harold H. Cramer, Asst. Chief Counsel, John L. Heaton, Chief Counsel, Scranton, for the Com., appellee.
    Before WIEAND, MONTEMURO and HESTER, JJ.
   WIEAND, Judge:

J.F. Lomma, Inc. (Lomma) was tried de novo in the Court of Common Pleas of Pike County and was found guilty of violating the provisions of 75 Pa.C.S. § 1575 after its employees had operated tractor trailers in violation of conditions contained in special permits authorizing the hauling of loads in excess of statutory maximum width and weight limitations. Post-trial motions were denied, and Lomma was sentenced to pay fines totalling $6,785, together with the costs of prosecution. On direct appeal from the judgment of sentence, Lomma asks that we review:

1. WHETHER THE COURT BELOW ERRED IN FINDING THAT THE COMMONWEALTH DID NOT NEED TO PROVE BEYOND A REASONABLE DOUBT THAT THE APPELLANT KNEW OR HAD REASON TO KNOW ITS VEHICLES WOULD BE OPERATED IN VIOLATION OF THE MOTOR VEHICLE CODE IN ORDER TO BE FOUND GUILTY OF VIOLATING 75 Pa. C.S.A. § 1575?
2. WHETHER THE COURT BELOW ERRED IN FINDING THAT J.F. LOMMA, INC. COULD BE FOUND GUILTY OF OPERATING ITS TRUCKS IN VIOLATION OF 75 Pa. C.S.A. § 4921(a) and § 4941(a) WHEN THEY HAD A VALID SPECIAL HAULING PERMIT WHICH HAD BEEN ISSUED BY PENNDOT, AND THAT, AT MOST, THEIR DRIVERS HAD ONLY VIOLATED A REGULATION GOVERNING SPECIAL PERMITS AND NOT THE ACT ITSELF?
3. WHETHER THE COURT BELOW ERRED IN ALLOWING THE COMMONWEALTH TO AMEND THE CITATIONS ISSUED TO J.F. LOMMA, INC. SUCH THAT THE CHARGE AGAINST J.F. LOMMA, INC. WAS CHANGED FROM A VIOLATION OF A SPECIFIC SECTION OF THE MOTOR VEHICLE CODE TO A GENERAL SECTION OF THE MOTOR VEHICLE CODE?
4. WHETHER THE COURT BELOW ERRED IN FINDING THAT THE COMMONWEALTH DID NOT NEED TO SUBMIT EVIDENCE AND PROVE BEYOND A REASONABLE DOUBT AS TO THE TIME WHEN SUNSET OCCURRED ON THE DATE OF THE ALLEGED VIOLATIONS IN ORDER TO SUSTAIN THE COMMONWEALTH’S ALLEGATIONS THAT THE VEHICLES WERE OPERATED AFTER SUNSET IN VIOLATION OF A REGULATION GOVERNING THE SPECIAL HAULING PERMITS?

Because we find the first two of these issues to be dispositive, we reverse the judgment of sentence and discharge appellant.

The facts underlying appellant’s conviction were summarized briefly by the trial court as follows:

The Defendant requested and obtained two special hauling permits from the Pennsylvania Department of Transportation (PennDOT) for the transport of two overweight and overwidth loads. Part of the approved routes for those permits included Interstate 84. A condition of those permits was that they were valid only until sunset. On January 9, 1989, at some time between 5:00 PM and 5:45 PM, the two trailers entered a Weigh Station located on Interstate 84 in Palmyra Township, Pike County. At that time the vehicles weighing 98,162 pounds, and 87,541 pounds respectively and in excess of eight feet in width were cited for violation of sections 4921(a) and 4941(a) of the Pennsylvania Vehicle Code 75 Pa. Cons. Stat. Ann. 4921(a).

Appellant was found guilty by a District Justice of violating the maximum vehicle width and weight requirements established at 75 Pa.C.S. §§ 4921(a) and 4941(a). A summary appeal was then taken to the Court of Common Pleas of Pike County, where, at the trial de novo, the Commonwealth was permitted to amend the citations against appellant to allege a violation of 75 Pa.C.S. § 1575.

The provisions of 75 Pa.C.S. § 1575 are as follows:

§ 1575. Permitting violation of title
(a) General rule.—No person shall authorize or permit a motor vehicle owned by him or under his control to be driven in violation of any of the provisions of this title.
(b) Penalty.—Any person violating the provisions of subsection (a) is guilty of the same offense as the driver of such vehicle and subject to the same penalties including any suspension or revocation of the operating privilege or the assessment of points.

The trial court determined that because Lomma was a corporation, the Commonwealth was not required to prove beyond a reasonable doubt that it had authorized its employees to violate the statute or that it had reason to know that its employees would commit such violations. Appellant contends on appeal that this was error. In the absence of such evidence, it argues, the Commonwealth failed to prove criminal responsibility. We agree.

In Commonwealth v. Tharp, 373 Pa.Super. 285, 541 A.2d 14 (1988), the Superior Court held that “section 1575(a) requires the giving of authorization for one’s car to be driven in a manner violative of the Motor Vehicle Code." Id., 373 Pa.Superior Ct. at 290-291, 541 A.2d at 17. The Court reasoned that:

A common-sense reading of section 1575(a) leads to the inescapable conclusion that some level of knowledge is necessary. To whom does its prohibition apply? The owner of a vehicle, or the person under whose control the vehicle is. What must such a person not do? Authorize or permit. Authorize or permit whom? Another. To do what? To drive the owner’s vehicle. To drive how? In violation of the Motor Vehicle Code. The giving of authorization or permission must either be an affirmative act or a knowing accession. It is clear, then, that, at the minimum, the owner must know he is authorizing or permitting and that this authorization or permission is specific to another’s operation of his vehicle.
It is not per se illegal for a vehicle owner to allow someone else to drive his vehicle. Therefore, if the giving of such permission is to be a culpable act, it must have some relation to the conduct authorized. There must be some nexus between the giving of permission by the owner and the later violation of the Motor Vehicle Code by the driver. To interpret this statute to encompass all later acts of an authorized driver, regardless of the ability of the vehicle owner to know or to foresee such actions, would be contrary to the mandate contained in the Statutory Construction Act.
Section 1922. In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:
(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.
1 Pa.C.S. § 1922(1).
Because we believe the intent of the statute is to sanction those owners who knowingly allow their vehicles to be driven illegally, we must conclude that, just as this Commonwealth recognizes a presumption that all persons obey the law, Horan v. Weiler & Ellis, 41 Pa. 470 (1862), a vehicle owner giving permission for another to drive his vehicle is entitled to presume that that driver will obey the law. By extension, then, the owner enjoys a presumption that his giving of permission is lawful and the Commonwealth must prove beyond a reasonable doubt that this was not so. Only when the owner, at the time he gives permission, or, if present during the permitted operation of his vehicle by another, knows or has reason to know or suspect that the driver will not obey the law is this presumption rebutted. The measure of an owner’s culpability under section 1575(a) is the conduct he authorized; permission is related to the time it was given and cannot be all-encompassing. To construe this section otherwise is clearly beyond the reach and intent of the statute.
As is fitting and proper, the owner is presumed to be innocent of allowing his vehicle to be driven in violation of the Motor Vehicle Code until proven guilty. It follows that such an owner must have some knowledge of the manner in which his vehicle will be driven to be guilty of allowing its use in violation of Title 75. Similarly, if permission once given is revoked or extinguished, or the scope of the permission is exceeded by the driver, the owner may not be held responsible for that driver’s later acts. To tie previously given lawful permission to an unknowable or unforeseeable after-the-fact occurrence is too tenuous a relation to satisfy the Commonwealth’s burden of proof under section 1575(a).

