text:
    512 A.2d 1187
    Kenneth and Dorothy WINTERHALTER, individually, and as parents and natural guardians of Sherri T. Winterhalter, a minor v. WEST PENN POWER COMPANY, and Asplundh Tree Expert Company, Inc. Appeal of Sherri T. WINTERHALTER.
    Superior Court of Pennsylvania.
    Argued March 20, 1986.
    Filed June 26, 1986.
    Reargument Denied Aug. 12, 1986.

      Thomas G. Michalek, Pittsburgh, for appellant.
    Kathleen Smith-Delach, Washington, for appellees.
    Before BROSKY, MONTGOMERY and HESTER, JJ.
   HESTER, Judge:

In this appeal, appellants argue that the lower court improperly granted a motion to amend in order to plead a new defense, and a motion for summary judgment filed by appellee Asplundh Tree Expert Company, Inc. (hereinafter “Asplundh”). Appellants contend that the pleadings were closed and, alternatively, that the defense of scope of employment asserted in the motion to amend had been waived. The entry of summary judgment, which was based on that defense, must therefore be reversed, according to appellants. Having reviewed the arguments we affirm in part and reverse in part.

This case arose from an incident which occurred on June 17, 1982. West Penn Power allegedly directed appellee to cut down and remove trees along the property line of appellants Kenneth and Dorothy Winterhalter. The trees in question had provided a visual barrier between the public roadway and appellants’ residence.

Prior to cutting down the trees, appellee sought permission from the homeowner to perform the work. On that day, the only family members at home were appellants’ two minor daughters. Sherri T. Winterhalter, who was sixteen, allegedly granted limited permission to trim the trees, but refused to permit appellee to cut down the trees. When appellants’ minor daughter observed appellee’s employees actually cutting down the trees, she demanded that they stop immediately. At that time, the employees of Asplundh began to harass and verbally abuse her. They made loud and obscene comments about her and otherwise humiliated and embarrassed her.

Appellants on their own behalf and on behalf of their minor daughter instituted legal proceedings demanding compensation for the damages to their property and for the intentional infliction of emotional distress to their daughter. The original complaint was filed against West Penn Power on July 13, 1983; no preliminary objections were filed. Appellants subsequently filed an amended complaint to join Asphundh on April 17, 1984. Preliminary objections were filed on behalf of Asphundh on May 31, 1984, alleging that appellants’ count for intentional infliction of emotional distress failed to state a cause of action upon which relief could be granted. These preliminary objections were granted and appellants were allowed forty-five days to amend their complaint, which they did. Following its filing of an answer and new matter, appellee filed a motion for partial summary judgment on February 5, 1985, alleging insufficient facts to support a claim of outrageous conduct. This motion was denied.

On March 11, 1985, appellee filed an ex parte motion for leave to amend its answer in order to raise the defense of “scope of employment.” The lower court granted this motion, and appellee so amended its answer. Subsequently, appellee filed a second motion for summary judgment, averring that the conduct of its employees was outside the scope of their employment. Said motion was granted by the court below and is the subject of this appeal.

Appellants first assign error to the trial court in allowing appellee to amend its answer and new matter and raise a new defense on March 12, 1985, after it had previously filed preliminary objections, answer and new matter. Pa.R.C.P. 1033 provides, in pertinent part, that:

a party ... by leave of court, may at any time ... amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new ... defense.

Although no absolute right to amend exists, the courts of this Commonwealth have liberally construed the principle embodied in this rule. Consequently, courts have allowed amendments of pleadings at any time, as provided by the specific language of this statute. See Biglan v. Biglan, 330 Pa.Super. 512, 479 A.2d 1021 (1984).

Grant of leave to amend is limited only to a consideration of whether or not it might unduly prejudice an adverse party. Sullivan v. Allegheny Ford Truck Sales, Inc., 283 Pa.Super. 351, 423 A.2d 1292 (1980). Prejudice has been defined by this court as “something more than a detriment to the other party, ‘since any amendment almost certainly will be designed to strengthen the legal position of the amending party and correspondingly to weaken the position of the adverse party.’ ” Sands v. Forrest, 290 Pa.Super. 48, 53, 434 A.2d 122, 125 (1981). The decision of the lower court that amendment will be allowed and will not unduly prejudice the adverse party will only be reversed upon a showing of a clear abuse of discretion. Junk v. East End Fire Department, 262 Pa.Super. 473, 396 A.2d 1269 (1978).

As can be seen from our discussion above, the decision of the lower court to permit amendment cannot be reversed based upon the fact that the pleadings were closed. Amendments have been allowed in this Commonwealth before, during, and after trial. The language of this rule permits amendments at any time; consequently, no per se rule disallowing amendments exists. The proper inquiry is whether prejudice inured to the party opposing the amendment.

Appellants argue that they have suffered prejudice due to the fact that the defense of conduct beyond the scope of employment, if proved at trial, would deprive appellants of recovery unless they sued the employees individually and not as agents of Asplundh. At the time appellee raised this defense, the statute of limitations for instituting proceedings against those employees had expired. Thus, if this amendment were allowed and summary judgment granted thereon, appellants would be out of court as to the cause of action of intentional infliction of emotional distress.

It is well established in Pennsylvania that amendment will not be permitted after the running of the statute of limitations if it introduces a new cause of action. See Del Turco v. Peoples Home Savings Ass’n, 329 Pa.Super. 258, 478 A.2d 456 (1984), and cases cited therein. Appellants argue that the scope of employment defense in appellee’s amended answer introduced the need for appellants to assert new causes of action against the individual employees.

In support of their argument, appellants direct our attention to Willinger v. Mercy Catholic Medical Center, 241 Pa.Super. 456, 362 A.2d 280 (1976), aff’d, 482 Pa. 441, 393 A.2d 488 (1978). Therein, appellee sued appellant, Mercy Catholic Medical Center, for the wrongful death of his five-year-old son. Appellant filed a third party complaint against two physicians and attempted to amend that complaint during trial. Appellant sought to allege that the nurse-anesthetist, whose negligence caused the victim’s death, was an agent of one of the additional defendants. The court refused to permit the amendment, holding that to do so would permit the addition of a new cause of action after the expiration of the statute of limitations. Appellants herein argue that this case is factually similar and should serve as guidance to us in reaching our decision.

However, we see an important distinction between Willinger and the case at bar. In that case, the party seeking leave to amend was a defendant attempting to amend a complaint filed against an additional defendant. In the present case, however, appellee was attempting to plead a new defense, the result of which was the realization by appellants that their complaint was incomplete. The assertion of a defense which may, if proven, deny recovery against the amending party is far different from the prohibition against asserting a new cause of action against a party after the statute of limitations has run. The reasoning is quite clear. “It is the duty of one asserting a cause of action against another to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based.” Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963). By suing an employer for the acts of its employees, appellants assumed the risk that appellee would not deny agency. .Through their pleadings, appellants defined the initial parameters of their lawsuit.

Admittedly, appellants’ contention that an untimely defense is as prejudicial as an untimely cause of action has an appealing logic. However, a close scrutiny of the procedural facts in this case reveals that any prejudice was caused by appellants’ own conduct. The incident occurred on June 17, 1982; the original complaint was filed on July 13, 1983. West Penn Power’s answer denied agency and indicated that Asplundh was the independent contractor which performed the work. An amended complaint to join Asplundh was not filed until April 17, 1984. At that point, two months remained before the expiration of the statute of limitations. Subsequently, appellee filed timely preliminary objections which were granted and resulted in the amendment of appellants’ complaint. Appellee’s original answer, which was not objected to as untimely, was filed on November 7, 1984. Even if the challenged defense of scope of employment had been asserted then, appellants would have been barred from suing the individual employees. The Supreme Court of Pennsylvania, in its analysis of prejudice resulting from amendments, noted:

the question of prejudice is presented by the time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed____

Bata v. Central-Penn National Bank of Philadelphia, 448 Pa. 355, 380, 293 A.2d 343, 357 (1972), quoting Fleming James, Jr., Civil Procedure 158 (1965) (emphasis in original). Applying that principle, appellants have suffered no prejudice. We find no error in the court’s decision to permit amendment.

However, we reverse the grant of the motion for partial summary judgment. Appellants averred that appellee’s employees made comments of a sexual nature and verbally abused appellants’ child about the punishment she might suffer as a result of their actions. These comments could be considered within the scope of employment and raise a question of fact as to whether the employees were acting in furtherance of their employer’s business. Anzenberger v. Nickols, 413 Pa. 543, 198 A.2d 309 (1964). Where issues contain questions of fact which require determinations by jury, summary judgment may not be granted. Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983).

We therefore affirm the grant of the motion to amend and reverse the entry of partial summary judgment.

      . Appellee argues that Sherri Winterhalter, the named appellant, is not a party to this action and lacks standing to appeal. The emotional distress claim was filed by Kenneth and Dorothy Winterhalter, as parents and guardians of Sherri. No attempt has been made to change the caption or parties throughout the course of this action; consequently, appellee asserts that Sherri Winterhalter cannot appeal. We reject appellee’s argument. Although Sherri was represented by her parents, she is the real party to this action. See Pa.R.C.P. 2027. When a minor comes of age during the pendency of the action, Pa.R.C.R. 2037 provides that the record may be amended to remove the name of the guardian. This language indicates that such an amendment need not be made, and that the guardian may continue as the named party. Although an amendment is the preferable course of proceeding, appellants’ failure to amend the caption or to proceed as guardians of Sherri will not prove fatal to this appeal. As the Pennsylvania Supreme Court stated in Steward v. Hooks, 372 Pa. 542, 545-6, 94 A.2d 756, 758 (1953), "it would be legal sophistry, reminiscent of an age long past, to determine the rights of litigants on such technicalities of pleading.” Since the named parties to this suit are Sherri’s parents, we will refer to them as "appellants.”

