author:
OLSZEWSKI, Judge:
      DEL SOLE, Judge,

text:
    648 A.2d 1199
    COMMONWEALTH of Pennsylvania, v. Eugenio CORREA, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 10, 1994.
    Filed Aug. 23, 1994.
    Reargument Denied Oct. 26, 1994.

      Marlene Cooperman, Philadelphia, for appellant.
    Kathy L. Echtemach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before McEWEN, OLSZEWSKI and DEL SOLE, JJ.
   OLSZEWSKI, Judge:

On July 10, 1981, Eugenio Correa shot Richard Bradwell in the face. Bradwell miraculously survived the shooting for nine years until his mother, Betty Lahart, found him lying dead on his bedroom floor. Following Bradwell’s death, Correa was charged with voluntary manslaughter and possession of an instrument of crime (PIC). Correa appeals from the judgment of sentence imposed following his conviction on those charges.

Leslie Boyer and Richard Bradwell were married in July of 1980 and separated by February of 1981. Boyer moved into her own apartment, and Bradwell moved back in with his mother. Late in the evening on July 9, 1981, Boyer and her boyfriend, Correa, were making arrangements to go out. Before they had a chance to leave, Bradwell telephoned Boyer several times stating that he wanted to see his daughter. Boyer however told him that it was too late to make arrangements. With every phone call, Bradwell became more menacing, and his speech became slurred. During the third phone call, Bradwell stated that he was coming over after Correa yelled, “Let him come over and take on a real man.” N.T. 10/30/91 at 69. Boyer immediately called Bradwell’s mother to see if she could stop him from leaving the house, but Bradwell’s mother told her that he had already left. Boyer then called the police and made arrangements to take her daughter over to her mother’s house. N.T. 9/30/91 at 61-71.

While Boyer was preparing to leave from her third floor apartment, she heard kicking and banging at the front door to her apartment building. Correa, hearing the noise, went down to greet Bradwell at the front door. Boyer then heard Correa say, “Man, you’re not coming in here, you’re not getting in here,” and Bradwell yelling, “I’ll kill you, man.” N.T. 9/30/91 at 72-7, 75, 118. A short while later, as Boyer was descending the staircase on her way to investigate the scene, she heard a loud bang. She stopped for a minute, and Correa met her. Correa told Boyer that he had shot Bradwell claiming that Bradwell “jumped him.” He also told her to shut up and that everything would be okay. N.T. 9/30/91 at 76. Boyer noticed that Correa had something wrapped in dark cloth under his arm. Correa quickly removed all of his belongings from the apartment and left. As he was leaving, he warned Boyer not to tell anyone what happened. N.T. 9/30/91 at 83-86.

Boyer went downstairs and found her estranged husband lying in a pool of blood. She again called the police. When they arrived, she told them what happened, but she did not give them Correa’s name. Over the next nine years, Correa continued to threaten Boyer to keep her from telling the police that he shot Bradwell. No weapon was found at the scene of the crime, and there was no evidence that the front door was pried open.

Correa chose a bench trial which took place before the Honorable Robert Latrone. At trial, expert witnesses provided conflicting testimony regarding the cause of Bradwell’s death. Correa’s expert witness, Walter Franklin Wrenn III, M.D., opined that Bradwell died from cardiac arrhythmia, unrelated to the gunshot wound. The Commonwealth called Ian Hood, M.D., as its expert witness. Hood observed the autopsy and concluded that Bradwell died from Post Traumatic Seizure Disorder (PTSD) which resulted from the scarring of brain tissue caused by the gunshot wound. Due to the conflicting testimony, the court appointed its own expert witness, Halbert Fillinger, M.D. Dr. Fillinger agreed with Dr. Hood and concluded that Bradwell died from PTSD. Judge Latrone found Correa guilty of voluntary manslaughter and possession of an instrument of crime.

I. CAUSATION

Correa argues that the evidence was insufficient to sustain his conviction of voluntary manslaughter because the Commonwealth failed to prove causation. In reviewing the sufficiency of the evidence, we consider all the evidence presented at trial, and the inferences that can be drawn from it, in a light most favorable to the Commonwealth. Commonwealth v. Rementer, 410 Pa.Super. 9, 17-18, 598 A.2d 1300, 1304 (1991), alloc. denied, 533 Pa. 599, 617 A.2d 1273 (1992). In this case, there was sufficient evidence to allow the fact finder to conclude that the Commonwealth established causation.

We must answer two questions to determine if causation exists: First, was Correa’s conduct “an antecedent but for which the result in question would not have occurred?” 18 Pa.C.S.A. § 303(a)(1). Second, were Correa’s actions a direct and substantial factor in bringing about Bradwell’s death, or was the death so attenuated and remote that it would be unfair to subject Correa to criminal sanctions? Commonwealth v. Paquette, 451 Pa. 250, 253-55, 301 A.2d 837, 839 (1973) .

Here, two expert witnesses testified to a “reasonable degree of medical certainty” that Bradwell died as a result of a seizure related to the gunshot wound to his head, and that the manner of death was homicide. Dr. Hood based his opinion on his review of the autopsy, the medical records from Mercy Catholic Medical Center, the records from Dr. Wrenn’s office, and the toxicology report. He stated that Bradwell died from PTSD related to the original injury to the brain which resulted from a shotgun blast to the head. He concluded that Bradwell’s death was a homicide. N.T. 10/1/91 at 146. He stated that the shotgun blast started a chain of causation that resulted in Bradwell’s death. N.T. 10/1/91 at 158. See Commonwealth v. Skufca, 457 Pa. 124, 132-33, 321 A.2d 889, 894, appeal dismissed, 419 U.S. 1028, 95 S.Ct. 510, 42 L.Ed.2d 304 (1974) (mother caused death of her infant children when she locked them in the bedroom and then left the apartment; the children later died of suffocation when a fire broke out); Commonwealth v. Wright, 455 Pa. 480, 486-87, 317 A.2d 271, 274 (1974) (appellant caused victim’s death where she fell from a ledge trying to escape him; she feared he would rape her again).

Dr. Fillinger based his opinion on his examination of the lab reports from the hospital, reports obtained after surgery, records from emergency room visits, a summary of surgical procedures, notes of testimony, and the autopsy report. He stated that the cause of death was post traumatic epilepsy due to a shotgun wound to the head. The manner of death was homicide. N.T. 10/21/91 at 358. He explained that damage to the skull, the dura, depressed skull, and sensitive trauma to the brain tissue all increase the likelihood of a seizure disorder causing death. N.T. 10/21/91 at 359.

While the defense presented conflicting testimony regarding the cause of death, that does not mean that there was insufficient evidence to prove causation. The fact finder is free to believe all, part or none of the evidence. Commonwealth v. Long, 425 Pa.Super. 170, 184-86, 624 A.2d 200, 208, alloc. denied, 535 Pa. 645, 633 A.2d 150 (1993). It was perfectly reasonable for the court to accept the opinion of the two concurring experts and reject that of the other. Furthermore, the opinion of a medical expert expressed in terms of a reasonable degree of medical certainty is sufficient evidence to allow a fact finder to conclude beyond a reasonable doubt that the cause of death was a criminal act. Commonwealth v. Floyd, 499 Pa. 316, 453 A.2d 326 (1982).

Therefore, based on the finding that Bradwell’s death was the result of a seizure occurring as a result of the shotgun blast, we conclude that the shooting was an act but for which Bradwell’s death would not have occurred, and that the shooting was a direct and substantial factor in bringing about Bradwell’s death.

II. JUSTIFICATION

Correa further contends that the Commonwealth failed to prove beyond a reasonable doubt that he was not acting in self-defense or in the defense of others when he shot Bradwell. The Commonwealth can disprove self-defense by establishing at least one of the following: (1) Correa did not reasonably believe that he, or Boyer and her child, were in imminent danger of death or serious bodily harm; or (2) Correa was at fault in provoking or continuing the use of force; or (3) Correa had a duty to retreat and could do so with complete safety. See Commonwealth v. McClain, 402 Pa.Super. 636, 645-46, 587 A.2d 798, 803 (1991). After reviewing the evidence, we conclude that the Commonwealth proved all three and, therefore, the killing was not in self-defense.

Pennsylvania statutory law defines one type of voluntary manslaughter as the killing of another under the unreasonable belief that it is justified. 18 Pa.C.S.A. § 2503(b) (emphasis added). Viewing the evidence in the light most favorable to the Commonwealth, Correa’s belief was unreasonable. Correa left the safety of the third floor apartment with a gun and went down to the first floor to greet Bradwell. He then unlocked the door and let Bradwell into the building. Correa argues that he reasonably believed that he was in imminent danger because of Bradwell’s size, threats, and abusive history. There was no evidence, however, that Bradwell had a gun or any other sort of weapon on his person at the time of the attack. Moreover, if this was the case, then he could have avoided the confrontation simply by refusing to let Bradwell into the building.

In order to determine whether the actor’s belief was reasonable, the trier of fact should employ an objective test. Commonwealth v. Fisher, 342 Pa.Super. 533, 541-42, 493 A.2d 719, 723 (1985). Here, Correa could not have believed that he was in imminent danger from behind a locked door, nor were Boyer and her child who were upstairs in the third floor apartment. The trial court appropriately concluded that a reasonable person would have stayed upstairs, behind two locked doors, and waited for the police to arrive.