Commonwealth v. Tharp, supra, 373 Pa.Superior Ct. at 291-293, 541 A.2d at 17-18.

The trial court in the instant case attempted to distinguish Tharp. It presumed that because the drivers were employees of Lomma, the employer had a right to control the performance of its employees and, therefore, was criminally liable for violations committed by such employees. It found the right of control particularly compelling in view of the fact that the employer had obtained a special permit which required it to adhere to the conditions imposed thereby. The Commonwealth argues, therefore, that the employer can be found criminally liable for the acts of its employees, whether or not the employer has knowledge of such violations. In other words, argues the Commonwealth, the employer should be held strictly liable criminally according to principles of respondeat superior.

In general, the criminal liability of corporations is defined at 18 Pa.C.S. § 307(a) and (b) as follows:

§ 307. Liability of organizations and certain related persons
(a) Corporations generally.—A corporation may be convicted of the commission of an offense if:
(1) the offense is a summary offense or the offense is defined by a statute other than this title in which a legislative purpose to impose liability on corporations plainly appears and the conduct is performed by an agent of the corporation acting in behalf of the corporation within the scope of his office or employment, except that if the law defining the offense designates the agents for whose conduct the corporation is accountable or the circumstances under which it is accountable, such provisions shall apply;
(2) the offense consists of an omission to discharge a specific duty of affirmative performance imposed on corporations by law; or
(3) the commission of the offense was authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation within the scope of his office or employment.
(b) Corporations, absolute liability.—When absolute liability is imposed for the commission of an offense, a legislative purpose to impose liability on a corporation shall be assumed, unless the contrary plainly appears.

18 Pa.C.S. § 307(a) and (b). The alleged offense in the instant case was specifically in authorizing or permitting another to operate a vehicle in violation of the Vehicle Code.

The Commonwealth relies upon the decision of the Commonwealth Court in Waste Conversion, Inc. v. Commonwealth, 130 Pa.Cmwlth. 443, 568 A.2d 738 (1990), cert. denied, — U.S.-, 111 S.Ct. 253, 112 L.Ed.2d 211 (1990), where it was held that a corporation was strictly liable for unauthorized dumping of solid waste under section 610(8)(i) of the Solid Waste Management Act. There the dumping had been done by a truck driver who had been hired as an independent contractor. The Commonwealth Court reasoned:

By undertaking the responsibility to dispose of waste, Appellant has assumed the duty to ensure that it is completed as required by the Act. Appellant cannot absolve itself of this responsibility by transferring it to independent contractors and claiming that it has no control over them. We hold that, because Appellant has assumed responsibility in the waste disposal process, Appellant maintains control of the independent contractors it hires for the purpose of its waste disposal duties. Appellant’s failure to maintain control cannot be used as a defense to avoid liability.

Id., 130 Pa.Cmwlth Ct. at 449-450, 568 A.2d at 742.

However, by its express terms the Solid Waste Management Act contains a specific legislative intent to impose absolute criminal liability for violations, as well as an expressed legislative intent to impose such liability on corporations. As we have already observed, 75 Pa.C.S. § 1575, the statute under which appellant was prosecuted, requires specifically that a vehicle owner knew or should have known that an authorized operator of the owner’s vehicle would violate provisions of the Vehicle Code. Commonwealth v. Tharp, supra. See also: Wertz v. Kephart, 374 Pa.Super. 274, 283-284, 542 A.2d 1019, 1024 (1988). Section 1575, therefore, cannot be construed as imposing absolute liability upon vehicle owners for the conduct of their employees.

The Commonwealth’s reliance upon Commonwealth v. Penn Valley Resorts, Inc., 343 Pa.Super. 387, 494 A.2d 1139 (1985), is also misplaced. There, a corporate defendant had been found guilty of involuntary manslaughter in connection with the death of a minor because of conduct by its president in serving alcoholic beverages to a visibly intoxicated minor during a corporate function. It does not follow that a corporation is criminally liable for the misconduct of all employees during the course of their employment. Rather, a corporation, pursuant to 18 Pa.C.S. § 307(a)(3), is liable for the criminal acts of a “ ‘high managerial agent’ who commits a wrongdoing in the scope of his office.” Commonwealth v. Penn Valley Resorts, Inc., supra, 343 Pa.Superior Ct. at 393, 494 A.2d at 1142. This is so regardless of whether the corporation itself actually “ ‘condoned, sanctioned or recklessly disregarded’ ” the actions of its high managerial agent. Id. In the instant case, the alleged criminal violation had been committed by drivers employed by appellant, and not by corporate officers who could be characterized as “high managerial agents” under 18 Pa.C.S. § 307(a)(3).

Section 1575 of the Vehicle Code does not compel different treatment of corporate offenders as opposed to individual offenders. In either case the Commonwealth is required to prove beyond a reasonable doubt that the vehicle owner knew or had reason to know that the owner’s vehicle would be operated in a manner that violated provisions of the Vehicle Code. Instantly, the Commonwealth did not meet this burden. A review of the evidence produced at trial discloses not even a suggestion that appellant directed or had reason to know that its drivers would operate its trucks in a manner inconsistent with the provisions of the Vehicle Code or in violation of the conditions imposed by the special hauling permits granted by the Commonwealth.

We also find merit in appellant’s contention that its drivers violated only a Department of Transportation regulation governing special permits and not the provisions of the Vehicle Code which establish width and weight limits for vehicles. Appellant’s trucks were authorized by special permit to carry loads in excess of the width and weight limits set forth in 75 Pa.C.S. §§ 4921(a) and 4941(a). The loads carried by appellant’s trucks conformed in both width and weight to that allowed by the special permits. However, the special permits, pursuant to a Department of Transportation regulation, prohibited trucks carrying such loads from being operated between sunset and sunrise. 67 Pa.Code § 179.10(7)(i)(A). Because the vehicles were authorized by special permit to carry excess loads, the vehicles did not violate 75 Pa.C.S. §§ 4921(a) and 4941(a). The fact that the PennDOT regulation regarding restricted travel periods was violated did not mandate that appellant receive the same penalties applicable to drivers who, without permission, were carrying excess loads. Here, the danger to Pennsylvania highways by overweight trucks was not a consideration, for appellant had been authorized specifically by permit to carry such loads. If appellant’s employees violated the conditions of the permit by operating loaded trucks after sunset, the penalty established by regulation was the confiscation of its permits. See: 67 Pa.Code § 179.16(a)(3). It is only if a vehicle “is found to be operating off the approved route indicated in the permit, [that] the amount of overweight is determined as if there were no permit.” 67 Pa.Code § 179.16(b)(2). See also: Commonwealth v. Liver, 360 Pa.Super. 205, 520 A.2d 56 (1987). Instantly, the evidence was undisputed that appellant’s drivers had been operating its vehicles on an approved route when the citations were issued.