      . On February 6, 1985, West Penn Power filed a motion for partial summary judgment, alleging lack of agency and action beyond the scope of employment. Said motion was granted on March 1, 1985, and is not challenged on this appeal.

      . Appellee contends that this appeal is interlocutory since an order which dismisses some but not all counts of a multicount complaint is not a final order and hence is not appealable. Appellee correctly states the law in this Commonwealth. See Marron’s Woodstove and Fireplace Center, Inc. v. Alaska Co., Inc., 326 Pa.Super. 471, 474 A.2d 337 (1984); Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). However, in the case at bar, appellants’ complaint is not a multi-count one, but rather contains separate causes of action. An order dismissing one or more separate causes of action is appealable in this jurisdiction. Morrow v. Bell Telephone Co. of Pa., 330 Pa.Super. 276, 479 A.2d 548 (1984). The order of the lower court striking appellants’ allegation of intentional infliction of emotional distress was a final determination of that action and was immediately appeal-able.

      . Moreover, until appellants’ amended complaint stated the allegations for this cause of action in greater detail, appellee’s defense of scope of employment may not have been apparent.

      . Additionally, unlike Willinger, wherein the motion to permit amendment was made during trial, herein the motion was made only five months after the amended complaint was filed and prior to trial.


source: Caselaw Access Project

author: LIPEZ, Judge: HESTER, Judge,

license: Public Domain

text:
    512 A.2d 1191
    COMMONWEALTH of Pennsylvania, v. Joseph GORDON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 23, 1985.
    Filed July 2, 1986.
    Reargument Denied Aug. 12, 1986.

      Daniel-Paul Alva, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.

      Before ROWLEY, HESTER and LIPEZ, JJ.
   LIPEZ, Judge:

In a jury trial, defendant was convicted of two counts of robbery, and one count each of criminal conspiracy and prohibited offensive weapons. After denial of post-verdict motions, defendant was sentenced to concurrent terms of seven to twenty years on the robbery counts, with a concurrent one to two years for criminal conspiracy. In this appeal, defendant contends: (1) the trial judge abused his discretion under Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), by allowing admission of his eight-year-old retail theft conviction and his seven-year-old robbery conviction for the purpose of impeaching his testimony; and (2) the trial judge also erred by allowing the admission of two twelve-year-old burglary convictions for the purpose of impeaching the testimony of one of defendant’s two alibi witnesses.

Defendant’s second contention can be summarily disposed of. When the Commonwealth seeks to use a prior conviction to impeach the testimony of a defense witness other than the defendant himself, the discretionary balancing test of Commonwealth v. Bighum, supra, does not apply, and the only relevant inquiry is whether the convictions were for crimes involving dishonesty or false statement. Commonwealth v. Pilosky, 239 Pa.Super.Ct. 233, 240, 362 A.2d 253, 257 (1976). Since burglary is a crime involving dishonesty or false statement, Commonwealth v. Gray, 329 Pa.Super.Ct. 347, 354, 478 A.2d 822, 825 (1984), the burglary convictions of the defense witness here were properly admitted to impeach his testimony. Commonwealth v. Pilosky, supra.

Defendant’s other claim, that the court erred in admitting his own retail theft and robbery convictions to impeach him, presents a closer question, but we agree with the Commonwealth that the trial judge’s decision to admit these convictions was within the range of his discretion as defined by the most recent case law interpreting the scope of Commonwealth v. Bighum, supra, and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978).

Defendant relies primarily on Commonwealth v. Williams, 273 Pa.Super.Ct. 389, 417 A.2d 704 (1980), which held that it was erroneous to rule that the defendant’s four prior convictions would be admissible to impeach him in a trial for robbery, in which taking the stand himself was the defendant’s only potential means of defense. While there is some similarity to Williams in that one of defendant’s prior convictions is for the same crime (robbery) as the one for which he was being tried, we believe that defendant’s case is much more similar to Commonwealth v. Kearse, 326 Pa.Super.Ct. 1, 473 A.2d 577 (1984), which held that it was not an abuse of discretion to admit a five-year-old robbery conviction to impeach the defendant in a robbery trial, when the defendant had two alibi witnesses and the Commonwealth lacked a straightforward alternative means of attacking the defendant’s credibility.

Here, as in Kearse, the defendant presented two alibi witnesses, and only one prior robbery conviction (rather than four as in Williams) was involved. Defendant argues that his two alibi witnesses were uncertain of the date when they saw him, but this is identical to the situation in Commonwealth v. Kearse, supra, 326 Pa.Super.Ct. at 9, 473 A.2d at 581. Thus this case is unlike both Williams and Commonwealth v. Canada, 308 Pa.Super.Ct. 494, 454 A.2d 643 (1983), on which defendant also relies, because the defendants in those cases had no other means by which to defend themselves, a factor which Commonwealth v. Big- hum, supra, had characterized as “of critical importance.” Id., 452 Pa. at 567, 307 A.2d at 263.

While it is true that the seven-year-old robbery conviction here is a little older than the five-year-old conviction in Williams, and defendant here also has an additional prior conviction for retail theft, these dissimilarities from Kearse are relatively minor, compared to the vital factors that the two cases have in common: that there was no series of prior convictions for the same type of crime, and — most important of all — that the defendant in each case had alternative means of defense through the presentation of alibi witnesses. Our review of all the Bighum factors convinces us that the court below did not abuse its discretion.

Judgment of sentence affirmed.

HESTER, J., dissents.

HESTER, Judge,

dissenting:

In Commonwealth v. Roots, 482 Pa. 33, 39, 393 A.2d 364, 367 (1978), the supreme court adopted an illustrative list of factors which the trial court should consider in determining whether a prior conviction is admissible for impeachment purposes.

1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecution’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant’s credibility.

I am constrained to agree with appellant that his 1976 conviction for retail theft and 1977 conviction for robbery are too remote to reflect accurately on his veracity and tend to suggest more the likelihood that he committed the robbery here than to reflect upon his veracity. I also agree with appellant that the Commonwealth had a strong enough case without having to resort to these impeachment tactics.

I find both Commonwealth v. Canada, 308 Pa.Super. 494, 454 A.2d 643 (1983), and Commonwealth v. Williams, 273 Pa.Super. 389, 417 A.2d 704 (1980), to be persuasive. In Canada, the Commonwealth was permitted at trial to use convictions which were five and eight years old for impeachment purposes. In reversing the trial court, the Canada court noted that the Commonwealth had the testimony of other witnesses to impeach the defendant and that there was a greater need for the jury to hear the defendant’s version of the facts.

In Williams, the trial court also denied the defendant’s motion to suppress his prior convictions. This court reversed on the basis that the prior convictions were for the same crime for which the defendant was being tried. As a result, there was a strong suggestion that the defendant had a propensity to commit that crime again. The Williams court also noted that the Commonwealth had other witnesses through which to present its case whereas a defense could only be presented by the defendant taking the stand himself.

Here, the Commonwealth had the trolley operator and a passenger as prosecution witnesses, both of whom had made positive identifications of appellant, Moreover, the Commonwealth had the testimony of the arresting and investigating officers. Finally, the Commonwealth had the alternative of rebutting appellant’s testimony with the testimony of his codefendant who had earlier pled guilty.

On the other hand, appellant had one defense witness, other than himself, who could recount the events of the crime. He had also been a passenger on the trolley. Although he testified that appellant was not one of the perpetrators, his testimony was discredited due to his criminal record and his admission that the perpetrator wore a hood which covered part of his face. I also note that one of the crimes to be used for impeachment was robbery, which was identical to the charge here.

Finally, there is no indication that the Commonwealth could not procure the testimony of appellant’s codefendant. Since the codefendant had pled guilty prior to appellant’s trial, it follows that the Commonwealth could use him to testify in order to impeach appellant.

I disagree with the majority on the applicability of Commonwealth v. Kearse, 326 Pa.Super. 1, 473 A.2d 577 (1984). In Kearse, the Commonwealth had only one eyewitness and he was unable to identify the defendant from a photo array; the witness did not make a positive identification until the preliminary hearing. Also, the defendant’s fingerprints on a bag in Kearse were discredited because some were smeared, indicating that someone else may have used the bag in the robbery following the lawful use of the bag by the defendant. Lastly, the prosecution in Kearse had no other means of impeaching the defendant or of cross-examining him on his alibi defense.

Here, conversely, the Commonwealth had three primary witnesses: two eyewitnesses who did not falter in identifying appellant, and appellant’s codefendant for impeachment purposes. Although appellant had two alibi witnesses, they were discredited because they were not certain of the date they saw appellant at home. Unlike the case sub judice, the Commonwealth in Kearse had a much weaker case in chief and no alternative means of impeaching the defendant.

Accordingly, I would reverse and remand for a new trial.