The trial court also found that Correa was the initial aggressor. He yelled through the phone at Bradwell to “come on over and take on a real man.” N.T. 10/30/91 at 69. Correa then greeted Bradwell at the front door with a gun. Correa opened the door and let Bradwell into the vestibule, despite Bradwell’s threats to kill him. The evidence supports the court’s finding that Correa provoked and continued the altercation.

Correa, moreover, violated his duty to retreat. Although there is no duty to retreat from one’s dwelling, see 18 Pa.C.S.A. § 505(b)(2)(ii)(A), Correa was not in Boyer’s dwelling, let alone his own. A dwelling is defined as “any building or structure though movable or temporary, or a portion thereof, which is for the time being the home or place of lodging of the actor.” 18 Pa.C.S.A. § 501. Correa was in the vestibule on the first floor behind a locked door. Whether Correa was acting to defend himself, or Boyer and her child, he had a duty to retreat from the vestibule back to the apartment. The vestibule is a common area open to all tenants and their invitees, and retreat should be had if possible. Furthermore, whether the vestibule could be considered a “dwelling” is a moot point because an initial aggressor must always retreat. Commonwealth v. Dinkins, 272 Pa.Super. 387, 391-92, 416 A.2d 94, 96 (1979).

III. PIC

Finally, Correa contends there was insufficient evidence to convict him of possession of an instrument of crime. Three elements must be proven beyond a reasonable doubt: (1) possession of an instrument with the intent to employ it criminally; (2) the instrument is one commonly used for criminal purposes; and (3) possession under circumstances not manifestly appropriate for lawful uses. 18 Pa.C.S.A. § 907. See Commonwealth v. Allen, 466 Pa. 474, 477-79, 353 A.2d 452, 454 (1976). Based on the trial court’s findings, we cannot hold that all of these elements have been met. While it is clear that Correa was in possession of the gun, the evidence is insufficient to prove that he intended to employ it criminally.

Usually, the fact finder is free to infer from the actual occurrence of a crime that the actor possessed the instrument with the intent to employ it criminally. See Commonwealth v. Hall, 304 Pa.Super. 489, 498-94, 450 A.2d 1018, 1020 (1982); Commonwealth v. Gonzalez, 515 Pa. 98, 527 A.2d 106 (1987). In this case, however, the trial court held that Correa was acting under an unreasonable belief that his actions were justified: “Moreover, as a matter of law, because this gun was unjustifiably and unlawfully used with a mistaken and imperfectly acceptable subjective state contradicted by the outward, external, and objective circumstances, the necessary constituent element of intent to employ it criminally was also proven.” Trial court opinion at 24. The court’s holding is contradictory. If Correa honestly believed that he was acting in self-defense, as the trial court holds, then he could not have intended to employ the gun criminally, since acting in self-defense is not a crime.

Correa was convicted by the trial court of voluntary manslaughter based on an unreasonable subjective belief that his actions were justified. The PIC law says that the actor must have the intent to employ the instrument criminally. Therefore, possession of an instrument of crime is a specific intent crime. Accordingly, we now hold that when one is convicted of this type of voluntary manslaughter-imperfect self-defense — the requisite intent needed to convict one of possession of an instrument of a crime is necessarily absent. We therefore vacate the sentence imposed for possession of an instrument of crime.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Correa raised these issues on appeal through an ineffective assistance of counsel claim. The test for determining whether counsel was ineffective begins with the inquiry— was the issue of arguable merit? Since we hold that the first two issues do not contain any arguable merit, counsel was not ineffective with regard to those issues. Counsel cannot be ineffective for failing to file a groundless challenge to the sufficiency of the evidence. Commonwealth v. Lee, 401 Pa.Super. 591, 585 A.2d 1084 (1991).

We do however hold that the third issue — counsel’s failure to challenge the sufficiency of the evidence establishing PIC — does have arguable merit. Counsel for Correa did raise the issue in his post-verdict motions, but he did not state in those motions why the evidence was insufficient. The test for ineffective assistance of counsel continues with the following inquiries: (1) did counsel have a reasonable basis for not specifying why the evidence was insufficient, and (2) was the defendant prejudiced by counsel’s inaction? Correa’s counsel obviously had no reasonable basis for not stating in the post-verdict motions why the evidence was insufficient. The law clearly states that “boilerplate” motions will no longer preserve the issue for review. See Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). Correa was clearly prejudiced by his counsel’s inaction since we found the evidence to be insufficient to convict him of possession of an instrument of crime. Correa’s counsel was thus ineffective. We therefore vacate the judgment of sentence for PIC.

The judgment of sentence for voluntary manslaughter is affirmed. The judgment of sentence for possession of an instrument of crime is vacated.

McEWEN, J;, concurs in the result.

Concurring Opinion by DEL SOLE, J.

DEL SOLE, Judge,

concurring:

I join the result reached by the Majority. However, I am troubled by the procedure employed by the trial court in selecting a third expert to testify regarding the cause of death. Following the completion of this non-jury trial, the judge stated he was unable to conclude that the defendant’s action caused the victim’s death. He then retained the services of a third expert whose opinion the judge accepted to resolve the issue. That was error.

The court lost sight of the fact that the Commonwealth has the burden of proof. It is not, nor should it be, the function of the judiciary to assist the prosecution by selecting witnesses to resolve disputed issues. At the conclusion of the presentation of all the evidence, if the trial judge as fact finder could not determine guilt beyond a reasonable doubt, a not guilty verdict should have been entered. Also, by selecting a third expert and relying exclusively on the opinion of that expert, the court abrogated its fact finding function. This function includes considering the testimony of the parties’ experts and accepting or rejecting that testimony. Here the third expert was, in effect, a jury of one.

I agree with the Majority’s statement in footnote 2 of the opinion which discusses the general rule that a trial judge may call witness. However, my review of the Pennsylvania cases suggest that it is only appropriate for trial judges to call fact witnesses, not experts.

In Commonwealth v. DiPasquale, 424 Pa. 500, 230 A.2d 449 (1967), cited by the Majority, the trial judge, at the request of the district attorney, called a witness to the stand. This witness had previously testified for the Commonwealth at the preliminary hearing, but subsequently advised the DA that her statements were false. As a result, she was not called by the prosecution. The Supreme Court reversed the trial court for calling the witness under these circumstances since, by doing so, it allowed the Commonwealth to introduce evidence it was otherwise unable to introduce at that time.

In two additional cases, Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963) and Commonwealth v. Bready, 189 Pa.Super. 427, 150 A.2d 156 (1959) there was found to be no error when a trial judge called additional witnesses. However, in both cases, the witnesses called by the court were fact witnesses, not experts used to resolve a conflict between the opinions of other experts.

Unfortunately, this issue has not been presented to this court. Therefore it is appropriate to affirm the conviction since defense counsel consented to the procedure employed. Had the question been presented in the form of an ineffectiveness argument, I would vacate the judgment of sentence.

      . Boyer procured a Protection from Abuse Order against Bradwell. He was not allowed to come to Boyer’s apartment, and a third party had to transport the child back and forth between the parents.

      . In response to my learned colleague’s opinion in concurrence that it was error for the court to call an expert, we note that our Supreme Court has ruled to the contrary:
      As a general rule a trial judge may in the exercise of a sound discretion call and examine witnesses of his own accord. In fact, under certain circumstances, it is necessary and imperative for the court to do so. As stated in 9 Wigmore, Evidence § 2484 (3d ed. 1940), "The general judicial power itself, expressly allotted in every State Constitution, implies inherently a power to investigate as auxiliary to the power to decide; and the power to investigate implies necessarily a power to summon and question witnesses.”

        Commonwealth v. DiPasquale, 424 Pa. 500, 502-05, 230 A.2d 449, 450-451 (1967) (other citations omitted). We feel that the trial court was entirely within its discretion, as fact-finder, to summon a third expert to clarify the cause of death.

      . We also question whether Correa could have been found to be using the shotgun under circumstances manifestly inappropriate with regard to any lawful use the instrument may have. If he believed he was acting in self-defense, then he would be using the gun in a lawful manner.

      . Although generally the remedy for a successful claim of ineffective assistance of counsel is a new trial, that remedy is not appropriate in this case. The proper remedy for a sufficiency claim is an arrest of judgment, which precludes a retrial on the initial charges. It is this relief to which Correa would have been entitled had his attorney rendered effective assistance as required by the United States and Pennsylvania Constitutions, and it is that remedy which we must grant him here.


source: Caselaw Access Project

author: TAMILIA, Judge. CAVANAUGH, Judge,

license: Public Domain

text:
    648 A.2d 1205
    COMMONWEALTH of Pennsylvania v. Demetris SCALES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 3, 1994.
    Filed Oct. 13, 1994.

      Barnaby Wittels, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, TAMILIA and MONTGOMERY, JJ.
   TAMILIA, Judge.

