author: CAVANAUGH, Judge: WIEAND, Judge,

text:
    489 A.2d 821
    COMMONWEALTH of Pennsylvania, Appellee, v. Charles F. JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 13, 1984.
    Filed March 1, 1985.

      Marsha A. McClellan, Assistant Public Defender, West Chester, for appellant.
    James R. Freeman, District Attorney, West Chester, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   CAVANAUGH, Judge:

The appellant, Charles F. Johnson, was found guilty in the Court of Common Pleas of Chester County of unauthorized use of a motor vehicle, theft by receiving stolen property, and theft by unlawful taking. Appellant’s motions for new trial and in arrest of judgment were denied and appellant was sentenced. This is an appeal from that judgment of sentence. We affirm.

Appellant’s convictions stemmed from an incident that occurred on August 16, 1980 at approximately 3:30 A.M. The appellant was sitting behind the wheel of a pickup truck that was “hung up” on a guardrail partially blocking a roadway. When the police approached, the defendant slid out of the truck through the driver’s side door. Because of its position against the guardrail, it was impossible to get out of the truck through the passenger door. Although the pickup was without power and totally inoperable, the key was in the ignition.

When questioned by the police, the appellant stated that he was walking and he went to give another person help getting the truck in gear. However, the appellant was unable to give police a description of this other individual even though he later testified that he had known this person for fifteen years. The appellant told the police that the other individual left the scene through the nearby woods.

On appeal, Johnson argues that the evidence was insufficient to prove guilt beyond a reasonable doubt; that the trial court erred in admitting evidence of appellant’s prior convictions for unauthorized use of a motor vehicle; and that it was improper for the prosecutor to characterize appellant’s statements to the police as a “story.”

The statute defining unauthorized use of an automobile, 18 Pa.C.S. § 3928, makes it an offense if the actor “operates” a motor vehicle without the consent of the owner. The appellant points out that at the time the police observed him behind the wheel, the truck was not running, its lights were not on, and it appeared to be out of commission. Consequently, appellant claims, the Commonwealth failed to show he was “operating” the truck for purposes of the statute, since there wasn’t any direct evidence that appellant was actually operating the vehicle in motion.

As the lower court correctly points out, however, the Commonwealth is not required to prove that the appellant was operating the vehicle in motion. The Commonwealth need only show that the defendant was in the vehicle behind the wheel and had control and management of it. Commonwealth v. Taylor, 237 Pa.Super. 212, 352 A.2d 137 (1975). In addition, the evidence in this case is sufficient to permit an inference that the pickup truck got where it was and in the condition it was in because the appellant had control over it. Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375, 384 (1974). We are satisfied that the jury had sufficient evidence to find that appellant did “operate” the vehicle within the meaning of the statute.

Appellant also contends that there was insufficient evidence to support his convictions for receiving stolen property and theft by unlawful taking. These claims were correctly dismissed by the lower court and do not merit any further discussion.

The next issue raised by appellant concerns whether or not the lower court properly admitted evidence of appellant’s prior convictions for unauthorized use of motor vehicles. The decision to admit evidence of prior convictions is within the discretion of the trial judge, whose decision will not be reversed absent an abuse of discretion. Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978); Commonwealth v. Kearse, 326 Pa.Super. 1, 473 A.2d 577 (1984).

Judge Wieand, in his dissent, cites Commonwealth v. Hogan, 321 Pa.Super. 309, 468 A.2d 493 (1983), a case he authored, for the principle that a dishonest intent is not an element of the offense and that therefore it cannot be used to impeach appellant. We do not think Hogan compels this conclusion. We note that in his brief, appellant argues only that other factors weigh against the admission of the prior conviction because they tend to prejudice the appellant. He does not argue that dishonesty is not an element of the offense. Furthermore, our review of the record indicates that this argument was not raised at trial. Nor was it raised in appellant’s post-verdict motions. “It is of course elementary that issues not preserved for appellate review or, even if preserved at the trial level, not raised by a party on appeal, will not be considered by an appellate court ... an appellate court is not to raise sua sponte issues which it perceives in the record where, as here, those issues are not presented at the appeal level.” Commonwealth v. McKenna, 476 Pa. 428, 437, 383 A.2d 174, 179 (1978). See also Commonwealth v. Simmons, 504 Pa. 565, 475 A.2d 1310 (1984); Commonwealth v. Lobiondo, 501 Pa. 599 n. 6, 462 A.2d 662 n. 6 (1983); Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975); Phillips Home Furnishings, Inc. v. Continental Bank, 467 Pa. 43, 46-47, 354 A.2d 542, 543-544 (1976).

In Hogan, we held that in order to convict one for unauthorized use of a vehicle, it is sufficient to show that the accused acted with recklessness “with respect to the lack of the owner’s consent. A person acts recklessly with respect to such lack of consent if he consciously disregards a substantial and unjustifiable risk that the owner has not consented.” Hogan, 321 Pa.Super. at 313, 468 A.2d at 495-96. (Emphasis Added.) The conscious disregard of a substantial and unjustifiable risk that one’s use of property lacks the true owner’s consent suggests that dishonesty is an element of the offense, and it cannot be disregarded no matter what gloss of “recklessness” is placed upon it.

The term “reckless” is used here to mean a conscious disregard for another’s property rights. It suggests something more than even gross carelessness. It reflects adversely on the offender’s trustworthiness, on his integrity in his dealings with others, and on his truthfulness.

We note that the crime of unauthorized use is similar to other theft related offenses which have been held to include an element of dishonesty (theft and robbery, Commonwealth v. Henderson, 497 Pa. 23, 438 A.2d 951 (1981); larceny, Commonwealth v. Perrin, 484 Pa. 188, 398 A.2d 1007 (1979); burglary, Commonwealth v. Hutchinson, 290 Pa.Super 254, 434 A.2d 740 (1981)).

Having properly determined that this offense involves dishonesty, the lower court then applied the balancing test set forth in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). As a result, there is no indication that the lower court abused its discretion. In addition, the trial court gave a strong cautionary instruction to the jury. Consequently, appellant’s contention is without merit.

Lastly, appellant maintains that he is entitled to a new trial because the prosecuting attorney, in his closing argument, referred to the appellant’s statements to the police as a “story.” After reviewing the record and noting that the trial judge gave a curative instruction to the jury we hold that this remark did not unduly prejudice the jury and does not warrant a new trial.

Judgment of sentence affirmed.

WIEAND, J., files dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. In my judgment it was an abuse of discretion to permit the Commonwealth to attack appellant’s credibility by showing two prior convictions for unauthorized use of a motor vehicle. I would reverse and remand for a new trial.

Charles F. Johnson was being tried for theft and unauthorized use of a motor vehicle. He had been found behind the wheel of a stolen pickup truck at 3:30 a.m. after the truck had become “hung-up” on a guardrail. Johnson testified that the truck had been driven by a friend and that he, Johnson, had not been aware of the fact that the truck had been stolen. The Commonwealth was then permitted, over objection, to attack his credibility by showing that on two prior occasions Johnson had been convicted of unauthorized use of an automobile. Johnson’s objection, contained in a motion in limine, was based specifically on decisions of the Supreme Court in Commonwealth v. Bighum and Commonwealth v. Roots (N.T. 35, 36). After the jury had returned a verdict finding Johnson guilty of theft by unlawful taking, theft by receiving stolen property and unauthorized use of a vehicle, Johnson filed a motion for new trial in which he preserved for review the trial court’s ruling. On direct appeal from the judgment of sentence, Johnson argues, inter alia, that “the trial court erred in admitting evidence of the appellant’s prior convictions.” (Appellant’s brief, p. 3, Statement of Questions).