      . The Commonwealth also argues that defendant’s failure to take the stand waived his Bighum claim under Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), which held that an issue similar to a Bighum claim was waived under federal evidentiary law by failure to take the stand. Luce, however, involved only a matter of nonconstitutional federal law, and has no effect on the state evidentia-ry law formulated in Bighum. Furthermore, we cannot adopt the Luce approach as a matter of state law, for the reasons stated in Commonwealth v. Richardson, 347 Pa.Super.Ct. 564, 568-71, 500 A.2d 1200, 1203-04 (1985).

      . See abo Commonwealth v. Dombrauskas, 274 Pa.Super.Ct. 452, 462, 418 A.2d 493, 498 (1980) (six-year-old robbery conviction not too remote in robbery trial).


author: CERCONE, Judge:

text:
    512 A.2d 1194
    COMMONWEALTH of Pennsylvania v. Gerald BOGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 10, 1986.
    Filed June 30, 1986.
    Reargument Denied Aug. 12, 1986.

      Timothy E. Finnerty, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and CERCONE, JJ.
   CERCONE, Judge:

Appellant, Gerald Bogan, was charged by Information filed February 25, 1982 with Armed Robbery and Conspiracy. He was convicted by jury on both counts. On February 7, 1983, appellant was sentenced to a term of imprisonment of ten (10) to twenty (20) years on the robbery charge and five (5) to ten (10) years for the criminal conspiracy charge, to be served consecutively. Following the trial court’s denial of appellant’s post trial motions, filed nunc pro tunc by leave of this court, this timely appeal was filed.

Appellant raises four issues in this appeal which will be addressed seriatim. He first alleges that his right to a speedy trial, pursuant to Pennsylvania Rule of Criminal Procedure 1100, was violated when, on November 12, 1982, the trial court granted the Commonwealth’s motion to extend the time for trial.

On June 25, 1982, appellant waived his right to speedy trial and agreed to a final trial date of November 11, 1982. When the Commonwealth and appellant appeared for trial on November 12, 1982 (November 11 being a court holiday), there were no judges available to hear the case. The Commonwealth filed a petition for extension of time on November 12, 1982 and another on November 17, 1982. On November 12, the court granted the Commonwealth’s motion for extension of time and ordered the case be tried on the first available trial date, but not later than January 12, 1983. Trial commenced on December 20, 1982 and he was found guilty for the crime of robbery and conspiracy.

Appellant claims that the extension of time was improperly granted because the Commonwealth (1) failed to show due diligence in bringing the case to trial, (2) failed to sufficiently explain the delay attributed to the judicial backlog in the court system; and, (3) the Acting Administrative Judge failed to schedule appellant’s trial for the earliest date after November 12, 1982, consistent with the business of the court, as required by Rule 1100(c)(4).

The lower court in its opinion attempts to justify the extension primarily on the ground that the case could not have been brought to trial within the 180 day period because no judges were available to hear the case and, therefore, judicial delay was unavoidable.

Assuming, arguendo, that the Commonwealth in its petition to extend did show due diligence in being ready to bring appellant to trial within the time required by Rule 1100, and that judicial delay was properly shown, we find nevertheless, that the Commonwealth failed to show on-the-record that appellant’s trial on December 20, 1982 was the first date available consistent with the request and the court’s business. However, due to what appears to be inadvertence or negligence by appellate counsel, we are compelled to find that this issue has been waived for appellate review at this time.

In the interests of judicial economy in future Rule 1100 hearings and because this writer is thoroughly familiar with the record in this case, we will first address, in obiter dictum, the merits of appellant’s Rule 1100 claim. We feel compelled to do this because the procedures employed by the court below and/or the attorney for the Commonwealth were such as to prevent the creation of a record by which this court, on review, could analyze appellant’s Rule 1100 claim on the merits. Such procedural irregularities, when properly raised for appellate review, form the basis by which charges against defendants, otherwise properly tried and convicted, are dismissed for “technicalities”. Such dismissals, while rightfully required by the law to protect the rights of individual defendants, do not, as a consequence of procedural errors by the Commonwealth, protect the general societal interest in seeing an accused tried at a full and fair hearing.

On November 12, 1982, both parties were prepared to go to trial. The lower court judge, sitting as acting administrative judge, took judicial notice of the fact that there were no judges available that day to hear the case. Despite the Assistant District Attorney’s urging, the judge refused to schedule this case for a date certain and ordered an extension to the earliest available date but not later than January 12, 1983. There is no explanation on the record why the lower court judge, as acting administrative judge, was unable to set a date certain for trial. On November 16, 1982, Judge Dauer, President Judge in the Criminal Division, assigned the case to himself and listed the case for trial on January 27, 1983. On November 17, 1982, the Commonwealth filed another petition to extend the time for trial. The record contains an order that the November 17 petition would be presented for consideration and disposition on December 6, 1982. However, the record contains no transcript of such a hearing. The record is unclear as to when appellant’s case was rescheduled for the December 20, 1982 trial date before Judge Dauer. The record is absolutely devoid of information or testimony showing that this case was listed for the “first available date” after November 12 as is required by Rule 1100(c)(4). See footnote 1, supra.

Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), is the seminal case which explains the Commonwealth’s burden with a Rule 1100(c) extension. Therein the Court stated:

Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Id., 469 Pa. at 222, 364 A.2d at 1349-50. (emphasis added)

Judicial delay, of course, may provide the basis for the granting of a petition to extend, see Commonwealth v. Eck, 272 Pa.Super. 406, 410, 416 A.2d 520 (1979) (citing cases) and Commonwealth v. Mayfield, supra; but the burden is upon the Commonwealth to make a record showing due diligence, Commonwealth v. Eck, supra; Commonwealth v. Mayfield, supra; Commonwealth v. Warman, 260 Pa.Super. 130, 393 A.2d 1046 (1978); and that the actual trial date was the earliest date available. See Commonwealth v. Lafty, 333 Pa.Super. 428, 434 n. 1, 482 A.2d 643, 646 n. 1, (1984); Commonwealth v. Donaldson, 334 Pa.Super. 473, 483 A.2d 549 (1984), affirmed 509 Pa. 601, 506 A.2d 885 (1986); Commonwealth v. Jackson, 336 Pa. Super. 486, 485 A.2d 1186 (1984), affirmed 509 Pa. 601, 506 A.2d 885 (1986). The type of evidence required for proving that trial has been scheduled for the earliest possible date consistent with the court’s business was discussed in Commonwealth v. Jackson, 269 Pa.Super. 249, 253, 409 A.2d 873, 875 (1979). The Jackson court stated that judicial notice may be sufficient to provide a factual foundation for appellate review of this issue, citing Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979) and Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978).

In the case sub judice we have neither a transcript of any discussion which took place when trial was rescheduled for December 20th nor judicial notice, of record, that the trial was scheduled for the earliest date possible. We have only the trial court’s order granting the extension on the condition that appellant be tried on the first available trial date of 1982 or 1983 and we have a statement by Judge Dauer, made at the post-conviction hearing, to the effect that there were no judges available on November 12, 1982, with records to substantiate that assertion. Neither of these items rises to on-the-record judicial notice which this court would consider sufficient to meet the Commonwealth’s burden.

Had this issue been properly brought before us, we would have been compelled by the doctrine of stare decisis to reverse and vacate the judgment of sentence and dismiss appellant. Such a result was imposed by this court, sitting en banc, in Commonwealth v. Donaldson, supra, and affirmed our Supreme Court. The same result was reached in Commonwealth v. Jackson, supra.

This is the reason for our cautionary narrative. However, the Commonwealth has correctly claimed that this Rule 1100 issue has not been properly preserved for appellate review and this issue is waived.

Having found that the Rule 1100 issue is waived, we proceed to the merits of the other issues in this case.

Of the remaining three issues raised by appellant, we affirm on the basis of the lower court opinion which adequately addressed those claims. In respect to the claim that trial counsel was ineffective for introducing his “mug shot” at trial, the facts and explanation given by trial counsel are essentially indistinguishable from those in Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984). In Cooper the appellant alleged that trial counsel was ineffective for bringing out on cross-examination evidence which necessarily implied that the defendant had a prior criminal record. Counsel was attempting to attack the victim’s identification by trying to show that in-court and line up identifications resulted from a suggestive photographic identification. The tactical decision was found to be trial counsel’s to make and counsel was not deemed to be ineffective.

In this case, counsel introduced the mug shots in order to attack the credibility of the victims’ identification of appellant and his strategy was reasonable since it was aimed at promoting appellant’s best interests.

Accordingly, judgment of sentence is affirmed.

      . Pa.R.Crim.P. 1100(c)(4) provides: “Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court’s business, and the record shall so indicate.” (emphasis added)

      . In post-verdict motions, appellant had alleged that trial counsel was ineffective for, inter alia, failing to file a motion for dismissal of charges because Rule 1100 had been violated. However, on appeal, the Rule 1100 issue is framed in terms of error by the trial court rather than ineffectiveness of counsel. We cannot address the ineffectiveness issue because it has not been properly preserved. See Commonwealth v. Ziegler, 286 Pa.Super. 26, 428 A.2d 220 (1981).
      The issue is deemed to be abandoned because it was not raised in appellant’s brief on appeal. This court may, sua sponte, find an issue to be waived. Commonwealth v. Canady, 297 Pa.Super. 292, 295, 443 A.2d 843 (1982); Commonwealth v. Klaric, 263 Pa.Super. 286, 397 A.2d 1212 (1979). It is elementary that issues, even if preserved at trial or post-trial level, will not be considered by an appellate court if not raised by a party to an appeal. Commonwealth v. McKenna, 476 Pa. 428, 437, 383 A.2d 174 (1978); Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968); Commonwealth v. Stowers, 363 Pa. 435, 70 A.2d 226 (1950). Accordingly, the Rule 1100 issue as presented on appeal has been waived.