This case was tried in a bench trial before the Honorable Lisa A. Richette on charges of murder, voluntary manslaughter, involuntary manslaughter, simple assault and aggravated assault, reckless endangerment and failure to stop, identify and render aid, arising out of a homicide by vehicle on June 30, 1992, in the death of Jeremiah Cobb, age five, and injury to Terrell Dekeyser, also five years of age. After a number of preliminary and pretrial proceedings, on February 24,1993, the defendant, who was free on bail, entered a plea of not guilty as to all charges and proceeded to trial before Judgé Richette.

Following trial, appellant was adjudicated guilty of third degree murder, simple assault, reckless endangerment and failure to stop and identify. After exhausting his post-trial remedies, the trial court sentenced appellant to four (4) to ten (10) years’ imprisonment for third degree murder and three (3) to six (6) months for reckless endangerment and three (3) to six (6) months for simple assault, with the sentences to run consecutively. The sentence for violation of the Motor Vehicle Code was suspended.

The sole issue presented by appellant for review by this Court is whether the evidence was sufficient to establish the elements required to convict for third degree murder. Appellant interjects the weight of the evidence issue in the sufficiency of the evidence question.

As to the weight of the evidence claim, the Supreme Court has held that the weight of evidence given to particular facts at trial is largely within the discretion of the trier of fact, in this case the trial judge, and short of total distortion of the facts as determined by the trial court or ignoring a critical fact, the appellate court may not disturb the findings nor substitute its judgment for that of the trial court. See Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987); Commonwealth v. Wallace, 522 Pa. 297, 561 A.2d 719 (1989). Because of dicta in the above cases there was some question as to whether this Court had the right to entertain a challenge to the weight of the evidence. However, in Commonwealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111 (1991) (en banc), this Court held that such a challenge was reviewable. Nevertheless, our review of the evidence clearly supports the trial court’s ruling on the weight of the evidence. This leaves only the issue of whether the evidence was sufficient to sustain a finding of third degree murder. We believe it does.

When reviewing a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, and granting the Commonwealth all reasonable inferences deducible therefrom, the evidence is sufficient to establish all the elements of the offenses beyond a reasonable doubt. Commonwealth v. MacArthur, 427 Pa.Super. 409, 629 A.2d 166 (1993); Commonwealth v. Hilfiger, 419 Pa.Super. 450, 615 A.2d 452 (1992). Malice is the crucial element in question in this review as it is the element which distinguishes murder from other types of homicide. Commonwealth v. White, 366 Pa.Super. 538, 531 A.2d 806 (1987). Specifically, malice is the distinguishing factor between murder and manslaughter. Commonwealth v. Seibert, 424 Pa.Super. 242, 622 A.2d 361 (1993). Under the Crimes Code, the offense of third degree murder incorporates common law malice as an element. 18 Pa.C.S. §§ 2501, 2502(c). That section adheres to the traditional definitions of malice set forth in Commonwealth v. Drum, 58 Pa. 9 (1868):

Malice is a legal term, implying much more. It comprehends not only a particular ill-will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. Murder, therefore, at common law embraces cases where no intent to kill existed, but where the state or frame of mind termed malice, in its legal sense, prevailed.

Malice necessary to support a murder conviction may also exist where a reasonable principal acts in gross deviation from a standard of reasonable care, failing to perceive that such actions might create a substantial and unjustifiable risk of death or serious bodily injury. Stidham v. Millvale Sportsmen’s Club, 421 Pa.Super. 548, 618 A.2d. 945 (1992).

A finding of malice based on a “recklessness of consequences” requires that a defendant be found to have consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily injury. See Commonwealth v. Fierst, 423 Pa.Super. 232, 245, 620 A.2d 1196, 1203 (1993). The Commonwealth, in support of its position that the evidence established that appellant acted with malice, points to Commonwealth v. Urbanski, 426 Pa.Super. 505, 627 A.2d 789 (1993) and Commonwealth v. Pigg, 391 Pa.Super. 418, 571 A.2d 438 (1990).

The crucial facts immediately prior to the fatal consequences of appellant’s reckless behavior are found by the trial court in the testimony of the investigating officer, Robert Byrne. The testimony of Officer Byrne, that the failure of appellant to brake as he scraped a vehicle and then swerved onto the sidewalk striking a concrete planter and then the children produced the fatal result, spanned 33 pages in the trial transcript (T.T., 2/24/93, pp. 25-58). At the estimated speed of the vehicle, 26 miles per hour, the expert testified it would have taken 30 feet to stop. The fatalities would not have occurred if appellant had simply applied the brakes. Instead, when the Cadillac in front of him at the intersection came to a screeching halt, appellant swerved until he was entirely on the sidewalk, apparently never braking, and continuing on his way after striking the children (T.T. at 63-64). Other witnesses testified as to the wanton recklessness and disregard of social consequences to bring the facts of this case within the requirements for third degree murder.

Witness Jean Hargrove saw him speeding one-half block away and “told him to slow down” and “he said, shut up” (T.T. at 68). “He was going fast. Like on the expressway” (T.T. at 68). He then swerved onto Susquehanna and Woodstock without stopping and drove over the curb at 2200 Woodstock.

Teresa Thompson testified she was attempting to cross the street at 2100 Woodstock when appellant approached from the 2000 block of Woodstock traveling 60 miles per hour. “My daughter Jean hollered to him, hey, slow down. He did not slow down” (T.T. at 72).

The witness testified there were about 10 children playing in the block and the court took judicial notice of the fact that in warm weather many children play in the street (T.T. at 70). Richardson Burgess testified he was sitting at 2222 Woodstock when appellant’s car hit his car, swerved between a barrier pole and telephone pole onto the sidewalk traveling 50 to 55 miles per hour. He reflected [sic] off a house, hit the sidewalk and steps and kept going — -he kept accelerating. He never intended to stop- — he showed no signs of stopping (T.T. at 77-78).

Jeanette Rosario testified the appellant’s car came speeding down the block, came over the curb on two wheels, struck the children and, despite her pleas to stop, continued on. She testified he was going more than 25 miles per hour — “real fast — about 60.” (T.T. at 84-85.)

Motor vehicle cases, where our appellate courts have sustained malice/murder convictions, all contain the element of sustained recklessness by the actor in the face of perceptible risk of harm to another person or persons who became victims. The facts derived from the testimony above detail precisely the type of behavior before, during and after the event which must be judged to have been done with a conscious disregard of an unjustified and extremely high risk that appellant’s actions might cause death or serious bodily injury.

Here, appellant was driving an older, heavy and high-powered vehicle, at a high rate of speed in a crowded residential neighborhood, and at a time when children play in the streets and on sidewalks in large numbers. He ignored a stop sign, almost colliding with a vehicle in the intersection. He was told to slow down and responded with “shut up.” After traversing the intersection, apparently without slowing down or braking, he sideswiped another car and swerved onto the curb where he ran into a cement flower container and the children, and without attempting to stop, continued up the street despite calls from bystanders to stop. At no time did it appear appellant was merely reckless, but rather he drove his car as though it were a guided missile which predictably would result in loss of life or serious injury to innocent persons, such as occurred here. The result was just as predictable as if appellant had pointed and fired a gun down the crowded street with people in the line of fire. While the victims could not be foretold with certainty, the likelihood that someone would be injured or killed was highly predictable and certain. This is not a case where it can be said the appellant unintentionally caused the death of another person while violating the law. Malice can be inferred by his refusing to slow down when called upon to do so, shouting “shut up” to the citizen, running a stop sign endangering another motorist in the intersection, sideswiping a car and, with no evidence of braking and some evidence of steering onto the sidewalk between telephone poles and sidewalk guards, continuing on after striking the children, disregarding calls to stop and then fleeing from the scene further up the street when the car stalled. This is not merely homicide by vehicle where an unintentional death is caused by a relatively benign violation of the Motor Vehicle Code or other statute or municipal ordinance. This surpasses the recklessness described as a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. Malice may be implied from the sustained disregard for the lives and safety of people and vehicles in the path of appellant’s vehicle, despite calls to desist and refusing to avail himself of the opportunity to avoid the ultimate harm, loss of the life of the child, simply by applying his brakes when his car swerved or was guided onto the sidewalk. Urbanski and Pigg, supra, cited by the Commonwealth, clearly support the finding of malice based on the facts of this case. The Urbanski Court stated:

Appellant also claims that there was insufficient evidence of malice to support a conviction for third degree murder. Malice, defined as a recklessness of consequences, a mind regardless of social duty, an unjustified disregard for the probability of death or great bodily harm or an extreme indifference to the value of human life, see Commonwealth v. Carroll, 412 Pa. 525, 531, 194 A.2d 911 (1963), can be established by a high blood alcohol content, the absence of weather or road conditions that would explain an accident and an awareness of potential danger. See Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545, 548 (1975). Further, a finding of malice is supported where an accused drives recklessly immediately prior to the accident and ignores the request of another to stop driving. Commonwealth v. Pigg, 391 Pa.Super. 418, 571 A.2d 438, 442, alloc. denied, 525 Pa. 644, 581 A.2d 571 (1990).

Id. 426 Pa.Super. at 513, 627 A.2d at 793 (emphasis added).