Prior to the Supreme Court’s decision in Commonwealth v. Bighum, supra, the law was clear that if a defendant in a criminal case took the stand in his own behalf, the Commonwealth could introduce rebuttal evidence of a prior conviction for a felony or a misdemeanor crimen falsi to attack the defendant’s credibility. Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1961), cert. denied, 368 U.S. 945, 82 S.Ct. 384, 7 L.Ed.2d 341; Commonwealth v. Kostan, 349 Pa. 560, 37 A.2d 606 (1944). The theory was that “[i]f a defendant offer[ed] himself as a person worthy of belief, the jury ha[d] the right to know what kind of man he [was] — to aid in assessing his credibility.” Commonwealth v. Butler, supra 405 Pa. at 47, 173 A.2d at 474. This imposed an almost impossible burden on the members of the jury. For a juror to limit his or her consideration of a defendant’s prior criminal convictions strictly to a determination of credibility while refusing to draw an inference of guilt from the defendant’s perceived propensity to commit crime required the juror to engage in mental gymnastics frequently beyond his or her ability.

Instructions from the court to the jury that they are to consider the evidence of prior convictions only on the question of credibility and not on the issue of guilt are unlikely to effectively mitigate the prejudicial impact of prior conviction evidence. Such instructions require the jury to walk a mental tightrope. On the one hand, the jury is told that it may infer from a past conviction that the witness has a propensity to lie. On the other hand, it is forewarned not to infer from the witness’ past conviction a propensity to engage in the kind of criminal activity for which he now stands accused. It is unlikely that jurors will be able to so compartmentalize their thought processes as to draw only inferences which go to the question of credibility.
Judge Learned Hand in Nash v. United States [54 F.2d 1006 (2 Cir. 1932)] aptly described these instructions as the “mental gymnastic which is beyond, not only their [the jury’s] powers, but anybody’s else [sic].” The Advisory Committee, which drafted the Proposed Federal Rules, also expressed misgivings. It observed that the introduction of such evidence against a criminal defendant to impeach his testimony might create “such an atmosphere of aspersion and disrepute about the defendant as to convince the jury that he is an habitual lawbreaker who should be punished and confined for the general good of the community.” Moreover, a study of juries undertaken by the University of Chicago showed that juries were unable to refrain from concluding on the basis of the defendant’s criminal record that he was a bad man and, hence, was more likely guilty than not guilty of the crime for which he was standing trial.
Hence, it is clear that the introduction of prior conviction evidence creates grave risks of prejudice.

Krauser, The Use Of Prior Convictions As Credibility Evidence: A Proposal For Pennsylvania, 46 Temp.L.Q. 291, 294-295 (1973).

This concern prompted a careful reconsideration of the rule by the Supreme Court in Commonwealth v. Bighum, supra. Because the only legitimate purpose for introducing evidence of prior convictions was to cast doubt upon a defendant-witness’s veracity, the Court held that a prior conviction would be admissible only if it had been for a crime which reflected upon the witness’s veracity. Thus, the Court held, “it is important to limit the convictions ... to crimes involving dishonesty or false statement.” Id. 452 Pa. at 566, 307 A.2d at 262. Moreover, the Court held, the admissibility of such evidence was to be limited to situations where its use was of essential evidentiary value to the prosecution and not unreasonably unfair to the defense. Id., 452 Pa. at 567, 307 A.2d at 263.

This balancing test was refined by the Supreme Court in Commonwealth v. Roots, supra. The Court there held that the burden was on the prosecution to show that the need for evidence of prior convictions overcame its inherent potential for prejudice. Id. 482 Pa. at 41, 393 A.2d at 368. A non-exhaustive list of factors to be considered by the trial court was held to include:

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

Id., 482 Pa. at 39-40, 393 A.2d at 367 (footnote omitted). Before these considerations enter the equation, however, a threshold determination must be made that the conviction proposed to be shown by the Commonwealth involves “dishonesty or false statement.”

When the law of Bighum and Roots is applied to the circumstances of the instant case, it becomes evident that appellant’s prior convictions for unauthorized use of motor vehicles should not have been allowed. This evidence should not have been allowed (1) because “dishonesty or false statement” was not an essential element of the offenses for which appellant had previously been convicted and (2) because the inherent potential for prejudice in the evidence outweighed by far the prosecution’s need to show the prior convictions.

The offense of unauthorized use of a motor vehicle is defined at 18 Pa.C.S. § 3928 as follows:

A person is guilty of a misdemeanor of the second degree if he operates the automobile ... or other motor-propelled vehicle of another without consent of the owner.

It has been said that “[t]his legislation is directed mainly against the phenomenon of 'joy-riding’, i.e., taking someone else’s car without permission, not meaning to keep it, but just for the pleasure of driving it____ The offense is typically committed by youngsters____ The prohibited activity is characterized in present laws as (1) taking without intent to deprive permanently, (2) using, or (3) driving or operating without intent to steal, or a combination of these.” Toll, Pennsylvania Crimes Code Annotated § 3928, quoting Model Penal Code Comment [T.D. No. 2, p. 89] (emphasis added). The only criminal intent required by the Pennsylvania statute is recklessness. It is enough that a defendant knows or has reason to know that he does not have the consent of the owner. A conviction can be had if the defendant consciously disregards a substantial and unjustified risk that the owner did not consent to his use of the vehicle. Commonwealth v. Hogan, 321 Pa.Super. 309, 312-315, 468 A.2d 493, 495-496 (1983). See: Commonwealth v. Utter, 279 Pa.Super. 557, 421 A.2d 339 (1980). Because a dishonest intent is not a necessary element of this offense, I would hold that a conviction for unauthorized use of a motor vehicle is not relevant to impeach the credibility of a witness in a court of law.

Moreover, even if we assume that appellant’s prior conviction for unauthorized use of a motor vehicle had some slight relevancy to attack his credibility, the prejudicial effect thereof so greatly outweighed its relevance that the evidence should not have been allowed. The arrest occurred when police, at or about 3:30 a.m., came upon a pickup truck which had collided with and was wedged against a highway guardrail. When the police approached the truck, appellant was observed sitting behind the steering wheel. He exited the truck and walked toward the police. Appellant told the police that he had come upon the truck while walking along the highway and had stopped to give “a hand” to the driver. Appellant said that the driver, whom he could not identify or describe, had left the area by walking through the woods. Appellant was thereupon arrested and charged with unauthorized use, theft by unlawful taking and theft by receiving stolen property.

At trial, appellant explained that he had been a passenger in the truck while it had been driven by his friend of fifteen years, Lionel Toalton. He said he did not know that the truck had been stolen. When the truck failed to function properly, appellant said, the truck had been allowed to drift down the hill. As a consequence, the truck had become “hung-up” on the guardrail. While appellant remained seated on the passenger’s side, he said, Toalton had exited the truck to ascertain whether the truck had been damaged. Instead of returning to the truck, appellant testified, Toalton left to get help. While he was absent, the police arrived.

Toalton declined to testify at the trial on grounds that his testimony might tend to incriminate him. The Commonwealth’s evidence, therefore, was circumstantial. If the permissible inference of guilt to be drawn from the circumstances was to be rebutted, it was probably necessary that appellant testify in his own behalf. Most persons in appellant’s position would find an explanation not only appropriate but absolutely essential.