The decision of the Supreme Court in Commonwealth v. Austin, 500 Pa. 620, 459 A.2d 336 (1983), is instructive. There the defendant also had obtained a permit to haul an oversized and overweight load. In hauling the load, however, he violated PennDOT regulations regarding pilot cars, 67 Pa.Code § 179.10(13), and the display of a sign indicating an oversize load, 67 Pa.Code § 179.10(15). In addition to a fine for violating the PennDOT regulations, the defendant was assessed a fine of $20,400 for carrying an overweight load in violation of 75 Pa.C.S. § 4941(a). The Supreme Court vacated the conviction for violating section 4941(a) of the Vehicle Code. It held that the defendant’s violation had been of a PennDOT safety regulation and did not trigger the penalties applicable to an overweight vehicle which had no permit. The Court reasoned as follows:

The legislature in enacting chapter 49 of the [Vehicle] Code addressed several different objectives and prescribed different penalties to accomplish those objectives.
Subchapter C, addressed to maximum weight limitations, provides a graduated scale of fines for violations, the purpose being the prevention of highway damage by unlicensed and unsupervised overweight users. The large fines under this subchapter are not only deterrents but reimbursement for damage. Subchapter C does not address the occasion when permits are issued allowing for excessive weight. Permits are provided for in sub-chapters A & D. Subchapter A provides for safety regulations during the uses permitted, and subsection 8 of regulation 51.10 supra provides for the automatic invalidation of an issued permit if any of the regulations are violated.
There is a vast difference between a permit invalidated for safety violations and no permit at all. Appellant obtained a permit by posting a bond guaranteeing against the damage the regulation is designed to prevent. His violation was against the safety regulations, not against the provisions aimed at regulating weight and preventing damage to the highway. To inflict a penalty for a violation already provided against by appellant’s bond is a harsh penalty and can be supported only by the clearest provision. The penalty under subchapter A for violation of the safety regulations is a $50.00 fine, and the invalidation of the permit and possible prescription against future applications. The loss of a permit in mid-transit would itself be no small penalty to one who might thus be grounded with an unmovable load. The different penalties provided by the PennDOT regulation address different objectives, each designed to punish and prevent different wrongs. We hold, therefore, that the automatic invalidation of a permit by violation of the safety regulations is a penalty in and of itself and does not trigger all the penalties possible under the regulations.

Commonwealth v. Austin, supra, 500 Pa. at 622-623, 459 A.2d at 337-338 (footnotes omitted).

Similarly in the instant case, a fine for operating overweight vehicles without a permit was improper. Appellant had obtained a special hauling permit for the load its trucks were carrying; and, therefore, the dangers of unsupervised, overweight trucks were not present. As such, the deterrents for overweight and oversized trucks were not applicable. Appellant’s alleged violation pertained only to a Penn-DOT safety regulation defining restricted periods of travel.

The judgment of sentence is reversed, and appellant is discharged.

      . Act of July 7, 1980, P.L. 380, No. 97, § 610, as amended, 35 P.S. § 6018.610(8)(i).

      . Section 606 of the Solid Waste Management Act provides in relevant part:
      (b) Any person other than a municipal official exercising his official duties who violates any provision of this act, any rule or regulation of the department, any order of the department, or any term or condition of any permit, shall be guilty of a misdemeanor of the third degree and, upon conviction, shall be sentenced to pay a fine of not less than $1,000 but not more than $25,000 per day for each violation or to imprisonment for a period of not more than one year, or both.
      (i) With respect to the offenses specified in subsections (a), (b), (c) and (f), it is the legislative purpose to impose absolute liability for such offenses. However, a generator who has complied with section 403 shall not be held criminally liable under this section if wastes have been transported in compliance with all applicable provisions of this act and the regulations promulgated and licenses issued thereunder, and provided that such wastes have been accepted by a facility designated in accordance with section 403(b)(6).
      (j) With respect to the offenses specified in subsections (a), (b), (c), (d), (e), (f) and (g), it is the legislative purpose to impose liability on corporations.
      35 P.S. § 6018.606(b), (i) and (j) (footnote omitted).


text:
    590 A.2d 348
    Steven MUCOWSKI, Appellant, v. Robert CLARK and Joan Clark and Hub Manufacturing Company and Lionel Leisure, Inc., t/a Kiddie City, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1990.
    Filed May 2, 1991.

      Paul N. Sandler, Philadelphia, for appellant.
    Eileen M. Johnson, Philadelphia, for appellebs.
    Before WIEAND, KELLY and CERCONE, JJ.
   WIEAND, Judge:

In this action to recover damages for injuries sustained by Steven Mucowski when he dived into an above ground swimming pool which had been sold by Lionel Leisure, Inc., t/a Kiddie City (Kiddie City), the trial court entered summary judgment in favor of the seller because Mucowski had assumed the risk of diving into a shallow pool. Mucbwski appealed.

It was undisputed that the pool had been purchased by Robert and Joan Clark from Kiddie City and had been installed in 1981. It was fifteen (15) feet in diameter and four (4) feet deep. Around the rim of the pool, the owner had constructed a four (4) feet wide platform so that children could sit on the platform and put their feet in the water. Along the outer edge of the platform, the property-owner had also constructed a railing which was intended to prevent persons on the platform from falling from it. This railing extended three and one-half (3V2) feet above the platform, which was even with the top of the pool. The platform and railing were not a part of the pool which had been purchased from Kiddie City. They had been constructed by the property owner without any consultation with the seller.

On July 3, 1983, Mucowski was a guest at the home of Robert and Joan Clark and was using the pool. Mucowski was twenty-one (21) years of age, was five feet, ten inches (5' 10") in height, and was a senior engineering student at Drexel University. He was familiar with the pool, for he had used it on prior occasions. He had dived or jumped into the pool from the platform on the day of the accident and knew, from standing in the pool, that the water reached a point between his navel and his chest. After he had been in the pool awhile, Mucowski climbed onto the three and one-half (3V2) feet high railing which surrounded the pool, intending to dive into the pool. He said that he had experienced difficulty keeping his balance on the railing, and when he dived head first into the pool he struck his head on the bottom of the pool, sustaining serious injury. He denied, in depositions, that he was aware of the danger of diving into shallow water.

Mucowski commenced an action to recover damages against the Clarks, Hub Manufacturing Company, the manufacturer of the swimming pool, and Kiddie City, the vendor. The claim against the manufacturer was settled, and the claim against the property owners was dismissed summarily on grounds that Mucowski had voluntarily assumed the risk. This summary judgment was affirmed on appeal. See: Mucowski v. Clark, 394 Pa.Super. 638, 569 A.2d 1389 (1989).

In his complaint against Kiddie City, the retail vendor, Mucowski alleged negligence and strict liability based on an alleged design defect and a failure to warn against the dangers of diving into shallow water. The trial court entered summary judgment in favor of Kiddie City, and Mucowski appealed.

A motion for summary judgment is properly granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). See also: Craddock v. Gross, 350 Pa.Super. 575, 577-578, 504 A.2d 1300, 1301 (1986); Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 38, 482 A.2d 1067, 1068-1069 (1984); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984). In reviewing an order granting summary judgment, we examine the record in the light most favorable to the non-moving party. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, supra, 328 Pa.Super. at 140-141, 476 A.2d at 930; Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982). Summary judgment serves to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality.

