text:
    600 A.2d 993
    COMMONWEALTH of Pennsylvania, Appellant, v. Lorenzo BERNAL, Jr.
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1991.
    Filed Jan. 7, 1992.

      Ann C. Lebowitz, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Allan H. Freedman, Bryn Mawr, for appellee.
    Before CIRILLO, DEL SOLE and HOFFMAN, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County vacating defendant Lorenzo Bernal, Jr.’s conviction and remanding to Philadelphia Municipal Court for trial. We reverse.

Bernal was issued a traffic citation for violation of section 1543(a) of the Motor Vehicle Code, 75 Pa.C.S. § 1543(a) (driving while operating privilege is suspended or revoked). A violation of section 1543 is a summary offense. See 75 Pa.C.S. §§ 1543(a); 6503. Bernal entered a guilty plea and was sentenced. After paying the appropriate fines and costs in the Philadelphia Traffic Court, Bernal petitioned the Philadelphia Motions Court to vacate the judgment. In his petition, Bernal alleged that since he was a second offender, and thus subject to the enhanced penalty provisions of 75 Pa.C.S. § 6503, the Philadelphia Traffic Court did not have subject matter jurisdiction of the offense. Bernal argued, and the trial court agreed, that by virtue of the enhanced penalty, which subjected him to a fine of up to $1,000.00 and/or imprisonment of up to six months, the offense was no longer a summary offense, but a misdemeanor of the third degree. See 18 Pa.C.S. § 106(c), (e). The trial court vacated judgment and remanded the case to Municipal Court for trial. The Commonwealth appealed, presenting one issue for our review:

Did the trial court err when, contrary to express statutory authority and this court’s specific and controlling case precedent, it vacated defendant’s conviction for the summary offense of driving with a suspended license and inexplicably held that defendant’s Motor Vehicle Code violation under 75 Pa.C.S. § 1543 was a misdemeanor under the Crimes Code merely because defendant, as a repeat violator, was subject to enhanced penalties under 75 Pa.C.S. § 6503?

Under the Crimes Code, an offense is a summary offense if it is so designated in Title 18 “or in a statute other than this title,” or if a person “who has been convicted thereof sentenced to a term of imprisonment, the maximum of which is not more than 90 days.” 18 Pa.C.S. § 106(c)(1), (2). A “crime is a misdemeanor of the third degree if it is so designated in this title or if a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than one year.” 18 Pa.C.S. § 106(b)(8).

The enhanced penalty provisions of 75 Pa.C.S. § 6503 subject the offender to a term of imprisonment of up to six months. The question of whether the increased penalty upgrades the classification of 75 Pa.C.S. § 1543 as a summary offense to a misdemeanor of the third degree was resolved by this court’s decision in Commonwealth v. Lyons, 395 Pa.Super. 184, 576 A.2d 1105 (1990) (en banc). There, this court reversed the trial court and held that a second offense of driving while operating privileges are under suspension was intended by the legislature to be summary offense rather than a misdemeanor. at 186, 576 A.2d at 1106. Cf. Commonwealth v. Sperry, 395 Pa.Super. 400, 577 A.2d 603 (1990).

The Crimes Code classifies offenses in section 106. Subsection (c) of section 106 provides:

(c) Summary offense defined by this title constitutes a summary offense if:
(1) it is so designated in this title, or in a statute other than this title; or
(2) if a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than 90 days.

18 Pa.C.S. § 106(c). Subsection (e) of section 106 makes the section applicable to other statutes, and states: “An offense hereafter defined by any statute other than this title shall be classified as provided in this section. ” 18 Pa.C.S. § 106(e) (emphasis added).

The trial court in the instant case reasoned that since “section 6503 fails to designate the offense as summary and provides for a six-month term of imprisonment, by definition a second or subsequent offense must be a misdemeanor of the third degree.” The trial court’s analysis was based upon the Dauphin County Court of Common Pleas decision in Commonwealth v. Lyons, 108 Dauph. 182 (1988), which, as noted above, was reversed. Lyons, supra.

In an attempt to reconcile the classification of offenses in the Crimes Code, and the enhanced penalty provisions of section 6503 of the Motor Vehicle Code, the trial court in this case, as well as the court in Lyons, disregarded the fact that the Motor Vehicle Code specifically designates the instant offense as a summary offense. See 75 Pa.C.S. § 1543. Moreover, the court overlooked the clear language of section 6502 of the Motor Vehicle Code:

(a) Violations of this is a summary offense for any person to violate any of the provisions of this title unless the violation is by this title or other statute of this Commonwealth declared to be a misdemeanor or felony.

75 Pa.C.S. § 6502(a). The instant offense is nowhere expressly classified as a felony or misdemeanor. It remains a summary offense, notwithstanding the penalty enhancement. More importantly, the Motor Vehicle Code specifically provides that the classification section of the Crimes Code with respect to summary offenses is not applicable to the Motor Vehicle Code:

(c) Title 18 18 (relating to crimes and offenses) insofar as it relates to fines and imprisonment for convictions of summary offenses, is not applicable to this title.

75 Pa.C.S. § 6502(c) (emphasis added). We conclude, as we did in Lyons, supra, that this language is dispositive.

Reversed.

      . Section 6503 of the Motor Vehicle Code provides:
      Every person convicted of a second or subsequent violation of any of the following provisions shall be sentenced to pay a fine of not less than $200 nor more than $1,000 or to imprisonment for not more than six months, or both:
      ******
      Section 1543 (relating to driving while operating privilege is suspended or revoked).
      ******
      75 Pa.C.S. § 6503.

      . Summary offenses in Philadelphia County arising under the Motor Vehicle Code are under the jurisdiction of the Philadelphia Traffic Court. 42 Pa.C.S. § 1302. Section 1123(a)(2) of the Judicial Code confers jurisdiction on the Philadelphia Municipal Court for criminal offenses "punishable by imprisonment for a term of not more than five years, including indictable offenses under Title 75 (related to vehicles).’’ 42 Pa.C.S. § 1123(a)(2).

      . Prior to the 1986 amendment, 1986, July 9, P.L. 544, No. 96, § 3, effective in 60 days, section 6503 provided for an enhanced penalty of up to one year imprisonment.


source: Caselaw Access Project

author: JOHNSON, Judge.

license: Public Domain

text:
    600 A.2d 996
    COMMONWEALTH of Pennsylvania v. Frederick C. GRISCOM, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1991.
    Decided Dec. 17, 1991.
    Anthony F. List, Media, for appellant.
    Vram Nedurian, Asst. Dist. Atty., Newton Square, for Com., appellee.
    Before DEL SOLE, JOHNSON and HESTER, JJ.
   JOHNSON, Judge.

On this direct appeal from judgment of sentence, we are asked to determine whether psychiatric testimony of a driver’s bipolar disorder and continuous alcohol dependence are admissible to establish involuntary intoxication as a defense to a charge of driving under the influence of alcohol. 75 Pa.C.S. § 3731(a).

The Honorable Melvin G. Levy convicted Frederick C. Griscom of driving under the influence of alcohol and driving while operating privileges were suspended. Judge Levy sentenced Griscom to terms of incarceration aggregating a 90-day minimum and a two-year maximum, with fines imposed which totalled $1300.

Griscom contends that (a) his bipolar disorder (manic depression) and alcoholism, and the mental state brought about by these illnesses, were relevant as a defense to the charges upon which he was convicted, and (b) the fact finder, Judge Levy, committed error in refusing to consider as competent evidence these conditions and diagnoses, since it would have shown Griscom to be out of control and unable to form any intent to commit the crimes charged. We conclude that the bipolar disorder and alcoholism are not relevant and that Judge Levy was free from error in convicting Griscom. Accordingly, we affirm judgment of sentence.

One month before his non-jury trial, Griscom filed a Motion in Limine requesting that the court admit certain psychiatric testimony which would have been submitted to establish that Griscom is a chronic alcoholic suffering from a bipolar disorder and that his condition resulted in his involuntary ingestion of alcohol. The motion was denied by Judge Levy prior to trial. At trial, Griscom stipulated to the facts surrounding his arrest, the fact that his privileges for driving were then under suspension due to previous DUI convictions, and that opinion testimony could be produced that Griscom was unable to safely operate his automobile due to his consumption of alcohol. The only issue following trial and conviction was whether the psychiatric testimony would have been relevant on any issue before the court.

Both the trial court and the Commonwealth on this appeal rely upon Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983) for the proposition that neither driving under the influence nor driving while operating privileges are suspended require proof of a specific intent to sustain a conviction. However, Mikulan involved a conviction and sentence of ninety days or less. See 18 Pa.C.S. §§ 106(c)(2) and 305(a) (voluntary act not required in summary offenses, maximum term not more than ninety days). Also, only Justice Zappala joined in the opinion of Justice Larsen; Chief Justice Roberts, and Justices McDermott and Nix filed concurring opinions. Justice Hutchinson filed a concurring and dissenting opinion, and Justice Flaherty filed a dissenting opinion. It is not clear that the proposition regarding absolute liability without intent was joined in by any Justices other than Justices Larsen and Zappala. Nor has Mikulan been cited for that proposition since. We therefore decline to rest our decision on that case.

Questions concerning the admission or exclusion of evidence are within the sound discretion of the trial judge and will not be reversed absent a clear abuse of discretion. Hamill-Quinlan, Inc. v. Fisher, 404 Pa.Super. 482, 591 A.2d 309, 311 (1991). Here, Judge Levy found that “neither the testimony of Dr. Huxter ... nor defendant’s medical records ... had any relevance whatsoever to any material fact in issue in the case.” Opinion, Levy, J., May 8, 1991, page 4. Our determination then is whether the trial court abused its discretion in finding that the proffered evidence was not relevant to the issues of Griscom’s violation of the drunk driving statute.