To permit the Commonwealth to impeach appellant thereafter by showing prior convictions of unauthorized use of a motor vehicle was unnecessary to the Commonwealth and grossly prejudicial to the defendant. In the first place, as we have seen, the prior convictions were for offenses which had little, if any, relevancy in determining whether appellant was a truth-telling witness. Secondly, appellant’s prior criminal record consisted of offenses of the same type for which he was then being tried. Therefore, it was almost certain that his prior record would suggest a propensity to commit the very crime for which he was being tried. See: Commonwealth v. Williams, 273 Pa.Super. 389, 417 A.2d 704 (1980). Finally, the Commonwealth had alternative means available to it for attacking appellant’s credibility. It could effectively impeach his credibility as a witness by showing the prior inconsistent, if not ridiculous, statement made by appellant to the police prior to his arrest.

After the Commonwealth had been permitted to show appellant’s two prior convictions for unauthorized use of a motor vehicle, no reasonable expectation remained that the jury would be able to base a verdict solely on the relevant, substantive evidence. The jury was no longer impartial and objective. The Commonwealth’s evidence had established that appellant was a criminal; and, therefore, a guilty verdict on the pending charges had become a virtual certainty.

It may very well be that appellant is guilty, as the jury found him to be. I am not persuaded, however, that he received the fair trial which our law guarantees. Therefore, I would reverse the judgment of sentence and remand for a new trial.

The majority seeks to buttress its determination that appellant received a fair trial by suggesting that he has waived, at least in part, the issue of the admissibility of prior convictions because he failed to use sufficiently specific language in making his objection. This conclusion is not warranted. Appellant’s objection was based specifically upon the holdings of the Supreme Court in Bighum and Roots. The trial court’s ruling which permitted the jury to consider evidence of prior convictions to attack appellant’s credibility was thereafter preserved for review at each and every stage of the proceedings. It was not essential to a preservation of the issue that it be more particularly defined by reciting one or more specific portions of the balancing test stated in Bighum and Roots. This Court is not relieved of its duty to decide issues correctly because appellant’s counsel has made a weak argument, used the wrong words, or even overlooked established legal principles in advancing his argument. It is issues which are waived, not arguments. The law would truly be uncertain, even unpredictable, if litigated issues were decided solely on the basis of arguments advanced by counsel to the exclusion of well established principles of law.

I dissent.

       In reviewing the record, we note the absence of the transcript of the judge’s charge to the jury.

      . 452 Pa. 554, 307 A.2d 255 (1973).

      . 482 Pa. 33, 393 A.2d 364 (1978).


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    489 A.2d 828
    Victor ROSSI, Jr., Appellant, v. The PENNSYLVANIA STATE UNIVERSITY, Donald W. Johnson, Individually and as Udis Director, Robert Dunham, Individually and as Vice President for Undergraduate Studies, Quentin Wood, President of the Board of Trustees and Edward D. Eddy, Provost, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1984.
    Filed March 1, 1985.

      Joseph A. Grappone, Assistant Public Defender, Altoona, for appellant.
    R. Mark Faulkner, Langhorne, for appellees.
    Before CAVANAUGH, CIRILLO and JOHNSON, JJ.
   CAVANAUGH, Judge:

Victor Rossi, Jr., the appellant herein, had been employed at The Pennsylvania State University at State College, Pennsylvania, as a motion picture production specialist in the University Division of Instructional Services (UDIS). The appellant commenced an action in trespass and assumpsit against The Pennsylvania State University, Donald W. Johnson, Director of the University Division of Instructional Services, Robert Dunham, Vice President for Undergraduate Studies, Quentin Wood, President of the Board of Trustees of The Pennsylvania State University and Edward D. Eddy, Provost of The Pennsylvania State University, the appellees herein. The complaint contained two counts: count one was in trespass for wrongful discharge and count two was in assumpsit for breach of contract. Count one of the complaint alleged that the appellant, while an employee at The Pennsylvania State University from 1976 until he was discharged in July, 1980, continually pointed out to his superiors, Johnson and Dunham, “the waste of tax dollars, mismanagement of U.D.I.S., waste of the much needed U.D.I.S. facilities and services and in general significant waste of a multi-million dollar media facility over several years.”

With respect to his alleged wrongful discharge, the appellant further contended:

13. That after years of effort in trying to get the director of U.D.I.S., defendant Johnson to stop the waste, and also his supervisor defendant, Dunham, and the Provost Office through defendant Eddy and even the Board of Trustees through defendant Wood, plaintiff was wrongfully discharged as a direct result of such efforts. 15. The plaintiff was wrongfully discharges [sic] for attempting to promote the public policy of stopping the waste of tax dollars and providing the state with an effective resource for which there is a clear mandate, and which was being violated by the University and its agents, the above named defendants and each of them. Count Two, which sounded in assumpsit, alleged that

Johnson and Dunham and appellant “entered into an oral agreement wherein defendant agreed to give plaintiff the first job opening in his field or to retrain plaintiff for any job that opened in another field.” It was further alleged that defendants, appellees, breached their agreement by giving a job in appellant’s field to one Gerald Hutchinson and that “Dentant [sic] Wood and Eddy acquiesced in such actions with disinterested malice.”

The court below entered an order granting the appellees’ motions for summary judgment as to Count One and the motions for summary judgment of appellees Eddy, and Wood, as to Count Two. The motions for summary judgment by appellees, The Pennsylvania State University, Johnson and Dunham as to Count Two, were denied. An appeal was taken to this court from the order of July 13, 1983.

The first problem we consider is whether the order granting summary judgment in favor of all of the defendants as to Count One and as to defendants, Quentin Wood and Edward D. Eddy as to Count Two is appealable. While the appellees have not raised this issue, we may do so sua sponte. Rigidply Rafters, Inc. v. Aetna Casualty & Surety Co., 311 Pa.Super. 549, 457 A.2d 1318 (1983); Swift v. Milner, 296 Pa.Super. 463, 442 A.2d 1144 (1982). Generally, an order is interlocutory and not appealable unless it effectively puts the litigants out of court, terminates the litigation or disposes of the entire case. Rigidply Rafters v. Aetna Casualty & Surety Co., supra. In applying the rule “we must look beyond the technical effect of the adjudication to its practical ramifications.” Jackson v. Moultrie, 288 Pa.Super. 252, 255, 431 A.2d 1033, 1034-5, (1981). In the instant case, the matter has not been ended by the court’s grant of limited summary judgment and the litigation continues. However, the appellant is out of court as far as Count One is concerned and as far as defendants Eddy and Wood are concerned in Count Two. An analogous case is found in Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). In that case the plaintiff joined three separate causes of action in one complaint. One count alleged false arrest and malicious abuse of process. Another count alleged assault and battery. The court below entered summary judgment in favor of one defendant in the count alleging false arrest and abuse of process. We held that the appeal was proper and that “where, as here, a final judgment has been entered on a separate cause of action, that judgment is appealable.” In the instant case, a final judgment has been entered as to Count One as far as all defendants are concerned and is appealable under Praisner v. Stocker, supra. A separate problem exists as to Count Two, alleging an oral contract. The court entered summary judgment only as to defendants, Wood and Eddy, and the action continues as to defendants Johnson and Dunham in their individual and representative capacities and against The Pennsylvania State University. While the action continues below, it is terminated as far as appellant’s claim against Eddy and Wood are concerned and summary judgment in their favor is, therefore, appealable.