Voluntary assumption of the risk involves a subjective awareness of the risk inherent in an activity and a willingness to accept it. Berman v. Radnor Rolls, Inc., 374 Pa.Super. 118, 136, 542 A.2d 525, 533 (1988). A plaintiff has voluntarily assumed the risk where he fully understands it and voluntarily chooses to encounter it. Fish v. Gosnell, 316 Pa.Super. 565, 576-579, 463 A.2d 1042, 1048-1049 (1983). See also: Ott v. Unclaimed Freight Co., 395 Pa.Super. 483, 493, 577 A.2d 894, 899 (1990); Handschuh v. Albert Development, 393 Pa.Super. 444, 448, 574 A.2d 693, 695 (1990). For a danger to be known it must not only be known to exist, but it must also be recognized as being dangerous. Carrender v. Fitterer, 503 Pa. 178, 185, 469 A.2d 120, 124 (1983). A plaintiff’s knowledge and understanding of the risk, of course, may be shown by circumstantial evidence. Weaver v. Clabaugh, 255 Pa.Super. 532, 536, 388 A.2d 1094, 1096 (1978). However, “[wjhether the plaintiff knows of the existence of the risk, or whether he understands and appreciates its magnitude ... is a question of fact, usually to be determined by the jury under proper instructions from the court. The court may itself determine the issue only where reasonable men could not differ as to the conclusion.” Staymates v. ITT Holub Industries, 364 Pa.Super. 37, 49, 527 A.2d 140, 146 (1987), Restatement (Second) of Torts § 496D, Comment e.

In the instant case, there is an issue of fact concerning the plaintiff-appellant’s knowledge and understanding of the risk of diving into four (4) feet of water from the railing around the pool. The evidence is clearly adequate to permit a finding that appellant, a senior engineering student who was familiar with the pool and the depth of the water therein, was cognizant of the risk and voluntarily chose to encounter it. On the other hand, appellant has himself denied an understanding of the risk which he encountered by diving head first into the pool’s shallow water. A jury, to be sure, may find his testimony incredible, but it is nevertheless sufficient to prevent the court from finding as a matter of law that he subjectively understood the risk and voluntarily chose to encounter it. We conclude, therefore, that a summary judgment could not be entered summarily for appellee-vendor on grounds that the plaintiff-appellant had voluntarily assumed the risk of striking his head on the bottom when he dived into the pool.

We may affirm the summary judgment, however, if it was proper for any reason. See: Kline v. Blue Shield of Pennsylvania, 383 Pa.Super. 347, 351-352, 556 A.2d 1365, 1368 (1989); Jones v. P.M.A. Ins. Co., 343 Pa.Super. 411, 413 n. 1, 495 A.2d 203, 204 n. 1 (1985) (appellate court may affirm action of trial court for reasons other than those given by trial court , in support of order).

A review of the decided cases discloses that most courts have refused to allow recovery under similar circumstances. Thus, in Hensley v. Muskin Corp., 65 Mich.App. 662, 238 N.W.2d 362 (1975), the Court held that the manufacturer, seller and owner of a four (4) feet deep backyard swimming pool had no duty to warn of the obvious danger of diving into the pool from a seven (7) feet high garage roof. The Court observed that the injured party had been a 28 year old man, with some swimming experience, who had helped assemble the pool and knew it was only four (4) feet deep. Therefore, a summary judgment in favor of the defendants was affirmed.

In Dailey v. Major Pool Equipment Corp., 30 N.Y.2d 846, 335 N.Y.S.2d 89, 286 N.E.2d 471 (1972), the Court held that the manufacturer of a swimming pool was not liable for injuries sustained by a 15 year old guest of the purchaser of the pool, where the guest had struck his head while diving from a diving board installed by the purchaser. See also: Telak v. Maszczenski, 248 Md. 476, 237 A.2d 434 (1968); Andrews v. Taylor, 34 N.C.App. 706, 239 S.E.2d 630 (1977). And in Belling v. Haugh’s Pools, Ltd., 126 App. Div.2d 958, 511 N.Y.S.2d 732 (1987), appeal denied, 70 N.Y.2d 602, 518 N.Y.S.2d 1024, 512 N.E.2d 550 (1987), reconsideration dismissed, 70 N.Y.2d 748, 519 N.Y.S.2d 1035, 514 N.E.2d 393 (1987), a summary judgment in favor of a swimming pool manufacturer was upheld where the injured plaintiff had dived through an innertube floating in a four (4) feet, above ground pool after having been swimming for several hours on the day of the accident and after having assisted the owner in installing the pool. The court held that there was no duty on the manufacturer to warn of obvious dangers and that the vertical dive attempted by plaintiff involved an obvious risk, so that the proximate cause of the injury was plaintiffs own conduct in diving into water which was too shallow. See also: Howard v. Poseidon Pools, Inc., 72 N.Y.2d 972, 534 N.Y.S.2d 360, 530 N.E.2d 1280 (1988).

Finally in Colosimo v. May Department Store Co., 466 F.2d 1234 (3rd Cir.1972), the Court of Appeals for the Third Circuit reversed a jury’s finding of liability and entered judgment n.o.v. in favor of the seller of the pool where an experienced, fifteen year old swimmer had been injured by diving head first into an above ground swimming pool which he knew to contain only three (3) feet of water. The absence of warnings regarding diving, the Court held, was not a substantial factor in causing plaintiffs injuries because he had been well aware of the risk of diving head first into shallow water. See also: McCormick v. Custom Pools, Inc., 376 N.W.2d 471 (Minn.App.1985).

These decisions, although not binding, are persuasive. The plaintiff-appellant in the instant case, knowing full well the depth of the water in the pool, climbed upon a railing which stood three and one-half (3V2) feet above the edge of the pool and dived head first into four (4) feet of water. The risk in performing such a dive was obvious. It was the foolhardiness of attempting such a dive while appellant was having trouble maintaining his balance that was the legal cause of his injuries and not the absence of warnings pertaining to the risks attendant upon diving into shallow water from the rim of the pool.

It is true, of course, that ordinarily issues of legal causation are for the trier of the facts. Where only one conclusion may be drawn from the established facts, however, the question of legal cause may be decided as a matter of law. Here, the causation issue can be decided as a matter of law. It was the plaintiff-appellant’s conduct, rather than any failure to warn of the dangers of diving into shallow water from the rim of the pool, which was the legal cause of his injuries.

The three and one-half (3V2) feet high railing around the pool had been erected by the Clarks subsequent to their purchase of the pool. The pool had not been sold as a diving pool, and the railing had not been sold as part of the pool assembly or at any other time by Kiddie City. Indeed, the seller had not even been consulted about the erection of the railing around the pool. The railing had been constructed separately and independently of the original purchase. Under these circumstances, the seller was not chargeable with notice of the changes made by the purchaser. Therefore, it cannot be said that the pool was sold in a defective condition because of a failure to warn of the risk inherent in diving into shallow water from the three and one-half (3V2) feet high railing erected by the purchaser. Similarly, it cannot be said that the pool was defectively designed because it was not constructed to accommodate such a dive.

Because the seller had no duty to warn of the risk in diving into the pool from the railing constructed by the purchaser and because the absence of a warning against diving head first into the pool from the rim thereof was not the legal cause of appellant’s injury, the summary judgment in favor of the defendant-seller was proper.

Judgment affirmed.

KELLY, J., concurs in the result.


author: JOHNSON, Judge:

text:
    590 A.2d 352
    Kerry DIBBLE v. SECURITY OF AMERICA LIFE INSURANCE COMPANY and the People’s State Bank. Appeal of SECURITY OF AMERICA LIFE INS. CO., Appellant.
    Superior Court of Pennsylvania.
    Argued April 4, 1991.
    Filed May 2, 1991.