In a plurality opinion(s), we have previously held that involuntary intoxication cannot as a matter of law be established through evidence showing that the criminal defendant was a chronic alcoholic incapable of voluntarily refraining from ingestion of alcohol. Commonwealth v. Kuhn, 327 Pa.Super. 72, 475 A.2d 103 (1984) (Opinions of Brosky and Montemuro, JJ.) accord Commonwealth v. Plank, 329 Pa.Super. 446, 478 A.2d 872, 876 (1984); Cf. Commonwealth v. Ellis, 398 Pa.Super. 538, 581 A.2d 595, 604-605 (1990) (en banc) citing Commonwealth v. Hicks, 483 Pa. 305, 311, 396 A.2d 1183, 1186 (1979) (an actor should not be insulated from criminal liability for acts which result from a. mental state that is voluntarily self-induced).

Our Crimes Code provides, with respect to culpability:

§ 308. Intoxication or drugged condition
Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative [negate] the element of intent of the offense, except that evidence of such intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.

18 Pa.C.S. § 308.

On this appeal, Griscom invites this panel to reject the reasoning found in Kuhn, Plank, Ellis, and Mikulan and hold that the proffered evidence should have been admitted in an attempt to prove a lack of mens rea by Griscom in violating the pertinent sections of the Vehicle Code. However, Griscom had stipulated at trial that expert testimony, if presented, would establish that he, Griscom, was operating his motor vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving. 75 Pa.C.S. § 3731(a)(1). Griscom had further stipulated that he was driving his motor vehicle at a time when his operating privileges were suspended. 75 Pa.C.S. § 1543(a).

Evidence which tends to establish a material fact in the case or which tends to make a fact at issue more or less probable is relevant. Commonwealth v. Brown, 489 Pa. 285, 303, 414 A.2d 70, 79 (1980). While involuntary intoxication may, as an abstract principle, be a defense to a crime, no Pennsylvania appellate court has yet to hold that the defense of involuntary intoxication is a viable one. We acknowledge that at least one most distinguished trial judge has held that involuntary intoxication is a viable defense, based upon Section 301 of the Crimes Code, supra. Commonwealth v. Butterfield, 17 Pa. D. & C. 3d 62 (1980) (Carbon Cty., Lavelle, John P., P.J.) (evidence of inhalation of paint fumes compels jury charge on inadvertent or accidental ingestion by inhalation). Cf. Commonwealth v. Todaro, 301 Pa.Super. 1, 446 A.2d 1305 (1982) (instruction on involuntary intoxication not required where defendant inadvertently mixed alcoholic beverages with prescribed medication). Where this issue has been addressed by our Supreme Court in Mikulan, albeit without finality, we are loath to stray from our assigned task of maintaining and effectuating the decisional law of that Court as faithfully as possible. Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1985).

Given the present state of the law in this Commonwealth, we cannot say that Judge Levy committed any error of law, or abused his discretion, in declining to receive expert testimony regarding Griscom’s bipolar disorder.

Judgment of sentence AFFIRMED.


author: BROSKY, Judge.

text:
    600 A.2d 1261
    Thomas J. GERAGHTY v. Patricia GERAGHTY. Appeal of Francis FLEMING, Esquire, Executor of the Estate of the Above Named Defendant, Thomas J. Geraghty, Deceased.
    Superior Court of Pennsylvania.
    Argued July 30, 1991.
    Filed Nov. 20, 1991.
    Reargument Denied Jan. 28, 1992.

      Thomas A. Fosnocht, Jr., West Chester, for appellant.
    Donald A. Mancini, Asst. Dist. Atty., Malvern, for appel-lee.

      Before MONTEMURO, TAMILIA and BROSKY, JJ.
   BROSKY, Judge.

This is a certified appeal from an interlocutory order of the trial court which directed the decedent to change the beneficiary designation on two life insurance policies that had been purchased during the parties’ marriage.

Appellee, Patricia Geraghty, and appellant’s decedent, Thomas Geraghty, were married in 1969. One child, David Geraghty, was born during the marriage. Two life insurance policies on the life of Mr. Geraghty were acquired during the parties’ marriage. Appellant concedes that appellee was the designated beneficiary on both of these policies prior to the parties’ separation.

In June of 1986, Mr. Geraghty was found to have cancer of the colon and subsequently underwent a course of medical treatment for this disease. Shortly after Mr. Geraghty learned of his illness, the parties’ marital relationship began to deteriorate to the point where Mr. Geraghty entered into a meretricious liaison with Mrs. Cynthia Chatfield, who was at that time married to her husband, Mr. Chatfield. Mr. and Mrs. Geraghty finally separated in December, 1987, and Mr. Geraghty subsequently moved in with his paramour. Mr. Geraghty and Mrs. Chatfield had one child, Ryan Ger-aghty, who was born in 1988.

After the parties’ final separation, Mr. Geraghty commenced this action by filing a divorce complaint in January of 1988. Although several hearings regarding the divorce action and equitable distribution matters were held before a special master, neither transcripts of these proceedings nor any other relevant documentation adduced therein have been made a part of the certified record. During the pendency of the divorce/equitable distribution proceedings, Mr. Geraghty apparently changed the beneficiary designations on the TransAmerica and Prudential policies. Thus, Ryan Geraghty was named as the beneficiary of the Trans-America policy and David Geraghty was made the beneficiary of the Prudential policy. In addition, Mr. Geraghty acquired a third life insurance policy following his separation from his wife. This policy was identified as the UNUM policy, and was in the amount of $60,000.00. David Ger-aghty was made the beneficiary of this policy. Although appellee was apprised of the changed beneficiary designations on the TransAmerica and Prudential policies when Mr. Geraghty filed his Inventory and Appraisement in May of 1989, she did not make any attempt to have the prior beneficiary designations reinstated at this time. In February of 1990, Mr. Geraghty made a claim for accelerated death benefits under the Prudential policy and he received a check in the amount of $144,051.40 as payment on this claim. Mr. Geraghty subsequently re-designated both Ryan and David Geraghty as co-equal beneficiaries on the TransAmerica policy in May, 1990.

Mr. Geraghty’s health steadily declined and required him to enter the hospital in June, 1990. Upon learning of Mr. Geraghty’s serious condition, appellee filed a petition for special relief pursuant to Pa.R.C.P., Rule 1920.43, 42 Pa. C.S.A. A hearing on the petition was held on June 29,1990, following which the trial court granted appellee’s petition and directed Mr. Geraghty to re-designate appellee as the beneficiary on the TransAmerica and Prudential policies. Although the trial court gave Mr. Geraghty a period of seven days in which to comply with the order, the trial court directed the prothonotary to complete the necessary changes in the event of Mr. Geraghty’s death. Mr. Ger-aghty died before the expiration of this period and did not attempt to satisfy the trial court’s directive.

Following Mr. Geraghty’s death, letters testamentary were granted to appellant, Mr. Francis Fleming, Esq., the executor of Mr. Geraghty’s estate. A timely filed motion for reconsideration was filed on Mr. Geraghty’s behalf, but was summarily denied by the trial court. On August 29, 1990, the June 29, 1990 order was amended to include a statement certifying the order for the purpose of an interlocutory appeal. See 42 Pa.C.S.A. § 702(b). On September 28, 1990, appellant timely filed a petition for permission to appeal from the trial court’s interlocutory order, as required by Pa.R.A.P., Rule 1311(b), 42 Pa.C.S.A. Appellant also filed a petition to vacate the order on this same date, however, no action was taken with respect to this petition. We granted appellant’s petition for permission to pursue this interlocutory appeal by a per curiam order entered on January 24, 1991.

Appellant presents the following issues for review: (1) whether the order is moot: (a) due to the death of the decedent, thereby causing an abatement of the divorce action and equitable distribution matters; and/or (b) because the order was interlocutory and executory; (2) whether the order was invalid because it purported to dispose of marital assets prior to the entry of a divorce decree; (3) whether the Divorce Code permits the courts to designate or change the beneficiaries on a life insurance policy pen-dente lite; and (4) whether the trial court erred: (a) because appellee’s claim is barred by the doctrine of laches, and (b) by inequitably distributing the life insurance proceeds to favor the decedent’s legitimate rather than illegitimate child. For the reasons set forth below, we vacate the order of the trial court and remand for further proceedings consistent with this opinion.

In reviewing the merits of this appeal, we observe that “[t]he granting of relief under [Pa.R.C.P.,] Rule 1920.43, 42 Pa.C.S.A.] is within the sound discretion of the trial court and is an exercise of the court’s equitable powers. Absent an abuse of discretion, the appellate court will not disturb the lower court’s decision.” DeMatteis v. DeMatteis, 399 Pa.Super. 421, 428, 582 A.2d 666, 669 (1990). See also Frank v. Frank, 402 Pa.Super. 458, 462, 587 A.2d 340, 342 (1991) (for a similar standard of review). We will evaluate the trial court’s order in accordance with this standard.