Returning to our consideration of the appeal on its merits, we find that the court below properly granted summary judgment to all appellees as to Count One. Summary judgment may be granted if the pleadings, depositions, answers to interrogatories and admissions on file, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 452 A.2d 269 (1982); Scheetz v. Borough of Lansdale, 64 Pa.Cmwlth.Ct. 24, 438 A.2d 1048 (1982). It is basic that summary judgment may be entered only in a case that is clear and free from doubt. Dunn v. Teti, 280 Pa.Super. 399, 421 A.2d 782 (1980); Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 421 A.2d 747 (1980). The appellees’ motions were based on the pleadings and appellant’s uncontradicted depositions. The appellant’s job consisted of making films for various university departments using university equipment. He alleged that prior to and at the time of his firing, he informed his superiors that although the university had purchased millions of dollars of equipment to make movies, that his superiors were not utilizing the UDIS or its staff to make movies, but were instead paying a great deal of money to outside private companies to make movies. He specifically testified that on or about February 8, 1980, the appellant was informed that his position would be terminated on or about July 1, 1980 because of a reduction in the UDIS budget and lack of work in the appellant’s area of employment. In general, an employer may discharge an employee at any time, without cause, in an employment at will, as we have in this case. However, the leading case of Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974) established the principle that an employee at will may have a cause of action against the employer for wrongful discharge when the discharge threatens public policy. This court pointed out in Yaindl v. Ingersoll-Rand Co. 281 Pa.Super. 560, 572, 422 A.2d 611, 617 (1980) that “the precise extent to which the employer’s interest in running his business is limited by considerations of public policy cannot be stated but must be worked out on a case by case basis.” The court further stated at 281 Pa.Super. 573, 422 A.2d 618:

On the case before it the Court found that the employer’s exercise of the right to discharge an employee at will was not impermissible because no facts were alleged from which one could infer that the employer discharged the employee with the specific intent either to harm him, or coerce him to break any law, or otherwise compromise himself. 456 Pa. at 178, 180, 319 A.2d at 177-178.5

Footnote 5 states:

5. It is sometimes said that Geary recognizes an action for wrongful discharge by an employee at-will in two situations: 1) where the employer’s discharge is motivated by a specific intent to harm the employee; and 2) where the discharge violates a clear mandate of public policy. See O’Neill v. ARA Services, Inc., 457 F.Supp. 182, 186 (E.D.Pa.1978). While this is a fair reading of Geary, as our foregoing discussion indicates, we think it more accurate to say that Geary’s proscription of a discharge motivated by a specific intent to harm is rather an example of when a discharge violates public policy.

In the recent case of Cisco v. United Parcel Service, 328 Pa.Super. 300, 476 A.2d 1340 (1984) the trial court sustained preliminary objections to a complaint alleging wrongful discharge. The appellant, who worked for United Parcel Service, was discharged by his employer after he was charged with theft and trespass resulting from making a delivery. He was subsequently tried and acquitted by a jury, but his employer refused to rehire him. The court held that no public policy was violated by discharging the complainant on the basis of his having been charged with a crime in the circumstances of this case. We noted that in deciding cases involving alleged wrongful discharge there

is the necessity for a thorough review of the circumstances surrounding a discharge of an at-will employee.4 First, we must discern whether any public policy is threatened thereby; second, even when an important public policy is involved, an employer may discharge an employee if he has separate, plausible and legitimate reasons for doing so. (Footnote omitted.)

328 Pa.Super. at 306, 476 A.2d at 1343.

In Geary the employee was discharged because he was concerned that a product of his employer constituted a serious danger to anyone using it, and expressed this reservation to a vice president in charge of selling the product. He alleged that he acted with the best interest of the company and the general public in opposing the marketing of a product he believed to be defective, and that he was dismissed because of his activities. In Yaindl, supra, summary judgment was entered. The appellant alleged that certain pumps posed a serious safety hazard for those working near them. The court pointed out, however, that “no indication of the specific hazards supposedly posed by the pumps at the Ilatsider plant is to be found in the record, nor any instance of any injury caused by any pump sold by [the defendants].” This court held that summary judgment in favor of the defendant with respect to the claim of wrongful discharge was proper as we were unable to discern any clear public policy that was threatened by his discharge, even though there was a claim that public safety was involved.

These cases must be contrasted with Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978) where we reversed the entry of compulsory nonsuit in favor of the employer. The evidence supported the conclusion that the plaintiff was fired because he served on a jury. We held that the jury should have been allowed to determine if this was, in fact, the reason for his dismissal.

Similarly, in Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980), we reversed the dismissal of the complaint for failure to state a cause of action. The complaint alleged that the plaintiff applied for a job as a bus driver, but that he was not hired because he did not reveal on his application that he had been convicted of aggravated assault and battery, although he was subsequently pardoned by the governor. We held that the court should not have sustained the defendant’s demurrer as “the reasonableness of the Port Authority’s refusal to hire the appellant is not apparent on the face of the complaint.” 277 Pa.Super. 17, 419 A.2d 638.

In the instant case, the appellant alleges that he was fired because he pointed out to his superiors ways in which tax money could be saved by. using the resources of UDIS. It is alleged that there is a clear public policy to save tax dollars and that his employer violated this policy by firing him. All would agree that it is desirable to save taxpayers’ money, but the issue in this case does not go to that principle, but rather whether the employer violated a public policy in firing the appellant. We must view all of the evidence in the light most favorable to the appellant as the non-moving party, in connection with the motions for summary judgment. Bowman v. Sears, Roebuck & Co., 245 Pa.Super. 530, 369 A.2d 754 (1976). Using this test, it was established that the appellant was employed by The Pennsylvania State University as a motion picture production specialist from 1972 until June, 1980. In 1978 he was awarded a master’s degree by Pennsylvania State University in the College of Liberal Arts. While employed at Penn State he worked on films and he described his duties as follows.

Q. You will have to bear with me. What does working on the film involve?
A. That includes developing an idea for the film, a basic thought for the film, trend or the story line, preparing the equipment to shoot it, shooting it, the film, making sure the film was processed and after it was returned from the processor it was to be checked, sent in for work print or stored or whatever.
That responsibility was at the hands of the motion picture production specialists, such as myself.

Dr. Johnson was the Director of UDIS and Dr. Dunham was a Vice President for Undergraduate Studies which oversees UDIS. Both Dr. Dunham and Dr. Johnson were the appellant’s superiors. Appellant went to Dr. Johnson in 1978 after he had received his master’s degree and told him that he wanted “to be more helpful in helping UDIS be more visible, proactive, productive and better service the University.” Dr. Johnson told him in effect that he didn’t want his talents. The appellant then told Johnson that he had “no intention of leaving Penn State because there appears to be work to be done here” and that perhaps he had better take this up with Dr. Dunham (Dr. Johnson’s superior) and Johnson told him to do so. The appellant then went to Dr. Dunham and again complained about UDIS that it was “not visible. It is not proactive. It is not productive. It is not serving the University in its best interests. I would like to help for it to do that.” Dr. Dunham said that he would see what could be done.

There was a reorganization that went into effect in 1979 but appellant was still not satisfied and again complained to Dr. Dunham as follows:

This is after the reorganization, and I told Doctor Dunham that I was very optimistic about it, about the fact that it was reorganized. But I was afraid that the only thing that was done was superficial changes and that the fact that UDIS was not proactive, visible, productive or serving the University to its capacity, to the capacity that it should was going to continue even though there was a reorganization.