Death by motor vehicle is probably the leading cause of traumatic death in this country. According to the National Highway Traffic Safety Administration over 40,000 persons were killed in traffic fatalities in 1991. In recent years, despite substantial increased numbers of drivers, there has been a steady decline in motor vehicle deaths and injuries because of vigorous enforcement of drunk driving and speeding laws. With augmented penalties for controllable behavior such as drunk driving and speeding, society has responded by heightened self-policing of the prohibited behavior. The law has also distinguished the unintentional vehicular homicide resulting from simple negligence and homicide while violating a law but still unintentional. We must make a further distinction between the unintentional vehicular homicides and homicides due to reckless behavior from those as here, where behavior is so focused and deviant that the wantonness of it calls upon a reasonable trier of fact to find malice to be implied. Paradoxically, despite the recent improvement of reasonable persons in controlling antecedent behavior such as drinking, to avoid vehicular accidents and homicides, there is a substantial increase in motor vehicle crimes such as car snatching, car theft and fleeing from the police or using the vehicle in the commission of crimes such as drive-by shootings and robberies. When the actor so far crosses the line of reasonableness, concern for the safety of others and refuses to heed cautionary calls to desist, malice must be implied. Any person who attempts to emulate the driving patterns exhibited in any of the “French Connection,” “Smokey and the Bandit” or “Beverly Hills Cops” films on city streets crowded with children and others, the predictable victims of the irrational behavior, cannot escape having malice implied to his actions. Motor vehicles still outdistance firearms as the most dangerous instrumentality in the hands of irresponsible persons in our society today.

Judgment of sentence affirmed.

CAVANAUGH, J., dissents.

CAVANAUGH, Judge,

dissenting.

Demetris Scales appeals from the judgment of sentence of four and one half to eleven years imposed following his convictions for third degree murder, simple assault, recklessly endangering another person (“REAP”) and failure to stop and identify. The sole issue raised on appeal is whether the evidence was sufficient to establish the malice necessary to sustain a conviction of third degree murder. Because I do not agree with the majority that the evidence was sufficient to establish that appellant acted with malice, I respectfully dissent.

The facts are, indeed, appalling. In the early evening of June 30, 1992, appellant, a twenty-two year old unlicensed driver, was operating a borrowed 1972 Chrysler, at a high rate of speed, in the 2100 block of North Woodstock Street in Philadelphia. North Woodstock is a one way, residential street and is between 22 and 26 feet wide. Nevertheless, there was evidence that while appellant was speeding down Woodstock, a bystander shouted for him to “slow down,” to which he responded, “shut up” and continued on without reducing his speed. As appellant approached the intersection of Woodstock and Susquehanna Avenue, he passed a stop sign and sped into the intersection, where he was forced to swerve to avoid hitting a Cadillac which was travelling west on Susquehanna. Emerging from the intersection and into the 2200 block of North Woodstock, appellant was headed directly for a parked car. In an effort to avoid this car, he turned sharply in the opposite direction. Despite this maneuver, appellant’s vehicle glanced off the parked car; the left wheels of his car became airborne, he traversed the street and went up onto the sidewalk. Appellant’s out-of-control vehicle continued down the sidewalk, knocking down a railing in front of one house and then colliding with a large concrete planter. This collision pushed the planter into five-year old Jeremiah Cobb and five-year old Tirrel Dekeyser, who were playing on the sidewalk. Cobb was crushed to death between the planter and a set of steps. Dekeyser suffered leg injuries. Appellant then drove the car back onto Woodstock Street and fled the scene. The next day he turned himself into police.

Following a non-jury trial before the Honorable Lisa A. Richette, appellant was adjudicated guilty of third degree murder, simple assault, REAP and failure to stop and identify. Post-trial motions were filed by appellant and denied by the trial court. Appellant was sentenced to four to ten years on the murder conviction, three to six months each for simple assault and REAP and the sentence for failure to stop and identify was suspended; all of the sentences imposed were to run consecutively for an aggregate term of four and one-half to eleven years. This appeal followed.

When reviewing a challenge to the sufficiency of the evidence, [this court] must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, and granting the Commonwealth all reasonable inferences deducible therefrom, the evidence is sufficient to establish all the elements of the offenses beyond a reasonable doubt.

Commonwealth v. MacArthur, 427 Pa.Super. 409, 412, 629 A.2d 166, 167 (1993) (citation omitted).

With respect to a charge of third degree murder, the Commonwealth is not required to prove a specific intent to kill. Commonwealth v. Frederick, 327 Pa.Super. 199, 211, 475 A.2d 754, 761 (1984). Malice is the essential element or gravamen of third degree murder and is the distinguishing factor between murder and manslaughter. Commonwealth v. Smouse, 406 Pa.Super. 369, 379, 594 A.2d 666, 671 (1991). Legal malice exists where there is particular ill-will, or where there is wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Commonwealth v. Austin, 394 Pa.Super. 146, 153, 575 A.2d 141, 145 (1990). Where malice is based on recklessness of consequences, it must be shown that the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily injury; mere recklessness, as codified at 18 Pa.C.S.A. § 302(b)(3), is not sufficient to establish the requisite malice for third degree murder. Commonwealth v. Fierst, 423 Pa.Super. 232, 245, 620 A.2d 1196, 1203 (1993).

Here, both the majority and the trial court have concluded that the evidence adduced at trial unquestionably supported the inference that appellant acted with malice. I cannot agree. Although appellant’s conduct was reckless, it was not the type of conduct which, under the framework of Pennsylvania statutory and caselaw, is sufficient to permit a finding of malice which would sustain a conviction of third degree murder. See Commonwealth v. Miller, 426 Pa.Super. 410, 627 A.2d 741 (1993) (where defendant’s two infant daughters died from malnutrition and dehydration, as a result of defendant’s failure to provide nourishment and care, defendant’s reckless conduct rose to the level of malice, and thus, supported conviction for third degree murder); Commonwealth v. Seibert, 424 Pa.Super. 242, 622 A.2d 361 (1993) (where defendant placed gun against victim’s head, not knowing whether it was loaded, and pulled the trigger, defendant’s reckless conduct constituted malice which would sustain a conviction for third degree murder, even though defendant and victim were friends and there was no animosity between them on the date of the homicide); Commonwealth v. Cottam, 420 Pa.Super. 311, 616 A.2d 988 (1992) (defendants’ conscious disregard of an unjustified and extremely high risk that their actions might cause serious bodily injury to their son, constituted the malice necessary to support a third degree murder conviction, where defendants’ knew their son was near death, they failed to seek aid on his behalf and son subsequently died from starvation and malnutrition); Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176 (1982) (defendant’s conduct in directing his brother to bring him a loaded rifle and then firing rifle in direction of another person, constituted a conscious disregard of an unjustified and extremely high risk that his actions might cause death or serious bodily injury and thus, amounted to such malice as to constitute conspiracy to commit third degree murder); Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981) (where defendant points a gun at his victim and shoots him, even though he claims he did not know the gun was loaded and that he only intended to scare the victim, his conduct nevertheless amounts to a conscious disregard of an unjustified and extremely high risk that his actions might cause death or serious bodily injury, and thus, constitutes malice which will sustain a conviction for third degree murder); Commonwealth v. Coleman, 455 Pa. 508, 318 A.2d 716 (1974) (defendant’s act of waiving loaded gun inside a bus, firing gun at seat and killing passenger who was hiding behind seat, constituted malice necessary to sustain a conviction of second degree murder).

These cases illustrate the type of egregious conduct which a defendant must exhibit before he will be adjudged guilty of third degree murder. As noted, a finding of malice based on a “recklessness of consequences” requires that a defendant be found to have “consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily injury.” See Fierst, supra. The above cases suggest that this definition requires that, in order to find malice, a defendant must display a disregard for almost certain death or injury such that it is tantamount to an actual desire to injure or kill; or his conduct must, at the very least, be of the type from which one could reasonably anticipate that death or serious bodily injury would be the likely and logical consequence. In each case the actor can fairly be charged with acting recklessly with a known risk to another person or persons. In light of the above third degree murder cases and the facts of this case, I cannot conclude that appellant’s conduct, although reckless, was of such a degree that it was tantamount to an actual desire to injure or kill; or that it was the type from which one could reasonably anticipate the likely and logical consequence to be the death of one five year old and the serious injury of another. Rather, appellant’s conduct is much more aptly described as a gross deviation from the standard of conduct that a reasonable person would observe in his position; in other words, appellant acted recklessly. See note 8, supra. As such, I cannot agree with the majority that the evidence offered at trial was sufficient to support a finding that appellant acted with malice, and thus, sustain his conviction for third degree murder. Motor vehicle cases, where our appellate courts have sustained malice/murder convictions, all contain the element of sustained recklessness by the actor in the face of perceptible risk of harm to another person or persons who became the victim(s). In the instant case, the ultimate harm occurred after the vehicle careened out-of-control after appellant’s antecedent recklessness.