Although appellant raises four distinct questions for review, we observe that the first three claims are inextricably intertwined in that they all involve an analysis of the trial court’s power to direct the designation of a beneficiary on a life insurance policy prior to the entry of a divorce decree. With regard to the trial court’s ability to dispose of economic claims in a divorce action, this court has observed that “[t]he Divorce Code ... establishes] a comprehensive scheme for the dissolution of marriage, the distribution of marital property, and the resolution of related economic claims. Within that scheme, it is contemplated that ‘equitable distribution of property acquired during the marriage occurs only upon divorce. ’ ” Reese v. Reese, 351 Pa.Super. 521, 525-526, 506 A.2d 471, 473 (1986), quoting Bacchetta v. Bacchetta, 498 Pa. 227, 235, 445 A.2d 1194, 1198 (1982) (footnote omitted) (emphasis supplied by the court). As further explained by this court:

The determination of economic claims flows from the divorce decree, which is the sine qua non of any consideration of economic matters. Once the [divorce] decree has been entered, the right of the spouse to the distribution of marital property and other economic claims[,] where these matters have been properly put in issue before the death of the spouse, is vested. However, [u]nless and until a valid decree in divorce has been entered, there can be no equitable distribution of marital property. Therefore, because a divorce action is abated by the death of one of the parties prior to the entry of a [divorce] decree, economic claims are also abated by the death of one of the parties prior to the entry of a decree.

Myers v. Myers, 397 Pa.Super. 450, 452, 580 A.2d 384, 385 (1990). See also 23 P.S. § 301(a), § 401(a), (b), (b.1), (c) and (d), repealed and re-enacted by the Act of December 19, 1990, P.L. 1240, No. 206, and codified at 23 Pa.C.S.A. § 3104(a), § 3323(a), (b), (c), (f) and § 3502(a) (which all emphasize the legislature’s intent to provide for the adjudication of economic claims in conjunction with or following the entry of a divorce decree).

In applying the above principles and relevant provisions of the Divorce Code to the facts of this case, we are compelled to conclude that the trial court abused its discretion. We first observe that the trial court attempted to circumvent the provisions of the Divorce Code by distributing some of the marital assets prior to the entry of a final divorce decree. The trial court specifically indicated that the two life insurance policies and Mr. Geraghty’s pension were marital property that was subject to equitable distribution by the court. See Findings of Fact and Order, 6/29/90, at 3. The trial court was also aware of Mr. Geraghty’s condition and of the fact that his death was imminent. See id., at 3-4. Due to Mr. Geraghty’s impending death, it was extremely unlikely that any further action could or would be taken regarding either a divorce decree or the economic claims. Thus, the trial court’s order cannot be construed as an attempt to preserve marital property for future equitable distribution because it was apparent that no future proceedings would ever occur. When viewed in this context, the trial court’s directive that appellee be reinstated as the beneficiary cannot be interpreted as anything other than a distribution of the life insurance proceeds and pension benefits to appellee. Because a permanent distribution of marital assets prior to the entry of the divorce decree violates the provisions of the Divorce Code, the trial court’s order must be vacated.

We also observe that the trial court operated under the erroneous assumption that it had the authority to order a change in the beneficiary designations in the event of Mr. Geraghty’s death. See Findings of Fact and Order, 6/29/90, at 4. As made clear by Myers v. Myers, supra, and the cases cited therein, the determination of any economic or similar claims which are ancillary to the divorce action must be made in conjunction with or following the entry of a divorce decree. Because the trial court’s powers are derived from and are contingent upon the continued existence of the divorce action, the trial court has no jurisdiction to proceed if one of the parties dies prior to the entry of a divorce decree. Myers v. Myers, supra. The abatement of the divorce action and other proceedings thus divested the trial court of its power to alter the beneficiary designations on the life insurance policies after Mr. Ger-aghty’s death.

Since our analysis of appellant’s first three issues adequately disposes of this appeal, we decline to address the merits of the remaining claims regarding application of the doctrine of laches and whether the trial court impermissibly discriminated against Mr. Geraghty’s illegitimate child. To summarize our holding, we find that the trial court abused its discretion in this case by attempting to make a permanent award of marital property prior to the entry of a valid divorce decree. We further conclude that the trial court lacked jurisdiction to enforce its order after the divorce action abated due to the demise of one of the parties. Because the trial court abused its discretion in attempting to enter and enforce its directive despite its patent lack of jurisdiction, we vacate the order and remand to the trial court. Upon remand, we specifically direct the trial court to relinquish control of the funds paid by TransAmerica to the beneficiaries designated by Mr. Geraghty, that is, David Geraghty and Ryan Geraghty, as co-equal beneficiaries.

Order vacated. Remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

TAMILIA, J., concurs in the result.

      . One policy was issued by Prudential in the sum of $165,000.00; the other policy was from TransAmerica, in the sum of $250,000.00. Copies of the insurance policies were never introduced into evidence nor have they otherwise been made a part of the certified record.

      . There appears to be some confusion on this matter. In her petition for special relief, appellee asserted that she was the beneficiary on the Prudential policy and that David Geraghty was the beneficiary on the TransAmerica policy. See Petition for Special Relief at paragraphs 14 and 15. At the hearing, however, appellee testified that she was the designated beneficiary on both the TransAmerica and Prudential policies. See N.T., 6/29/90, at 23. Appellant concedes that appellee was the beneficiary on both policies prior to the parties’ separation. See Appellant’s Brief, at 5. Because the parties do not appear to dispute this issue on appeal, we will assume that appellee was in fact the designated beneficiary on the policies prior to the parties’ final separation.

      . See Appellee’s Answer and New Matter to [Appellee’s] Petition to Vacate, Exhibit B (Letter from Prudential to appellee’s counsel and copy of canceled check). Appellee did not discover that Mr. Geraghty had cashed in the Prudential policy until September 6, 1990, when she received the letter from Prudential.

      . Because of Mr. Geraghty’s death during the pendency of this action, Mr. Fleming in his capacity as the executor of Mr. Geraghty’s estate, has been substituted as the plaintiff in the action below and as appellant here.

      . Because appellant has been granted permission to appeal from the amended interlocutory order, the trial court is precluded from taking further action in this matter. See Pa.R.A.P., Rule 1701(a), 42 Pa.C.S.A. and 42 Pa.C.S.A. § 5505.

      . We note that appellant also timely filed a direct appeal from the trial court’s amended interlocutory order. This appeal was docketed at No. 02757 Philadelphia 1990, whereas appellant’s petition for permission to appeal from the interlocutory order was docketed at No. 170 Misc.Dkt. 16. Although appellant’s attempt to directly appeal the interlocutory order would ordinarily have been quashed, we indicated in our order that the petition to pursue the interlocutory appeal would be transferred to the docket number previously assigned to this case at No. 02757.

        With regard to the issues raised on appeal, appellee suggests that they are not properly before this court because our order granting the interlocutory appeal limited the issues which appellant may present. See Appellee’s Brief at 3. Appellee has misconstrued our order, in which we stated: “The court hereby grants the petition for permission to appeal from the trial court order directing the decedent to change the beneficiary designations on two life insurance policies." Contrary to appellee’s interpretation, this sentence does not purport to limit the issues raised by appellant. Instead, it describes with particularity the order from which appellant has appealed.
      Once permission to appeal from the interlocutory order has been granted, an appellant can only raise the issues set forth in the petition for permission to appeal from an interlocutory order. See Pa.R.A.P., Rule 1312(a)(4), 42 Pa.C.S.A. However, the issues raised in the petition are deemed to include every subsidiary question fairly comprised therein. See id. Because the issues raised in appellant’s statement of questions were either raised in appellant’s petition for permission to appeal or were implicated therein as a subsidiary question, we find all of these issues to be properly before us for review.

      . Because the new provisions of the Divorce Code use the same or substantially the same language as the repealed provisions, the repeal and reenactment does not affect our analysis. See Brangs v. Brangs, 407 Pa.Super. 43, 45 n. 1, 595 A.2d 115, 116 n. 1 (1991) and 1 Pa.C.S.A. § 1962. We have cited to both the former and current provisions for convenience and clarity.

      . Although the issues raised in this appeal focused on the beneficiary designations on the two insurance policies, the entire order must be vacated because of the trial court’s lack of jurisdiction. Because the order attempted to distribute other marital and non-marital assets in addition to the insurance policies, we will briefly discuss the effect of the trial court’s order on and our disposition of these assets. We further note that because the Prudential policy had been cashed in by Mr. Geraghty long before the trial court’s order was entered, the trial court’s attempt to designate a beneficiary on this non-existent policy was moot. See In re: Cain, 527 Pa. 260, 263, 590 A.2d 291, 292 (1991) (discussing mootness).
      The remaining assets distributed by the trial court consisted of the UNUM policy and Mr. Geraghty’s pension benefits. With regard to the UNUM policy, the record reveals that it was acquired after the parties’ final separation. As correctly recognized by the trial court, this policy would not have been subject to equitable distribution had the divorce action progressed. See 23 P.S. § 401(e)(4), repealed and reenacted at 23 Pa.C.S.A. § 3501(a)(4). Thus, the trial court’s attempt to “award" this property to Mr. Geraghty, aside from being invalid for the reasons previously discussed, did nothing more than recognize Mr. Geraghty’s previously existing right to possess and dispose of this asset. Accordingly, the "award" of this property cannot be used, as suggested by appellee, to create an estoppel or reliance so as to require that the order be upheld. See Appellee’s Brief at 20. Compare Reese v. Reese, supra, 351 Pa.Super. at 528-529, 506 A.2d at 475 (in which we held that a party who requested equitable distribution prior to the entry of a divorce decree and who received the requested relief would be estopped from asserting that the trial court lacked jurisdiction to distribute the marital property prior to granting a divorce). Reese is clearly distinguishable from the facts of this case since Mr. Geraghty did not request pre-divorce equitable distribution. Further, Mr. Geraghty cannot be said to have relied upon the court’s order. Because Mr. Geraghty would have been free to dispose of this asset in the absence of the trial court’s order, our disposition does not affect any change in the beneficiary designation which he may have made prior to his death.
      The last asset distributed by the trial court was Mr. Geraghty’s pension. According to appellant, Mr. Geraghty could not designate any beneficiary other than his spouse. See Appellant’s Motion for Reconsideration at paragraph 6. If this allegation is assumed to be true, then the trial court’s purported award of one-half of the pension to Mr. Geraghty was a nullity since appellee would have been entitled to receive the entire pension benefit. In addition to this problem, it is clear that the trial court had no authority to determine and distribute the parties’ share of Mr. Geraghty’s pension prior to the entry of the divorce decree. Therefore, the trial court’s award of this asset must likewise be vacated. If, as appellant asserts, a spouse is the only party eligible to receive the pension, then we presume that appellee will be entitled to receive this asset.


author: WIEAND, Judge:

text:
    600 A.2d 1265
    COMMONWEALTH of Pennsylvania v. Liam AGNEW and Kevin O’Hara, Appellants.
    Superior Court of Pennsylvania.
    Argued June 18, 1991.
    Filed Dec. 17, 1991.