      . The Acting Administrative Judge merely stated that no judge was available on November 12. The court neither took notice nor made findings as to the period after November 12 in connection with the court’s schedule, even though the attorney for the Commonwealth urged the court to extend to a date certain. See Commonwealth v. Ehredt, 485 Pa. at 195 n. 7, 401 A.2d at 361 n. 7, under similar factual situation, the Court found insufficient judicial notice to support extension of time.

      . In its Rule 1925 opinion, the trial court stated, “The case was then tried by this court on December 20, 1982, the earliest available date.” We cannot find this to be of record judicial notice. Pa.R.A.P. 1921 tells us that the composition of the record on appeal consists of “original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries." We will look only to these items to determine whether on-the-record ■ reasons have been shown. To do otherwise would deny appellant the right to object to or question evidence or, as in this case, judicial notice made a part of the record.

      . Appellant raised the following issues:
      1. Whether the trial strategy of appellant’s trial counsel, Carl Marcus, in introducing mug shots of appellant into evidence during the cross-examination of the Commonwealth’s witness served to deprive the appellant of the effective assistance of counsel.
      2. Whether the pre-trial strategy of appellant’s counsel in failing to challenge a juror for cause whose brother-in-law was the victim of a robbery served to deprive the appellant of the effective assistance of counsel.
      3. Whether a probable cause affidavit used by Robert Spozarski, a police officer, to obtain an arrest warrant for appellant, was properly admitted as a trial exhibit and taken out by the jurors in their deliberations when said affidavit made mention of appellant’s prior robbery conviction, and therefore, violated Pennsylvania Rule of Criminal Procedure 1114 due to its highly prejudicial nature.


author: MONTEMURO, Judge:

text:
    512 A.2d 1199
    COMMONWEALTH of Pennsylvania, v. Kathleen EHRSAM, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1986.
    Filed July 9, 1986.

      James P. McEvilly, Jr., Feasterville, for appellant.
    Stephen B. Harris, Assistant District Attorney, Warring-ton, for Com., appellee.
    Before ROWLEY, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

This appeal presents multiple claims alleging ineffectiveness of trial counsel, errors in the court’s charge to the jury, the unconstitutionality of section 9712 of the Mandatory Minimum Sentencing Act, and error in the court’s refusal to order disclosure to the defense of certain notes made by the complainant during the trial.

Appellant, Kathleen Ehrsam, was charged with attempted homicide, aggravated assault, simple assault, recklessly endangering another person, and possession of an instrument of crime. She was tried before a jury and, on December 15, 1983, was found guilty of aggravated assault, simple assault, recklessly endangering another person and possession of an instrument of crime. Following the denial of post-verdict motions, appellant was sentenced to a term of imprisonment of five to ten years. Thereafter, appellant filed a timely motion for reconsideration of sentence, which was denied. This appeal followed.

The trial court correctly summarized the pertinent facts in this case as follows:

On July 3, 1983, Andrew Woehrel was shot by defendant [appellant] at a rental property owned by Woehrel. The property, which was located in Kintnersville, Bucks County, Pennsylvania, had been rented to defendant and her husband, Edwin Ehrsam, and their family for a period of approximately one year prior to the incident. The Ehrsams had fallen behind in their rent payments and had been advised by Woehrel in May, 1983 that he wanted to obtain new tenants by July, 1983. The Ehrsams had indicated to Woehrel that they would vacate the premises by July 1, 1983. When the Ehrsams did not vacate the premises as promised, Woehrel offered to help them move. The Ehrsams said they would discuss it and get back to him.
On July 3, 1983, not having received a response to his offer, Woehrel drove to the rented property at noontime to discuss the situation. A heated argument ensued between Woehrel, Edwin Ehrsam and defendant with the Ehrsams telling Woehrel they would not leave voluntarily and that Woehrel would have to evict them. Defendant threatened to call the police. Woehrel offered to assist the Ehrsams monetarily, and by allowing them to camp on his other property which was a bar located nearby. Edwin Ehrsam promised to get back to him later that day.

That afternoon, Woehrel asked his son, Mark, and Mark’s friend, Paul McBride, to stop by the Ehrsams to see whether they had decided to leave. When he arrived, Mark discussed the situation with defendant’s husband. Defendant thereafter accosted Mark and Paul and threatened to shoot them if they didn’t get off the porch.

Meanwhile, Woehrel had asked a friend, Vic Jones, to accompany him to the Ehrsams. Woehrel proposed that Jones impersonate a prospective tenant for the property. Jones refused, but did agree to go with Woehrel to discuss the situation with the Ehrsams again and to offer them the use of his van in moving. Jones owned rental properties and had prior experience in handling recalcitrant tenants.

Woehrel and Jones drove to the Ehrsams in Woehrel’s car and parked it next to hedgerows in front of the house. Woehrel testified that Jones knocked on the door, and then he heard Jones yell “Hey, what are you doing?” Jones then ran to the car holding a shotgun which he threw in the backseat. [Jones testified at trial that he had grabbed the shotgun from appellant’s husband.] Defendant and her husband were on the porch of the house. A scuffle ensued where defendant and her husband attacked Jones and attempted to regain the shotgun. Woehrel then saw an individual, later identified as defendant’s brother, Ted Praul, point a .22 rifle out of a window and shoot at the car tires. Praul then left the house and threatened to blow Woehrel’s head off if the shotgun wasn’t returned. Defendant then took the shotgun into the house.

Woehrel got out of the car to help Jones. As he approached the house, defendant came out of the house onto the porch pointing the .22 rifle at Woehrel. Defendant threatened to shoot Woehrel and then without further warning shot him. The bullet struck Woehrel in the side then travelled to his spine. Jones testified that he heard Woehrel cry “Oh, I’m shot, Vic, I’m shot” and then he saw Woehrel lying on the ground in front of the porch.

The result of the gunshot wound paralyzed Woehrel from the waist down and necessitated lengthy hospitalization and rehabilitation treatments.

Trial court’s opinion at 1-4.

Appellant’s version was somewhat different. While not denying that she had shot Woehrel, appellant testified that Woehrel was in the dining room inside the house when the shooting occurred. According to appellant, Jones and Woehrel forced their way into the house and in an ensuing scuffle her husband ended up lying on the floor with Woehrel standing over him pointing a shotgun at her husband’s chest. Appellant testified that, after she observed Woehrel squeeze the trigger of the shotgun, she shot him with a .22 caliber rifle. She stated that Woehrel fell back against the front door, staggered a few steps onto the porch, and then fell to the ground. N.T. December 14, 1983, at 360-363.

As we indicated above, appellant raises the following claims on appeal: (1) defense counsel was ineffective; (2) the court erred in charging the jury that appellant had a duty to retreat; (3) the court erred in failing to charge the jury that the house’s front porch was part of the dwelling; (4) the court erred in failing to charge the jury that a landlord does not have a right to remain on leased property against the wishes of the lessee; (5) section 9712 of the Mandatory Minimum Sentencing Act is unconstitutional and; (6) the court erred in refusing to order the Commonwealth to disclose to the defense the contents of certain notes which the victim had made during the trial.

INEFFECTIVENESS OF TRIAL COUNSEL

Appellant presents multiple claims of defense counsel’s ineffectiveness, which we will consider seriatim.

When reviewing the effectiveness of counsel, the threshold inquiry is whether the issue/argument/tactic which counsel has foregone, and which forms the basis for the assertion of ineffectiveness, is of arguable merit. This is so because counsel cannot be considered ineffective for failing to assert a baseless claim. Commonwealth v. Pur-sell, 508 Pa. 212, 495 A.2d 183 (1985). If the underlying claim possesses arguable merit, we then ask whether counsel’s handling of the matter had a reasonable basis designed to effectuate his client’s interests. Commonwealth v. Broadwater, 330 Pa.Super. 234, 479 A.2d 526 (1984). Finally, even if counsel was ineffective, to prevail on appeal the appellant must show that the ineffectiveness so prejudiced his (her) case as to deprive him (her) of a fair trial. Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985).

Appellant’s first claim of ineffectiveness regards counsel’s failure to object to the introduction of what appellant alleges was illegally obtained evidence. Appellant refers to measurements and photographs of the interior of the house made by police officers who arrived on the scene shortly after the shooting and conducted a warrantless search of the house. She also refers to the officers’ recollections as to their observation of the interior of the house.

Our review of the record convinces us that the underlying claim has no arguable merit inasmuch as there was no valid basis for suppressing the aforementioned evidence. Although as a general rule a search and seizure conducted without a warrant is deemed unreasonable for constitutional purposes, the warrant requirement is excused where exigent circumstances exist. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978). Such circumstances arise where the need for prompt police action is imperative, either because evidence sought to be preserved is likely to be destroyed or secreted from investigation, id., 480 Pa. at 102, 389 A.2d at 106, or because there exists a threat of physical harm to police officers or other innocent individuals, Commonwealth v. Hinkson, 315 Pa.Super. 23, 27, 461 A.2d 616, 618 (1983). We believe both conditions were present in the instant case.