These were basically the same complaints that appellant had before the reorganization, and after the reorganization work was declining in the motion picture section. The appellant asked both Dr. Johnson and Dr. Dunham that he be allowed to find work for UDIS outside of the University, but he was not permitted to do so. Appellant further testified:

I said, Dr. Dunham, why is Motion Picture Services suffering when an outside entity is coming in and taking University dollars. I found this highly incongruent.
I told Doctor Dunham, Doctor Dunham, something is wrong at UDIS. Do something about it or else I will go to people who will listen to me before they listen to you.
Q. What in your view was wrong with UDIS at that point?
A. An incompetent supervisor who didn’t care and was cruel and demeaning to staff members, who did not have the best interests of the University at heart. He didn’t care.
When I spoke to Doctor Dunham he said to me: What do you want me to do, fire him? In reference to Doctor Johnson.
And I said, no, Doctor Dunham, but just pay attention to what is not happening at UDIS and maybe we can resolve the problem. And I walked out of his office.
That happened in 1979 right after the supposed reorganization. (Emphasis added.)

In April, 1980, the appellant sent a memorandum to Dr. Edward D. Eddy, the University Provost, complaining about “administrative incongruities, inconsistencies and irregularities” which were having a “deleterious effect upon the UDIS staff.” The memorandum concluded with an implied threat: “I am sincerely hopeful that this matter may be addressed in a proper manner, within the inner structure of the University, thus averting any external embarrasment.” (Emphasis added.)

With respect to the memorandum sent to the Provost, the appellant testified:

Q. Can you explain what you mean by certain administrative incongruities, inconsistencies and irregularities?
A. Yes. I thought you would never ask.
Incongruities. It was incongruous to me that Doctor Johnson’s superior had been told by several UDIS staff members and nothing had been done about the situation.
It was incongruous to me that certain supervisors were sent to national gatherings and brought back nothing but restaurant reports.
It was incongruous to me that certain individuals were rewarded for mediocre performance and others were not rewarded for superior performance.
It is inconsistent that the individuals like Mr. DiMeo and myself should be made to suffer while it was we among others who were trying to improve the performance quietly, improve the performance of UDIS.
Q. When you say made to suffer, I assume you mean losing your job, is that correct?
A. I would say being screwed out of our jobs, yes. That is what I would say. (Emphasis added.)

After the appellant’s employment with the University was terminated in June, 1980, he wrote “as a concerned alumnus” to Quentin E. Wood, the President of the Board of Trustees of the University on May 13, 1981 and again complained about the waste of abilities, facilities, and other resources at UDIS and the fact that he received no administrative encouragement in his attempts to correct the deficiencies that he saw. The appellant testified that his complaints in the letter of May 13, 1981 were basically the same as he had prior to his discharge from the University.

The appellant testified specifically as to what he considered a waste of taxpayers dollars. He felt that the studios were only being used 50% of the time and that the “Director of UDIS did not know the mission of that particular unit, ...” He also testified that a lot of expensive film equipment was not being used. Good use was not being made of the “sound professional staff____ Those of us that had the intestinal fortitude to stick around under the circumstances were quite proficient in our work although we were stifled by the lack of administration and supervision there to do work.” Appellant also testified that in his view at least one-half million dollars of university funds were not being used effectively over a period of five or six years.

Appellant testified that he was told at a meeting with Dr. Dunham and Dr. Johnson on February 8, 1980, that his position at the University would be terminated. Dr. Dunham and Dr. Johnson informed the appellant “that because of budget cuts my position as motion picture production specialist was going to be closed.” The appellant agreed that there were budget cuts within UDIS, but testified that in his view he was fired because of his “willingness to point out the shortcomings and the waste of abilities, facilities and our resources including tax dollars at UDIS.”

Clearly the appellant disagreed with the way his immediate superior, Dr. Johnson, was running UDIS. His criticism included the basic complaint that Dr. Johnson did not even know what the mission of UDIS was, although the appellant did. He threatened Dr. Dunham, who was Dr. Johnson’s superior, that if Dunham did not do something to improve the situation at UDIS that the appellant would “go to people who will listen to me before they listen to you.” Appellant had a litany of complaints that his department was not proactive, visible, productive or serving the university and that, he and apparently others not in a management position, should be allowed to correct the situation. What existed as far as appellant was concerned was a classic example of an employee disagreeing with management decisions and complaining about the lack of competency and indifference of his superiors. He eventually was fired, and the reasons given were budget cuts within UDIS, which the appellant admitted existed.

We must not lose sight of the fact that in an employment at will under common law, the employee may be dismissed at any time without cause. The other side of the coin is that the employee may leave his employment at any time without incurring any legal obligations. An exception has been introduced to this rule under the public policy limitations, but there must be a clear mandate of public policy that has been violated, in order to trigger the exception. The question before us is whether there is a public policy against firing an employee who continuously complains about what he considers to be poor management of the unit in which he is an employee. In every situation in the public sector, where there is poor management, a loss of tax payers’ dollars must necessarily follow. Nevertheless, the test is still whether there is a public policy against terminating an at will employee who disagrees with the way in which his superiors are managing the department encompassing his employment. We think not. Initially this would have the unwise effect of transferring to the judicial forum the duty of evaluating the propriety of management decisions. The appellant was completely dissatisfied with the management of his department and attempted to influence his superiors to change the way in which things were being accomplished. He was especially hostile to the Director of his division, Dr. Johnson. An employer may rid itself of a troublesome employee, without liability for wrongful discharge in the absence of a violation of public policy. Boresen v. Rohm & Haas, Inc., 526 F.Supp. 1230 (E.D.Pa.1981). We agree with the court below that the appellant was not in a management position and yet he attempted to assume management prerogatives. We find no violation of public policy sufficient to justify an exception for the appellant. In Callahan v. Scott Paper Co., 541 F.Supp. 550 (E.D.Pa.1982) the plaintiffs alleged that they were wrongfully discharged because they objected to the fact that their employer, Scott Paper Company, was giving unlawful price discounts. The district court granted the motion of Scott Paper Company to dismiss the plaintiffs’ wrongful discharge claims. The court found that there was no real distinction in the public policy concerns in Geary, supra, and those involved in the Scott Paper Company case. “Accordingly, if the balance in Geary tipped in favor of the employer, I see no reason why the results should be otherwise here.” 541 F.Supp. 563. The court noted at 541 F.Supp. 562-63:

The Pennsylvania Supreme Court has never elaborated on its decision in Geary, but the dicta suggesting an exception to the employment at-will doctrine where the discharge violated a clear mandate of public policy was taken up shortly thereafter by several courts as embodying the law of Pennsylvania.
Although each case must be decided on its own facts, these cases are nonetheless revealing in that they evidence the great reluctance of the courts to recognize a right of action in an employee who alleged that he was terminated in contravention of public policy.

In this case, the appellant did not allege a specific intent to harm him, which might have supported an action for wrongful discharge. Yaindl v. Ingersoll-Rand Co., supra; Harrison v. Fred S. James, P.A., Inc., 558 F.Supp. 438 (E.D.Pa.1983). His cause of action must therefore stand or fall on violation of public policy and we find that there was no such violation.