      Jon Auritt, Media, for appellants.
    Louis G. Stesis, Asst. Dist. Atty., Media, for Com., appel-lee.
    Before ROWLEY, President Judge, and CAVANAUGH and WIEAND, JJ.
   WIEAND, Judge:

Liam Agnew and Kevin O’Hara were tried non-jury and were found guilty of possession of a small amount of cocaine and criminal conspiracy. Both were sentenced to pay fines of two hundred ($200.00) dollars and serve concurrent six (6) month terms of probation. On direct appeal from the judgments of sentence, they argue that the trial court erred by refusing to suppress the cocaine seized by police, as well as an inculpatory statement by O’Hara, all of which were the result of a stop of their vehicle and an arrest unsupported by probable cause. Appellants argue further that the District Attorney of Delaware County abused his discretion by refusing to consider them for pretrial placement in the Accelerated Rehabilitation Disposition program (ARD) because of an arbitrary policy which violated constitutional principles of due process and equal protection.

We consider first the challenge made by appellants to the District Attorney’s refusal to recommend their placement in an ARD program. This decision was made on the basis of an unwritten policy of the District Attorney which designated the City of Chester as a drug selling zone and which, therefore, rendered persons ineligible for ARD if they were charged with participating in a drug transaction in Chester. The District Attorney concedes that this is his policy and that persons arrested for possessing small amounts of controlled substances in other parts of Delaware County are routinely considered for ARD. Appellants contend that this unwritten policy is arbitrary and unfair. It is also contended that the policy is violative of constitutional principles of due process and equal protection because it makes an impermissible distinction between two classes of individuals who, in all other respects, would be equally acceptable for the ARD program. The Commonwealth responds with the assertion that its policy is neither arbitrary nor discriminatory, but is aimed at protecting society by combating the drug problem in Delaware County at its most persistent and pervasive location. In support of the implementation of the policy to exclude from ARD consideration those who commit possessory drug offenses in the City of Chester, the District Attorney offers the following specific reasons:

1. The City of Chester has presented and continues to present the most significant problems and challenges for drug enforcement personnel in Delaware County;
2. The City of Chester is the focal point for open drug sales in public places in the County of Delaware;
3. Due to the fast-paced nature of public drug sales in the City of Chester, individuals from both inside and outside of Chester are able to drive to areas of high drug sales in Chester, quickly purchase drugs from within or near their vehicles, and promptly depart from the drug sale area; and
4. In the recent past, substantial violence has resulted from drug activities in the City of Chester; drug-related homicides, robberies and assaults have occurred at disproportionate levels in Chester during the past two years.

“A defendant’s admission into an ARD program is not a matter of right but rather a privilege.” Commonwealth v. Hyde, 406 Pa.Super. 445, 447, 594 A.2d 703, 704 (1991). The decision to submit a case for ARD placement is in the sole discretion of the district attorney. Commonwealth v. Paul, 383 Pa.Super. 486, 490, 557 A.2d 357, 358 (1989). The district attorney’s discretion is broad, and the scope of appellate review of the exercise of that discretion is narrow. The limits of the district attorney’s discretion in matters concerning admission to ARD have been established by the Pennsylvania Supreme Court as follows:

[T]he decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent an abuse of that discretion involving some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based on his view of what is most beneficial for society and the offender.

Commonwealth v. Lutz, 508 Pa. 297, 310, 495 A.2d 928, 935 (1985) (citations omitted). See also: Commonwealth v. Stranges, 397 Pa.Super. 59, 579 A.2d 930 (1990) (en banc); Commonwealth v. Paul, supra; Commonwealth v. Knowles, 373 Pa.Super. 203, 540 A.2d 938 (1988); Commonwealth v. Mowry, 358 Pa.Super. 233, 516 A.2d 1270 (1986); Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986); Commonwealth v. Brown, 350 Pa.Super. 453, 504 A.2d 927 (1986). With respect to the Lutz decision, the Superior Court has observed:

Lutz restricts the district attorney’s discretion in two significant respects. First, the prosecutor must openly specify reasons for not submitting a case for ARD. Commonwealth v. Manning, 367 Pa.Super. 624, 626-627, 533 A.2d 448, 450 (Pa.Super.1987); Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986). Second, these reasons must relate to the protection of society or to the likelihood of the candidate’s successful rehabilitation.

Commonwealth v. Ebert, 369 Pa.Super. 318, 322, 535 A.2d 178, 180 (1987).

“Due process encompasses elements of equality and provides the court with a vehicle for enforcing the constitutional principle that all criminal defendants are treated with ‘fundamental Commonwealth v. Melnyk, 378 Pa.Super. 42, 51, 548 A.2d 266, 270-271 (1988), citing Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656, 666 (1973). “The touchstone of due process is protection of the individual against arbitrary action of the government.” Commonwealth v. Robinson, 497 Pa. 49, 54, 438 A.2d 964, 966 (1981), appeal dismissed, 457 U.S. 1101, 102 S.Ct. 2898, 73 L.Ed.2d 1310 (1982), citing Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935, 952 (1974).

“ ‘Due process’ emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. ‘Equal protection,’ on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.”

Commonwealth v. Melnyk, supra, 378 Pa.Super. at 49, 548 A.2d at 269, quoting Ross v. Moffitt, 417 U.S. 600, 608-609, 94 S.Ct. 2437, 2443, 41 L.Ed.2d 341, 350 (1974). “‘The concept of equal protection ... demands that uniform treatment be given to similarly situated classifications are drawn, then the challenged policy must be reasonably justified.’ ” Smith v. City of Philadelphia, 512 Pa. 129, 137-138, 516 A.2d 306, 310 (1986), appeal dismissed, 479 U.S. 1074, 107 S.Ct. 1265, 94 L.Ed.2d 127 (1987), quoting Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 68, 436 A.2d 147, 155 (1981), appeal dismissed, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982).

“Absent a fundamental right, the standard of review for a substantive due process challenge is whether the [policy] at issue has a reasonable basis....” Dranzo v. Winterhalter, 395 Pa.Super. 578, 589-590, 577 A.2d 1349, 1355 (1990). To prevail under the rational basis test, the party asserting a due process violation must demonstrate that there is no relationship between the challenged policy and a legitimate state interest. Id. at 590, 577 A.2d at 1355. See also: Henne v. Wright, 904 F.2d 1208, 1215 (8th Cir. 1990), cert. denied, — U.S. —, 111 S.Ct. 692, 112 L.Ed.2d 682 (1991); Morris v. Public School Employees’ Retirement System, 114 Pa.Cmwlth. 369, 378, 538 A.2d 1385, 1389 (1988). Similarly, under the equal protection clause, a classification “which does not implicate ‘fundamental interests’ or affect with particularity a 'suspect class’ ” will be upheld so long as it “bears a rational relationship to a legitimate state interest.” Commonwealth v. Hicks, 502 Pa. 344, 347, 466 A.2d 613, 615 (1983), appeal dismissed, 465 U.S. 1015, 104 S.Ct. 1260, 79 L.Ed.2d 668 (1984). It has been observed that, absent the deliberate use by the district attorney of such factors as race, religion or other suspect classifications, the exercise of prosecutorial discretion in decisions concerning admission into ARD does not violate constitutional principles of due process and equal protection. Shade v. Commonwealth, Department of Transportation, 394 F.Supp. 1237, 1242 (M.D.Pa.1975), citing Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). See also: Commonwealth v. Ebert, supra, 369 Pa.Super. at 324, 535 A.2d at 181 (equal protection does not restrain prosecutorial discretion in ARD matters unless exercise of discretion was based upon unjustifiable standard such as race or religion or an arbitrary classification).

The distinction between persons committing posses-sory drug offenses in the City of Chester and those committing the same offense at other places in Delaware County does not involve a suspect classification. The fact that criminal offenses are punished differently in different areas is not necessarily unconstitutional. “ ‘The Equal Protection Clause relates to equality between persons as such rather than between areas_Territorial uniformity is not a constitutional requisite.' ” Commonwealth v. Kindness, 247 Pa.Super. 99, 109, 371 A.2d 1346, 1351 (1977), quoting Salsburg v. Maryland, 346 U.S. 545, 551-552, 74 S.Ct. 280, 283-284, 98 L.Ed. 281, 288 (1954).