Although my analysis is complete for dispositional purposes, I believe that further comment is warranted in view of the trial court’s adjudication of appellant as guilty, on the facts present in this case, of an offense as serious as third degree murder. As this court noted in Pigg, supra: “[I]t is rare for a death caused by vehicular incident to give rise to a conviction of third degree murder.” Id. 391 Pa.Super. at 426, 571 A.2d at 441. I fully agree, and believe that the homicide by vehicle statute was meant to fill the gap, in the crimes and vehicle codes, which was created by the type of outrageous and culpable vehicular killings which the present case typifies. This belief is supported by our supreme court’s comment in Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), where the court stated: “In our view it was the legislative judgment in enacting section 3732 [homicide by vehicle] to expand the scope of criminal liability for violations of the Vehicle Code causing death.” Id. 490 Pa. at 525 n. 4, 417 A.2d at 163 n. 4.

Third degree murder and homicide by vehicle are two very different crimes which require proof of different levels of culpability, protect different interests and provide different criminal penalties. As previously noted, third degree murder requires proof that the defendant acted with malice. See Smouse, supra. Homicide by vehicle, on the other hand, also requires criminally culpable conduct, but of a lesser degree; a conviction of homicide by vehicle will be upheld where a defendant acted recklessly or was criminally negligent. Commonwealth v. Heck, 517 Pa. 192, 200-01, 535 A.2d 575, 579-80 (1987).

The respective sentencing schemes for third degree murder and homicide by vehicle also bear out the fact that they are substantially different crimes. Third degree murder is a felony of the first degree, with a standard range minimum sentence of sixty to one hundred and twenty months. It carries a maximum penalty of twenty years imprisonment. Homicide by vehicle, on the other hand, is a first degree misdemeanor with a standard range minimum sentence of zero to twelve months. It carries a maximum penalty of five years imprisonment.

The disparity between the crimes of third degree murder and homicide by vehicle only serve to underscore the fact that fatalities resulting from vehicular incidents should only rarely be classified as malicious in nature. Rather, the type of conduct present in the case at bar, fits more readily into the reckless and criminally negligent type of behavior which is covered by the homicide by vehicle statute. As such, I believe that the homicide by vehicle statute provides the appropriate criminal sanction in this case and cases which are factually similar.

I also highlight the inconsistency of the trial court’s verdict of guilty of third degree murder but not guilty of homicide by vehicle and involuntary manslaughter. Although I am fully cognizant that a judge may render inconsistent verdicts, and that a verdict of guilt will not be disturbed on the basis of an apparent inconsistency so long as there is sufficient evidence to support it,1 am nonetheless perplexed by the inconsistency in these verdicts. Notwithstanding the fact that I believe the evidence insufficient to support a finding of guilt of third degree murder, the evidence adduced at trial would seem to overwhelmingly support a finding of guilt of both homicide by vehicle and involuntary manslaughter.

Specifically, with respect to a prosecution for homicide by vehicle, the Commonwealth is required to prove that: (1) appellant drove in a manner that violated the Motor Vehicle Code; (2) appellant knew or should have known that his conduct violated the law; and (3) the death was the probable result of the Motor Vehicle Code violation. Commonwealth v. Bowser, 425 Pa.Super. 24, 31-32, 624 A.2d 125, 129 (1993). Additionally, the Commonwealth must show that appellant acted recklessly or was criminally negligent. See Heck, supra. In its opinion, the trial court stated, “The defendant willfully drove through a stop sign. This act caused him to swerve around a car that was lawfully proceeding through the intersection and began the sequence of events that caused him to lose control of his car. The defendant could have avoided this catastrophe by stopping at the stop sign, but he did not.” Despite this conclusion, the trial court adjudicated appellant not guilty of homicide by vehicle.

Finally, I note with approval the cogent and well-reasoned concurring opinion of the Honorable John G. Brosky in Urbanski, supra. Although that case involved a conviction for third degree murder where the defendant had been driving while intoxicated, much of Judge Brosky’s reasoning applies equally as well in the case of a vehicular homicide where there is no alcohol in the driver’s system. Judge Brosky stated, in pertinent part:

I do not favor the practice of “squeezing” criminal conduct to fit into definitions of crimes for which it was unlikely meant. Murder, of any degree, is among the most egregious and serious offenses found in our crimes code, and, as the name of that offense suggests, ordinarily encompasses either intent to kill or malicious design. The word “malice” generally connotes evil disposition and a desire to injure or harm, something greater than carelessness or recklessness ____
This is not to say that such conduct should go unpunished, the conduct of appellant is clearly criminal under our law, and should be punished according to law. However, there are crimes delineated in the vehicle code and crimes code which more properly encompasses the conduct which took place in the present case....
It seems to me that to find the evidence presented here sufficient for a third degree murder conviction, particularly under the rationale provided, is to negate the need for the crime of homicide by motor vehicle ... altogether. Any incident which would satisfy those elements would appear to also satisfy those required for third degree murder, or involuntary manslaughter. Since it is contrary to the rules of statutory construction to presume that the legislature is creating a wholly superfluous crime, I believe that third degree murder in a vehicular context requires a showing of malice ... defined as an actual desire to injure or kill or cause suffering to another or conduct that suggests a disregard for almost certain death or injury such that it is tantamount to the same. I do not think the evidence here established such malice.

Urbanski, supra, at 515-19, 627 A.2d at 794-96 (Brosky, J., concurring).

Because I believe that the evidence presented at trial was insufficient to establish the requisite malice to sustain a verdict of guilty of third degree murder, I would reverse the trial court’s judgment of sentence of four to ten years on the murder conviction. This is not to say that a defendant who causes the death of another in a vehicular incident can never be found guilty of third degree murder. Where a defendant’s conduct rises to the level of malice, as illustrated by the third degree murder cases cited supra, a conviction for third degree murder may be the appropriate criminal sanction. The conduct in this case, however, does not rise to that level of culpability. Malice, both in general and in a vehicular context, requires the disregard of a much more substantial risk and a greater certainty of death or injury than was present in this case. Accordingly, I would reverse the trial court’s judgment of sentence on appellant’s conviction of third degree murder.

      . 18 Pa.C.S. § 2502.

      . Id., § 2503.

      . Id., § 2504.

      . Id., § 2701.

      . Id., § 2702.

      . Id., § 2705.

      . Id., 75 Pa.C.S. § 3742.

      . 18 Pa.C.S.A. § 2502(c).

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 2705.

      . 75 Pa.C.S.A. § 3742.

      . Appellant has framed his sole issue on appeal in terms of a challenge to the sufficiency of the evidence. His argument, however, intermixes the distinct legal concepts of sufficiency of the evidence and weight of the evidence. In these circumstances, this court would normally address both issues. However, because I believe appellant is entitled to relief on his sufficiency claim, a review of his challenge to the weight of the evidence is unnecessary.

      . At trial, it was established through both Commonwealth and defense experts, that appellant was travelling at approximately 26 miles per hour at this point. The Commonwealth’s expert also testified that, despite a lack of physical evidence, it was his opinion that appellant did not apply his vehicle's brakes at this point or at any point thereafter.

      . The trial court's on-record rendition of the verdicts did not refer to the companion charges of aggravated assault, voluntary manslaughter, involuntary manslaughter and homicide by vehicle. The record, however, indicates that on the charging bills of indictment, the official signed verdict of the trial court was not guilty as to each of these four alleged additional offenses.

      . Section 302(b)(3) reads:
      A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.

      18 Pa.C.S.A. § 302(b)(3) (emphasis added).

      . At the time Coleman was decided, second degree murder contained the same elements which presently constitute third degree murder.