The appellant also contends that the court below erred in granting summary judgment in favor of the appellees, Quentin Wood, the President of the Board of Trustees and Dr. Edward D. Eddy, the Provost of the University. This contention is without merit. The appellant does not claim that Eddy and Wood were involved in the breach of an alleged contract, but that they “acquiesced in such actions with disinterested malice.” The appellant admits that Mr. Wood and Dr. Eddy had no personal involvement in the alleged contract. We are satisfied that the pleadings and deposition establish no cause of action against Mr. Wood and Dr. Eddy and that summary judgment was properly entered in their favor. An agent of a disclosed principal is not personally liable in a contract between the principal and a third party. Vernon D. Cox & Co. v. Giles, 267 Pa.Super. 411, 406 A.2d 1107 (1979).

Judgment affirmed.

      . Appellee's motion for summary judgment was filed under Pa.R.C.P. 1035 which provides in part:
      Rule 1035. Motion for Summary Judgment
      (a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.
      (b) The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

        . See Public Policy Limitations to the Employment at Will Doctrine since Geary v. United States Steel Corporation, 44 University of Pittsburgh L.R. 1115, 1123-4: (1983)
      The holding in Geary is couched in negative terms: an employee will have no cause of action for wrongful discharge if there is a plausible and legitimate reason for the termination disclosed in the complaint and no clear mandate of public policy is violated. Although the court used the conjunctive in establishing the two elements which, if found, will not produce a cause of action for wrongful discharge, it is ambiguous whether the presence of either of the two elements (a plausible and legitimate reason for termination or a violation of a clear mandate of public policy) by themselves are sufficient to establish a wrongful discharge action. Thus in Reuther, even if the jury found that there was just cause for the dismissal but that a clear mandate of public policy was nonetheless violated, a cause of action for wrongful discharge could only arguably be sustained.61 Alternatively, if the jury found that no violation of a public policy had occurred but that there was no plausible and legitimate reason for the discharge, it is questionable whether a cause of action would lie.

      . With respect to the decline of work in the motion picture section and the appellant’s desire to bring in outside work he testified as follows:
      Q. Was your work declining in the Motion Picture section?
      A. Absolutely it was declining. I offered to Doctor Johnson during my 1978 conversation: Let me go out and find work.
      I made that offer. I made the offer again to Doctor Dunham: Let me go out. I have contacts through professional organizations and some of the work that I had done which had received awards. I was making contact with people who could have used our services. Q. You are speaking now of people within the University?
      A. No. I am talking about people outside the University. People within the University were in the same position we were. They didn’t have the money to spend on films.
      The appellant also testified that after he was fired there were still two employees at the University doing film work. He was asked:
      Q. Was there enough work for those two?
      A. I would say not, but they were doing other activities. Mr. Conklin was working in the tv section, and Mr. Hughes began working on audio tapes for still photo slide tape shows.

        But as far as the film work was concerned it kind of went by the boards. (Emphasis added.)

      . The letter to Mr. Wood concluded with the following:
      And, too, is it fair that Mr. Dimeo and this writer were made to suffer while we, along with a few others, were attempting to make UDIS more competitive, pro-active, productive, and visible despite the absence of administrative encouragement?

      Finally, is there a trustee among you who cares enough about Penn State University and has the intestinal fortitude to properly address the issues I have presented? Mr. Dimeo and this writer would certainly like to hear from you so that we may meet to discuss this matter in more detail. (Emphasis added.)

      . The appellant recorded on tape the meeting of February 8, 1980 and testified “Not wanting to leave myself defenseless, I took a tape recorder to that meeting.’-’ He further testified:
      A. Well, my reason for taping was I was in a vulnerable position, that I had told Dunham about the waste at UDIS. I told Johnson about the waste at UDIS.
      I felt if I was going to go into a confrontation with those gentlemen regarding my continued employment at the University that I had better keep a record of what was said and the promises made.
      The tape recorder was in plain view, and they did not question its presence.
      The whole conversation which is approximately 38 minutes or so is on the tape.

      . For the purpose of this discussion, we are accepting the appellant’s conclusion that he was fired as a result of his complaints about misuse of facilities and personnel within his department, and not as his superiors stated that he was fired because of budget cuts.


author: MONTEMURO, Judge:

text:
    489 A.2d 837
    COMMONWEALTH of Pennsylvania v. John M. LARKINS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued May 22, 1984.
    Filed March 1, 1985.
    Petition for Allowance of Appeal Denied Aug. 15, 1985.

      Robert F. Pappano, Assistant Public Defender, Chester, for appellant.
    Helen T. Kane, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   MONTEMURO, Judge:

Appellant was found guilty by a jury of first degree murder, third degree murder, and possessing an instrument of crime generally. Post-trial motions were timely filed, argued and denied by the trial judge, the Honorable Robert A. Wright, of the Court of Common Pleas of Delaware County.

On December 22, 1982, appellant was sentenced to life imprisonment for his conviction of first degree murder, with concurrent sentences of seven (7) to fourteen (14) years for third degree murder and one (1) to three (3) years for possessing an instrument of crime generally.

Appellant’s direct appeal from the judgment of sentence is now before us for review.

The court below has correctly summarized the events leading to appellant’s arrest:

At approximately 4:50 p.m. on May 21, 1980, John Larkins arrived home from work to his house in Upper Providence Township Delaware County, Pennsylvania. He turned on a tape recording device which he had installed on his telephone two days before and he listened to a telephone conversation that had taken place earlier in the day between his wife, Gale Larkins, and Alfred Huweart.
From listening to the tape, Larkins learned that his wife had gone to Len’s Place, a bar and restaurant located in Lima, Pennsylvania, to meet Mr. Huweart. Larkins drove to Len’s Place with a shotgun in his car, arriving at approximately 5:00 p.m. When he arrived at the bar he circled the parking lot and upon locating his wife and Huweart sitting in Huweart’s truck, Larkins parked his vehicle near the truck, and proceeded towards the truck carrying the shotgun. Larkins smashed in the window on the passengers side of the truck with the butt of the gun and pointed the shotgun inside the cab. He fired once, hitting his wife in the lower back. Alfred Huweart exited from the truck on the driver’s side and Defendant [appellant] went around the truck and shot Huweart twice, once in the arm and once in the back of his leg. John Larkins then returned to his vehicle and drove away.
Police arrived on the scene shortly thereafter and found both victims outside the truck bleeding profusely. Gale Larkins was pronounced dead upon arrival at Riddle Memorial Hospital and Alfred Huweart died on May 27th as a result of the injuries he sustained in the attack.
Following the shooting, Larkins drove to Delaware, where he called a friend and after a series of telephone conversations with different individuals, Larkins and his friend, Nicholas Bradley, discussed the procedure whereby Larkins would surrender to the police in Glassboro, New Jersey, which did occur at approximately 3:00 a.m. on May 22, 1980.

Lower Court Opinion at 3-5.

Appellant sets forth six claims of trial error and one general claim of trial counsel’s ineffectiveness, which we shall discuss in seriatim fashion.

Appellant’s first two claims of error are that the trial court erred in refusing to grant a mistrial where: (1) the prosecutor asked questions concerning the alleged taping by appellant of telephone conversations on occasions prior to the commission of the crime since the prosecutor did not thereafter produce legally competent evidence to substantiate the allegations; and (2) the prosecutor did not present evidence concerning the appellant’s relationship with his father.

Preliminarily, it must be said that appellant never denied killing his wife or her alleged paramour; rather his sole defense was that because of a diminished mental capacity, he was unable to form the necessary intent to commit the crime of murder.