After careful consideration, we agree with appellants that the location of the commission of a possessory drug offense bears no relationship to whether or not a defendant can be successfully rehabilitated. However, we cannot conclude that the district attorney’s policy is wholly unrelated to the protection of society. The district attorney has identified the City of Chester as the hub of illegal drug trafficking in Delaware County. We cannot say that a policy aimed at discouraging persons from purchasing drugs in the City of Chester, by denying them consideration for placement into an ARD program, bears no rational relationship to the protection of the public. We conclude, therefore, that there is no basis in this case for disturbing the district attorney’s exercise of discretion. “Once it is determined that the general policy bears some rational relationship to the protection of the public, it is improper to consider the manner in which or the degree to which that acceptable policy affects a specific [defendant].” Commonwealth v. Stranges, supra, 397 Pa.Super. at 65, 579 A.2d at 933. See also: Commonwealth v. Mowry, supra, 358 Pa.Super. at 237, 516 A.2d at 1272. We conclude, therefore, that appellants have asserted no basis for relief with respect to the District Attorney’s refusal to recommend them for participation in the ARD program.

In reviewing the ruling of a suppression court,

‘we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are hound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.'

Commonwealth v. Whitney, 511 Pa. 232, 239-240, 512 A.2d 1152, 1156 (1986), quoting Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985). See also: Commonwealth v. O’Shea, 523 Pa. 384, 395, 567 A.2d 1023, 1028 (1989), cert. denied, — U.S. —, 111 S.Ct. 225, 112 L.Ed.2d 180 (1990); Commonwealth v. Hughes, 521 Pa. 423, 438-439, 555 A.2d 1264, 1271-1272 (1989).

The suppression court made the following detailed findings of fact:

1. Officer Dennis McIntyre, a member of the Narcotics Unit of the City of Chester Police Department, Delaware County, Pennsylvania, received special training in narcotics investigation and has participated in hundreds of arrests related to controlled substances.
2. On April 26, 1990, between 8:00 and 9:00 p.m., Officer McIntyre was on plain clothes duty in an unmarked police vehicle near the “Live Wire Bar” located at Sixth Street and Potter Street in Chester. That vicinity is recognized as a high drug activity area. He, along with two other members of the narcotics unit, were conducting surveillance for drug trafficking from the unmarked automobile. The area is frequented predominately [sic] by blacks and Puerto Ricans. Immediately behind the “Live Wire Bar” is a lot which provides a haven for trafficking activity and where Officer McIntyre has witnessed numerous illegal drug transactions. The area is not well-lit and individuals engaged in illegal activity can, if they detect police presence, run through the “Live Wire” and disappear into apartments located above the bar. No other businesses or homes are located in the area behind the bar. Therefore, there is little reason for individuals to pull their vehicles into the lot other than to engage in illegal transactions.
3. At approximately 8:50 p.m., Officer McIntyre observed a blue Toyota automobile with three white males pull into the lot behind the Live Wire Bar. Officer McIntyre then observed two black males in the area where the blue Toyota stopped. Officer McIntyre exited his police vehicle and went to an area across the street from the rear of the bar, approximately 30 to 40 yards away from the Toyota vehicle and the two black men whom he had previously observed. It was dark outside at that time and no lights were on inside the Toyota automobile.
4. Officer McIntyre watched one of the black males who wore light colored clothing approach the passenger side of the Toyota. A conversation took place and the black male clad in light clothing returned to the other black male who then went to the front passenger side of the Toyota automobile. Officer McIntyre observed, the second black male place his hand inside the passenger window and, although Officer McIntyre was unable to see any objects passed between the parties, he believed that he had witnessed a drug transaction. The entry of the black male’s arm into the passenger window suggested that a transaction had transpired.
5. The Toyota then exited the lot and proceeded to the area of Tenth and Chestnut Streets in the City of Chester where it pulled into a lot adjacent to the DelMont Mechanical Company warehouse. Officer McIntyre re-entered his police vehicle and together with the other two officers, the law enforcement agents followed the subject Toyota until it stopped. Other police vehicles also responded to a radio call from Officer McIntyre and arrived at Tenth and Chestnut Streets shortly after Officer McIntyre and his fellow officers. There was no chase involved. Apparently, the defendants were all employed at DelMont Chemical Company and were returning to work.
6. Officer McIntyre pulled behind the subject Toyota, exited his car, identified himself to the occupants of the Toyota as a police officer and instructed the occupants to exit the subject vehicle.
7. As Officer McIntyre walked towards the driver’s door of the subject vehicle, defendant Kevin Joseph O’Hara exited as directed by Officer McIntyre, and responded to the officer’s instruction that he place his hands on the car’s roof. Officer McIntyre then patted down O’Hara and also placed his hands in both of O’Hara’s pants pockets. O’Hara was then handcuffed and directed to stand at the rear of the subject vehicle.
8. Officer Floyd Lewis of the Chester City Police Department Narcotics Unit was one of the officers in the company of Officer McIntyre. Officer Lewis immediately went to the front passenger side of the Toyota as defendant Liam Agnew exited the front passenger side. Agnew was placed in handcuffs by another police officer and his pockets were searched. Officer Lewis looked inside the front passenger door which had been left open, but observed nothing. He then shined his flashlight onto the floor of the front passenger side of the vehicle and bent over so that his body was protruding into the vehicle. After removing some trash which was on the floor of the vehicle, Officer Lewis spied a plastic bag containing a white substance protruding from under the front passenger seat. Officer Lewis believed that the bag contained cocaine and he immediately retrieved the bag and then went to the rear passenger seat from which defendant William Michael Leach had exited. Officer Lewis then found another plastic bag containing a white powdery substance on the floor of the vehicle under the front passenger seat which he also believed to contain a controlled substance. Officer Lewis then advised Officer McIntyre of his discovery, whereupon defendant O’Hara stated, “Both of them are mine.” All of the defendants were then placed under arrest.
9. Defendant Liam Agnew had thrown the two plastic bags containing the controlled substances under the front passenger seat.

Based upon these findings, the suppression court concluded that the search of the vehicle in which appellants had been riding was justified because the search had been incident to a lawful arrest.

As a general rule, a search conducted without a warrant is presumed to be unreasonable unless it can be justified under a recognized exception to the search warrant requirement. See: Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978); Commonwealth v. McBride, 391 Pa.Super. 113, 119, 570 A.2d 539, 542 (1990). One such exception is a search which is incident to a lawful arrest. Commonwealth v. Lewis, 394 Pa.Super. 403, 407, 576 A.2d 63, 65 (1990); Commonwealth v. York, 381 Pa.Super. 55, 61, 552 A.2d 1092, 1094 (1989). “ ‘When a policeman has made a lawful arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.’ ” Commonwealth v. Jones, 396 Pa.Super. 304, 307, 578 A.2d 527, 529 (1990), quoting New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1981) (footnotes omitted).

“To be constitutionally valid, a warrantless arrest must be supported by probable cause.” Commonwealth v. Anderson, 360 Pa.Super. 466, 470, 520 A.2d 1184, 1186 (1987). See also: Commonwealth v. Canning, 402 Pa.Super. 438, 441-442, 587 A.2d 330, 332 (1991); Commonwealth v. Merriwether, 382 Pa.Super. 411, 419, 555 A.2d 906, 910 (1989).

In this Commonwealth, the standard for evaluating whether probable cause exists is the “totality of the circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See Commonwealth v. Baker, 513 Pa. 23, 518 A.2d 802 (1986), Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The bench mark of a warrantless arrest is the existence of probable cause, namely, whether the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime. Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979).

Commonwealth v. Rodriguez, 526 Pa. 268, 272-273, 585 A.2d 988, 990 (1991). See also: Commonwealth Fromal, 392 Pa.Super. 100, 112-113, 572 A.2d 711, 717 (1990); Commonwealth v. Butler, 354 Pa.Super. 533, 537-538, 512 A.2d 667, 669-670 (1986).

‘When we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element ... We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might ... Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond-a-reasonable-doubt’ standard which we apply in determining guilt or innocence at trial. Commonwealth v. Devlin, 221 Pa.Super. 175, 289 A.2d 237 (1972).’

Commonwealth v. Simmons, 295 Pa.Super. 72, 83, 440 A.2d 1228, 1234 (1982), quoting Commonwealth v. Kazior, 269 Pa.Super. 518, 524, 410 A.2d 822, 824-825 (1979). See also: Commonwealth v. Chase, 394 Pa.Super. 168, 172, 575 A.2d 574, 576 (1990); Commonwealth v. Ellis, 354 Pa.Super. 11, 17-18, 510 A.2d 1253, 1256 (1986) (en banc).

In the instant case, the suppression court, in denying the motion for suppression, reasoned as follows:

Given the time of day, the locus of the automobile in an area known for active drug trafficking, the race of the occupants of the car, the observation of men approaching the automobile in which the defendants were seated, the gesture of one of the men placing his hand inside the passenger compartment of the car and the immediate exit of the car from the parking lot, the police possessed probable cause to believe that they had witnessed a drug transaction.

When police observe citizens engaged in seemingly suspicious transactions on public streets, the determination of whether probable cause exists can be a difficult one. In this regard, the Pennsylvania Supreme Court has observed that “all of the circumstances surrounding a transaction between citizens are to be considered in determining whether law enforcement officers have acted arbitrarily or have acted on the basis of probable cause.” Commonwealth v. Lawson, 454 Pa. 23, 27, 309 A.2d 391, 394 (1973), citing United States v. Henry, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). The Court in Lawson elaborated that:

All of the detailed facts and circumstances must be considered. The time is important; the street location is important; the use of a street for commercial transactions is important; the number of such transactions is important; the place where the small items were kept by one of the sellers is important, the movements and manners of the parties are important.
It is difficult to isolate any one fact or circumstance and assign to it a given weight. If any one of the facts and circumstances, which we have detailed, were missing, the necessary conclusion of probable cause might not be allowable. Every commercial transaction between citizens on, a street comer when unidentified property is involved does not give rise to probable cause for an arrest.