When police officers arrived on the scene shortly after the shooting, they were told that appellant was the perpetrator and that she was still inside the house. N.T., Suppression Hearing, December 12, 1983, at 13-14, 34-35. Since the officers had been told that appellant had already shot one person, considerations for their own safety as well as that of others clearly justified their entry into the house. Once inside, they were entitled to seize items in plain view. “[T]he police may seize any evidence that is in plain view during the course of their legitimate emergency activities.” Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978). See also, Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980) (Flaherty, J., with three justices concurring). The photographs, measurements, and officers’ recollections which were admitted into evidence were all of readily observable features of the interior of the house. The items seized were thus in plain view.

The warrantless search was additionally justified by a need to insure that evidence of the crime was not removed or destroyed. The officers had been told that shots had been fired from the house, and it was certainly reasonable for them to enter the house as soon as possible in order to prevent appellant or anyone else who might be inside from secreting either the weapon involved or bullet casings.

We conclude that as the warrantless search fell within the exigent circumstances exception to the necessity to obtain a warrant, no valid basis existed for suppressing the challenged evidence. Thus, defense counsel was not ineffective in failing to assert a baseless claim. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985).

Appellant’s next allegation of counsel’s ineffectiveness is based on counsel’s failure to request that closing arguments be transcribed. The sole authority which appellant cites is Commonwealth v. Crowther, 241 Pa.Super. 446, 361 A.2d 861 (1976), which stands for the narrow proposition that when there is a question of ineffectiveness, new counsel must examine the entire record for evidence of such ineffectiveness. Appellant argues, somewhat obliquely, that if closing arguments had been transcribed, new counsel might have discovered evidence of trial counsel’s ineffectiveness therein. According to appellant, trial counsel was thereby ineffective for not providing the means whereby new counsel might have uncovered additional examples of trial counsel’s ineffectiveness.

We find this argument to be without merit. Appellant would have us impose a per se obligation on defense counsel to always request that closing arguments be transcribed, failing which counsel would be held automatically ineffective. We have found no case which imposes such an obligation, and we decline to do so. Finding the underlying claim possesses no arguable merit, we therefore conclude trial counsel was not ineffective in this regard.

Appellant next argues that counsel was ineffective for not adequately cross-examining the Commonwealth’s expert witness on a crucial point of testimony. Appellant refers to Dr. Michael Rhodes, a specialist in traumatology, who testified as to the nature of the victim’s wounds, and gave his expert opinion that the immediate effect of the bullet striking the victim would have been to cause him to drop immediately. This testimony supported the Commonwealth’s theory that the victim, who was discovered by paramedics lying on the sidewalk about two feet from the front porch, was shot while outside the house. Appellant claims counsel did not question Dr. Rhodes vigorously enough in an attempt to discredit this testimony. As stated supra, it was appellant’s contention that the victim was shot while he was inside the house, and then staggered onto the porch from which he fell to the ground.

We have carefully examined that portion of the transcript covering defense counsel’s cross-examination of Dr. Rhodes on this point, and find that it simply does not support appellant’s contention that the cross-examination was inadequate. Defense counsel was able to elicit from Dr. Rhodes a statement that the victim might have been able to take a step after being shot, as well as an admission from Dr. Rhodes that his opinion that the victim would have dropped immediately was merély a guess, based on scientific experience. N.T. December 13, 1983, at 172-173. Defense counsel’s cross-examination of Dr. Rhodes was more than adequate, and we accordingly find no ineffectiveness in this regard.

Appellant next argues counsel was ineffective for failing to object to the admission of allegedly hearsay evidence, consisting of testimony from a rescue squad attendant, and from one Paul McBride, a friend of the victim’s son, who was present at the scene shortly before the shooting.

The record reveals that the rescue squad attendant testified that when she arrived at the scene shortly after the shooting, she found the victim lying on the ground and that the victim, who was upset and agitated, stated, “She [appellant] stuck the gun out of the door and shot me before I got my foot up to the step.” N.T. December 13, 1982, at 83.

We find that the underlying claim possesses no arguable merit since the above statement was clearly admissible under the excited utterance exception to the hearsay rule. To come within this exception, a statement must be:

[A] spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.

Commonwealth v. Pronkoskie, 477 Pa. 132, 137-38, 383 A.2d 858, 860 (1978) (citation omitted). In the instant case the victim, who was upset and agitated at the time, made the statement shortly after having been shot, an unexpected and shocking occurrence which would surely have caused him to be subject to overpowering emotion. The statement was, in addition, made at the place where the shocking event occurred and was in reference to that event. Given the clear admissibility of the statement, it would have been futile for defense counsel to have objected to its admission.

Appellant also claims defense counsel should have objected, on the basis of inadmissible hearsay, to Paul McBride’s testimony that after appellant threatened to shoot Mark Woehrel (the victim’s son), appellant’s husband said, “Don’t push her. She’ll do it.” N.T., supra at 94. The Commonwealth responds that, since the parties were arguing at the time, this statement also falls within the excited utterance exception. We cannot agree. This statement was made prior to the shooting, and we cannot find that the fact that the parties were arguing brings the statement within the ambit of the excited utterance exception. The record does not support a conclusion that appellant’s husband’s statement resulted from “overpowering emotion caused by some unexpected and shocking occurrence.” Commonwealth v. Pronkoskie, supra, 477 Pa. at 137-138, 383 A.2d at 860. Since the statement was inadmissible hearsay, the underlying claim of this allegation of ineffectiveness has arguable merit. We next ask whether counsel could have had any reasonable basis for failing to object to the statement’s admission. We cannot perceive any such basis, but our ineffectiveness analysis does not end at this point. The final question is whether appellant has established, as she must under Commonwealth v. Pierce, supra, that she suffered prejudice from the statement’s admission. Since there was more than enough evidence supporting the Commonwealth’s version of the shooting, the erroneous admission of appellant’s husband’s statement was a mere trifle which can in no way be construed as having denied appellant a fair trial. Appellant accordingly cannot prevail on this claim.

Appellant’s final allegation of trial counsel’s ineffectiveness concerns counsel’s failure to object to the introduction at trial of statements obtained from appellant by the police allegedly in violation of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In her brief appellant has failed to identify the objectionable statements. She merely makes a general reference to (1) statements she made to the investigating officer, Trooper Vieczorek, as she was being driven to police headquarters in his vehicle (the statements were made prior to being given Miranda warnings), and (2) statements she made to Trooper Vieczorek at the police station, after having been advised of her Miranda rights. Our review of the record reveáis that the only testimony Trooper Vieczorek gave at trial regarding appellant’s statements to him concerned appellant’s statement that, at one point, there was a tug of war between her husband and the victim over the shotgun. N.T. December 14, 1983, at 410. It is not absolutely clear from the record precisely when appellant made this statement. Given its lack of specificity, we will not consider appellant’s claim. Assertions of ineffectiveness in a vacuum are not ineffectiveness, and claims of ineffectiveness raised in the abstract will not be considered. Commonwealth v. Silo, 509 Pa. 406, 502 A.2d 173 (1985).

TRIAL COURT’S CHARGE TO THE JURY

Appellant next argues that the trial court erred in three respects in its charge to the jury.

She first avers that the court erred when, in instructing the jury regarding appellant’s claimed defense of justification, it stated that appellant’s husband had a duty to retreat from deadly force. Conversely, appellant objects to the trial court’s failure to include her requested point for charge that there is no duty to retreat from deadly force when an individual is in his or her own dwelling.

The relevant portion of the court’s charge states:

Now, we’re going to talk about the defense of justifica-tion____ And what, in effect, it means is that if the conduct of the defendant though otherwise criminal in nature would, by virtue of certain circumstances under the law be legally justified, then no offense has been committed. When there is evidence presented at trial that deadly force was used in self-defense, the burden is upon the Commonwealth to prove beyond a reasonable doubt that the defendant was not acting in self-defense or defense of another. In this particular case there is no allegation of self-defense but the defense of another person. It is sufficient that the Commonwealth prove only that one of the elements required in the use of deadly force is lacking. If any element is disproved, then you may disregard the defense of justification.
A person is justified in using deadly force in defense of another person when and only when the circumstances are such that the latter person would be justified or excused if he or she had used deadly force in his own defense. Let me clarify that. The principles and the rules applicable to the use of deadly force for the defense of another person are the same rules that would apply to that person’s own self-defense. A person interfering in a difficulty in behalf of another simply steps into the latter’s shoes. He, or in this case she, may lawfully do in another’s defense what such other might lawfully do in his own defense, but no more. She stands on the same plane. I use “she” here because we are talking about the defendant. ■ She stands on the same plane, is entitled to the same rights and is subject to the same conditions, limitations and responsibilities as the person defended, and her act must receive the same construction as the act that the person defended would receive if the deadly force was used by him.
It is necessary and sufficient to justify or excuse the use of deadly force in defense of another where neither the person defended nor the defendant shall be at fault in provoking or continuing the difficulty; secondly, that the danger, real or apparent to the person defended, should be of death or great bodily harm; third, that the danger should be present, imminent, impending, and not a past danger. Now, remember, you consider the facts as I mention these things, the facts as testified to, because you are going to have to decide whether or not the conduct on the part of the defendant was justified to protect her husband from an imminent, present danger. According to her testimony, she said that it was imminent; that the gun was in her husband’s chest or pointed at his chest or above, and that she felt that there was the effort to pull the trigger. Fourth, that either the person defended shall be in real danger of death or great bodily harm, or it shall be reasonably apparent to her, in this case to the defendant, that she honestly and reasonably believed that the person defended is in such danger and that it is necessary to use deadly force to save him therefrom. Fifth, that the person defended has the duty to retreat if he can do so without increasing his peril. And you consider, in a sense, this is a third person position. Was the [appellant] in a position to believe that there was the possibility that the person defended, her husband, could retreat from the peril without increasing the danger?