In both instances, the challenged questions were directed by the prosecutor, as of cross-examination, to Theodore J. Barry, M.D., appellant’s psychiatric witness.

There is little question that it is improper for the prosecutor to ask questions which imply the existence of a factual predicate and which attempt to create impressions of guilt through innuendo. Commonwealth v. Smith, 457 Pa. 638, 644, 326 A.2d 60, 62 (1974).

At the same time, “[t]he test to be applied at motion for mistrial is whether improper evidence was admitted at trial, such as would so compromise the fact-finder that it would be unable to remain impartial, thereby prejudicing appellant beyond a reasonable doubt. Commonwealth v. Farrell, 265 Pa.Super. 41, 401 A.2d 790 (1979).” Commonwealth v. Dean, 300 Pa.Super. 86, 91, 445 A.2d 1311, 1313 (1982). “The grant or refusal of a motion for a mistrial generally rests within the sound discretion of the trial court and will not be reversed on appeal in the absence of a flagrant abuse of that discretion.” Commonwealth v. Fields, 317 Pa.Super. 387, 400, 464 A.2d 375, 382 (1983). “In determining whether to grant a request, the necessary inquiry is whether the alleged occurrence was prejudicial to the defendant, ‘that is [whether] it is such a nature ... that it may reasonably be said to have deprived the defendant of a fair and impartial trial.’ ” Commonwealth v. Farrell, supra, 265 Pa.Super., at 53, 401 A.2d at 796, quoting Commonwealth v. Phillips, 183 Pa.Super. 377, 382, 132 A.2d 733, 736 (1957).

We have reviewed the challenged questions as well as the answers given thereto by Dr. Barry. In every instance, Dr. Barry’s answers were helpful to appellant’s theory of diminished mental capacity and therefore we find no prejudice. Furthermore, the trial judge cautioned the jury that the evidence in the case came from witnesses and not from the attorneys; the mere fact that a question is asked is not evidence whatsoever of anything and the only evidence is the answer.

We also note that with reference to the prosecutor’s reference to a taping of certain conversations over a period of years, the prosecutor was prevented from producing evidence of the factual predicate because of a ruling by the trial court, and therefore appellant’s reliance on the A.B.A. Standards, Prosecution Function, 3-5.7(d) (2d ed., 1980) that “[it] is unprofessional conduct for a prosecutor to ask a question which makes the existence of a factual predicate for which a good faith belief is lacking,” (emphases supplied), is misplaced. Here the prosecutor was at all times acting with good faith.

Thus, appellant’s first two claims of error are dismissed as being without merit.

Next, appellant claims that the trial judge erred in failing to properly and adequately charge the jury on the doctrine of diminished capacity, and in refusing to give the supplemental charge requested by appellant.

The actual charge to jury was:

Now, as I have told you, the intentional killing required for First Degree Murder is a willful, deliberate and premeditated killing. The killer must make a conscious decision to kill and must have a fully formed intent to kill. In determining whether or not the Defendant [appellant] committed the crime of intentional killing required for First Degree Murder, you should consider the testimony of the expert witnesses as well as all other evidence, which may shed light on what was going on in the Defendant’s mind at the time of the alleged killing.

N.T. January 16, 1981 at 1264.

The supplemental charge on diminished capacity, requested and refused by the trial court was:

“1. When a defendant is charged with a crime which requires that a certain specific intent or mental state be established in order to constitute the crime or degree of crime, you must take all the evidence into consideration and determine therefrom, if, at the time when the crime allegedly was committed the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent or mental state essential to constitute the crime or degree of crime with which he is charged.
If from all the evidence you have reasonable doubt whether Defendant was capable of forming such specific intent or mental state, you must give Defendant the benefit of the doubt and find that he did not have such specific intent.
2. If you find from the evidence that at the time the alleged crime was committed, the Defendant had substantially reduced mental capacity, whether caused by mental defect, intoxication, or any other cause, you must consider what, if any, effect this diminished capacity had upon the Defendant’s ability to form any of the specific mental states that are essential elements of murder and voluntary manslaughter.
Thus, if you find that the Defendant’s mental capacity was diminished to the extent that you have a reasonable doubt whether he did, maturely and meaningfully, premeditate, deliberate and reflect upon the gravity of his contemplated act, or form an intent to kill, you cannot find him guilty of a willful, deliberate and premeditated murder of the first degree.
Also, if you find that his mental capacity was diminished to the extent that you have a reasonable doubt whether he did harbor malice aforethought, you cannot find him guilty of murder of either the first or second degree.
Further, if you find that his mental capacity was diminished to the extent that he neither harbored malice aforethought nor had an intent to kill at the time the alleged crime was committed, you cannot find him guilty of either murder or voluntary manslaughter.
3. Involuntary manslaughter is the unlawful killing of a human being without malice aforethought and without an intent to kill.
There is not malice aforethought and intent to kill if, by reason of diminished mental capacity caused by mental illness, mental defect, or intoxication the defendant did not have the mental capacity to harbor malice aforethought and formulate the intent to kill.
4. The intentional killing required for first degree murder is a willful, deliberate and premeditated killing. The killer must make a conscious decision to kill and must have a fully formed intent to kill. In determining whether or not the Defendant committed the kind of intentional killing required for first degree murder, you should consider the testimony of the expert witnesses as well as all other evidence which may shed light on what was going on in the Defendant’s mind at the time of the alleged killing.”

Appellant’s Supplemental Requested Point for Charge at 1-3.

The charge as given by the trial court was in accordance with the Pennsylvania Suggested Standard Jury Instruction, Section 5.01(B) (1978).

Appellate review of the charge of the court for prejudicial and reversible error requires that the charge be read and considered in its entirety; error will not be predicated upon isolated excerpts. It is the general effect of the charge which controls. Commonwealth v. Fields, supra; Commonwealth v. Romeri, 314 Pa.Super. 279, 460 A.2d 1139 (1983); Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980); Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978). A trial court is not required to accept a requested instruction verbatim so long as the court’s charge adequately, accurately and clearly explains the principles of law to the jury. Commonwealth v. Rhem, 283 Pa.Super. 565, 424 A.2d 1345 (1980).

We first find that appellant’s argument on the court’s alleged improper jury instruction concerning diminished mental capacity has been waived. At the conclusion of the charge, the court inquired of counsel if there was anything that he had misstated, omitted, distorted or overlooked and if there was anything further which should be said to the jury (N.T. January 16, 1981, at 1246). Whereupon, out of the presence of the jury, defense counsel argued to the court that his request for a charge on the jury’s “mercy-granting” powers which the court properly declined. (Id. at 1248-1250). The court granted defense counsel an exception. The prosecutor then said “I have just one question, The concept of the defendant’s state of mind. That was covered in the charge, am I correct?” (Id. at 1251) The court answered, “I thought it was.” (Id.). The prosecutor then said, “I thought so too. I just wanted to make sure.” (Id.). The court said, “All right” (Id.), and defense counsel said “Other than that, I have nothing else.” (Id.).

“The reason for requiring specific objection after the charge, even where points for charge had previously been proposed, are apparent. Primarily, it ensures that the court is given the opportunity to avoid error.” Commonwealth v. Martinez, 475 Pa. 331, 337-38, 380 A.2d 747, 750-51 (1977). Since appellant did not object to the court’s charge on diminished mental capacity, indeed he seemed to agree with it, following the trial court’s charge, he has waived any objection. Pa.R.Crim.P. 119(b); Commonwealth v. Brown, 490 Pa. 560, 570, 417 A.2d 181, 187 (1980); Commonwealth v. Martinez, supra.