      . Neither the Commonwealth nor the trial court has pointed to, nor am I aware of, any cases which are factually analogous to the case at bar. The Commonwealth, in support of its position that the evidence established that appellant acted with malice, points to Commonwealth v. Urbanski, 426 Pa.Super. 505, 627 A.2d 789 (1993) and Commonwealth v. Pigg, 391 Pa.Super. 418, 571 A.2d 438 (1990).
      In Urbanski, defendant, while intoxicated, operated his vehicle at a high rate of speed and in a reckless and erratic manner, despite his passenger/wife’s repeated requests that he stop. Defendant’s response to his wife’s pleas was to alternately hit the gas and brake pedals, causing his passengers to be flung backward and forward in their seats. Shortly after beginning this wild maneuvering, defendant’s vehicle crossed over the oncoming lanes of traffic, crashed violently into a fence and then into a huge boulder. This impact resulted in the death of defendant's wife. This court affirmed defendant’s conviction of third degree murder stressing that defendant had a dangerously high blood alcohol level (over twice the legal limit) and that defendant, "was or should have been aware of the danger of driving so fast and so recklessly, especially after having had so much to drink.” Urbanski, supra, 426 Pa.Super. at 513, 627 A.2d at 793. The panel also noted that defendant’s wife repeatedly reminded him of the danger and asked him numerous times if she could drive the car.
      In Pigg, defendant, while intoxicated, drove his 18 wheeled tractor trailer in a reckless manner, running several cars off the road, nearly hitting an oncoming car in its lane of travel and later going up onto the curb and knocking down a sign and pole. The defendant, when he had pulled over momentarily, also refused to listen to a motorist who had observed his erratic driving and had begged him to stop. Ignoring this motorist’s pleas, defendant pressed on, travelling down a narrow road and into a blind curve where he crashed into a car in its lane of travel, killing two of the car’s occupants. Following defendant’s conviction for third degree murder, a panel of this court affirmed this conviction, stressing defendant’s severe intoxication (at least three times the legal limit), the lethal and ravaging force of an 18 wheeled tractor trailer and the fact that defendant was aware of the danger he posed to others, yet willfully continued to pursue a dangerous course of conduct.
      Based upon my review of these cases, I find that the severe intoxication of each of the defendants is a factor which distinguishes them from the case at bar. The strong component of intoxication present in these cases lends a shocking aspect to the conduct of the defendants and raises their conduct to the level of malice. Such an extreme level of intoxication in a person operating a motor vehicle is an aggravating circumstance which can raise one’s conduct, which may otherwise only be considered reckless, to the level of malice. Additionally, I note that in Pigg, the evidence that defendant acted with malice is greater in view of his operation of an instrumentality as large and potentially destructive as an 18 wheeled tractor trailer and the fact that another motorist begged him to stop just prior to the fatal crash.
      Finally, both Urbanski and Pigg rely on our supreme court's decision in Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975), where Justice (now Chief Justice) Nix, in a plurality opinion, concluded that defendant, whose car hit two children while they were riding their bicycles, killing one of them, acted with malice when he operated his car at a high rate of speed while intoxicated. The plurality further stated with regard to its finding of malice that, "the trier of fact was ... justified in imputing to the appellant a consciousness of peril or probable peril to human life [that] his actions caused.” Id. at 565, 337 A.2d at 548. Once again, the severe intoxication in Taylor distinguishes it from the present case such that I must conclude that the trier of fact in the case at bar was not justified in imputing to appellant, by virtue of his conduct, "a consciousness of peril or probable peril to human life.” Thus, I find the cases cited by the Commonwealth, and relied upon by the majority, unhelpful to the resolution of the present case.

      . The homicide by vehicle statute provides:
      Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic ... is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.
      75 Pa.C.S.A. § 3732.

      . See 18 Pa.C.S.A. § 1103(1).

      . Although the record is silent as to appellant's prior record score, a review of the sentencing transcript reveals that the range of sentences recited by the trial court was consistent with a defendant who possessed a prior record score of two. Thus, I have used this score in computing the minimum sentences for both third degree murder and homicide by vehicle.

      . See 18 Pa.C.S.A. § 1104(1).

      . I find this court’s recent decision in Commonwealth v. Swann, 431 Pa.Super. 125, 635 A.2d 1103 (1994) more analogous to the case at bar than the third degree murder cases cited supra. In Swann, defendant was speeding, tailgating and swerving as he drove along Roosevelt Boulevard in Philadelphia. As he attempted to change lanes, he lost control of his vehicle, crossed the median and struck another car killing its driver. Following a trial by jury, defendant was found guilty of homicide by vehicle and not guilty of involuntary manslaughter. The trial court subsequently arrested judgment of the homicide by vehicle conviction. On appeal, this court reversed the trial court’s order arresting judgment and remanded for resentencing, concluding that the elements of homicide by vehicle had been sufficiently established.

      . These adjudications of not guilty were not accompanied by any explanation on the record.

      . See Wanamaker, supra, 298 Pa.Super. at 288, 444 A.2d at 1178.

      . See Commonwealth v. Boyles, 407 Pa.Super. 343, 350, 595 A.2d 1180, 1184 (1991).

      . In spite of my comment that, in my view, the evidence would overwhelmingly support convictions for involuntary manslaughter and homicide by vehicle, I am well aware that an appellate court may not disturb the trial court’s verdict of not guilty of these alleged offenses. "A defendant is acquitted when the ruling of the judge represents a resolution in the defendant’s favor, correct or not, of some or all of the factual elements of the offense charged.’’ MacArthur, supra, 427 Pa.Super. at 411 n. 1, 629 A.2d at 167 n. 1. Reduction of the degree of homicide from third degree murder to involuntary manslaughter or homicide by vehicle, in these circumstances, would violate the principles of double jeopardy. Id. Thus, my comments have been made for illustrative purposes only.

      . In a vehicular context, malice could be found when a death is caused by a driver who knowingly sped headlong into a group of pedestrians, or engaged in highly dangerous “daredevil” driving, or participated in a dangerous game such as “chicken,” or was intoxicated when he engaged in these types of behavior. See Urbanski, supra, at 518, 627 A.2d at 796.


author: HUDOCK, Judge:

text:
    648 A.2d 1214
    John E. JACKSON, Sr. and Pauline M. Jackson in their own Right and John E. Jackson, Sr. as Administrator of the Estate of Amanda Lynn Jackson, Deceased, Appellants, v. TASTYKAKE, INC. v. Pauline M. JACKSON, A. Gary Oberholtzer, D.O., and Pennsylvania Hospital.
    Superior Court of Pennsylvania.
    Submitted March 18, 1991.
    Filed Oct. 14, 1994.

      J. Craig Currie, Philadelphia, for appellants.
    H. Coleman Switkay, Philadelphia, for Tastykake, appellee.
    Daniel F. Ryan, III, Plymouth Meeting, for Oberholtzer, appellee.
    Adrian R. King, Philadelphia, for Pennsylvania Hosp., appellee.
    Before DEL SOLE, TAMILIA and HUDOCK, JJ.
   OPINION BY

HUDOCK, Judge:

This matter comes to us from an order of the Pennsylvania Supreme Court which remanded the action to our Court, 537 Pa. 232, 643 A.2d 61 (1994). The Supreme Court granted allocatur following our unpublished memorandum decision at Jackson v. Tastykake, Inc., 414 Pa.Super. 657, 598 A.2d 1336 (1991). The matter originally came before our Court in an appeal from the grant of preliminary objections in the form of a demurrer in favor of Appellees. The trial court’s opinion in support of its order stated that Appellants had failed to state a cause of action for recovery under the Pennsylvania Wrongful Death and Survival Statutes for the death of a child born prematurely, and who lived outside the womb for only ten hours. The trial court did not address the other preliminary objections raised by Appellees. Following our review of the appeal, we reversed and remanded to the trial court to permit Appellants to amend their complaint to allege that the decedent was viable at the point of death as was required by the state of the law in Pennsylvania. Pursuant to the petition for allocatur, the Supreme Court remanded to us following their decision in Hudak v. Georgy, 535 Pa. 152, 634 A.2d 600 (1993), which held that an “infant born alive is, without qualification, a person. Since live birth has always been and should remain a clear line of demarcation, an action for wrongful death and survival can be maintained on behalf of the [decedents].” Id. at 157, 634 A.2d at 603. We were ordered by the Supreme Court to consider the remaining issues presented by Appellants in their appeal to our Court.

The issues raised by Appellants in their initial appeal were:

(1) Whether the trial court erred in its determination that the pleadings of the plaintiffs failed to state a cause of action under Pennsylvania law pursuant to the Wrongful Death Act or the Survival Statute[?]
(2) Whether the trial court abused its discretion in granting the defendant’s Preliminary Objections in the Nature of a Demurrer and dismissing the plaintiffs’ Complaint with prejudice^]

Appellants’ Brief at p. 3.

As we held originally, Appellants’ cause of action under the Wrongful Death and Survival Statutes was determined by the trial court to be impeded by the failure to plead viability. Because that element is now not required, it is apparent that Appellants have stated a cause of action under those two statutes, and we therefore would remand for reinstatement of Appellants’ cause of action relating to those two statutes.

That, however, does not end our consideration because Appellees raised two additional preliminary objections, which must be resolved. The standard of review this Court applies when reviewing a grant of preliminary objections in the nature of a demurrer is quite strict.

A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law. In order to sustain the demurrer, it is essential that the plaintiffs complaint indicate on its face that his claim cannot be sustained, and the law will not permit recovery. If there is any doubt, this should be resolved in favor of overruling the demurrer.

Gekas v. Shapp, 469 Pa. 1, 5-6, 364 A.2d 691, 693 (1976) (citations omitted).

First, Appellees claim that Appellants are barred from any recovery because of the Workers’ Compensation Law. 77 Pa.S. § 1 et seq. The facts as pled were that Mrs. Jackson was at work when she went into premature labor. As a result of that labor, the Appellant-child was born at 26 weeks gestation. This child died some 10 hours after delivery. Appellees argue that the Workers’ Compensation Law bars Appellants’ recovery and cites the following language of the act:

The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.

77 Pa.S. § 481(a) (footnotes omitted). Appellees would have us find that the injury involved in this incident is Mrs. Jackson’s premature labor. This would be true if the injury claimed by Appellants was that to Mrs. Jackson. See Northeastern Hosp. v. W.C.A.B., 134 Pa.Cmwlth. 164, 578 A.2d 83 (1990) (where plaintiff went into premature labor which was brought on by the conditions of her employment). That, however, is not the injury that is claimed. Appellants are claiming an injury to the child, and that is an entirely different type of injury, one not covered by the Workers’ Compensation Law. Injury is defined by the Workers’ Compensation Act, in pertinent part, as follows:

The terms “injury” and “personal injury,” as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto,____

77 Pa.S. § 411(1).

Were we to follow Appellees’ reasoning to its logical conclusion, we would have to find that the Workers’ Compensation Law would prohibit the recovery by a relative who was visiting the employee at the job site when an accident occurred causing injury to the relative. There would be no employer/employee relationship as to the relative, in our hypothetical situation, and clearly the Workers’ Compensation Law would not bar the relative’s recovery for their injury. Similarly, the mere presence of the child in útero does not create an employer/employee relationship as to the child, and, consequently, the Workers’ Compensation Law cannot be said to bar recovery by the child for the injury it sustained while present at Tastykake’s facility.