      Joseph J. Heston, Kingston, for Sec. of America Life Ins., appellant.
    Gerald A. Kinchy, Sayre, for Dibble, appellee.
    Before JOHNSON, HUDOCK and CERCONE, JJ.
   JOHNSON, Judge:

Kerry Dibble brought this suit against Security of America Life Insurance Company (Security of America), and the Peoples State Bank, seeking to recover the proceeds of a mortgage life insurance policy issued by Security of America on the life of David Dibble, Kerry Dibble’s deceased husband. Security of America appeals from the order dated July 12, 1990, granting Kerry Dibble’s motion for summary judgment. We affirm.

When reviewing the entry of summary judgment, an appellate court may disturb the order of the trial court only where there has been an error of law or a manifest abuse of discretion. Brecher v. Cutler, 396 Pa.Super. 211, 578 A.2d 481 (1990). To uphold summary judgment, not only must there be an absence of genuine factual issues, but also an entitlement to judgment as a matter of law. The trial court must examine the record in the light most favorable to the non-moving party and accept as true all the well pleaded facts in the non-moving party’s pleadings. Id., 396 Pa.Superior Ct. at 216, 578 A.2d at 484. Pa.R.C.P. 1035(b). Examining the record in the light most favorable to Security of America, the following facts are clear:

In July 1986, Kerry Dibble and her now deceased husband, David Dibble, purchased mortgage life insurance from Security of America, through its agent, the Peoples State Bank. The application for the insurance policy was completed and signed by the Dibbles on July 11, 1986. The application contained the following language:

THE INSURANCE APPLIED FOR WILL BECOME EFFECTIVE ON THE FIRST OF THE MONTH FOLLOWING APPROVAL OF THE APPLICATION BY THE COMPANY IF THE APPLICATION IS APPROVED BY THE 20TH OF THE MONTH. IF APPROVED AFTER THE 20TH OF THE MONTH, THEN THE INSURANCE WILL BECOME EFFECTIVE ON THE FIRST OF THE SECOND MONTH FOLLOWING APPROVAL. The Company reserves the right to require medical examinations.

On August 11, 1986, the Peoples State Bank, acting as agent for Security of America, accepted from the Dibbles the first premium payment for the mortgage life insurance. This payment was included within the Dibbles’ monthly mortgage payment. The Dibbles continued to pay the same monthly premium each month thereafter for the mortgage life insurance. On September 8, 1986, the application for the insurance policy was formally approved by Security of America. The policy included the same provision that was included in the application:

The insurance applied for will become effective on the first of the month following approval of the application by the Company if the application is approved by the 20th of the month. If approved after the 20th of the month, then the insurance will become effective on the first of the second month following approval.
In addition, the policy contained the following provision:
SUICIDE
If an Insured Mortgagor, whether sane or insane, shall die by suicide while insured hereunder, it is the intent of the Company to pay only the amount of insurance, or portion thereof, which has been in force for more than two years from its effective date. Any premium contributed by the Insured Mortgagor for any insurance benefit which is denied due to this limitation shall be returned by the Company.

On September 28, 1988, two years and forty-seven days after the the first insurance premium was paid, David Dibble committed suicide. Thereafter, Kerry Dibble made a claim for the insurance proceeds. Security of America denied the claim alleging that David Dibble died within two years of October 1, 1986, the “effective date” of coverage. Security of America reasoned that since the Dibbles’ application was approved on September 8, 1986, David Dibble’s coverage became effective on the first of the month following approval of the application, or on October 1, 1986. See Reproduced Record, pages 11(a), 14(a), 20(a).

Kerry Dibble filed a complaint against Security of America on May 1, 1989. After the close of the pleadings and discovery, motions for summary judgment were filed by Security of America and People’s State Bank. A cross-motion for summary judgment was also filed by Kerry Dibble. By order dated July 12, 1990, the court granted Kerry Dibble’s motion for summary judgment against Security of America, and denied the motions of both Security of America and the People’s State Bank. Security of America raises the following issue on appeal:

DOES A BENEFICIARY UNDER A LIFE INSURANCE POLICY HAVE THE RIGHT TO RECOVER PROCEEDS FROM THE INSURER WHEN THE APPLICATION CLEARLY STATED THAT THE POLICY WOULD NOT BECOME EFFECTIVE UNTIL AFTER APPROVAL BY THE COMPANY, BUT THE INSURED SUBMITTED PREMIUMS PRIOR TO THE EFFECTIVE DATE, AND THE LOSS RESULTED FROM THE SUICIDE OF THE INSURED WITHIN A PROHIBITED PERIOD MEASURED FROM THE EFFECTIVE DATE, BUT OUTSIDE THE PERIOD MEASURED FROM THE DATE THE FIRST PREMIUM WAS PAID?

Security of America argues that an insurance policy, when issued, embodies a contract and if the language of the contract is clear and unambiguous, the court is required to give effect to that language. Citing Pennsylvania Manufacturers’ Ass’n Insurance Co. v. Aetna Casualty & Surety Insurance Co., 426 Pa. 453, 233 A.2d 548 (1967). Security of America contends that each of the above-quoted provisions of the application and policy are not ambiguous and must be given their plain and ordinary meaning. Therefore, Security of America argues, since David Dibble’s death occurred within two years of October 1, 1986, the “effective date” of coverage as defined in the application and policy, Kerry Dibble is not entitled to the policy proceeds. We do not agree.

Our Supreme Court has indicated that the proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured. Collister v. Nationwide Life Ins. Co., 479 Pa. 579, 388 A.2d 1346 (1978), cert. denied, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55; Tonkovic v. State Farm Mutual Automobile Insurance Co., 513 Pa. 445, 521 A.2d 920 (1987). Courts must examine the totality of the insurance transaction involved to ascertain the reasonable expectations of the consumer. Collister, supra, 479 Pa. at 593, 388 A.2d at 1354, Tonkovic, supra, 513 Pa. at 456-457, 521 A.2d at 926.

In Collister, subsequent to paying the first premium for a life insurance policy, the insured received a receipt which stated:

NO INSURANCE WILL BECOME EFFECTIVE PRIOR TO POLICY DELIVERY UNLESS THE ACTS REQUIRED BY THIS RECEIPT ARE COMPLETED. NO AGENT OF THE COMPANY IS AUTHORIZED TO CHANGE ANY ACT REQUIRED.

Id. 479 Pa. at 599, 388 A.2d at 1356. At the time of the consumer’s death, the insurance company had neither issued the policy applied for, nor had it rejected the application. Id., 479 Pa. at 582, 388 A.2d at 1347. In addition, the consumer had not taken the medical examination required by the wording of the application. Id. Despite the unambiguous language set forth in the document, the Collister court held that the policy commenced upon the first premium payment, stating:

In situations where the circumstances of the transaction do not indicate that the insurer intended to provide interim insurance, but nevertheless show that the insurer accepted payment of the first premium at the time it took the application, it is then up to the insurer to establish by clear and convincing evidence that the consumer had no reasonable basis for believing that he or she was purchasing immediate insurance coverage.
The reasonable expectation of the insured is the focal point of the insurance transaction involved here.... Courts should be concerned with assuring that the insurance purchasing public’s reasonable expectations are fulfilled. Thus, regardless of the ambiguity, or lack thereof, inherent in a given set of insurance documents (whether they be applications, conditional receipts, riders, policies, or whatever), the public has a right to expect that they will receive something of comparable value in return for the premium paid.