Id. 454 Pa. at 28-29, 309 A.2d at 394. See also: Commonwealth v. Vassiljev, 218 Pa.Super. 215, 275 A.2d 852 (1971) (police did not have probable cause to arrest defendant after observing something being passed by him to another man on public street, at 11:15 p.m., where police did not see what had been passed). Compare: Commonwealth v. Jenkins, 401 Pa.Super. 580, 585 A.2d 1078 (1991) (probable cause found when police, using binoculars, twice observed defendant open trunk of car and place his hand in plastic bag which contained numerous packets filled with white substance where police had unobstructed view and events occurred in high crime area).

In Commonwealth v. Greber, 478 Pa. 63, 385 A.2d 1313 (1978), police had been watching a bowling alley in a high crime area. They observed defendants drive their vehicle into the parking lot of the bowling alley and hand a shopping bag to a juvenile. The juvenile had been standing on the lot, acting as though he were waiting for someone. Upon receiving the bag, the juvenile lifted it to his face and appeared to smell its contents. At this point, the police moved in, blocking the path of the defendants’ vehicle and seizing the shopping bag from the juvenile. Marijuana was found in the bag and later in the defendants’ vehicle. The trial court ordered that the marijuana be suppressed because the police had lacked probable cause to make a lawful arrest. On appeal, the Commonwealth conceded that probable cause had been lacking but asserted that the police had made a lawful investigative Terry stop. The Supreme Court rejected this argument and affirmed the suppression court’s order. In a plurality opinion the Court reasoned as follows:

The acts of appellees in a car, stopping at a bowling alley, exchanging a all acts that were outwardly innocent. Cf. United States v. Henry, 361 U.S. 98, 103-104, 80 S.Ct. 168 [171-172], 4 L.Ed.2d 134, 139-40 (1959). What occurred here was one isolated transaction, not a series of transactions which, under certain circumstances might indicate that an exchange of drugs was taking place. See, Commonwealth v. Lawson, supra. Officer Matuszak had no prior information that a drug transaction would occur on this evening. There was simply no reasonable basis to conclude that this particular package, a shopping bag large enough to contain a countless number of objects, happened to contain illegal drugs. While the officer’s curiosity might have been aroused by the action that was witnessed, and while he might have had a hunch that illegal contraband was involved, that is not sufficient. See Terry v. Ohio, supra; Commonwealth v. Jones, supra.

Commonwealth v. Greber, supra, 478 Pa. at 68, 385 A.2d at 1316 (per Manderino, J.). In a concurring opinion, Justice Roberts concluded that it was unnecessary to determine whether the police had had sufficient basis to make a Terry stop, because, in any event, they had arrested the defendants without probable cause. Although a majority of the Court was unable to agree upon the rationale for its decision, its holding was that under facts similar to those in the instant case, probable cause to make an arrest was not present. See also: Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513 (1991) (defendant’s presence on street corner at 12:20 a.m., her walking away rapidly upon spotting police and police observation of a bulge in her jacket pocket did not justify investigative Terry stop); Commonwealth v. Espada, 364 Pa.Super. 604, 528 A.2d 968 (1987) (mere presence in high crime area does not justify Terry stop). Compare: Commonwealth v. Frank, 407 Pa.Super. 500, 595 A.2d 1258 (1991) (reasonable suspicion for Terry stop existed where police observed defendant in high crime area in company of known drug dealer and later saw him exchange unidentified objects with three unknown men; when defendant fled after police had tried to stop his vehicle, reasonable suspicion ripened into probable cause to arrest); Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075 (1991) (Terry stop justified by combination of neighbors' reports of drug activity and police observation of suspicious heavy foot traffic in alley behind alleged crack house during early hours of morning).

After careful study of the facts in the instant case and a review of the decided cases, we are constrained to agree with appellants that the police lacked probable cause to arrest them and to" make a search incidental thereto. The police had no prior information or reason to believe that appellants would be engaging in a drug transaction, nor did they observe appellants in the company of known drug dealers. While conducting surveillance of an area known for high drug activity, police observed appellants engage in an unknown discourse with two unidentified black males. Although one of the black males was observed reaching into appellants’ vehicle, the police did not see an exchange of either objects or money. It could not be said with any degree of certainty under these circumstances that an isolated contact between appellants and two black males involved any kind of commercial transaction whatsoever, let alone a sale of drugs. It may be that the circumstances were sufficient to cause the police to become suspicious of appellants' activities. However, it is abundantly clear that the police did not possess probable cause sufficient to allow them to stop appellants’ vehicle, order appellants out of the car, place them in handcuffs and conduct a full search of the vehicle.

It follows that the suppression court erred when it refused to suppress the small amount of cocaine seized by police from appellants’ vehicle. For similar reasons, the court should have suppressed the inculpatory statement by appellant, O’Hara. Such a statement was fruit of an illegal arrest. See: Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). See also: Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980) (plurality opinion); Commonwealth v. Farley, 468 Pa. 487, 364 A.2d 299 (1976). Therefore, we will reverse the judgments of sentence and remand for a new trial, at which the illegally seized evidence may not be used.

It may be, as a practical matter, that the absence of this evidence will prevent a conviction or even a retrial. However, “[o]ne of the prices we have to pay for the security which the Fourth Amendment bestows upon us is the risk that an occasional guilty party will escape.” Commonwealth v. Conn, 377 Pa.Super. 442, 454, 547 A.2d 768, 774 (1988), quoting Commonwealth v. Newman, 429 Pa. 441, 448, 240 A.2d 795, 798 (1968).

The judgments of sentence are reversed, and the charges against appellants are remanded for a new trial. Jurisdiction is not retained.

      . Agnew and O’Hara were tried with a third defendant, William Leach, who is not a party to this appeal. The record before this Court does not disclose the disposition of the charges against Leach. However, appellants state in their brief that Leach was acquitted of the charges against him.

      . There were no post-trial motions filed in this case. Rather, upon the rendering of the verdict, appellants, the Commonwealth and the trial court all agreed that, in the interests of judicial economy, sentence would be immediately imposed and appellants would file a direct appeal, without first filing post-trial motions. We do not condone such a blatant disregard for established procedural practice. Nevertheless, because the issues now raised by appellants were properly raised pre-trial and were decided on their merits by the trial court, we will address the merits of this appeal. To penalize appellants for not following proper post-trial procedure would be unfair, where, as here, both the Commonwealth and trial court were equal participants in ignoring the rules of procedure.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


author: MONTGOMERY, Judge:

text:
    600 A.2d 1274
    Frank SODA, Individually and as Administrator of the Estate of Lorraine M. Soda, Deceased, Appellant, v. Geraldine P. BAIRD, D.O. and Louis D. Ellis, D.O. and K. & A. X-Ray Associates, Appellees.
    Superior Court of Pennsylvania.
    Argued July 18, 1991.
    Filed Dec. 18, 1991.

      Jeffrey M. Stopford, Media, for appellant.
    James L. Griffith, Philadelphia, for Baird, appellee.
    Medford J. Brown, III, Norristown, for Ellis & K. & A. X-Ray, appellees.

      Before POPOVICH, HUDOCK and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This medical malpractice action was instituted in April, 1984 by Frank Soda and his wife, Lorraine Soda. They alleged that defendants Geraldine P. Baird, D.O. and Louis D. Ellis, D.O. were negligent in care and professional advice they provided to Lorraine Soda in April, 1980, as more fully discussed below. Mrs. Soda died in May, 1985. The action was tried before a jury, in May, 1989, and the jury returned defense verdicts. After the dismissal of posttrial motions, a judgment was entered in favor of all of the defendants. This appeal is by plaintiff Frank M. Soda, both individually and as administrator of the estate of his deceased wife.

On appeal, it is claimed that the trial court erred in its instructions to the jury, as well as in its rulings that certain testimony could not be presented on behalf of the plaintiffs. The plaintiffs claimed that Dr. Baird, a family practitioner, and Dr. Ellis, a radiologist, were negligent in the care and advice they provided to Lorraine Soda when they saw her in April, 1980. In particular the plaintiffs contended that both defendants mischaracterized a mass in Mrs. Soda’s left breast as a cyst, when in fact it was a cancerous growth. The plaintiffs further maintained that the two physicians were negligent in not recommending that Mrs. Soda undertake further testing, by having the mass in her breast subjected to a biopsy, which would have revealed that the growth was malignant. There is no question that Mrs. Soda did not undertake biopsy studies relating to the lump in her left breast until approximately two years and eight months later, when she visited her family physician, Dr. Dominic Gatti, in December, 1982. Upon the advice of Dr. Gatti, she visited a specialist, Dr. Paul S. Copit, and in turn, was referred to another specialist, Dr. Harvey Lerner. The lump in her breast was determined to be malignant, and in January, 1983, Dr. Lerner performed surgery to remove Mrs. Soda’s left breast. Mrs. Soda’s death occurred in May, 1985, after this litigation was commenced. Her death was caused by cancer which spread into other areas in her body from the mass in her left breast.

At the trial, in addition to the videotaped deposition testimony of Mrs. Soda, the plaintiffs presented the testimony of several other witnesses who related that Mrs. Soda had told them, after April, 1980, that she was relieved that the diagnosis had revealed that her problem was merely a cyst, and not anything more serious, or requiring more testing. One witness testified she heard Mrs. Soda receive such advice at Dr. Ellis’ office.