However, even though this argument has been waived, it nevertheless is without merit.

To say that there was extensive testimony in this case concerning appellant’s diminished mental capacity would clearly be an understatement. Appellant’s psychiatric witness, Dr. Barry, testified during direct and redirect examination for two hours (N.T. January 13, 1981, at 638-724) and the Commonwealth’s psychiatric witness, Dr. Kenneth Kool, also testified at great length on both direct and cross examination (N.T. January 14, 1981, at 979-1066) and again in the Commonwealth’s rebuttal. (N.T. January 15, 1981, at 1071-1145).

The defense of diminished mental capacity was first recognized as a defense in Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). Recently, in Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), our supreme court stated:

In Walzack, this Court sustained as relevant the admission of certain psychiatric testimony to the effect that a pre-frontal lobotomy negated the required mens rea for murder of the first degree, namely, that the actor had formed the specific intent to kill. This Court has quite recently explained that diminished capacity is an extremely limited defense. Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982) and that Walzack stands only for the proposition that ‘psychiatric testimony which speaks to the legislatively defined state of mind encompassing a specific intent to kill is admissible.’ Id., 499 Pa. at 27-28, 451 A.2d at 1347.

Here, the trial court’s charge instructed the jury that appellant must have had a fully informed intent to kill and in determining whether or not appellant committed the crime of intentional killing required for first degree murder, they should consider the testimony of the expert witnesses as well as all the other evidence, which might shed light on what was going on in the appellant’s mind at the time of the alleged killing.

Appellant’s principal point of contention would appear to be that the court did not actually use the words “diminished capacity.” We decline to rule that it must. Consequently, our study of the objected to portions of the charge, as well as our reading of the entire charge, including the charge on expert witnesses and hypothetical questions, leads us to the conclusion that the charge, as a whole on the question of diminished capacity, was adequate.

Appellant’s fourth claim of trial error is that the trial court erred in failing to charge the jury that it may consider extenuating circumstances pursuant to its mercy dispensing power in determining the degree of guilt; his fifth claim is that the verdict was against the weight of the evidence; and, his final claim of trial error was that the trial court erred in refusing trial counsel’s application to become court appointed counsel or to supply financial assistance for the employment of a psychiatrist.

We have completed a thorough review of the entire record, as well as the briefs of the parties, and conclude that the learned trial judge, Honorable Robert J. Wright, has, in an able and thorough opinion, adequately and correctly ruled upon these fourth, fifth and sixth claims of trial error.

Finally, we are asked to reverse and grant a new trial on the general claim of ineffectiveness of trial counsel.

It is now black letter law, requiring no citation, that counsel will not be deemed ineffective for failing to pursue a meritless claim; that counsel’s assistance is deemed constitutionally effective where the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest; that the test for competency is not whether other alternatives are more reasonable, employing a hindsight evaluation of the record, but whether counsel’s assessment of the case and his advice were reasonable; and, finally, in order to be entitled to relief under a theory of ineffective assistance of counsel, it must appear that counsel’s action or inaction was prejudicial to the defendant.

In the case sub judice, the ineffectiveness claims are as follows:

1. Counsel was ineffective in permitting a juror whose mother had been the victim of a homicide to remain on the panel.

There is no credible evidence in the record to support such an allegation. On the contrary, trial counsel testified that he had consulted with appellant throughout the entire selection process and he did not select any juror over appellant’s objection (N.T. March 26, 1982, at 69). Appellant presented no evidence that a juror was related to a homicide victim and, since it was appellant’s burden to prove ineffectiveness, Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980), appellant has utterly failed to meet his burden.

2. Counsel failed to discuss with appellant the possibility of guilty pleas.

However, trial counsel testified that he had not received any offer of a plea agreement from the Commonwealth (N.T. March 26, 1982, at 71). Nevertheless, despite the absence of any offered plea, trial counsel testified that he attempted to prepare appellant in the event a plea agreement was forthcoming by explaining the differences between first and third degree murder. According to trial counsel, appellant wanted his case decided by the jury. (N.T. March 26, 1982, at 72).

There is no merit to this claim.

3. Counsel was ineffective because he was not properly prepared.

The record, however, indicates that trial counsel spent substantial time in the preparation of this case from time of retention to time of trial. This is especially true in view of the fact that appellant’s only defense was diminished mental capacity. Our supreme court has instructed that length of time is but one factor to be considered in evaluating the effectiveness of counsel. Commonwealth v. Sisco, 482 Pa. 459, 393 A.2d 1197 (1978). There is no merit to this argument.

4. Counsel was ineffective for permitting appellant to testify without adequately preparing him for said testimony.

This claim is directly contradicted by trial counsel who testified that he coached appellant by assuming the role of the prosecuting attorney in order to prepare him for cross-examination. (N.T. March 26, 1982, at 83-84). Trial counsel was of the opinion that appellant was fully prepared to testify. We are convinced that this claim not only lacks merit but is ridiculous as well.

5. Counsel was ineffective for permitting appellant to be examined by the Commonwealth’s psychiatrist in the trial judge’s chambers in the presence of the assistant district attorney, trial counsel and a sheriff’s deputy.

However, trial counsel testified that this was a matter of strategy on his part as he was unwilling to divulge to the Commonwealth, until forced to do so, the defense he was planning to utilize. Having waited, for strategic purposes, as long as he could, it reached the point when the Commonwealth was entitled to a psychiatric evaluation and the only time it could be arranged was in the courthouse. Trial counsel requested that he be present which of course necessitated the presence of the assistant district attorney. For obvious reasons, the sheriff’s deputy was present. Further, trial counsel testified that the Commonwealth’s psychiatrist took down a lot of his comments about appellant’s state of mind and that his presence was beneficial to appellant. Trial counsel also testified that the testimony of the Commonwealth’s psychiatrist, although not indicated by the final outcome, was beneficial to appellant. (N.T. March 26, 1982, at 80-81).

Clearly, appellant has shown neither ineffectiveness or prejudice.

6. Counsel was ineffective because he failed to examine certain evidence, namely a tape recording and some notes written by the appellant.

Trial counsel testified that he did not examine the tape because he believed that it was not admissible and in fact the trial court refused to admit such evidence. Since the tape was not heard by the jury, appellant has failed to demonstrate any prejudice from trial counsel’s failure to listen to it prior to trial. With reference to the notes, trial counsel testified that he had, in fact read this material (N.T. March 26, 1982 at 85), and was therefore prepared for its use at trial. We find no ineffectiveness.

7. Counsel was ineffective for failing to object to the court’s charge on the defense of diminished mental capacity-

Since we have ruled that the charge was proper, counsel cannot be held ineffective for pursuing a meritless claim.

For all of the above reasons, we affirm the judgment of sentence.

Judgment of Sentence affirmed.

      . 18 Pa.C.S. § 2502(a).

      . Id. § 2502(c).

      . Id. § 907(a).

      . The trial court held a hearing on the ineffectiveness claims and heard the testimony of George J. Giunta, Jr., Esquire, trial attorney, Anthony F. List, Esquire, and the appellant John M. Larkins, Jr. Appellant was represented by newly appointed counsel, Robert F. Pappano, Esquire, an assistant public defender.