Id., 479 Pa. at 594, 388 A.2d at 1353. (Emphasis ours). Security of America argues that the unambiguous language of the application and policy gave notice to the Dibbles that no insurance was to take effect until the “first day of the month following approval.” Appellant’s Brief at page 11. Therefore, Security of America contends that the Dibbles had no reasonable basis to believe that they were purchasing immediate coverage. Applying the holding of Collister to the facts of the instant case, we must not focus on the language of the application and policy, rather our conclusion is determined by the dynamics of the transaction viewed in its entirety. Collister, supra, 479 Pa. at 593, 388 A.2d at 1354.

In the instant situation, the Dibbles could have reasonably believed that when they paid the first premium on August 11, 1986, that the mortgage life insurance policy became effective at that time. By simply directing us to unambiguous language in the application and policy, Security of America has not established by clear and convincing evidence that the Dibbles were unreasonable in believing that coverage began upon their payment of the first premium. The Collister court held that only after an unequivocal showing that the consumer is to be given no immediate benefits in return for his premium prepayment, can it be said that the insurer has sustained its burden. Id., 479 Pa. at 598, 388 A.2d at 1355. (Emphasis ours). Our Supreme Court stated:

If ... the insurer wishes to enjoy the substantial benefits it receives by securing the customer’s cash at the time of the taking of the application, it must return what the consumer can reasonably expect that the insurer is selling: i.e., immediate coverage.

Id. The Collister court held that alternatively, the insurer could inform the applicant, before any money changes hands, that it does not intend to give the customer anything in return for the premium pre-payment, and that the customer is actually paying for nothing. The court further held that:

... [A]ny such notice must be made in a manner calculated to bring the facts of the transaction—that the customer is paying money now, but getting nothing until later— to the customer’s attention in no uncertain terms. As such, the notice could not be printed on a receipt.

Id. A review of the record reveals that Security of America made no effort to notify the Dibbles, beyond the notice printed on the application and policy, that they were making advance premium payments but getting nothing in return. According to Collister, such notice did not amount to an “unequivocal showing” that the Dibbles were not receiving immediate benefits in return for their premium pre-payment.

Relying upon the federal district court case, Oakes v. Franklin Life Ins. Co., 516 F.Supp. 445 (E.D.Pa.1981), Security of America argues that Collister has no application to the instant case. The Oakes case involved a factual situation similar to the instant case. In Oakes, the insured completed the insurance application and paid the first premium deposit on August 10, 1977. At that time the insurer provided temporary or interim coverage pending its decision to reject the application or issue a policy. On August 24, 1977, the insurer approved the application and issued a policy bearing an issue date of August 24, 1977. Oakes, supra, at 446. Under the heading “Payment of Benefits,” the policy provided as follows:

Suicide: If within two years from the date of issue the insured (whether sane or insane) shall die by suicide, this policy shall automatically terminate and the amount payable in lieu of all other benefits shall be limited to the premiums paid.

Id. On August 18, 1979, the insured died by suicide. The issue before the court on cross-motions for summary judgment was whether the date of issue referred to in the suicide clause was the date of issue on the policy, August 24, 1977, or the date on which the insured paid his first premium payment and was given temporary or interim coverage.

The Oakes court distinguished the Pennsylvania Supreme Court decision in Collister, holding that:

That case [Collister ] did not involve a suicide but an accidental death. Furthermore, it [Collister ] was only concerned with coverage during the interim period between application and issuance of the policy and not with the terms of the policy once issued or with its date of issue.

Id. at 447. Finding no ambiguity in the insurance policy language, the Oakes court granted the insurer’s motion for summary judgment.

We note, that a federal court’s interpretation of state law does not bind this court. See Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (state courts are the principal expositors of state law). Not only does the Oakes court ignore the reasonable expectations test set forth in Collister, it also purports to restrict Collister’s application to cases 1) which involve accidental deaths; and 2) which involve issues of coverage during the interim period between application and issuance of the policy. This is not what the Collister court intended, nor is it what Pennsylvania courts have consistently held since the decision was filed in 1977. See e.g., Tonkovic v. State Farm Mutual Automobile Insurance Co., sufra, (where insured prepays for specific coverage, insurer may not unilaterally change coverage provided); State Auto. Ins. Ass’n v. Anderson, 365 Pa.Super. 85, 528 A.2d 1374 (1987) (whether comprehensive personal injury policy provided coverage for injury to another); Huffman v. Aetna Life and Casualty Co., 337 Pa.Super. 274, 486 A.2d 1330 (1984) (whether extended care facility could be regarded as a “hospital” as defined by insured’s hospitalization policy).

Under the facts of this case, and the Supreme Court’s ruling in Collister, we conclude that the mortgage life insurance policy became effective upon the Dibbles’ payment of the premium to Security of America, on August 11, 1986. Thus, David Dibble’s death, even if caused by suicide, occurred more than two years after the “effective date” of the policy, and Kerry Dibble is entitled to the proceeds thereof.

Accordingly we find that the trial court did not commit a manifest error of law in granting Kerry Dibble’s motion for summary judgment.

Order affirmed.


text:
    590 A.2d 356
    COMMONWEALTH of Pennsylvania v. Kevin CANNADY, Appellant. COMMONWEALTH of Pennsylvania v. Anthony DiTULLIO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 10, 1991.
    Filed May 6, 1991.

      Lee Mandell, Philadelphia, for Cannady, appellant.
    Daniel M. Preminger, Philadelphia, for DiTullio, appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, MONTEMURO and HESTER, JJ.
   WIEAND, Judge:

Kevin Cannady and Anthony DiTullio were tried together and were found guilty of two counts of murder of the first degree, two counts of robbery, and single counts of criminal conspiracy and possession of an instrument of crime in connection with the robbing and shooting of Ronald Mar-tines and Larry Formosa in Philadelphia on August 9, 1986. The jury was unable to agree upon the penalty; and the trial court, therefore, imposed consecutive sentences of life imprisonment against the defendants in both shootings. The court also imposed concurrent sentences of imprisonment for not less than ten (10) years nor more than twenty (20) years for each count of robbery and not less than five (5) years nor more than ten (10) years for criminal conspiracy. Cannady and DiTullio filed separate appeals, which we have considered together.

Cannady and William Leak were employed at DiTullio’s automobile detailing shop at 1430 South Federal Street in Philadelphia. The evidence showed that Formosa and Mar-tines were in the shop on August 8, 1986, and were looking for methamphetamine. They returned the following day, Saturday, August 9,1986. According to Leak, who testified as a Commonwealth witness under a grant of immunity, Cannady and DiTullio agreed among themselves to rob Formosa and Martines. Leak was instructed by Cannady to prevent Martines and Formosa from leaving the auto shop. As Martines and Formosa exited the office with DiTullio, they were told that Cannady “had the shit.” When they approached Cannady, however, Cannady pulled a gun and shot Formosa in the stomach. At the same time, DiTullio turned on a noisy steam cleaning machine and a vacuum cleaner. As Formosa fell to the ground, Martines ran for an exit, throwing money from his pockets. Leak prevented Martines from escaping by pushing him to the floor, where Cannady shot him in the head. Cannady also shot Formosa in the head. Leak then gathered the money which Martines had strewn on the floor, and Cannady and DiTullio went through the pockets of their fallen visitors, finding the keys to Martines’ Cadillac automobile. When one of the victims made a gurgling noise, Cannady fired another shot into the head of each of them.