The defendants testified to far different facts. Essentially, Dr. Baird related that after she manually examined the lump in Mrs. Soda’s breast, she directed her to Dr. Ellis, for a mammogram. Dr. Baird testified that after receiving a report from Dr. Ellis that the mammogram indicated that the mass had the appearance of a cyst, she specifically told Mrs. Soda that the mammogram test was not a conclusive determination, and that she recommended that Mrs. Soda submit to a biopsy as soon as possible. She said Mrs. Soda became very upset and indicated she would have to get back to Dr. Baird about this. Dr. Ellis said he could not recall seeing Mrs. Soda in April, 1980, but that he would never tell a patient in such circumstances what he thought a breast mass might be. Rather, he indicated that his practice would simply be to refer the patient back to her treating physician. Various witnesses who were called by the defense, including some who had subsequently treated Mrs. Soda’s cancer problem, testified that Mrs. Soda admitted to them that she had been advised in approximately 1980 that she should have had a biopsy but that she refused to undertake that examination, either because she was frightened or because she wanted to wait until she had medical insurance coverage to pay for the procedure.

In addition, the plaintiffs called an expert at trial who specialized in oncology and related problems. Dr. Baird called similar medical experts to testify. Experts on both sides agreed that it was not the cancer in Mrs. Soda’s breast, per se, that caused her death, but rather the spread of the cancer from her breast into other areas of her body. The plaintiffs’ expert expressed a view that the delay in treatment of the cancer, from April, 1980 until January, 1983, was likely to have increased the risk of the spread of the cancer and the resulting death of Mrs. Soda. A defense expert testified, to the contrary, that by the time the cancer became large enough to be detected by the palpation examination of Dr. Baird, in 1980, it had already spread through Mrs. Soda’s body, such that any delay in treatment between April, 1980, and January, 1983, had no impact on the ultimate outcome of her disease.

In response to special interrogatories, the jury found that Dr. Baird had been negligent, but that her negligence was not a substantial cause of the spread of the cancer in Mrs. Soda. Further, the jury found that Dr. Ellis and K. & A. X-Ray Associates were not negligent. Finally, the jury found that Mrs. Soda was contributorily negligent, and that her negligence was a substantial factor in bringing about her injuries.

Based upon this record, we now address the contentions raised on appeal by the plaintiff. First, we shall examine the claim that the trial court erred in excluding certain testimony offered by the plaintiffs at trial. The testimony in issue would have indicated that Mrs. Soda declared to others, after her examinations by Dr. Baird and Dr. Ellis, that she had been advised that she merely had a cyst, and that she did not need further testing because of any suspicion of a possible malignancy. Because of the significance of the issue of the credibility of Mrs. Soda’s testimony versus the testimony of two physician defendants, as to what Mrs. Soda was told and advised by the two doctors in 1980, it would appear that such evidence could have been of some importance to the plaintiffs in the trial.

There was discussion at trial, and in the briefs of the parties on this appeal, concerning whether or not the excluded testimony, although hearsay, should have been admitted by the trial judge within one of the established exceptions to the hearsay rule. In his opinion in support of the denial of the plaintiffs’ posttrial motions, the trial judge pointed out that the evidence in question, in addition to being in the nature of hearsay, was clearly cumulative to other evidence on the same issue which was offered at trial for consideration by the jury.

As a general rule, questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court, and may be reversed on appeal only when a clear abuse of discretion is apparent. Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985). The exclusion of evidence is not grounds for the granting of a new trial if evidence of the same fact or facts was introduced by the party applying for a new trial. Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973). There is no basis for a reversal, and a new trial, if the excluded evidence was cumulative in nature.

As noted, the excluded evidence would have tended to show that Mrs. Soda represented to others that she had been told by the defendant doctors that she merely had a cyst, which did not require further testing or treatment, and such information greatly relieved her concern about the lump in her breast. The record shows that in addition to Mrs. Soda’s own deposition testimony directly on that subject, significant additional evidence was introduced of the same nature as the hearsay testimony the judge excluded. Mrs. Soda’s family doctor, Dr. Gatti, testified that Mrs. Soda reported to him that she had a cyst, based upon information she had received from another physician. A friend of Mrs. Soda, Fran MacNeill, testified that she was present when a physician from K. & A. X-Ray Associates— presumably Dr. Mrs. Soda that she had a cyst, and that she should not worry about it. Another witness for the plaintiff, Mrs. McNulty, provided testimony that Mrs. Soda was relieved about the lump in her breast after she visited Dr. Baird. The jury also considered evidence that Mrs. Soda had told Dr. Lerner, who eventually removed her breast, that she had a history of a left breast mass for three years, with a mammography showing a cyst. Another acquaintance of Mrs. Soda, Kate Goldman, testified at trial that the decedent had said she was not going to have the cyst in her breast drained because she did not want to worry about it. Finally, while they were both precluded from testifying to the particular words Mrs. Soda had stated after consulting with the defendant doctors in 1980, both Mr. Soda and Mrs. Soda’s mother testified she and they were greatly relieved that further medical attention was not required for the lump in Mrs. Soda’s left breast.

All of this evidence, which was presented to the jury, was of the same nature, and about the same matters, as the hearsay testimony which the trial court excluded. Based upon the testimony of several witnesses, the jurors were presented with a substantial amount of proof that the decedent had told others that her 1980 examination by the defendant physicians led her to believe that she merely had a cyst, and that she did not have to undertake a biopsy, or have concern that the lump in her breast indicated any malignancy. Accordingly, it is clear that the excluded hearsay evidence would merely have been cumulative to substantial other evidence in the record on this issue. Therefore, we find no basis for the grant of a new trial based upon the evidentiary rulings which have been challenged by the plaintiffs.

We next turn to the contention that the trial court erred in several aspects of its instructions to the jury. An erroneous jury instruction may provide the basis for a new trial if it is shown that the instruction was fundamentally in error and that it may have been responsible for the verdict. Eck v. Powermatic Houdaille, 364 Pa.Super. 178, 527 A.2d 1012 (1987); Smith v. Brooks, 394 Pa.Super. 327, 575 A.2d 926 (1990), appeal denied, 527 Pa. 625, 592 A.2d 45 (1991). Alleged errors in jury instructions cannot be taken out of context, but rather must be considered in relation to the entire charge, and in light of the evidence presented. Albert v. Alter, 252 Pa.Super. 203, 381 A.2d 459 (1977). If the charge has a tendency to mislead or confuse, rather than to clarify a material issue, a new trial is indicated. Glider v. Commonwealth, Department of Highways, 435 Pa. 140, 255 A.2d 542 (1969); Takach v. B. M. Root Co., 279 Pa.Super. 167, 420 A.2d 1084 (1980). With these concepts in mind, we shall review the various challenges to the trial court's charge to the jury.

First, the plaintiffs assert that the trial judge erred in instructing the jury as follows:

“If you find that Mrs. Soda had a medical problem when she came to Dr. Baird for treatment, under no circumstances can Dr. Baird be found responsible for either the underlying medical problem from which Mrs. Soda suffered or from the consequences which would have .flowed from the natural course of those medical problems.
Plaintiff has the burden of proof in establishing that Dr. Baird, by her conduct, caused some aggravation or a new condition, which is different from the natural consequences of the preexisting condition. And that burden can be met by competent medical testimony.”

The plaintiffs claim that this charge was inexplicable and incorrect.

The plaintiffs point out that it was contended that the defendants’ negligence precluded Mrs. Soda from getting earlier medical treatment that could have saved her life. It is argued that even if Mrs. Soda had cancer prior to the alleged neglect of the two defendant doctors, such would not have necessarily precluded any recovery in this case by the plaintiffs. The plaintiffs contend that under the rule established in Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), if a failure to treat a problem concurs with some other cause, a defendant physician can still be held liable, unless the evidence demonstrates that the other cause would have produced the harm to the patient, independent of the neglect of the defendant medical practitioner. Plaintiffs maintain, however, that the above-referenced portion of the charge left the jurors with an erroneous impression concerning the nature of proof which had to be established in order for the jurors to find for the plaintiffs and against the defendants. We cannot agree with such contentions.

First, it must be recognized that the part of the charge now challenged by plaintiffs only referred to Dr. Baird, and made no reference to Dr. Ellis or K. & A. X-Ray Associates. Accordingly, there is no basis for the plaintiffs’ suggestion that this aspect of the charge would entitle the plaintiffs to a new trial on their claims against the latter defendants.

As to the plaintiffs’ claims against Dr. Baird, we also find no basis for ordering a new trial in this aspect of the trial court’s charge to the jurors. It appears that when the trial judge made reference to the “natural course” of the decedent’s medical problem when she visited Dr. Baird in 1980, he was referring to substantial evidence of record offered by the experts for the parties during trial, as to what the natural course of Mrs. Soda’s cancer may have been. The plaintiffs’ expert, Dr. Harris, testified there was no way to tell when the cancer started to spread throughout Mrs. Soda’s body from her breast. Nevertheless, Dr. Harris opined that the natural course of the cancer was such that it probably spread throughout the body after April, 1980. On the other hand, Dr. Lerner, whose expert testimony was relied upon by Dr. Baird, related that the natural course of the cancer was such that by the time Mrs. Soda saw Dr. Baird, in April, 1980, the cancer was already present, and had metastasized, or spread, through her body in areas other than the breast. Dr. Lerner explained that by the time the lump was palpable in Mrs. Soda’s breast, as it was during her April, 1980 visit with Dr. Baird, it was an indication that the cancer had already spread, and she was destined to die of the disease, regardless of whether treatment had been instituted at that time, or at any time before she subsequently died.