N.T. December 15, 1983, at 446-448 (emphasis added).

Appellant correctly states that while, generally, there is a duty to retreat if such retreat can be safely accomplished, one who is attacked in his dwelling need not retreat, but may stand his ground and meet deadly force with deadly force. Commonwealth v. Eberle, 474 Pa. 548, 379 A.2d 90 (1977). She contends the trial court’s statement that appellant’s husband had a duty to retreat was incorrect and that the court should have included her requested charge regarding no duty to retreat. We agree. It does not follow, however, that the court’s error warrants reversal. It is axiomatic that, when an appellate court reviews a jury instruction, the charge must be read and considered as a whole. Commonwealth v. Rodriguez, 343 Pa.Super. 486, 495 A.2d 569 (1985). In addition, the error is not reversible unless the defendant was prejudiced thereby. Commonwealth v. Morgan, 265 Pa.Super. 225, 401 A.2d 1182 (1979). We find that, reading the instruction as a whole, appellant suffered no prejudice. With but one respect, i.e., the duty to retreat, the court’s charge correctly and thoroughly outlined the salient features of the defense of justification as it related to appellant’s version of the events surrounding the shooting. In addition, the court instructed the jury that, insofar as the duty to retreat was concerned, the Commonwealth would have to prove not only that appellant’s husband had a duty to retreat, but also that appellant’s perception of the circumstances was that he could have done so without increasing his peril. There was no possibility that the jury could have found the existence of the latter element since the evidence presented as to justification unequivocally established that appellant’s husband could not have safely retreated. That is, even with the trial court’s error, the jury could not have found that the Commonwealth had established a violation of any duty to retreat. We accordingly conclude that the trial court’s error in charging the jury that there is a duty to retreat (even when one is attacked in one’s own home) could have had no prejudicial impact on the jury’s deliberations. The error was harmless beyond a reasonable doubt.

Appellant also contends that the court erred in failing to instruct the jury that (1) the porch of the house was part of appellant’s dwelling, and (2) that a landlord does not have a right to remain on leased property against the wishes of the lessee. We find that the opinion of the court below, filed on April 4, 1985, adequately addresses and correctly disposes of both these allegations, and see no need for further comment in this regard.

In her fifth claim on appeal, appellant challenges the constitutionality of the Firearms provision of the Mandatory Sentencing Act, 42 Pa.C.S. § 9712, in the following respects. She contends that section 9712 violates the equal protection clause; the due process clause, both in denying individualized sentencing and in allowing proof of possession of a firearm to be established by a preponderance of the evidence; the principle of separation of powers by granting the prosecutor complete discretion in deciding whether to invoke section 9712; and the prohibition against cruel and unusual punishment.

The claim that section 9712 violates due process in allowing proof of possession of a firearm to be established by a preponderance of the evidence was explicitly rejected by our Supreme Court in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), cert. granted sub nom, McMillan v. Pennsylvania, — U.S. —, 106 S.Ct. 58, 88 L.Ed.2d 47 (1985). In Commonwealth v. Irving, 347 Pa.Super. 349, 500 A.2d 868 (1985), this court held that section 9712 does not violate equal protection, and in Commonwealth v. Cofoni, 349 Pa.Super. 407, 503 A.2d 431 (1986), we determined that it does not violate separation of powers by granting unbridled discretion to the prosecutor. Appellant’s challenges to section 9712 on these grounds are accordingly without merit.

We find that appellant’s claim that section 9712 violates due process by impermissibly precluding individualized sentencing is also without merit. In considering such a claim in Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985), this court stated that while the judiciary imposes sentence upon conviction, the fixing of penalties for crimes is a task for the legislature, and, as one of its options, the legislature may prescribe a mandatory minimum term of imprisonment. See Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985). “Due process of law is not violated when courts accede to the legislature’s authority to frame a coherent statutory scheme for the administration of sentencing____” Commonwealth v. Cooke, supra 342 Pa.Super. at 69, 492 A.2d at 69, quoting Commonwealth v. Hernandez, supra, 339 Pa.Super. at 40, 488 A.2d at 298.

Appellant’s final challenge to the constitutionality of section 9712 alleges that it violates the prohibition against cruel and unusual punishment in that, by not allowing for consideration of a defendant’s individual circumstances, it permits disproportionate sentences. See Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (holding that the eighth amendment prohibits the imposition of significantly disproportionate sentences). Appellant claims that the five year minimum sentence was disproportionate in her case because she had no prior criminal convictions.

Whether section 9712 is violative of the prohibition against cruel and unusual punishment is one of first impression in this Commonwealth. We conclude that it does not.

As stated above, while it is the judiciary’s function to impose sentence upon conviction, it is for the legislature to fix the penalties for crimes. Commonwealth v. Cooke, supra. As decreed by the Supreme Court in Solem v. Helm, supra, in assessing a claim that a sentence is so disproportionate as to violate the eighth amendment, “[reviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishment for crimes____” Solem v. Helm, Id. at 290, 103 S.Ct. at 3009. A punishment violates the eighth amendment only if it is so greatly disproportionate to an offense as to offend evolving standards of decency or a balanced sense of justice. Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). See Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983).

The legislature’s enactment of section 9712 evinces a recognition of the seriousness of felonies committed with firearms, as well as a determination to protect the public from those armed with firearms, to deter violent crime and the illegal use of firearms, and to vindicate the legislature’s interest in punishing those who commit serious crimes while visibly armed with a firearm. Commonwealth v. Wright, supra 508 Pa. at 40, 494 A.2d at 362. We find that section 9712’s five year mandatory minimum sentence is not disproportionate to the seriousness of the crime appellant committed, and does not shock either a balanced sense of justice or offend evolving notions of decency. Appellant’s claim that section 9712 violates the prohibition against cruel and unusual punishment is accordingly without merit.

Appellant’s final claim on appeal alleges that the trial court erred in refusing to order the Commonwealth to disclose to the defense the contents of certain notes which the victim had made at trial. The record reveals that during the defense’s cross-examination on rebuttal of Trooper Vieczorek, the trooper referred to several police reports which he had in his possession. Defense counsel asked to see these reports. The District Attorney assented, but asked the court’s permission to first separate from the reports some handwritten notes which the victim had made earlier that day during the testimony of defense witnesses. Defense counsel responded that he should be allowed to see the notes on the basis that they were “a written statement of an eyewitness, and, therefore, discoverable under rule 305.” N.T. December 14, 1983, at 417. After reviewing the notes, the trial court denied defense counsel’s request. We find that this action was correct.

Before trial appellant requested, by motion to compel discovery, the disclosure by the Commonwealth of statements of the victim and interviews of eyewitnesses. Pa.R. Crim.P. 305(B)(2) provides for the disclosure of such materials as follows:

Discretionary with the Court: In all court cases ..., if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
(b) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial.

The purpose of making prior statements of Commonwealth witnesses available to defense counsel is to assist the latter in preparing for subsequent cross-examination at trial of that witness. Commonwealth v. Grayson, 466 Pa. 427, 353 A.2d 428 (1976). That is, defense counsel may be able “to uncover inconsistencies between a witness’s pretrial statements and his trial testimony.” Commonwealth v. Dalahan, 262 Pa.Super. 615, 624, 396 A.2d 1340, 1344 (1979) (emphasis added). The statements at issue herein were not pretrial statements. Not only were they made during trial, they were made after the victim has been cross-examined by defense counsel, and thus could have been of no possible assistance to defense counsel in preparing for that cross-examination. We accordingly find that the notes which the victim made during trial were not subject to discovery under Rule 305(B)(2). We further note that our examination of Court Exhibit One reveals that, in any event, it contains very few statements. It consists primarily of questions posed by the victim regarding defense witnesses’ testimony which, as the District Attorney informed the trial court, the victim wished covered during cross-examination of these witnesses. The few statements it does contain do not contradict the victim’s testimony at trial.

Finding all of appellant’s claims on appeal meritless, we affirm the judgment of sentence.

Judgment of sentence affirmed.

KELLY, J., concurs in the result.

      . 42 Pa.C.S. § 9712.

      . 18 Pa.C.S. § 901 and § 2501.

      . Id. at § 2702

      . Id. at § 2701.

      . Id. at § 2705.

      . Id. at § 907.

      . One of the officers testified that when he peered in the front door of the house, he saw appellant standing on the stairway with two young boys, later identified as her children. N.T. Suppression Hearing, December 12, 1983, at 35. The safety of those children would clearly have been of great concern to the police.

      . For example, the photographs showed bullet casings lying on the floor and a slug embedded in a wall. The measurements showed the dimensions of rooms, as well as those of the front porch.

      . Appellant also avers that counsel should have called in an expert witness for the defense to testify as to whether the victim would have been able to move after being shot. There was no necessity for this action, given the responses which defense counsel was able to elicit from Dr. Rhodes.