DiTullio steam cleaned the blood from the floor of the auto shop and helped Cannady and Leak as they placed the bodies of the victims in the trunk of the Cadillac. Cannady then drove the vehicle to the 1500 block of South 19th Street, as Leak and DiTullio followed in DiTullio’s car. The Cadillac was there abandoned, after which the three conspirators drove to another location and divided the money. The decomposing bodies of the victims were discovered in the trunk of the Cadillac by police on August 11, 1986. Autopsies were performed, and .22 caliber bullet fragments were removed from the bodies.

This evidence was sufficient to prove a killing that was willful, deliberate and premeditated. An intent to kill can be fully formed in a very short time. Commonwealth v. Graves, 310 Pa.Super. 184, 199, 456 A.2d 561, 569 (1983). Moreover, an intent to kill can be inferred from the use of a deadly weapon upon a vital part of another’s body, for a person is presumed to intend the natural consequences of his act. See: Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983) (stab wound of chest); Commonwealth v. Gardner, 490 Pa. 421, 416 A.2d 1007 (1980) (shooting twice at close range, once in neck); Commonwealth v. Roots, 452 Pa. 585, 306 A.2d 873 (1973) (stab wound of chest).

Prior to trial, DiTullio filed a request for a bill of particulars and requested the exact time of the shooting. The prosecuting attorney replied by letter and advised that the time of the shootings had been between 5:00 p.m. and 6:00 p.m. on August 9. This was consistent with the testimony which Leak had given at the preliminary hearing. At trial, Leak did not testify to the time of the shootings on direct examination. On cross-examination he was asked about the time and said that the shooting could have occurred between 5:00 p.m. and 6:00 p.m., but that he was not wearing a watch and it might have occurred as early as 3:00 p.m. or 3:30 p.m. Other evidence produced by the Commonwealth was that Formosa had been last seen alive at 2:30 p.m. when he drove away from a steak shop with Martines. The circumstances were such to suggest the possibility of a shooting at an hour earlier than 5:00 p.m. DiTullio’s counsel moved for a mistrial. He contended that he had focused on the 5:00 p.m. to 6:00 p.m. time frame in his search for alibi witnesses and had not had a chance to investigate his client’s whereabouts earlier in the day. Camiady’s counsel, who had not requested a bill of particulars, also moved for a mistrial, contending that he had relied upon the time given to DiTullio’s counsel by the prosecuting attorney. The trial court found counsels’ averments unworthy of belief and found that counsel, in fact, had anticipated the testimony regarding an earlier time of the shooting. Nevertheless, the court offered to grant a continuance to permit defense lawyers to make a further investigation regarding the existence of alibi witnesses. Cannady produced no alibi witnesses. DiTullio called six alibi witnesses whose testimony covered the entire afternoon of August 9. On appeal, both defendants contend that,the trial court erred when it denied their motions for mistrial.

A bill of particulars is intended to give notice to the accused of the offenses charged in order that he may prepare a defense, avoid surprise, and intelligently raise pleas of double jeopardy and the statute of limitations. Commonwealth v. Dreibelbis, 493 Pa. 466, 472, 426 A.2d 1111 (1981); Commonwealth v. Simione, 447 Pa. 473, 477, 291 A.2d 764, 766 (1972). When a bill of particulars has been furnished, the prosecution is strictly limited to the particulars which it has supplied. Id.; Commonwealth v. Bartman, 240 Pa.Super. 495, 506, 367 A.2d 1121, 1127 (1976). However, a variance between the proof and the bill of particulars does not require a reversal unless the defendant has been prejudiced by the variance. Commonwealth v. Shirey, 333 Pa.Super. 85, 149, 481 A.2d 1314, 1348 (1984); Commonwealth v. Layman, 290 Pa.Super. 244, 252, 434 A.2d 735, 738 (1981).

In the instant case, the variance was not fatal, for the record shows that the defendants were not prejudiced by the variance, if any, in the evidence pertaining to the time of the shootings. DiTullio’s alibi testimony was broad enough to cover the entire afternoon on which the shootings occurred. Cannady, on the other hand, was unable to produce alibi witnesses for any time on the afternoon of August 9 despite the court’s offer to grant a continuance to allow him to investigate further the existence of such witnesses. Under these circumstances, it cannot be said that appellants are entitled to a new trial because of a minor variance between the time of the shootings recited in the bill of particulars and the time demonstrated by the evidence.

William Leak testified as a Commonwealth witness under a grant of immunity. When Cannady became aware of this during Leak’s direct examination, he moved for a mistrial, contending that the prosecution had failed to give timely notice thereof. The trial court determined that the failure to give notice had been unintentional and denied the motion for mistrial. However, the court granted an early recess so that the circumstances surrounding the grant of immunity could be fully investigated by Cannady’s counsel and directed the Commonwealth to supply such information. On appeal, Cannady contends that the trial court committed reversible error by denying the motion for mistrial.

The Commonwealth is required to disclose “[a]ny evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the attorney for the Commonwealth.” Pa. R.Crim.P. 305(B)(1)(a). Nevertheless, a trial court has broad discretion in choosing an appropriate remedy for a discovery violation. See: Commonwealth v. Williams, 389 Pa.Super. 489, 493-494, 567 A.2d 709, 711 (1989). See also: Commonwealth v. Gordon, 364 Pa.Super. 521, 540, 528 A.2d 631, 641 (1987), allocatur denied, 517 Pa. 621, 538 A.2d 875 (1987); Commonwealth v. Palmer, 319 Pa.Super. 56, 58, 465 A.2d 1050, 1052 (1983). This is granted by Pa.R.Crim.P. 305(E), which provides that:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

In the instant case, the trial court did not abuse its discretion. The court declared a recess immediately upon Cannady’s assertion that he had not been given notice of the grant of immunity to the witness and directed the prosecution to provide defense counsel with all information pertinent to such grant of immunity. When trial resumed, Cannady’s counsel was able to conduct an extensive cross-examination regarding the grant of immunity. It seems clear, under these circumstances, that Cannady’s defense was neither impaired nor impeded by the late notice that Leak was testifying under a grant of immunity. The trial court did not err when it denied the motion for mistrial.

Nicholas Formosa,, the brother of one of the deceased victims, testified to an earlier incident in which both victims had gone to DiTullio’s shop in connection with a methamphetamine transaction. DiTullio objected to this testimony; Cannady did not. On appeal, DiTullio and Cannady contend that the allowance of this testimony by the trial court was error. The issue has not been preserved for review by Cannady, who failed to object at trial. The evidence, in any event, was relevant and admissible to show the relationship between DiTullio and the victims by showing the nature of their prior dealings. See: Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986) (evidence of defendant’s drug dealing with victim’s brother, who had motive for murder, relevant to show previous relationship between parties); Commonwealth v. Russell, 459 Pa. 1, 326 A.2d 303 (1974) (evidence of prior drug transactions with murder victim admissible to show close relationship between defendant and victim). We conclude, therefore, that the receipt of this evidence does not require the grant of a new trial. Similarly, the trial court’s jury instruction with respect to this evidence was appropriate and does not require a new trial.