The trial judge could have chosen other words to better explain to the jury that Dr. Baird could not be held responsible for any course of the cancer that, in its natural course, had already spread to other areas of her body. However, any misconception on that point that the jurors may have had, because of the wording used in the comment in question, was certainly cured by the following clear statement by the trial judge, at the conclusion of his charge to the jury:

“Now, I want you to think of this, but don’t talk about it while you are home this evening because I don’t want you to forget any of the charge or any of the arguments of counsel. The question, ladies and gentlemen, here for you to decide is whether the conduct of the defendants caused the spread of this cancer or increased the risk of its spreading. Is that clear to you? Now, remember I told you just a few moments ago about the spread of the cancer could be to some innocuous part or it could be to a vital part, and we do know that it did spread to a vital part. And you have to decide, based upon this evidence, whether it had already spread to a vital part on April of 1980. And if you determine that it had, which is the time when the plaintiffs are contending that there was the probability of medical malpractice, then you will have to determine whether the doctors, under that scenario, were negligent.”

This statement to the jury certainly cured any misimpression which may have been created by the earlier comment.

Moreover, on the same issue, we cannot ignore that the trial court submitted the issues in dispute in this case to the jury in special interrogatories. In doing so, the court stated that the defendant physicians would be liable to the plaintiffs if the jury found that the defendants were negligent, and that such negligence was a substantial factor in the spread of Mrs. Soda’s cancer. Such a specific inquiry targeted the particular issue of whether Dr. Baird and/or Dr. Ellis acted or failed to act in such a way that contributed to the spread of cancer in Mrs. Soda’s body from the mass in her breast. In light of this specific inquiry, and the responses issued by the jury, even if we concluded that the statements in question were possibly misleading, we cannot hold that they tainted the charge as a whole, or that they provide any justification for the grant of a new trial. Accordingly, we reject the plaintiffs’ initial claim of error as to the trial court’s instructions to the jury.

We next address the contention that the trial court improperly instructed the jurors that the plaintiffs had to prove, within a reasonable degree of medical certainty, that the defendants’ negligence caused Mrs. Soda’s death. In that regard, the plaintiffs cite the following portion of the trial court’s charge to the jury:

“If you believe that it cannot be determined with reasonable medical certainty whether the alleged injuries sustained by Mrs. Soda subsequent to the treatment was or was not caused by an act of the doctors, or the failure to act on the part of the doctors, or by anything over which the doctors had control, then you should return a verdict in favor of the doctors.”

The plaintiffs argue that in this part of the court’s instructions, the trial judge indicated to the jury that there was a requirement not only that the plaintiff offer expert testimony that satisfies the “reasonable medical certainty” standard, but also that the plaintiffs’ burden of proof in the case was one to demonstrate a right to recover with reasonable medical certainty, rather than merely based upon a preponderance of the evidence. In that regard, the plaintiffs maintain that the court’s charge mandated a much more strict burden on them than would be required in these circumstances under the standards enunciated in Hamil v. Bashline, supra.

Viewing the charge as a whole, we cannot agree that the jury, by the extract from the charge cited by the plaintiffs, was instructed that the plaintiffs had any burden of persuasion beyond that of presenting the jurors with the preponderance of the evidence. First, we believe that the “determination” referred to in the instruction is not the determination to be made by the jury, as argued by plaintiffs, but instead refers to the determinations of the medical experts who testified at the trial. The words used by the trial judge simply do not convey the instruction to the jurors to apply their own standard of reasonable medical certainty in evaluating the evidence.

Further, in our review of the entire charge, with regard to plaintiffs’ contentions on this point, we cannot ignore the following portions of the charge which bear on whether the jury was properly instructed on the right of the plaintiffs to recover under the causation rules established in Hamil v. Bashline, supra., and on the issue of the plaintiffs’ burden of proof:

“In civil cases such as this one, the plaintiff has the burden of proving those contentions which entitle him or her to relief. When a party has the burden of proof on a particular issue, his contention on that issue must be established by a fair preponderance of the evidence. The evidence establishes a contention by a fair preponderance of the evidence if you are persuaded that it is more probably accurate and true than not.
To put it another way, think, if you will, of an ordinary balance scale with a pan on each side. On to one side of the scale place all of the evidence favorable to the plaintiff. On to the other place all of the evidence favorable to the defendant. If, after considering the comparable weight of the evidence, you feel that the scales tip ever so slightly or to the slightest degree in favor of the plaintiff, your verdict must be for the plaintiff. If the scales tip in favor of the defendant or are equally balanced, your verdict must be for that defendant.
In this case, the plaintiff has the burden to prove, one, that either or both of the physicians were negligent, and that that negligent conduct was a substantial factor in bringing about the plaintiffs injuries, or Mrs. Soda’s injuries.
If, after considering all of the evidence, you feel persuaded that those propositions are more probably true than not, then the plaintiff has maintained their burden. However, the defendant, as I told you earlier, has the burden of proving the contributory negligence of the plaintiff. And you must decide, after weighing the evidence, whether the defendant has maintained that burden.
When a defendant physician negligently fails to act or negligently delays in employing indicated diagnostic or therapeutic measures, and his negligence proximately causes injuries to his patient, the plaintiff does not have to prove to a certainty that proper care would have, as a medical fact, prevented the injuries in question. If a defendant physician’s negligent action or inaction has effectively terminated his patient’s chance of avoiding injuries, he may not raise conjectures as to the measure of the chances that he has put beyond the possibility of realization.
If there was any substantial possibility of avoiding the injuries, and the defendant has destroyed that possibility, he is liable to the injured party.
A causal connection between the injuries suffered and the defendant’s failure to exercise reasonable care may be proved by evidence that the risk of incurring those injuries was increased by the physician’s negligent conduct.
Now, the law recognizes that it’s rarely possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not permit to come to pass.
******
Now, I want you to think of this, but don’t talk about it while you are home this evening because I don’t want you to forget any of the charge or any of the arguments of counsel. The question, ladies and gentlemen, here for you to decide is whether the conduct of the defendants caused the spread of this cancer or increased the risk of its spreading.
******
Now, I told you that the plaintiff had a burden of proof, and I want to clarify it. The plaintiff’s burden of proof is by a preponderance of the evidence. And the defendants, in seeking to show that Mrs. Soda was negligent, have to do that by a preponderance of the evidence. The plaintiffs’ case, in seeking to show that by a preponderance of the evidence that the defendants were negligent, they establish this if you believe their expert testimony, and it should be proven in cases of this nature by expert testimony, and that testimony coming from the experts must be testified to to a degree of reasonable medical certainty. Is that clear to you?”

These sections of the trial court’s charge make it clear that the jurors were instructed as to the plaintiffs’ right to recover under the increased risk of harm standard established in Hamil v. Bashline, supra., and also were left without any doubt that the plaintiffs’ burden of proof was to establish a preponderance of the evidence. The limited, out-of-context extract cited by the plaintiffs with respect to this argument provides no basis for the grant of a new trial.

We next address the contention of the plaintiffs that the trial court erred in requiring that the plaintiffs prove that the defendants caused the spread of the cancer in Mrs. Soda. The plaintiffs maintain that they never claimed that the defendants caused the spread of cancer, but rather contended that the neglect of the defendants was in their failure to intervene to prevent the further spread of the cancer. They argue that the court’s charge made it appear that they had to prove that the defendants actually spread the cancer. In raising this claim, the plaintiffs do not cite a particular section of the trial court’s charge to the jury, but rather indicate that the trial court generally defined the injuries in question as the spread of cancer, particularly in the special interrogatories submitted to the jury.

In our discussion of the plaintiffs’ allegations that the trial court’s charge was improper, under Hamil v. Bashline, supra., and in relation to the preponderance of proof burden of proof, extended portions of the trial court’s charge were set forth in this opinion. Those same sections of the charge negate the plaintiffs’ contentions that the trial court suggested to the jury that the defendants could{ only be liable if they were responsible for actively spreading the cancer in Mrs. Soda’s body. Rather, the trial judge informed the jurors that if a defendant physician negligently fails to act or to employ indicated diagnostic therapeutic measures, when such measures might possibly have resulted in the avoidance of the harm caused to the plaintiff, the defendant physician is liable to the injured party. Reading the charge as a whole, we find no basis for the suggestion that the trial judge instructed the jurors that in order to hold defendants liable they had to find that the plaintiffs had proved that they caused the spread of the cancer in the decedent. Therefore, we also reject that claim of error.

Finally, we address the plaintiffs’ contention that the trial court improperly instructed the jury concerning the distinction between negligent conduct of a defendant physician and errors in judgment by a physician. We have reviewed the section of the trial court’s charge to the jury concerning errors in judgment. In that regard, we find that the charge comported with the principle that a physician may not be held liable in a case such as this, merely upon evidence of the commission of an error in judgment. Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963); See also McAvenue v. Bryn Mawr Hospital, 245 Pa.Super. 507, 369 A.2d 743 (1976). As part of its charge concerning a physician’s errors in judgment, the trial court properly instructed the jury that a physician is not excused for an error of judgment which is negligent, gross or reckless. The plaintiffs’ final argument of reversible error with regard to the jury instructions is not convincing, and we find it does not establish any basis for a new trial.

The judgment of the trial court is hereby affirmed.

      . Defendant-Appellee K. & A. X-Ray Associates was the professional organization under which Dr. Ellis practiced at all times material herein.

      . It is expected that expert medical opinions on causation be expressed within a reasonable degree of medical certainty. See McMahon v. Young, 442 Pa. 484, 276 A.2d 534 (1971). It is also clear that the plaintiff in a medical malpractice case may prevail if before a fact finder based upon the preponderance of the evidence. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).