      . We note that if we were to consider appellant's claim on the merits, we would not find ineffectiveness since defense counsel had a reasonable basis for not objecting to the introduction of the statement which appellant made to Trooper Vieczorek. The statement was non-prejudicial to appellant’s case and, in fact, served to corroborate her testimony at trial concerning the shooting.

      . It will be recalled that appellant testified that when she fired, her husband was lying on the floor in the dining room and that the victim was squeezing the trigger of a loaded shotgun which he had jammed against her husband’s chest.

      . We note that the jury was free to completely reject appellant’s version of the shooting and instead believe the testimony of the Commonwealth’s witnesses, which raised no issue of self-defense or defense of others.

      . Appellant’s testimony as to the justification defense was corroborated by the testimony of her husband and brother.

      . Based on these same reasons, we find the court’s error in failing to include appellant's requested point for charge regarding no duty to retreat was also harmless error in that the omission could not have affected the jury’s deliberations.

      . 42 Pa.C.S. § 9712 requires the imposition of a minimum sentence of five years confinement for persons found to have been in visible possession of a firearm during the commission of certain felonies.

      . These notes were subsequently marked by the court as Court Exhibit One.

      . Regardless of the applicability of Rule 305(B)(2), had the notes contained any material exculpatory of the defendant, disclosure would have been mandatory under the constitutional guarantees of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1983). Our examination of Court Exhibit One reveals it contains no such exculpatory material.


author: TAMILIA, Judge:

text:
    512 A.2d 1211
    Laura E. WINTERS, Appellant, v. Christopher L. WINTERS.
    Superior Court of Pennsylvania.
    Argued Feb. 27, 1986.
    Filed July 7, 1986.

      Warren R. Baldys, Jr., Williamsport, for appellant.
    T. Max Hall, Williamsport, for appellee.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

Appellant/wife filed a complaint for divorce in 1981, but the parties continued to live together until 1983. A master’s hearing was held and a report filed on May 25, 1984, to which exceptions were filed. The exceptions were denied and the court entered an Order adopting the master’s recommendations that 55 per cent of the marital assets be given to appellant and 45 per cent to appellee/husband. Appellee was also to pay rehabilatative alimony in the amount of $125 per week for 48 months; both parties were to pay their own counsel fees.

A final divorce decree was entered on April 17, 1985 and this appeal followed. Appellant challenges the equitable distribution of property, the amount of alimony awarded and the denial of counsel fees.

The facts indicate the parties married in 1967 and have two teenage children, a boy residing at a prep school and a girl living with appellant in a rented house.

The appellant, forty years of age, was a homemaker during most of the marriage. She has some job skills acquired through volunteer and clerical work, but at the time of the master’s hearing, was unemployed.

The appellee is. forty-four years of age, has a college degree and is currently chief executive officer of a company, earning $49,400 per year. Substantial assets were also acquired through inheritance. Appellee has continued to reside in the marital residence since the parties separated in 1983.

The first matter we address is the contention that the court made an improper determination in establishing the date of valuation of an inheritance.

Appellee acquired a trust inheritance from his father’s estate and the court agreed with the master’s determination that the appellee had no control over the change in value of the trust, and the marital portion, under 23 P.S. § 401(e)(3), was the amount of appreciation in value from the time of estate distribution until the date of the hearing.

The appellant maintains the marital portion should be the increase in value from the time of the father’s death until the date the parties separated. Alternatively, it is argued that appellant’s evidence was more probative in establishing that the value of the trust on the hearing date was the same as at the time of separation and the court erred in relying on appellee’s evidence. The relevant dates and values as found by the court are as follows:

a. value at death of father $142,901.51

b. value at distribution $162,230.22

c. value at separation $204,181.03

d. value at hearing $173,312.93

It is apparent that under appellant’s theories the marital property, subject to distribution, would be either (c-a) $61,-279.52 or (c-b) $41,950.81 while reliance on appellees hearing date valuation results in marital property of (d-b) $11,-082.71.

The court based the value at the hearing on appellees testimony finding it to be $173,312.93 (see footnote 1). The increase in value of $11,082.71 was deduced by comparing the value at distribution of the estate with that at the time of the master’s hearing. There are two aspects to this consideration. The first has to do with determining when, in fact, the inheritance passed into the husband’s hands to be considered for purposes of increase in value; the second is the date at which value was set for equitable distribution purposes.

In reaching this determination, the court initially held the interest earned during the pendency of the estate proceedings was non-marital in nature because the trust was a non-marital asset until acquired by the husband at distribution. Thus the date was established, for determining when the inheritance became subject to increased value consideration under 23 P.S. § 401(e)(3), as the date of distribution of the inheritance to the husband. The court went on to find the depreciation between the time of separation and the time of the hearing was not the result of actions by either of the parties and recognition of the most current value would produce a more equitable result. In doing so, it determined, for equitable distribution purposes, that the proper date for establishing value was the date of hearing on the distribution of marital property.

Our scope of review of an Order determining equitable distribution of marital property allows us to reverse the lower court only if we find an abuse of discretion. Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986); Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984); aff'd in part, rev’d on other grounds, 509 Pa. 282, 502 A.2d 109 (1985).

In this instance, under the abuse of discretion standard, we find the court acted properly. The question of which date is appropriate for valuation purposes is thoroughly discussed in our recent Opinion in Sergi, supra. We follow the analysis put forth in that decision in determining that a specific benchmark for valuation is not established in the Divorce Code (23 P.S. §§ 101 to 801) (contrary to the date of ascertaining acquisition) and it is appropriate for the trial court to select the date which best serves to provide for economic justice between the parties. See 23 P.S. § 102(a)(6). “To recognize a specific valuation date as a matter of law would deprive the trial court of the necessary discretion required to effectuate economic justice.” Sergi, supra 351 Pa.Super. at 594, 506 A.2d at 932.

Finding that the trial court did not abuse its discretion in determining the value of the trust at the time of the hearing nor in establishing the dates (acquisition date and value date) for valuation purposes, we reject appellant’s arguments and affirm the lower court’s findings as to those issues.

The second issue raised relates to an inheritance in the form of securities and cash which appellee received from his grandmother four months before the divorce action was instituted. Appellee invested this inheritance in holdings referred to as the Thompson McKinnon Fund, in his name alone. The value of the fund was less at the time of the master’s hearing than at the time of distribution, by the estate, thus the master concluded there was no marital property in the form of increase in value under 23 P.S. § 401(e)(3).

The appellant asserts the exchange destroys the identity of the property and removes it from statutory exclusion as marital property. In support of this, appellant contrasts 23 P.S. § 401(e)(1) and § 401(e)(3) which provide:

§ 401(e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except:
(1) Property acquired in exchange for property acquired prior to the marriage except for the increase in value during the marriage.
(3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.

In comparing the two sections of the statute, appellant contends that because section 401(e)(3) does not contain a provision excepting property acquired in exchange for property acquired by “gift, bequest ...” it indicates a desire to make such property marital and subject to division. We do not agree.

The court, in confirming the master’s finding, looked to the need for consistency in the statute and concluded that only an increase in value of such property is included as marital property and an exchange does not destroy the character of the gift or inheritance.

We support this reasoning, basing our interpretation on an overall reading of the statute. We find no basis for holding that a change of form alters the nature of the inheritance, especially when the exchange took place shortly after receipt of the inheritance and four months before the divorce action was filed.

This is a rational and necessary conclusion in the interpretation of these sections. In providing for the exchange factor in section 401(e)(1), the legislature made clear that prior owned property did not lose its character by an exchange for other property during the marriage. It could easily be argued otherwise that under section 401(e) and (f) it could be construed marital property since this would be the first instance when activity concerning vesting or ownership occurred during the marriage.

The significant difference between the two is that prior owned property came into possession of the acquiring spouse before the marriage, whereas the gifts and devise came into possession subsequent to marriage, and unlike other property acquisitions, were specifically excluded. In section 401(e)(1), the legislature needed to make clear prior owned property did not change its character by changing its form during the marriage. In section 401(e)(3), the character of the property was established as separate property during the marriage and there was no need to clarify the fact that a subsequent change of form did not alter its character.

Pennsylvania, not being a community property state, retains the separate property concepts derived from common law. We, in addition, have rejected the “inception of title”, “source of funds” and “transmutation of property” theories which permit no change in the character of property separately acquired, regardless of contribution by the other party (inception of title — source of funds) or transforms ownership of separate property into community property if there is the slightest commingling of property (transmutation). Anthony v. Anthony, 355 Pa.Super. 589, 514 A.2d 91 (1986).

The court thus acted properly in finding no marital property existed where there was a decrease in value following distribution.

The appellant next argues that appellee should be denied credit for the pre-marital value of a securities account which was changed and increased during the marriage because the original assets had been sold and appellee failed to trace the pre-marital property into particular assets on hand. Had the appellee been able to clearly trace this property throughout the years of marriage and the transferring of the funds from stock to stock without adding or subtracting from the marital fund, only the increase in value would be considered for distribution. The difficulty here is that when such funds move in and out of marital accounts, it becomes impossible to determine those amounts that become dedicated to the marital use, and those amounts taken from the marital estate to be used for the individual purpose.

We again find no abuse of discretion in the court’s disposition of this matter. The master found the entire account to be a marital asset but allowed appellee a credit based on his pre-marital contribution. The amount of the credit was properly based on appellee’s uncontested testimony.