Anthony Lento, an acquaintance of DiTullio and Cannady, testified as a Commonwealth witness to conversations which he had had with DiTullio and Cannady while the three of them were confined to a detention center. During direct examination, the following occurred:

Q. Now, did you ever have any conversations with Mr. Cannady about this incident?
A. Well, in October of ’87 Cannady told me that there was no evidence on the trunk murder. He said they got rid of all the evidence which I took it to mean the gun. He said that Billy Leak isn’t going to say anything because Billy Leak is in jail and then he said he saved Ditullio’s ass that day. He said—and then he broke it down. He said Ditullio gave him the green light that there was going to be a big score that day.
MR. PREMINGER: Objection and ask that it be stricken and move for a mistrial.
THE COURT: The motion for mistrial is denied. Fll sustain an objection to what Kevin Cannady says Ditullio says.
MR. PREMINGER: I would ask the jury to disregard it, please, Your Honor.
THE COURT: I sustained an objection to what Kevin Cannady says Ditullio says. It is stricken and the jury is instructed to disregard it. Fll see counsel at sidebar.

DiTullio argues on appeal that the trial court erred when, although it sustained an objection and instructed the jury to disregard the testimony, it denied the motion for mistrial.

Whether to grant or deny a motion for mistrial is within the sound discretion of the trial court. A mistrial is necessary only when the incident upon which the motion is based is of such nature as to deny the defendant a fair trial. Commonwealth v. Crawley, 514 Pa. 539, 554, 526 A.2d 334, 342 (1987). See also: Commonwealth v. Chestnut, 511 Pa. 169, 176, 512 A.2d 603, 606 (1986); Commonwealth v. Hernandez, 498 Pa. 405, 415, 446 A.2d 1268, 1273 (1982). “[W]hen prompt curative or cautionary instructions are given by the court, an abuse of discretion will not readily be found.” Commonwealth v. Meadows, 381 Pa.Super. 354, 360, 553 A.2d 1006, 1009 (1989), allocatur denied, 524 Pa. 618, 571 A.2d 381 (1989). See also: Commonwealth v. Reed, 400 Pa.Super. 207, 229, 583 A.2d 459, 470 (1990); Commonwealth v. Thomas, 361 Pa.Super. 1, 15, 521 A.2d 442, 449 (1987), allocatur denied, 516 Pa. 617, 531 A.2d 1119 (1987). A mistrial is not necessary “where cautionary instructions are adequate to overcome prejudice.” Commonwealth v. Lawson, 519 Pa. 175, 185, 546 A.2d 589, 594 (1988).

In the instant case, the trial court did not abuse its discretion when it denied BiTullio’s motion for mistrial. Lento’s testimony regarding Cannady’s statement had not served to implicate DiTullio in the robbery or killing; and, therefore, the testimony was not so prejudicial as to require a mistrial. It was sufficient for the court to sustain the objection and instruct the jury to disregard the testimony.

Finally, Cannady argues that the prosecuting attorney was guilty of misconduct during closing argument to the jury. Our review, however, discloses no basis for relief. This issue has been fully considered by the trial court in its post-trial opinion, and we adopt its reasoning as follows:

“The defendant [Cannady] argues that the first instance of prosecutorial misconduct occurred when the Assistant District Attorney improperly referred to a defense allegation of a conspiracy by the police to ‘get’ the defendant. The prosecutor made the following argument:

Counsel in his closing, Mr. Preminger [DiTullio’s counsel], indicated to you in some sort of fashion that there’s some sort of conspiracy going on here, some sort of funny dealings going on here to get Mr. Ditullio and Mr. Cannady and he went on a whole litany of things to try to explain that conspiracy to you to get these individuals. As he indicated, and I wrote down, to get the result they want. Well, I took an oath, too, and the oath is to prosecute a case fairly and accurately as the evidence goes, wherever it goes it goes, and that’s my oath, to present a case fairly and on the evidence and I resent the comments of Mr. Preminger that somehow I participated in some sort of conspiracy to get these two individuals. It’s just not true. And he says that Detective Koscinski, and he makes a point, that he’s not here and then when we [sic] walks in he gives that little smile and says that’s part of the conspiracy, too, that he pops up whenever he wants. Well, I’ll tell you where Detective Koscinski was. He was working on another homicide for the city of Philadelphia.
MR. MANDELL: Judge, objection.
THE COURT: Overruled.

(N.T. 965-966).

“This argument was not improper; rather, the prosecutor was responding to argument made by defense counsel for co-defendant DiTullio. The thrust of DiTullio’s argument was that William Leak implicated DiTullio for a crime which Leak [had] committed.

“During his closing argument, DiTullio’s defense counsel also argued that William Leak and Anthony Lento [had] tailored their testimony to the Commonwealth’s evidence in order to implicate DiTullio in the killings, and suggested that Leak [had] altered his testimony after the Assistant District Attorney and two homicide detectives investigating the Formosa/Martines murders became aware of inconsistencies in the Commonwealth’s case. (N.T. 949-952).

“At the start of his closing argument, DiTullio’s defense counsel pointed out to the jury that the two investigating officers were not present in the courtroom. Defense counsel for DiTullio stated:

One of the things you heard a lot about is about statements given to two particular investigators, Alfimow and Koscinski, and they kept coming up. You remember the telephone bills disappeared and telephone bills reappeared and pictures disappeared and reappeared and people talked to them and this and that and the other thing. Coincidence would have it that neither of them are here today and I want you to keep that concept of coincidence in mind because I’m going to take you through the case not by factual recitation from start to finish but I’m going to take you through by coincidence to demonstrate to you that things happened in a certain particular way precisely and only because Anthony Ditullio is not guilty and Billy Leak had a gun in his hand on August 9th, 1986

(N.T. 942).

“The prosecutor is entitled in his summation to respond to the arguments made by defense counsel. The prosecutor’s comments objected to here were made in fair response to DiTullio’s closing argument and the passage cited above. Thus, the defendant’s contention that the prosecutor’s comments were improper is without merit.

“The defendant next alleges that the prosecutor misstated the evidence and made inflammatory and prejudicial remarks during his closing argument.

“Defense counsel for co-defendant DiTullio objected to the following statement by the prosecutor:

If you decide the facts using your common sense and reason and reason through this testimony the way I’ve evaluated it here for you today and you determine that they did do what the Commonwealth says they did, it will then be your duty to determine what degree of murder and I suggest to you that there’s really only one verdict if you’re coming back with guilty and that’s guilty of murder in the first degree because there can be no other intent when you take a gun and shoot one individual once in the stomach and twice in the head and then you shoot another one twice in the head. In fact, going over to the other one while he’s gurgling and shoots him in the head. There can be no other intent for those two individuals than the intent to kill. Now, Anthony Ditullio didn’t shoot anybody but nonetheless he planned it, he was involved in it.
MR. PREMINGER: Objection.
THE COURT: Objection overruled.

“(N.T. 997-998). The defendant did not object to this remark by the prosecutor, nor did he join in co-defendant DiTullio’s objection. Thus, this issue is waived for purposes of appeal.

“Assuming arguendo that this issue was preserved, the defendant’s contention is without merit. Again, the Assistant District Attorney is entitled to review the evidence presented at trial and draw reasonable inferences from that evidence. Evidence was presented at trial that one of the victims made a gurgling or snoring sound after he had been shot, which caused the defendant to shoot both Formosa and Martines in the head for a second time. (N.T. 247). The prosecutor’s remarks were a fair summary of the evidence presented at trial.

“Additionally, the prosecutor was entitled to argue to the jury that defendant DiTullio planned the robbery and murders of the decedents. This was a reasonable inference drawn from the facts and evidence as developed during the course of the trial.”

The trial was fairly conducted by an able trial judge, and the record discloses no basis for interfering with the jury’s verdicts. Therefore, the judgments of sentence must be, as they are,

Affirmed.