Although not binding precedent on this Court, we find the decision of Pupo v. Janney Cylinder Co., 12 D. & C.3d 617 (1979), to be based on sound reasoning and, therefore, persuasive. The trial court stated the following in its discussion of the exclusivity provisions of the Workers’ Compensation Law:

Counsel for plaintiffs takes the position that in Pennsylvania the right of a minor to sue for injuries sustained en ventre sa mere is now well established (Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960)), and that a minor’s suit is not barred by the Act solely because the injury to the minor occurred when the mother was injured on the job at a time when the minor was a fetus of approximately 25 weeks. For this reason, asserts counsel, the exclusiveness provision of the Act cannot be a bar to the minor’s suit for her own injuries. In support of this position, counsel notes that in 77 P.S. § 411(1) the Act defines an injury as follows: “The terms ‘injury’ and ‘personal injury,’ as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto.... ” (Emphasis supplied).
We agree that the minor’s cause of action does not derive from any workmen’s compensation claim the parent may have against the employer. Obviously the minor was not an employe within the meaning of the Act and her claim must be decided on its own merits....

Id. at 619-620. Appellees’ preliminary objection based upon the Workers’ Compensation Act was improperly sustained.

Finally, we turn to the preliminary objection raised concerning whether Appellants are entitled to base a cause of action on loss of the child’s companionship, comfort and society (consortium). Our decision in McCaskill v. Philadelphia Housing Authority, 419 Pa.Super. 313, 615 A.2d 382 (1992), disposes of this issue as follows:

We now turn to the second issue presented in this appeal: whether parents of a fetus can maintain a cause of action for the loss of consortium of their potential child. While McCaskill recognizes that claims for the loss of filial consortium have never been recognized in this jurisdiction, she urges this Court to abandon the established common-law and grant her recovery on this claim. We decline to do so.

In Quinn v. City of Pittsburgh, 243 Pa. 521, 90 A. 353 (1914), our supreme court stated that claims for loss of consortium are limited to spouses and do not extend to the loss of a child’s consortium. This rule has remained undisturbed as the law of this jurisdiction. See e.g. Schroeder v. Ear, Nose and Throat Assoc., 383 Pa.Super. 440, 557 A.2d 21 (1989), appeal denied, 523 Pa. 650, 567 A.2d 653 (1989); Brower by Brower v. City of Philadelphia, 124 Pa.Cmwlth. 586, 557 A.2d 48 (1989), appeal denied, 525 Pa. 604, 575 A.2d 569 (1990).

In Schroeder, the appellants were the parents of a fetus which was aborted during the course of medical treatment for the mother. There, holding that the appellants had put forth no cause of action we stated:

We conclude that because there is no constitutional mandate compelling us to recognize a cause of action for loss of filial consortium, because there is presently no legal basis for allowing the cause of action, because there is no general or growing consensus that such a cause of action should be established, and because to allow such a cause of action is a policy determination which can most thoroughly and representatively be considered by the legislature, we do not recognize a parent’s cause of action for loss of a child’s consortium due to tortious interference of a third party.

Id. [383 Pa.Super.], at 444-445, 557 A.2d at 23, paraphrasing Steiner by Steiner v. Bell Telephone Co., 358 Pa.Super. 505, 522, 517 A.2d 1348, 1357 (1986), aff'd, 518 Pa. 57, 540 A.2d 266 (1988).

As an intermediate appellate court, we will not recognize this cause of action where there is clear and binding precedent to the contrary. Quinn, supra____

Id. 419 Pa.Super. at 318-19, 615 A.2d at 384-385. Therefore, the trial court in our present case properly granted the preliminary objections as to this issue.

We reverse and remand to the trial court to reinstate the complaint on the claim for recovery under the Wrongful Death and Survival Statutes. The Workers’ Compensation Act is not a bar to Appellants’ recovery. Finally, grant of preliminary objections as to loss of filial consortium is affirmed, there being no cause of action in Pennsylvania for recovery under this theory.

Reversed and remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished.

      . 42 Pa.C.S. §§ 8301 and 8302.

      . Appellee, Tastykake Inc., raised five (5) preliminary objections:
      (1) no cause of action under wrongful death and survival statutes for a non-viable fetus;
      (2) [Appellants] barred from recovery by Workers' Compensation Act as exclusive remedy for injuries which allegedly arose during the course of employment;

        (3) [Appellants’] claim for punitive damages not available in wrongful death action and complaint fails to state a cause of action pursuant to the survival statute; *
      (4) [Appellants’] claim for "consortium” of decedent child not a legally cognizable cause of action; and
      (5) [Appellants’] claim for the "loss of life’s pleasures” by the decedent child is not a legally cognizable cause of action.

       Appellants acquiesced in Tastykake, Inc.'s preliminary objections on these two claims. They are, therefore, not a part of the original appeal before our Court.


author: HESTER, Judge.

text:
    648 A.2d 1218
    ACME MARKETS, INC., Appellant, v. FEDERAL ARMORED EXPRESS, INC.
    Superior Court of Pennsylvania.
    Argued June 30, 1994.
    Filed Oct. 21, 1994.

      Stephen M. Donweber, Philadelphia, for appellant.
    Joseph J. Bellew, Philadelphia, for appellee.
    Before BECK, HUDOCK and HESTER, JJ.
   HESTER, Judge.

Acme Markets, Inc., appeals from the order entered in the Court of Common Pleas of Montgomery County on December 21,1993, which granted Federal Armored Express, Inc. (“Federal”) summary judgment. For the reasons set forth below, we reverse that order and remand the matter for further proceedings.

The procedural history of this case may be summarized as follows. On November 20, 1990, appellant filed a breach of contract complaint against Federal. In that complaint, appellant alleged that the parties had entered into a contract for armored car service and that the agreement later was amended to provide for the timely reimbursement of service-related losses. In addition, appellant averred that a Federal employee was robbed on May 19, 1990, after accepting possession of one of appellant’s cashbags. Finally, appellant asserted that even though it had notified Federal promptly of the $62,544.32 loss, Federal had not made the reimbursement required by the agreement. Consequently, appellant requested, among other things, an award of damages equivalent to the amount of the loss.

On September 26,1991, following the effectuation of service, appellant filed an answer and new matter. In connection with one of the defenses asserted in that document, Federal relied upon the fifth paragraph of the agreement which provides, “Responsibility of Federal under this contract shall begin when said [cash]bags or packages have been accepted and receipted for by Federal or its authorized employees, and shall terminate upon delivery to consignee or upon return to shipper.” See Complaint at exhibit A. Specifically, Federal claimed that it bore no responsibility for the loss since neither it nor any of its employees had accepted the bag or provided the necessary receipt prior to the robbery.

On June 30,1993, claiming that discovery was complete and that an examination of the record revealed no genuine issue of material fact, appellant moved for summary judgment. Federal responded by filing a cross-motion for summary judgment in which it acknowledged that one of its employees possessed appellant’s cashbag at the time of the robbery. In addition, Federal noted that neither party disputed the fact that the employee in question had not provided a receipt for the bag prior to its loss. Consequently, relying upon both the fifth paragraph of the agreement and an affidavit demonstrating that the receipt requirement conformed with the custom of the armored car industry, Federal requested the entrance of judgment in its favor. On December 21, 1993, the trial court concluded that the fifth paragraph constituted a condition precedent to Federal’s liability under the agreement. Thus, the court denied appellant’s summary judgment motion and granted Federal relief. This timely appeal followed.

Preliminarily, we note that our scope of review from a grant of summary judgment is plenary. See Schriver v. Mazziotti, 432 Pa.Super. 276, 638 A.2d 224 (1994); Mellon v. Barre-National Drug Co., 431 Pa.Super. 175, 636 A.2d 187 (1993); American States Insurance Co. v. Maryland Casualty Co., 427 Pa.Super. 170, 628 A.2d 880 (1993).

In reviewing an order granting a motion for summary judgment, we must view the record in the light most favorable to the non-moving party. Dorohovich v. West American Insurance Co., 403 Pa.Super. 412, 589 A.2d 252 (1991). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). Moreover, in summary judgment proceedings, it is not the court’s function to determine the facts, but only to determine if an issue of material fact exists. Godlewski v. Pars Manufacturing Co., 408 Pa.Super. 425, 597 A.2d 106 (1991). Summary judgment should only be granted in those cases which are free and clear from doubt. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983).
Summary judgment is proper only where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the trial court’s conclusion that no genuine issue of material fact exists and [that] the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).