In providing a credit, the court was not making a ruling as to the status of the account as marital property, rather it was making a determination under 23 P.S. § 401(d) as part of its distribution of property. Specifically, section 401(d)(7) lists as a contributing factor, “[t]he contribution ... of each party in the acquisition ... of the marital property____” It is within the discretion of the court to credit an amount to one of the parties and take such credit into consideration when dividing the marital property. It was in this manner that the court properly adopted the master’s findings. It appears to be the most equitable means of resolving an insolvable accounting matter.

The remaining issues raised challenge the adequacy of awarding 55 per cent of the marital property to appellant along with $125 per week alimony and the denial of counsel fees.

Upon review, we find all of the relevant factors in 23 P.S. § 401(d), as to marital property, and those in 23 P.S. § 501, relating to alimony, were properly considered. We find no abuse of discretion by the court in reaching its decision on these matters and the counsel fees. The decree of the lower court is hereby affirmed.

Decree affirmed.

      . A typographical error in the trial court Opinion incorrectly stated the value at the time of the Master’s hearing to be $173,812.93.

      . In her brief, appellant/wife argues that the value of $173,312.93 assigned to the trust as of the hearing date actually relates to the value at the date of the filing of the divorce complaint in 1981 (see appellant brief p. 28). As appellant did not object to the figure at the time of the hearing (N.T. 1/16/84 pp. 152-153) or later in her exceptions to the master's findings, (Record #11) and because we ture not permitted to go behind the record, we find the issue to have been waived and we accept the finding of the trial court.

      . In a Concurring Opinion, Wieand, J. would establish the date of valuation of marital property to be the date of separation, absent extraordinary circumstances. We do not agree. Valuation of property lies on a continuum so that equity requires a determination of the most fair point on that continuum to establish value. Property acquisition is a point in time which has clearly been designated to end, for marital purposes, at the time of separation. While it may be argued that value may be increased, as in a stock portfolio by further acquisitions and or purchases, as opposed to increase due to market and economic factors, so long as the acquisitions were represented by spinoff from the principle fund, it should be treated as increase in value.


author: BECK, Judge:

text:
    512 A. 2d 1216
    COMMONWEALTH of Pennsylvania v. George STAMBAUGH, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 30, 1986.
    Filed July 7, 1986.

      John H. Armstrong, Indiana, for appellant.
    Before CIRILLO, President Judge, and DEL SOLE and BECK, JJ.
   BECK, Judge:

This is an appeal from a judgment of sentence entered after a jury convicted appellant of raping his minor stepdaughter in violation of Section 3121 of the Crimes Code, 18 Pa.C.S.A. § 3121.

Appellant George Stambaugh and his wife were married in July 1977 and they lived together with his stepdaughter, the complainant, and four other children. Testimony elicited at the trial painted a picture of the family’s domestic life as one pervaded by violence and brutality. Appellant’s wife testified that she and her children had been severely beaten by him on many occasions. A number of incidents were described where appellant had attacked his stepdaughter, hitting her in a surgical wound with a full beer can, kicking her and fracturing her back, and generally slapping and bruising her. The mother, one of her sons, and the complainant all testified that appellant purposely limited the complainant’s social contact with children of her own age in order to keep her “for himself.” He told the family that he was having sex with his stepdaughter to “straighten her out” and enable her to “learn about sex.”

The appellant now raises the following contentions for our review: (1) that the evidence was insufficient to support the jury’s verdict; (2) that the verdict was against the weight of the evidence; and (3) that the trial court erred in allowing the Commonwealth to present the medical testimony of a gynecologist. We find all three of appellant’s contentions to be meritless and therefore affirm the judgment of sentence.

Appellant first maintains that the evidence presented at trial was insufficient to support a conviction of rape because the Commonwealth failed to present evidence of forcible compulsion or the threat of forcible compulsion. In considering challenges to the sufficiency of the evidence, the Court must view the evidence in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Scatena, 508 Pa. 512, 498 A.2d 1314 (1985); Commonwealth v. Biggs, 320 Pa.Super. 265, 467 A.2d 31 (1983). The test to be applied in this review of the evidence is whether, accepting as true all the evidence upon which the jury could properly have based its verdict, it is sufficient to prove each element of the crime charged beyond a reasonable doubt. Biggs, 320 Pa.Super. at 267, 467 A.2d at 32.

This court has previously established the force or the threat of force necessary to support convictions for rape: The force ... need only be such as to establish lack of consent and to induce the woman to submit without additional resistance____

It is not necessary that the victim be beaten, that the victim cry, that the victim become hysterical, or that she be threatened by a weapon for the crime of rape to occur. The degree of force required to constitute rape is relative and depends upon the facts and particular circumstances of the case. It is not necessary that force be actually applied by the perpetrator to the victim.

Commonwealth v. Williams, 294 Pa.Super. 93, 97, 439 A.2d 765, 768 (1982) (citation omitted); see also Commonwealth v. Plank, 329 Pa.Super. 446, 478 A.2d 872 (1984). Forcible compulsion 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, 553, 510 A.2d 1217, 1225 (1986).

In Rhodes, our Supreme Court recently articulated guidelines for determining whether there is sufficient evidence to demonstrate beyond a reasonable doubt that an accused engaged in sexual intercourse by forcible compulsion or by the threat of such forcible compulsion that would prevent resistance by a person of reasonable resolution:

[A] determination ... will be made in each case based upon 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 by no means exclusive.

Id., 510 Pa. at 555-556, 510 A.2d at 1226-1227, (emphasis added).

The facts and circumstances of the case sub judice clearly demonstrate that the appellant used force and the threat of force to compel his fourteen year-old stepdaughter to engage in sexual intercourse with him over approximately a two year period. Appellant’s relationship with his stepdaughter manifested a pattern of continuing physical abuse. The complainant testified that the appellant “hit” her “lots of times,” and that he would do so if she refused to have sex. (N.T. 11/13/84 at 100). She also stated that he threatened to hit her and that she submitted because she “was scared.” (N.T. 11/13/84 at 100). The complainant’s past experience with her stepfather and his threats of physical force prevented the complainant’s resistance; she reasonably chose intercourse in preference to the beating she would have suffered at the hands of the appellant. The complainant’s testimony is unquestionably sufficient to prove beyond a reasonable doubt the element of forcible compulsion or the threat of forcible compulsion. See e.g., Commonwealth v. Combs, 298 Pa.Super. 527, 445 A.2d 113 (1982); Commonwealth v. Thomas, 254 Pa.Super. 326, 385 A.2d 1362 (1978).

Appellant next contends that the jury’s verdict was against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict was against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion. Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984). The test is not whether the court would have decided the case in the same way, but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail. Id., 324 Pa.Superior Ct. 425, 471 A.2d at 1230.

We find no abuse of discretion in the trial court’s denial of the appellant’s post-verdict motion for a new trial on the grounds that the jury’s verdict was against the weight of the evidence. While the appellant presented a number of character witnesses, the jury could reasonably give greater weight to the complainant’s testimony concerning the appellant’s behavior towards her. We therefore conclude that the jury’s verdict was not so contrary to the evidence as to warrant a new trial.

Finally, appellant claims that the trial court should not have permitted a gynecologist to testify that the complainant’s hymen was no longer intact (N.T. 11/13/84 at 72-73). Appellant asserts that such testimony prejudiced the jury by suggesting that he was the cause of the broken hymen.

Initially, we note that the testimony is relevant because penetration is one of the elements of the crime of rape that the Commonwealth must prove in order to sustain its burden of proof. See Commonwealth v. Romanoff, 258 Pa.Super. 452, 392 A.2d 881 (1978). Furthermore, it is well-established that circumstantial evidence may be used to prove the element of penetration. Commonwealth v. Usher, 246 Pa.Super. 602, 371 A.2d 995 (1977). Nonetheless, logically relevant evidence may be excluded when:

[I]t would so inflame the minds of the jurors that its probative value is outweighed by unfair prejudice. Because no rigid rule might be formulated to embrace the infinite range of evidence which might be proffered, and because the trial judge is in a far superior position to assess any possible prejudicial effect on the jury, we will not reverse the trial court’s decision on admissibility absent abuse of discretion.

Commonwealth v. Stewart, 304 Pa.Super. 382, 386, 450 A.2d 732, 734 (1982) (citations omitted).

The trial court did not abuse its discretion by admitting the testimony at issue. After establishing that the complainant’s hymen was not intact, the appellant’s counsel elicited testimony from the gynecologist acknowledging possible causes for the condition of the hymen other than sexual intercourse with the appellant. (N.T. 11/13/84 at 76). Such other possibilities affect the weight to be given the evidence, but do not render it inadmissible. See e.g. Commonwealth v. McCloughan, 279 Pa.Super. 599, 605, 421 A.2d 361, 364 (1980) (medical testimony admissible to prove penetration in statutory rape case). At no point during his testimony did the doctor identify the appellant as the person with whom the complainant had engaged in sexual intercourse. Thus, the question of whether the appellant was the cause of the complainant’s condition was properly left to the jury, as factfinder, to decide. We find that the gynecologist’s testimony was not unduly inflammatory, and that the trial court did not err by admitting it.

Accordingly, we affirm the judgment of sentence.

      . Section 3121 defines the elements of the crime of rape as follows: A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse.
      (1) by forcible compulsion;
      (2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.
      18 Pa.C.S.a. § 3121.