American States Insurance Co. v. Maryland Casualty Co., supra, 427 Pa.Super. at 180-81, 628 A.2d at 885-86. Furthermore, we will not overturn a trial court’s grant of summary judgment in the absence of either an error of law or a clear abuse of discretion. See Mellon v. Barre-National Drug Co., supra. Keeping these principles in mind, we consider the propriety of the contested summary judgment grant.

Appellant asserts that the trial court erroneously concluded that the fifth paragraph of the agreement constituted a condition precedent to Federal’s liability for the lost bag. Specifically, appellant argues that since the paragraph was not labelled a condition precedent and does not contain other language normally associated with such a condition, “[t]here is no means by which to state with the certainty required by Pennsylvania law that it creates a condition precedent.” Appellant’s brief at 13. We find appellant’s claim devoid of merit.

Initially, we note that a condition precedent may be defined as a condition which must occur before a duty to perform under a contract arises. See Village Beer and Beverage, Inc. v. Vernon D. Cox & Co., 327 Pa.Super. 99, 475 A.2d 117 (1984). While the parties to a contract need not utilize any particular words to create a condition precedent, an act or event designated in a contract will not be construed as constituting one unless that clearly appears to have been the parties’ intention. See Estate of Barilla, 369 Pa.Super. 213, 535 A.2d 125 (1987); see also Joseph Paolino & Sons v. City of Philadelphia, 429 Pa.Super. 191, 631 A.2d 1353 (1993). In addition, we note that the purpose of any condition set forth in a contract must be determined in accordance with the general rules of contractual interpretation. See Estate of Barilla, supra; see also Joseph Paolino & Sons v. City of Philadelphia, supra. Those rules may be summarized as follows.

When construing agreements involving clear and unambiguous terms, this Court need only examine the writing itself to give effect to the partiesf] understanding. McMahon v. McMahon, 417 Pa.Super. 592, 612 A.2d 1360 (1992) (en banc). The court must construe the contract only as written and may not modify the plain meaning of the words under the guise of interpretation. Trumpp v. Trumpp, 351 Pa.Super. 205, 505 A.2d 601 (1985). When the terms of a written contract are clear, this Court will not re-write it to give it a construction in conflict with the accepted and plain meaning of the language used. Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981). Conversely, when the language is ambiguous and the intention of the parties cannot be reasonably ascertained from the language of the writing alone, the parol evidence rule does not apply to the admission of oral testimony to show both the intent of the parties and the circumstances attending the execution of the contract. Dewitt v. Kaiser, 335 Pa.Super. 258, 484 A.2d 121 (1984).

Creeks v. Creeks, 422 Pa.Super. 432, 435, 619 A.2d 754, 756 (1993).

In the present case, the contested paragraph indicates that Federal’s responsibility under the contract “shall begin when ... bags or packages have been accepted and receipted for by Federal or its employees.... ” Complaint at exhibit A. Our reading of this plain language demonstrates that it clearly and unambiguously conditions Federal’s performance under the contract upon both the acceptance of bags or packages and the granting of a receipt for them. Thus, it unquestionably delineates a condition precedent involving those requirements.

Since we have found that Federal’s liability under the contract was subject to a condition precedent and neither party disputes that the receipt portion of the condition remained unfulfilled at the time of the robbery, we must determine whether satisfaction of that requirement may be excused. Apparently arguing that strict application of the condition would be unfair, appellant asserts that the receipt requirement was immaterial and could only be seen as incidental to the far more significant satisfied requirement of possession and acceptance by Federal’s employee of appellant’s property. See Appellant’s brief at 15.

Restatement (Second) of Contracts § 229 discusses the excuse of a condition to avoid unfairness in connection with its strict enforcement. More specifically, that section relates to the excuse of a condition leading to a forfeiture, a term referring to “the denial of compensation that results when the obligee loses his right to the agreed exchange after he has relied substantially, as by preparation or performance on the expectation of that exchánge.” Restatement (Second) of Contracts § 229, comment b. Section 229 provides, “To the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange.” Restatement (Second) of Contracts § 229. Since Pennsylvania law “abhors forfeitures and penalties and enforces them with the greatest reluctance when a proper case is presented[,]” Fogel Refrigerator Co. v. Oteri, 391 Pa. 188, 195, 137 A.2d 225, 231 (1958), section 229 is consistent with the law of this Commonwealth. See also Jackson v. Richards 5 & 10, Inc., 289 Pa.Super. 445, 433 A.2d 888 (1981) (indicating that forfeitures meet with great disfavor under the law and utilizing a discussion of a tentative Restatement draft to excuse performance on an express condition). Consequently, we will apply it in the present case.

There can be little doubt that the operation of the condition in question will lead to a forfeiture since the condition’s nonoccurrence results in the denial of compensation for the loss of a cashbag possessed by Federal for transportation in accordance with the contract. Thus, the question becomes whether the forfeiture would be disproportionate.

In determining whether the forfeiture is “disproportionate,” [the] court must weigh the extent of the forfeiture by the obligee against the importance to the obligor of the risk from which he sought to be protected and the degree to which that protection will be lost if the nonoccurrence of the condition is excused to the extent required to prevent forfeiture.

Restatement (Second) of Contracts § 229, comment b.

In the present case, appellant obviously entered into the armored car service contract so that it would have a secure method of transporting cash and checks to the bank. Strict application of the condition precedent would result in the loss of appellant’s ability to recover from Federal for the theft of the bag entrusted to Federal’s care. Moreover, we believe that the receipting requirement was intended to provide Federal with proof that it accepted, at a specific time, a certain number of cashbags for shipment. Thus, in our opinion, the requirement probably was little more than an accounting device designed to track bags picked up in accordance with the agreement. Under such circumstances, the receipt primarily would serve to protect Federal rather than Acme from, among other things, theft by its own employees and disputes regarding the number of bags accepted. Those are two risks not at issue herein.

While we believe that the receipt requirement probably was an accounting device which had little impact upon the situation presently at issue, our examination of the certified record reveals that it is devoid of any evidence demonstrating the requirement’s actual purpose. Thus, even though we have speculated on the matter, the record is inadequate to determine whether our speculation is accurate. In view of the inadequate record, we may not conduct the critical weighing analysis required by the Restatement or determine whether fulfillment of the condition may be excused. Indeed, we note that the trial court erroneously believed that its analysis ended upon concluding that a receipt was required to fulfill the condition precedent. Thus, the court did not consider whether the forfeiture would be disproportionate, decide if the receipt requirement constituted a material part of the exchange, or require the parties to provide an adequate record either for resolving those issues or deciding whether summary judgment in favor of Federal would be appropriate. Accordingly, we must reverse the trial court’s grant of summary judgment and remand the matter for further proceedings.

On remand, the trial court should conduct an evidentiary hearing to determine the purpose of the receipt requirement and engage in the necessary weighing analysis. In addition, the court should determine whether the contested requirement constituted a material part of the agreement. While this determination rests to a large extent on the analysis of the requirement’s purpose, it also involves a consideration of the negotiations of the parties along with all other circumstances relevant to the formation of the contract or to the requirement itself, including the circumstances surrounding the theft.

Order reversed. Case remanded for further proceedings. Jurisdiction relinquished.

      . Our review of the motion reveals that it refers to the term "cashbags.” See Federal’s cross-motion for summary judgment. However, since the number of bags lost as a result of the robbery is irrelevant for present purposes, tve will utilize that term in its singular sense in the interest of consistency.

      . We note that the reproduced record indicates that Federal also relied upon certain other materials in connection with its summary judgment motion. However, none of the additional materials is included in the certified record. Consequently, we may not consider them. See Floyd v. Philadelphia Elec. Co., 429 Pa.Super. 460, 632 A.2d 1314 (1993); Lilley v. Johns-Manville Corp., 408 Pa.Super. 83, 596 A.2d 203 (1991).

      . In this regard, appellant avers that the paragraph does not “state that performance will only come due ‘if’ a certain event occurs; or 'on condition that’ a certain event occurs; or ‘provided’ that a certain event occurs.” Appellant's brief at 13.

      . As the interpretation of a contract involves a question of law, Halpin v. LaSalle University, 432 Pa.Super. 476, 639 A.2d 37 (1994), the determination of a condition's purpose constitutes an exercise in legal analysis.

      . We note that appellant’s argument, which is characterized as relating to the issue of substantial performance, questions the propriety of the trial court's denial of its summary judgment motion. However, since an order denying summary judgment is interlocutory in nature, that portion of the trial court’s order is not appealable. See Pa.R.A.P. 341; Youngman v. CNA Ins. Co., 401 Pa.Super. 381, 585 A.2d 511 (1991). Consequently, we treat appellant’s argument as if it relates solely to the propriety of Federal’s summary judgment grant.

      . We note that the form on which the requirement appears is preprinted and does not contain any alterations. Thus, while not dispositive, our examination of that document suggests that the requirement was not specifically bargained-for.

      . In light of our determination, we do not address appellant’s two remaining claims which relate to whether Federal assumed liability for the bag immediately upon obtaining possession of it and whether satisfaction of the condition precedent may be excused since the failure of the condition resulted from the conduct of Federal’s own employee.